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KUMARAPPA v. HARTLEY.
P. C., Gatte, 20,827.
Forcibly passing a toll station—Resistance to toll-keeper—■OrdinanceNo. 14 of 1867, s. 17.
A forcible passage through a place appointed for the collection oftolls made punishable under section 17 of Ordinance Ho. 14 of 1867is the taking of a vehicle through such place notwithstanding the. opposition thereto or the forbidding thereof by the toll-keeper.It is not enough that the toll-keeper should demand his toll:he must forbid the passage of the vehicle until toll is paid. Ifhis insistence is met by resistance, then the taking of the vehiclethrough without payment is a forcible act.
HTS was a prosecution , under the Toll Ordinance. The factsof the case appear in the judgment appearing below.
Bawa, for appellant.
Cur. ado. milt.
7th July, 1896. Withers, J.—
The fine imposed for the offence of forcibly taking a vehiclethrough a place duly appointed for the collection of tolls beinglimited to Rs. 10, 1 asked appellant’s counsel what was the pointof law on which this appeal was taken, and after hearing Mr.Bawa I decided that I could only hear him on this, point, “ Do“ the facts found by the Magistrate justify the verdict that the“ appellant forcibly took his vehicle through a place duly appointed“ for the collection of tolb ? ” Now, to begin with, the Magis-trate does not expressly find as a fact that the place throughwhich the appellant drove was a place duly appointed for thecollection of tolls. “ So far as I can judge,” says the Magistrate inhis judgment, “ the toll station stood in the proper place.” Noforcible driving through a place not duly appointed for thecollection of tolls can be an – offence under section 17 of theOrdinance 14 of 1867, and it is df this offence the appellant hasbeen convicted.
July 6 and i'
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July 6 and 7.Withers, J.
The place fixed by law (see article 16 of the sale of the rightto collect the toll of Labuduwa-Akminana road was on the landcalled Wellagahawatta at Totagoda between the 4th and'5th mileposts.. The toll of this section of the road was after the saleimproperly collected at a place called Badalwatta. Just before thedate of the alleged offence the toll-house was shifted to the placewhere defendant drove his vehicle. According to- the Superin-tendent of Minor Roads, Mr. Erskine, who had the toll-house putup there, the place was “ on the edge of Wellagewatta.” But wasit within or without Wellagewatta at Todagoda between the 4thand 5th miles ?•
There is really not sufficient proof that the toll-house was putup in the duly appointed place. This defect appears to me to befatal to the conviction.
If I was otherwise with the Magistrate in his judgment, I shouldsend the case for further evidence on this point. For therest, the material. part of the Magistrate’s -judgment is asfollows :—“ The second accused drove up to the toll station. The,“ toll-keeper seeing him coming took down his badge and stood“ apparently in readiness to receive toll; second accused stopped his“ carriage, and should then have paid the toll. Instead of doing so,“ he told the toll-keeper sharply in English to pull down the toll“ station at once. Although, so far as I can judge, it stood in the“ proper place, the toll-keeper, according to second accused’s own“ evidence, appeared to bemuch frightened, and put back his badge ;“ second accused thereupon drove on without paying toll, because he“ says it was not demanded. It is not clear what form of demand
“ he expected. In my opinion the appearance of the toll-keeper at“the bar, badge in hand, is sufficient demand for all practical“ purposes. To much frighten him by a sharply-worded, unreason-“ able order, in a language he probably does not understand, to take“ away his toll shed and bar at once, and then drive on without“ paying toll, is in my- opinion the forcible taking of a vehicle“ through the toll within the meaning of the Ordinance.”
It must not be forgotten that on the day in question the appellantwas surprised to find the toll shed in its new place. He had notbeen paying toll on this road for some months, because the stationhad been at an unauthorized place. The cad j an building had been_run up against the boundary wall of the Mission station, and thismoved the appellant to order the toll-keeper to put the shed some-where else. It may or may not have been an unreasonableorder, but I have no doubt it was honestly given, because theappellant honestly thought that the toll-keeper had no-rightpitch his shed against the Mission wall, and the sharp order
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was not given to amid against demand of toll, but to protest againstthe station being pat where it was.
It has been laid down by the Judges of this Court that a forciblepassage under this section is to take a vehicle through a place forcollection of tolls, notwithstanding the opposition thereto orthe forbidding thereof by the toll-keeper (see Viramuttu v.Sedayo, 1 S. G. C. 57 and 9 S. C. G. 95).
It is not enough that the toll-keeper should demand his toll; hemust forbid the passage of the vehicle until toll is paid. If hisinsistence is met by resistance, then the taking of the vehicle throughwithout payment is 'a forcible act. But here the toll-keeperdid nothing of the sort. Hence I think .the Magistrate drewan inference of guilt, which the facts proved before him donot justify. I therefore reverse his decision. The appellant mustbe acquitted, and the fine,' if paid, restored.
July6 and 1.WrrHKBS, 3.
KUMARAPPA v. HARTLEY