1963 Present: H. N. G. Fernando, J., and T. S. Fernando, J.

THE QUEEN v. M. I. M. IBRALEBBE and others

S. C. 14-1711963-D. G. (Grim.) Batticaloa, 126

    Indictment-Joinder of charges based on unlawful assembly with charges based on common intention-Validity-Penal Code, ss. 32, 140, 146, 296-Criminal Procedure Code, ss. 178, 180, 184, 425-Court of Criminal Appeal Ordinance, 8. 5 (1), proviso.

"Where several accused were indicted on 13 charges, 7 of which were based on the allegation that they were members of an unlawful assembly, and the remainder of which could have resulted in a conviction of two or more of the accused only if the offences charged had been committed in pursuance of a common intention-

Held, that the joinder of the two seta of charges was lawful.

The Queen v. Don Marthelis and others (1963) 65 N. L. R. 19 not followed.

APPEALS from a judgment of the District Court, Batticaloa.

Colvin R. de Silva, with A. R. Mansoor, for the Accused-Appellants.

P. Colin Thome, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

June 7, 1963. H. N. G. FERNANDO, J.-

Several accused were indicted in this case on 13 charges, 7 of which, were based on the allegation that they were members of an unlawful assembly, and the remainder of which could have resulted in a conviction of two or more of the accused only if the offences charged had been com­mitted in pursuance of a common intention. Counsel for the accused argued at the appeal that there had been a misjoinder of these two sets of charges, relying upon the unreported judgment of two Judges of this Court (Abeyesundere, J., with Herat, J., agreeing) in the case of The Queen v. Don Marthelis and others[See 65 N. L. R. 19.-Ed.] (S.C. 5-10 of 1962, S. C. M. of 19th March 1963). In a brief judgment, the point was thus decided :-

". . . Counts (1) to (5) were based on the allegation of unlawful assembly and counts (6) to (9) which related to the offences of causing simple hurt and committing mischief were based on common intention. Section 178 of the Criminal Procedure Code requires every charge to be tried separately except in the cases mentioned in sections 179, 180, 181 and 184 of that Code. Crown Counsel who appeared for the Attorney-General conceded that none of the four last-mentioned sections applied to the counts in the indictment in this case. The joinder of the two sets of charges referred to above is therefore not according to law. Consequently the indictment is invalid . . ."

Counsel who argued the present appeal had himself argued the case of Don Marthdis, and was therefore able to explain why the unreported judgment does not set out reasons and contains no examination of the provisions of the Criminal Procedure Code which are or may be rele­vant to the question of misjoinder. It appears from Counsel's statement to us that the same question was argued in the Court of Criminal Appeal within recent months, in an appeal in which the appellants were acquitted by that Court upon the conclusion of arguments, and that it is anti­cipated that the reasons for that acquittal when delivered by the Court of Criminal Appeal will constitute or include a decision that it is illegal to join together in an indictment two sets of charges depending respec­tively on section 146 and section 32 of the Penal Code. Nevertheless, until reasons are in fact delivered hi that appeal, there is yet no judgment of the Court of Criminal Appeal to which I can refer for guidance or which precludes me from considering the validity of Counsel's arguments.

In view also of the lack of a statement of reasons in the judgment in Don Marthelis' case, I feel free as a member of a bench of two judges to re-consider the point there decided. The fact that my brother Fernando, whose familiarity with questions of this nature is well known, has dis­agreed with that decision (vide S. C. M. of 6th may 1963, Khan v. Ariyadasa1 S. C