[IN THE COURT OF CRIMINAL APPEAL]

1963 Present: Basnayake, C.J. (President), Herat, J.,
and Abeyesundere, J.

THE QUEEN v. N. THAMBIPILLAI and two others

APPEALS Nos. 9-11 OF 1963, WITH APPLICATIONS Nos. 9-11

S. C. 2-M.C. Kalmunai, 3948

Indictment-Misjoinder of charges and persons-Joinder of charges based on unlawful assembly with charges based on common intention-Invalidity-Penal Code, ss. 32, 140, 3461146, 380 /146, 346, 364, 380, 394-Criminal Procedure Code, ss. 178, 180 (1), 184, 425-Interpretation Ordinance, s. 2 (ii).

Charges based on the liability created by common intention under section 32 of the Penal Code cannot be joined in the same indictment with charges based on the existence of an unlawful assembly.

Five accused Were indicted on different counts under the Penal Code. In counts 1,1A and 2 they were charged under sections 140, 346/146 and 380/146 respectively. In counts 2A and 3 they were charged under sections 346 and 380 respectively. In count 4 the 1st accused alone was charged under section 394. In count 5 the 2nd accused alone Was charged under section 364.

All the accused Were acquitted of counts 1, A and ?. The 2nd and 3rd accused were acquitted of the remaining charges also. The 1st, 4th and 6th accused Were convicted of the offences alleged in counts 2A and 3, and the 1st accused Was in addition convicted of the offence alleged in count 4.

Held, that the joinder of counts 2A and 3 With count?s 1, 1A and 2 was not authorised by section 180 of the Criminal Procedure Code. In such a case, the illegality cannot be cured by section 425 or any other provision of the Criminal Procedure Code.

Held further, that count 4 against the 1st accused alone and its joinder with the other counts against all the accused including the 1st accused was illegal.

APPEAL against certain convictions in a trial before the Supreme Court.

                       Calvin R. de Silva, with V. Kumaraswamy and Neville Wijeratne (assigned), for 1st, 4th and 5th accused, who are 1st, 2nd and 3rd appellants.

                       S. S. Wijesinha, Crown Counsel, for Attorney-General.

June 11, 1963. BASNAYAKE, C.J.-

    Five persons by name N. Thambipillai, R. Samithamby, K. Thambipillai, K. Velakuddy and K. Thambiappah were indicted on the following charges :-

" 1. That on or about the 2nd day of August 1961 at Thuraineelavanai, in the division of Batticaloa, within the jurisdiction of this Court, you were members of an unlawful assembly, the common object of which was to use criminal force on S. Bagawathy, otherwise than on grave and sudden provocation, and that you have thereby committed an offence punishable under section 140 of the Penal Cods.

1A. That at the time and place aforesaid and in the course of the same transaction, you being members of the said unlawful assembly, did in prosecution of the said common object, use criminal force to the said S. Bagawathy intending thereby to dishonour the said S. Bagawathy and, that you being members of the said unlawful assembly at the time of the committing of the said offence are thereby guilty of an offence punishable under section 346 read with section 146 of the Penal Code.

2. That at the time and place aforesaid and in the course of the same transaction one or more members of the unlawful assembly aforesaid did commit robbery of a gold chain, two pairs of gold bangles and one ring, property in the possession of S. Bagawathy, which said offence was such as the members of the unlawful assembly aforesaid knew to be likely to be committed in prosecution of the common

object of the said unlawful assembly, and that you being members of the unlawful assembly aforesaid at the time of the committing of the said offence are thereby guilty of an offence punishable under section 380 read with section 146 of the Penal Cods.

2A. That at the time and place aforesaid and in the course of the same transaction you di