T. S. FERNANDO, J.—de SUm v. Amarasekera
Present: T. S. Fernando, J.
E. W.DE SILVA and another, Appellants, andP. D. F. AMARASEKERA(S. I. Police), Respondent
S. 0. 917—M. C. Kurunegala, 31,856
Mischief by injury to public road—Meaning of “ public road ”—Penal Code, s. 414.
In a prosecution under section 414 of the Renal Code for committingmischief by causing injury to a public road—
Held, that a road cannot be said to be a public road 'within the meaning ofsection 414 of the Penal Code unless the general public, and not merely a classor community, are entitled to use it.
XxPPEAL from a judgment of the Magistrate’s Court, Kurunegala.
Galvin R. de Silva, with M. M. Kumarahulasingham and Daya Vitanage,
for the accused-appellants.
L. de Silva, Crown Counsel, for the Attorney-General.
Cur. adv. wU.
December 18, 1957. T. S. Fernando, J.—
The accused in this case have been convicted of the offence of mischiefby injury to a public road, punishable under section 414 of the PenalCode. The act constituting the mischief was the erection of a barbed
1 (1942) A. C. 435 at 442.
1>, iT. S. FERNANDO, J.—de Silva v. Amarasekera
\ ire fence across the road, and the accused did not contest the evidencethat such a fence was erected by them or at their instance or that theerection of the fence made the road impassable for carts. They havetaken up the position that they are not guilty of the offence alleged asthe fence was not erected across a public road.
There does not appear to be any local case relating to the interpretationof section 414, but this section is identical with section 431 of the IndianPenal Code, and it is permissible to look for some guidance on the pointin Commentaries on the Indian Penal Code. In a discussion of themeaning of a public way appearing in section 279 of the Indian Code(same as section 272 of the Ceylon Code), it is stated in Gour’s PenalLaw of India (6th ed., Vol. 2, p. 1150) that “ the chief characteristic of apublic way is that over it all persons have an equal right to pass. Sucha way must be distinguished from a way …. for the benefitof a class or community or one limited to the inhabitants of two or threevillages only, which is not a public way, though the public may be per-mitted to use it …. So the fact that a defined and definitenumber of persons had the right to use the way does not make it a publicway to which all the citizens are entitled ”. The commentators appearto think that the expression “ public road ” in Section 414 has been usedto convey the same meaning as a “ public way ” in section 272.
The road referred to in this case has been described in the evidence asan Irrigation road constructed and maintained by the Irrigation Depart-ment and leading to and ending at a regulator controlling the flow ofwater in a field channel. It appears principally to be a cart track foruse by the workmen of the Irrigation Department, but adjoining fieldowners appear to have free access to and over it. It has been in usefor about fourteen years. Witnesses have described it as a public road,but such a description by witnesses is of no real value as the questionwhether the road was public or not was one for determination upon evi-dence by the Magistrate. Under cross-examination these same witnessesconceded that the roadway was open only to cultivators and workmen ofthe Irrigation Department. Upon this evidence I do not consider that theroad can be said to be a public road within the meaning of section 414of the Penal Code as the general public were clearly not entitled to use italthough it is quite possible they may have been permitted to use it ifoccasion had ever arisen for them to attempt to use it. I should addthat the conclusion I have reached has also the merit that it does notviolate the eiusdem generis rule the application of which appears to beappropriate in interpreting the words “ any public road, bridge, navigableriver or navigable channel ” in section 414.
In the view I have taken of the evidence and of the meaning of section414,1 am of opinion that the conviction of the accused has to be quashed.I make order accordingly and direct that they be acquitted.
E. W. DE SILVA and another, Appellants, and P. D. F. AMARASEKERA (S. I. Police