1963  Present  : T. S. Fernando, J.

A. K A. M. KHAN and others, Appellants, and M. G. ARIYADASA,
Respondent

S. C. 707-711 of 1962-M. C. Matara, 66552

Indictment-Unlawful assembly-Joinder of charges based on unlawful assembly with charges based on existence of common intention-Validity-Judicial precedents-Principle of stare decisis-Scope-Offence committed by one member of an -unlawful assembly-Nature of offence committed thereby-Criminal Procedure Code, ss. 152 (3], 180 (1) (2)-Penal Code, ss. 32, 67, 146.

Charges based on the existence of an unlawful assembly may be validly joined in the game indictment with charges based on the existence of a common intention as described in section 32 of the Penal Code.

The five appellants were charged under section 146 of the Penal Code with having committed, as members of an unlawful assembly, the offences of house-trespass, rioting, and causing hurt. They were also charged with having committed, in the course of the same transaction, the substantive offences of house-trespass, wrongful confinement, and causing hurt.

Held, that there was no misjoinder of charges.

Don Marthelis v. The Queen (65 N. L. R. 19), not followed.

In regard to the principle of stare decisis, if a relevant authority or statutory provision is not mentioned in the judgment, the decision may be challenged.

Section 146 of the Penal Code creates an offence, but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore the appropriate punishment section must be read with it.

The question whether jurisdiction has been properly assumed in terms of section 152 (3) of the Criminal Procedure Code must be judged on the facts and circumstances as known to the Magistrate at the time the question came on to be decided by him and not by what may have happened at the trial at a point of time after he had decided that question.

APPEAL from a judgment of the Magistrate's Court, Matara.

Colvin R. de Silva, with M. L. de Silva and A. H. Moomin, for the 2nd and 4th accused-appellants.

G. E. Chitty, Q. C., with Prins Gunasekera, for the 3rd accused-appellant. 5th accused-appellant in person.

Colvin R. de Silva, with D. R. Wijegoonewardene, for the 6th accused-appellant.

C. Ranganathan, with G. D. C. Weerasinghe, for the complainant-respondent.

Cur. adv. vult.

30

May 6, 1963. T. S. FERNANDO, J.-

The 1st to the 5th appellants (who were respectively the 2nd to the 6th accused at the trial) and another who was the 1st accused thereat stood their trial in the Magistrate's Court of Matara on ten charges which are set out briefly in the following paragraph.

All six accused were charged in the first eight charges as follows :-

(1) being members of an unlawful assembly-punishable under section 140 of the Penal Code ;

(2) being members of the said unlawful assembly, committing house-trespass by entering the house of one Ariyadasa-punishable under section 434 read with section 146 of the said Code ;

(3) being members of the said unlawful assembly, using force or violence -punishable under section 144 of the said Code ;

(4) being members of the said unlawful assembly, one or more members of which caused hurt to certain persons-punishable under section 314 read with section 146 of the said Code ;

(5) committing house-trespass-punishable under section 434 of the said Code ;

(6) wrongfully confining the said Ariyadasa-punishable under section 333 of the said Code ;

(7) wrongfully confining one Gomis-punishable under section 333 of the said Code ;

(8) voluntarily causing hurt to the said Ariyadasa-punishable under section 314 of the said Code ;

Charge No. (9) was one framed against the 2nd, 3rd and 4th accused in respect of hurt caused to the said Gomis-punishable under section 314, while charge No. (10) named the 2nd accused alone as having caused hurt to one Daisy, the wife of Ariyadasa-punishable under section