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Present: Bertram C.J., Porter J., and Garvin A.J.
KURUP v. BANDA.509—P. C. Nuwara Eliya, 6,948.
Penal Code, s. 450—Being found in a building—Failing to give a satis*factory account of himself.
Where a person is charged under section 450 of the Penal Codewith being found in or upon any building or enclosure and failingto give a satisfactory account of himself, the accused has to givea satisfactory account of his presence at the place.
HE accused-appellant was charged under section 450 of theCeylon Penal Code with “ being found upon an enclosure
and failing to give a satisfactory account of himself.” He wasconvicted and sentenced to a term of one month’s rigorous imprison-ment. He appealed, and the case came up for argument beforeGarvin A.J.
At the argument counsel for the appellant relied on The King v.Don Martin1 and contended that the accused’s conviction was badinasmuch as he had given a sufficient account of himself, even ifhe had failed to account satisfactorily for his presence in theenclosure.
Garvin A.J. referred the question to a Court of three Judges, andthe case was argued before Bertram C.J., Porter J., and Garvin A.J.
Soertsz, for the appellant.-^-In our Ordinances the words “ notgiving a satisfactory account of himself ” occur earliest in OrdinanceNo. 3 of 1840 dealing with vagrants.
Section 2 (12) of that Ordinance provides that every personbeing found in or upon any dwelling house, warehouse, godown,stable, outhouses, or other- building, or in any enclosed garden,yard', plantation, or compound for any unlawful purpose, or notgiving a satisfactory account of himself, &c.”
Ordinance No. 3 of 1840 was repealed by Ordinance No. 4 of 1841,and section 2 (12) of the old Ordinance was re-enacted in section4 (6) of Ordinance No. 4 of 1841. This section 4 (6) of OrdinanceNo. 4 of 1841 was repealed, and by section 6 of Ordinance No. 6 of1898 section 450 of the Penal Code was amended by the additionof the words“ or not giving a satisfactory account of himself.”
This shows that the words were taken from the Ordinancedealing with vagrants and incorporated in section 450 of the PenalCode. The words should therefore be construed in the same way
1 (1923) 2$ N. L. R. 169.
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as they would have been construed in their context in theVagrants’ Ordinance.
Tn the Ordinance dealing with vagrants it is of the first importancethat the vagrant should be able to give a satisfactory account ofhimself, an account that will show that he is not really a vagrant.
The words in themselves are clear. If the Legislature intendedto require a satisfactory account of the accused’s presence at aplace, it would have provided as it has been provided in the EnglishPrevention of Crimes Act, 1879, “ account to the satisfaction of theCourt before whom he is brought for being found on such premises.”
If this interpretation does not provide for certain cases, thesection should be amended. As it stands all that is required is asatisfactory personal account.
Akbar, S.-O. (with him Dias, C.C.), for the Crown.—Seotion 450was meant to provide for the case of an accused not able to accountfor his presence. Satisfactory account of himself would includean account of himself up to the moment of his being found at theplace including an explanation of his presence there. Counseloited the following cases :—Wendt18 Reports, p. 237; Ramanathan’sReports, 63-66, p. 134; Grenier's Reports, 1872, p. 6; Ramanathan'sReports, 72-75 and 76, p. 117.
November 26, 1923. Bertram C.J.—
In this case we have been called upon to consider the interpre-tation of a provision of section-450 of the Penal Code. The parti-cular words that we have to consider are the words : “ Fails to give asatisfactory account of him self. ” The words are used with referenceto a person who is found upon any building or enclosure, andthe question propounded is whether the expression “ satisfactoryaccount of himself ” refers to an account of a man’s antecedents,occupation, and other personal characteristics, irrespective of hispresence at the spot in question, or whether in considering thequestion whether a man has given a satisfactory account of himself,we are entitled to take into consideration the "account he gives ofhis presence at the spot.
We may be assisted by considering the history of the provision.It is derived from pur Vagrancy Ordinance, No. 4 of 1841. ThatOrdinance replaced an earlier enactment, Regulation No. 3 of1840. Section 2 of that Regulation contained two material pro-visions : One, No. 4, which dealt with a case of a person wanderingabroad or lodging in a verandah, house, shed, or unoccupiedbuilding, not having any visible means of subsistence, and notgiving a good account of himself. The other provision is section12, which relates to a person being found in or upon anydwelling house, warehouse, building, outhouse* or other building,or any enclosed garden, plantation, or compound for any unlawful
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purpose, or not giving a satisfactory account of hiroBelf. Boththese provisions were taken from the English Vagrancy Act,
5 George IV., chapter 83, section 4. But our own enactment madea very important addition to the terms of the English enactment,namely, the addition of these very words now in question, thewords : “ not giving any satisfactory account of^himself.”
We have to ask ourselves what our Legislature meant in addingthose words. Did they mean that a man found in a dwelling houseor enclosed yard was to be called upon to give an account of hisantecedents, or did they mean that he was to be called upon to givea satisfactory account of his presence. Clearly, the latter is themore reasonable interpretation of the provision, if the words arecapable of it. It would be absurd if inquiries as to a man found inone’s house or yard should be confined to the antecedents of theperson so found, and that no question should be asked as to hisreasons for being there. The only difficulty about the interpretationis that the enactment says “ a satisfactory account of himself,” anddoes not say “ a satisfactory account of his presence.” The expres-sion is remarkably parallel to the corresponding expression in theother enactment, paragraph 4. In one ease the words are “ notgiving a satisfactory aocount of himself ” ; in the other “ not giving,a good account of himself.” It is conceded that the words “ notgiving a godd account of himself ” refer to a personal account, andthat in the enactment in which these words occur, a man would notnecessarily be called upon to give an account of his presence at aparticular spot at a particular time. He could only be called uponto give an account of himself personally.
The question arises, therefore, why a similar interpretation shouldnot be given to the other provision. The answer is, I think, thateach of these two provisions must be considered in reference to itscontext. In the one oase it must first be shown that a man wasfound wandering about or lodging somewhere and that he has novisible means of subsistence. He must thereupon give a goodaccount of himself. “ Good ” in this context muBt be interpretedas having reference to the previous words “ visible means ofsubsistence.” The account under these circumstances is only apersonal account, and not an account of the man’s presence wherehe was found. In the other provision, however, the words “ satis-factory account ” must be interpreted with reference to the fact thata man is found in or upon a dwelling house or an enclosed yard,where, ordinarily speaking, a stranger ought not to be. An accountof himself, under these circumstances, in order to be a satisfactoryaccount, should include some account of his presence at such a spot.
An interpretation of the provision had previously been underconsideration by this Court, and it was because of the opinionexpressed by Jayewardene J. in the case of The King v, Martin1 thati (1923) 25 N. L. i?. 169.
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the question is referred to this Court. Ih that ease Jayewardene J.pointed out that the accused is not called upon to account for hispresence ; he has only to give an account of himself. I feel the forceof that observation- But I think 'that the explanation I havesuggested satisfactorily disposes of the difficulty. It is certainlytrue that the wording of our section is unfortunate. It would havebeen much clearer if the words used had been those which appear insection 7, paragraph 4, of the Prevention of GrimeB Act, 1879.There the words are “ without being able to account to the satis-faction of the Court before whom he is brought for being found onsuch premises.” I think, nevertheless, the words in bur enactmentwere intended to have the same meaning, and, if considered in theircontext, they may legitimately bear that meaning. This is the viewwhich I understand we take of the law.
The question is what should be done with the offender on thefacts. Mr. Soertsz appeals for lenient treatment on the ground thathe is only 18 years of age, and that he has not been previouslyconvicted. It might be possible to deal with him under the sectiondealing with first offenders. But there appear to be objections toordering a person to be bound over to be of good behaviour. Inmany cases a small fine is thought to be preferable even by theoffender. Under the circumstances, on the appeal of Mr. Soertsz,I think the punishment of a fine of Rs. 25 would be sufficient insteadof the imprisonment ordered by the learned Magistrate. In defaultof the payment of the fine, the accused will undergo a fortnight’ssimple imprisonment.
Porter J.—I agree.
Garvin A. J.—I agree.
KURUP v. BANDA