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Present: Bertram C.J.
ABETEWABDENE v. FERNANDO et at.P. 0. Ratnapura, 26,630.Breach of the peace—Meaning of the term—Use of violence Affray—Twoopposite factions tried together.
A breach of the peace, within the meaning of sections 80 and 81of the Criminal Procedure Code, involves some violent interferenceeither with person or property or some violent act calculated toalarm the King’s subjects.
The rule, that persons of opposite factions involved in apublic disturbance cannot be tried together, doubted.
A PPUCATION to revise an order made by the Police Magistrate^ of Ratnapura.
Soertsz, for the applicant.
November 4,1924. Bertram C.J.—
This is a case in which two rival boutique keepers have beenbound over to keep the peace under section 81 of the CriminalProcedure Code. Mr. Soertsz, who appears for one of them, awoman, app eals both on the facts and on the law. His point on thelaw is a familiar one, namely, that the proceedings are irregular,because two persons acting adversely in connection with the appre-hended breach of the peace have been united in the same charge.A number of cases has been cited to show that where persons beforethe Court are members of opposite factions involved in a disturbance,they ought not to be tried together, but should be tried separately.The cases in question are amongst others: Velaiden v. SoysaWickremesuriya v. Don Lewis,2 Keegal v. Mohideen,z and Police Officerv. Dineshamy* The principle of these cases is now so thoroughlyestablished that it is impossible for a judge, sitting as I am nowsitting, not to follow it. I cannot help myself regretting theestablishment of this principle in our Courts.
It seems to me that in cases of this sort where there is a mutualassault or affray in a public place, or any sort of disturbance betweenvarious persons, it would often be most convenient and reasonable
1(1910) 14 N. L. B. 140.» (1918) 8 C. W. B. 162.
* (1916)1 O. W. B. 192.* (1919) 21 N. L. B. 127.
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to bring them together before the Court, have all the circumstancesTtmrirr~L _ investigated, and have the several accused dealt with according toO.J. their responsibility. I cannot see that any good end would beAbeyewar- 8erve<^ in ordinary cases by breaking up the proceedings and re-dene «. peating the evidence against each individual. I observe that thisFernando principle has been developed in our books possibly with the help ofIndian authorities; but I do not think that it is in accord with theEnglish law. My impression is that in the case of duellists theprocedure always was, if they were detected when they were aboutto commence a duel, to bring them both before the justices and bindthem over. This seems to me in most cases both a reasonable and ajust course. There may, of course, be cases in which it would bedesirable that the individual persons disturbing the peace shouldbe tried separately. But this might be left to the discretion of theCourt. However, it is too late for a single judge to question thisprinciple, and the matter can only be effectively questionedbefore a Full Court. I therefore allow Mr. Soertsz’s point onthe law.
With regard to this appeal on the facts, it would serve no usefulend to send this case back for a new trial, because I think thelearned Magistrate is under a misconception, which is perhaps notan unnatural one. It is very common for persons reading suchprovisions as sections 80 and 81 of the Criminal Procedure Code tomisinterpret the term “ breach of the peace ” as the learned Magis-trate seems to have interpreted it. It might naturally be supposedthat any disturbance of public tranquillity by noisy and quarrel-some language or shouting or singing would be a breach of the peace.But that is not the meaning of the phrase. The Magistrate himselfhas interpreted the phrase in this way. He says : “ They are bothcantankerous and quarrelsome people and are likelyto create a breachof the peace. They have an eternal cause of quarrel. I have givenample opportunity to them to come to their senses and live amicably,but they are equally stubborn and stupid.” The learned Judgedoes not seem to apprehend that any act of positive violence isgoing to take place, but merely that the tranquillity of the neigh-bourhood will be disturbed by the persistent quarrel between thesepersons. This, however, does not appear to be the meaning of thephrase. The peace referred to is the King’s peace. The King isentitled to require that all persons living under the protection shallnot be subjected to violence in respect of their persons or theirproperty. Any person who does subject to violence either theperson or property of one of the King’s subjects has committed abreach of the King’s peace.
In England every indictment for a crime concludes with a state-ment that the aot complained of is an act against the peace of ourLord the King, his Crown and Dignity. The principle will befound explained in a brief article on “ The Peace ” in Wood Benton’s
( »» )Encyclopedia, vol. XIpogre 6. A breach of the peace appears 1924.to involve some violent interference either with person or property, bbbtramor apparently some violent act calculated to alarm the King’s OJ.subjects. An affray is a breach of the peace because there is naturalviolence. The subject will be found disoussed in the article in Lord dwe v.Halsbury’s Law of England on Criminal Law and Procedure, vol. 9, Pemandop. 297, in a long note to paragraph 610. It is there said: “ Abreach of the peace is committed when there is an actual assault,or when public alarm and excitement are caused by a person’s wrong-ful act. Mere annoyance and disturbance, or insult to a person, orabusive language, or great heat and fury without personal violencedo not constitute a breach of the peace. A person who is presentat a public meeting and disturbs the meeting by derisive cries andmaking observations does not commit a breach of the peace.” Itwould, no doubt, be a most convenient provision from the point ofview of the police authorities that persons who disturb the publictranquillity should be required to give security under penalty ofbeing sent to prison. But I do not think that this is the meaningof sections 80 and 81 of the Criminal Procedure Code.
The appeal, therefore, must be allowed.
ABEYEWARDENE v. FRENANDO et al