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Present: Lyall Grant J.
INSPECTOR OF POLICE, BADDEGAMA in HENDRICK.
. 600—P. C. Qalle, 37,093.
Notorious bad liver—Requirements of charge—Accused person asdanger to pie community—Criminal Procedure Code, ss. 83 and $85.
An order under section 83 of the Criminal Procedure Codeshould not be made against a person unless he is so dangerous asto render his being at large, without security, hazardous to thecommunity.
In such a proceeding the summons must contain a brief anddefinite statement of the substance of the information on whichthe summons is issued.
^^PPEAL from an order of the Police Magistrate of Galle.
W, M. de Silva, for appellant.
October 14, 1929. Lyall Grant J.—
The charge against this accused was that he being a notorious 'bad liver and a dangerous character be asked'to show cause why heshould not be ordered to execute a bond with surety for his goodbehaviour, under section 83 of the Criminal Procedure Code.
The defendant appeared and said that he had cause to show.
The evidence led in support of the charge was that of one Prans-appu, who spoke of a dispute which he had with the accused andsaid that the defendant threatened to do him bodily harm. Headded that the accused drank hard. Under cross-examination headmitted that the defendant made complaints against him as hededucted payment due to him (accused).
The second witness said that four or five months ago he met.the accused on the road. The accused was drunk and abusedhim, and that he (accused) drank every evening.
The rest of the evidence related to a dispute which arose owingto the accused having blocked the path leading to the house of oneSiyadoris. Siyadoris said that the Police Officer came and thatthe accused in his presence threatened to hit Siyadoris. The PoliceOfficer gave evidence in regard to the same incident and said thatthe accused actually hit Siyadoris. The Constable Arachchi saidthat the accused got drunk and caused fright to innocent people,and the Vidane Arachchi said that the accused was quarrelsomeand tried to assault people, drank hard, and put persons in fearof personal injury.
It is admitted that in 1917 the accused was convicted of beingdrunk and disorderly, and he also admits that before his marriage,the time of his marriage not being stated, he had been in jail forassault and affray. He also admitted that about eighteen monthsago he struck his anut as she abused him. Since 1917 no case
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seems to have been taken against the accused. On this evidencethe Magistrate said that he was satisfied that the defendant putspersons in fear of injury, and that they will not prosecute him onlybecause they fear him, and he directed the defendant to put on abond to be of good behaviour for six months. -The charge was brought under section 83 of the Criminal ProcedureCode, which reads as follows:—
“ Whenever a Police Magistrate receives information that anvperson within the local limits of the jurisdiction of thePolice Court of such Magistrate is an .habitual robber,housebreaker, or thief or an habitual receiver of stolenproperty knowing the same to have been stolen or thathe habitually commits extortion or in order to the com-mitting of extortion habitually puts or attempts to putpersons in fear of injury or that he is an habitual protectoror harbourer of thieves or that he is an habitual aider in theconcealment or disposal of stolen property or that he is anotorious bad liver or is a dangerous character, suchMagistrate may in manner hereinafter provided requiresuch person to show cause why he should not be ordered toexecute a bond with sureties for his good behaviour for suchperiod not exceeding six months as the Magistrate thinksfit to fix.”
It was argued on appeal that the charge was too vague as it didnot specify in what respects the defendant was a notorious badliver and a dangerous character, and it was also argued that theevidence was insufficient to support the conclusion at which theMagistrate had arrived.
In Kanagasingham v. Tambyah 1 Chief Justice Bertram held that‘ ‘ where proceedings are taken under section 83 of the CriminalProcedure Code against a person, the summons must contain abrief statement of the substance of the information on which suchsummons is issued.”
The information upon which the Magistrate issued summonsin this case was that of the Sub-Inspector of Police, Galle, who said" I know the defendant- He is a notorious bad liver. He has beenconvicted of assault and mischief. He continually puts peoplein fear of injury.”
In Kanagasingham v. Tambyah .(supra) Chief Justice Bertramrefers to section 85 of the Ordinance, which provides that ” everysummons or warrant issued under the last preceding section shallcontain a brief statement of the substance of the information onwhich summons or warrant is issued.” He goes on to say ” TheMagistrate, therefore, before he acts at all, must receive certain in-formation and he ought to see that that information is of a very definite
1 (1923) 24 N. L. B. 474.
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1929. – character. It may no doubt be of a general character, becauseT.v»T.r ^ a man is charged with being a bad liver or a dangerous character,Obant j. and the character he bears has to be proved by evidence of generalInspector of repute, it would be necessary to state the characteristics complainedPolice, of in somewhat general terms. But these characteristics complainedv^Rendrid: °* should be precisely stated, and, if possible, defined and described… when the man comes into Court the chapter thinks it
necessary that he should understand the nature of the case he iscalled upon to meet.”
The provisions of section 83, which extends the power of theMagistrate to order certain classes of evil doers to execute a bond forgood behaviour in the case of notorious bad livers, is peculiar toour Code.
The corresponding section of the Indian Code provides thesepowers, where a person is so desperate and dangerous as to render hisbeing at large without security hazardous to the community. Ithink that what was intended by section 83 must be consideredto be the same thing as is specified by the words I have quoted fromthe Indian Code. It cannot be supposed that unless a person is sodangerous as to render his being at large without security hazardousto the community he should be ordered to give such security.
The summons issued on the accused contains in addition to thewords on the charge sheet, which stated that the accused was anotorious bad liver and a dangerous character, the words " andthat he was likely to commit a breach of the peace.” It seems tome that the charge is so vague as not to give notice to the accusedof the evidence which is likely to be led against him. It cannotbe said, using the words of Bercram C.J., that “ the characteristicscomplained of have been precisely stated.”
On examining the evidence one finds that no evidence has beenbrought of any conviction against the accused since 1917. Theevidence of the Police Officer that the defendant struck Siyadorisis clearly untrue, when one looks at Siyadoris’ own evidence. Thedate of the incident referred to by Pransappu is not given, but itappears from the evidence that the incident may have occurredyears ago.
The only assault which is clearly proved is that by the defendanton his aunt, an incident which has been brought out by the accusedhimself.
The present case appears to be very similar to the one dealtwith by Bertram C.J., which I propose to follow.
The appeal will be allowed, but, if, after the lapse, of say, sixmonths, further complaints are made against the appellant, thenno doubt he may be dealt with by proceedings more exactly andregularly framed.
INSPECTOR OF POLICE, BADDEGAMA v. HENDRICK