Led to conviction of defendants

CHIEF Justice J.A. Luckhoo in a Full Court ruling in 1961 dismissed an appeal by Appellant Singh against a larceny conviction, on the ground that the magistrate was entitled to grant an amendment to the charge although the prosecution had closed its case.

Singh had complained that by the magistrate’s action he and a co-defendant who was denied the opportunity to plead to the amended charge, were found guilty.

But on appeal, he was told by the Full Court of two judges that the magistrate was entitled to grant the amendment sought, and to proceed with the hearing without a pleading being taken to the amended charge.

The appeal was dismissed and the decision of the magistrate was affirmed.

The facts of the case disclosed that the appellant Singh, and one Dennis Goberdhan, were charged jointly before a magistrate with the larceny of 11 shirts in 1960.

The ownership of the shirts was laid in the charge as that of “Kirpalani Bros”.

The evidence disclosed that the shirts were owned by Murley and Shamdas Kirpalini and that they traded under the name of “Kirpalani Bros.”

At the close of the case for the prosecution, the appellant and Goberdhan also closed their case without leading evidence and their counsel, Mr. B. O. Adams, S.C., submitted that it had not been proved that “Kirpalani Bros,” was a registered company or a corporate body. The magistrate granted an amendment of the charge by substituting the words ”property of Murley Kirpalani and Shamdas Kirpalani” for the words “property of Kirpalani Bros.” and offered the appellant and Goberdhan an opportunity of leading a defence to the charge as amended, and of recalling for cross-examination the witnesses who had testified. Both offers were declined.

On appeal, it was contended that the magistrate erred in granting the amendment and in not calling upon the appellant to plead to the amended charge.

The Full Court constituted by Chief Justice J. A. Luckhoo and Justice Jailal, held:

(i) where the ownership is incorrectly described in the particulars of a charge, the court should amend the charge and not dismiss it. The case of Ralph v Hurrell was applied.
(ii) The magistrate was entitled to grant the amendment sought and to proceed with the hearing without a pleading being taken to the amended charge.

At the hearing of the appeal Mr. B. O. Adams, Q. C. appeared for the appellant, while Mr. E. A. Ramao, the then Acting Senior Crown Counsel, appeared for the Respondent.

Chief Justice Luckhoo who delivered the judgment of the Court noted that the appellant Singh, was with one Dennis Goberdhan, charged jointly with the larceny of eleven shirts, contrary to section 66 (b) of the Summary Jurisdiction (Offences) Ordinance, Chapter 14 (B.G.). The ownership of the shirts was laid in the charge as that of “Kirpalani Bros”.

At the close of the case for the prosecution, the two defendants also closed their case without leading evidence. Thereupon, counsel for the defendants submitted that it has not been proved that “Kirpalani Bros” is a registered company or a corporate body.

Apparently, the prosecuting officer applied for an amendment of the charge by the substitution of the words “Property of Kirpalani Bros” for the words “Property of Murley Kirpalani and Shamdas Kirpalani”.

The amendment sought was granted by the magistrate who thereupon offered the defendants an opportunity of leading a defence to the charge as amended.

They were also offered an opportunity of recalling for cross-examination the witnesses who had testified.The defendants declined both offers.

The defendants were both convicted on the charge as amended. Both defendants appealed against the decision of the magistrate, but the defendant Goberdhan subsequently filed a notice of withdrawal of his appeal.

On behalf of the appellant it was submitted that the magistrate erred in a point of law when he amended the charge, in that the property had not been laid in a legal persona and was therefore originally bad and that it was not competent for him to amend the charge.

It was also contended that the magistrate erred when he did not call upon the appellant to plead to the amended charge.

Section 7 (4) of the Summary Jurisdiction (Offences) Ordinance, Chapter 15 [B.G], provides that the description of any offence to the words of the statute creating the offence, or in similar words, with a specification as far as practicable of the time and place when and where the offence was committed , shall be sufficient in law.

Section 64 of the Summary Jurisdiction (Offences) ,Ordinance , Chapter 15 [B.G.] provides as follows:

“ 64 Statement of ownership of property – (1) Where in any document in any proceeding under this Ordinance , it is necessary to state the ownership of any property whatsoever, whether movable or immovable, which belongs to or is in the possession of more than one person, it shall be sufficient to name one of those per sons , and to state the property to belong to the person so named and another or others as the case may be.

(2) Where, in the document, it is necessary to mention for
any purpose whatsoever any partners or other joint owners or possessors, it shall be sufficient to describe them in manner aforesaid.

(3) The provisions of this section shall be construed to extend all joint stock companies and associations, societies and trustees.

In conclusion, Chief Justice Luckhoo who presided at the Full Court had said, “Having regard to the provisions set out above we were of the opinion that the magistrate was entitled to grant the amendment sought and to proceed with the hearing without a plea being taken to the amended charge .

“He offered the appellant an opportunity of recalling for cross-examination the witnesses who had already testified and offered the appellant an opportunity of leading a defence to the charge as amended. No question of an adjournment arose as the appellant rejected the offers made by the magistrate. In any event, it could hardly be said that the appellant had been deceived or misled by reasons of the defect in the particulars of the charge.
The appellant never sought to suggest that the shirts were owned by anyone else. Where the ownership is incorrectly described in the particulars of a charge the court should amend the charge and not dismiss it. We found the appeal without merit and have dismissed same.