NAGALINGAM A.C.J.—Fonaeka Vt'dhandrasekera
Present: Nagalingam A.C.J.FON8EKA, Appellant, and CHANDRASEKERA (S. I.,Police), Respondent
S. C. 803—M. C. Panadure, 29,338
Mischief—Bona fide vindication of a right—Valid defence—Penal Code, s. 40S.
Accused was charged with committing mischief by breaking down a wallerected by the complainant two days earlier. The evidence showed that theaccused demolished the wall in the bona fide belief that it obstructed a publiccartway and that there was no spite or malice on the part of the accused.
Held, that the facts did not disclose the offence of mischief.
PPEAT. from a judgment of the Magistrate’s Court, Panadure.Colvin R. de Silva-, for the 2nd accused appellant.
A . Mahendrarajaft. Crown Counsel, for the Attorney-General.
f’ur. adv. vnlf.
September 25, 1953. Nauauncam A.C.J.—
This is an appeal from a conviction entered on a charge of committingmischief by breaking down a wall. The facts, as found by the learnedMagistrate, briefly are : One J. M. Perera, whom I shall hereinafterrefer to as the complainant,' for he is the aggrieved party, built whathas been indifferently termed a parapet wall or retaining wall close toa house that he had constructed newly and across a path obstructing,not however the entirety of, it. The path was admitted by the com-plainant himself to be a public footpath, but he also admitted that thepath had been used both by carts and cars, though he qualified thatstatement by saying that carts and cars had been taken along thatpath with his permission. The complainant had previously unsuccess-fully attempted to obstruct the use of the path by carts and cars byputting up a coconut stump. The appellant on that occasion com-plained to the Headman of the obstruction and as the Headman himselftook no steps he pulled out the stump and threw it out and made thepath available for use by members of the public. The complainantlimited the use of the path to members of four or five houses, which hosaid were all that were situato on this path, but his witness the VillageHeadman admitted there were at least twenty-five houses which wereserved by this path, end that evidence was supported by the incumbentof the Gangatilaka Arama who was called by the defence. There wasalso evidence led by the defence that cars and carts had been takenalong the path without any permission having been obtained from thecomplainant.
NAG ALIN GAM A.C.J.—Fonseka v. Oharulrasekern
The learned Magistrate has expressed no view on the exercise of theright of user of this path by vehicles, for he took the view that whetherthe path had been used or not in that manner, that user did not affectthe question he had to decide.
On tho day in question, the appellant says, he was in a car, and froma distance he saw there was a crowd of about fifty or sixty people on thespot; he came there and found that a short wall had been erected to aheight of about a foot and a half across the path, leaving a gap of twofeet and eight inches in the middle, so as to permit of pedestrian butnot of vehicular traffic. The Headman was immediately contactedby the appellant and told that there was an obstruction along this road,but the Headman avus apathetic. The appellant says that ho thereuponinformed the Headman that he proposed to remove the obstructionon the path and then proceeded to demolish it with the assistance ofcertain other persons, who had been charged along with him.
The question that arises is whether it can be said that in these cir-cumstances the appellant committed tho offence of mischief, havingregard particularly to the question whether in causing the dostruotionof property he either intended to cause wrongful loss or damage or thathe did so with knowledge that he was likely to do so.
That there can be neither such intention nor knowledge when tho rightin tho exercise of which an act of alleged mischief is done is itself thosubject of dispute and when the act that is done is itself in vindicationof a right has been accepted by our courts—Hendrick Sinno v. EngoNona1. Pereira J. also laid down in the case of 1‘oralis v. Romania -that “ it is only where a person wantonly acts that lie can be said to boguilty of mischief. In other words, as observed above, he should act,spitefully, maliciously or Avantonly.”
If these principles are applied to the present case, it would bo foundthat far from acting wantonly, spitefully or maliciously in order to causewrongful loss or damage to the complainant, the act that tho appellantdid was for the purpose of restoring a right of path which had been inuse for several years and which had been unlawfully obstructed by thecomplainant.
The learned Magistrate has asked the question Avhether it would beproper for a party to take the law into his own hands, and whether incircumstances such as these he should not resort to proper legal remedy.In regard to this the question may well be asked as to what the positionwould bo if as a result of a civil action between the parties it bo heldthat' the path was a public cartway and that the complainant has noright to obstruct it. Would it then be proper to punish the appellantfor what tho law ultimately decides—that he as a. member of tho publiccould not have been prevented from using the cartway. While it is asound principle that a man should not be allowed to take the law intoliis own hands, that principle must not be regartled as of univorsulapplicat ion in every manner of circumstance. It has its own limitations. *
* 11914) 1 Cr. App. Reports 21.
(1913) 2 ('■ A. C. 163.
118 North-Western Blue Line Bus Oo., Ltd., v. Green'Line Omnibus Oo., Lid.
For instance, if a person found his gate opening on to the road barricaded,I think there cannot be the slightest doubt that he would be entitled tobreak down the barrier in order to get on to the road. It could not inthose circumstances be said that he could not break down the barrierbut that he must resort to other means to get out of his premises, evento make a complaint.
I find, however, one case which is very similar to the present, and thatis the case of Mohideen v. Suppramaniam Chetliar et al.1 decided byFernando A.J. There a wall constructed by the complainant preventingaccess to a latrine was broken down by the accused. The conyiction inthat case was set aside on the ground that the facts did not disclose theoffence of mischief.
In the present case, too, it cannot be said that the accused intended todo more than to assert a bona fide right of path which the members of thepublic had been in the habit of exercising for a number of years byremoving an obstruction erected a couple of days anterior. There isnothing in the evidence to indicate that the demolition took place as aresult of any spite or malice on the part of the appellant.
I therefore set aside the conviction and acquit the accused. Acting inrevision I set aside the convictions of the other accused too in theseproceedings and acquit them.
FONSEKA Appellant , and CHANDRASEKERA (S. I. Police ), Respondent