A.K.A.M.Khan V. M.M.G. Ariyadasa

[IN THE PRIVY COUNCIL]

1965 Present : Lord Reid, Lord Morris of Borth-y-Gest,
Lord Pearce, Lord Donovan, and Lord Pearson

A. K. A. M. KHAN, Appellant, and M. M. G. ARIYADASA, Respondent

PRIVY COUNCIL APPEAL NO. 46 OF 1963

S. C. 707-711 of 1962-M. C. Matara, 66852

Criminal procedure-Joinder of charges-Charges based on existence of unlawful assembly joined with charges framed relying on s. 32 of Penal Code- Validity of such joinder of charges-" Distinct offence "-" More offences than one "- " Common object"-" Common intention "-Penal Code, ss. 32, 38, 67, 138, 140,146-Criminal Procedure Code, ss. 178, 180, 181, 184.

Charges based on the existence of an unlawful assembly may be joined together at one trial with charges in respect of offences committed by the accused acting in furtherance of a common intention within the meaning of section 32 of the Penal Code, if the offences are alleged to have been committed in the Course of one and the same transaction within the meaning of section 180 (1) of the Criminal Procedure Code.

The words " more offences than one are committed " in section 180 (1) of the Criminal Procedure Code must mean and must be understood as meaning more offences than one are alleged to have been committed.

Six persons, the second of whom was the appellant, were jointly charged in counts 1 to 4 with having been members of an unlawful assembly and with having committed, as members of the unlawful assembly, the offences of house trespass, rioting and causing hurt (sections 140, 434/146, 144 and 314/146 of the Penal Code). They were also charged in counts 5 to 10 with having directly committed, in the course of the same transaction, offences of house trespass, wrongful confinement, causing simple hurt and causing hurt with a dangerous weapon (sections 434, 333, 314 and 315 of the Penal Code). The first accused was acquitted altogether. All the other accused were found Guilty of the first seven charges. The appellant alone was found Guilty of the eighth charge. The appellant and the fourth accused were found Guilty of the ninth charge. The appellant, against whom alone the tenth charge was laid, was acquitted of that charge.

Held, that there was no misjoinder of charges.

"If five or more people are charged in one count with an offence punishable under section 434 (of the Penal Code) read with section 146 and in another count with an offence punishable under section 434 they are being charged with what are, for all practical purposes, distinct and separate offences. It would be wrong to regard them as being in reality one offence (so as to make inapplicable section 180 (1) of the Criminal Procedure Code). That this is so is illustrated by considering the nature and extent of the evidence which could establish guilt in respect of each count. Thus if it were not established that there was an unlawful assembly (as for example if it were not shown that there was an assembly of five or more persons but only of a lesser number) there could not be a conviction in respect of the former count but the evidence might establish that house trespass was committed by one of them or alternatively by some of them in furtherance of their common intention in which cases either that one or

those of them (who might number less than five) who had that common intention could be convicted of the latter count. It is well recognised that section 32 of the Penal Code expresses and declares a legal principle of law but does not create a substantive offence. "

Don Marthelis v. The Queen (65 N. L. R. 19) and The Queen v. Thambipillai (66 N. L. R. 58) overruled.

APPEAL, with special leave, from a judgment of the Supreme Court reported in (1963) 65 N. L. R. 29.

E. F. N. Gratiaen, Q.C., with T. C. Kellock and M. I . Hamavi Haniffa, for the 2nd accused-appellant.

No appearance for the complainant-respondent.

Mark Littman, Q.C ., with Dick Taverne, as

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