Mansoor v. Jayatileke.
Present: Dias J.
MANSOOR, Appellant, and JAYATILEKE (S. I., Police),
778—M. C. Colombo, 20^573.
Loitering about by reputed thief—Ingredients of the offence—Burden on pro-secution—Meaning of “loitering”—Penal Code, s. 451.
In a prosecution under section 451 of the Penal Code—
Held (i.) that the burden is on the complainant to show that at thetime the accused loitered Or lurked about a public place, he had the repu-tation of being a thief. The prosecution does not discharge that burdenby first arresting the accused on' suspicion and then ex post facto estab-lishing that he was a thief, a fact which was unknown at the time thealleged offence was committed.
(ii.) that it should be established that the conduct of the accusedamounted to loitering.
1 See Rosaline Xona v. Perera (1946) 47 N. L. R. at p. 526.
DIAS J.—Mansoor v. Jayatilake.309
^PPEAC. against a conviction from the Magistrate’s Court, Colombo.
Ivor Misso, for the accused, appellant.
Boyd Jayasuriya, C.C., for the Attorney-General.
Cur. adv. vult.
January 13. 1947. Dias J.—
The appellant was convicted of committing an offence under section451 of the Penal Code. In order to secure a conviction under thatsection, the prosecution has to establish the following ingredients beyondall reasonable doubt;
that the appellant “ being a reputed thief ”.
“ loitered ” or “ lurked ” about a “ public place ”
with intent to commit theft or any other unlawful act.
The evidence for the prosecution is that at about 1 a.m. on September18, 1946, two patrol constables observed the appellant emerging fromMaulanawatta in First Division, Maradana, and that as he proceeded he“ peeped ” through the plank shutters of two houses. The constablesarrested the appellant “ on suspicion ”. They admit that at that timethey did not know that the appellant was “ a reputed thief ”. On thesame day the police produced the appellant before the Magistrate whowas requested to remand the appellant “ pending the report of the Regis-trar of Finger Prints.” It is, therefore, clear that the police were unableto formulate any charge against the appellant when he was first producedbefore the Magistrate. After the report of the Finger Print expert hadbeen received, it was discovered that the appellant was a reconvictedcriminal with a long list of previous convictions. Thereupon the appellantwas charged as follows : “ That you did at First Division, Maradana, onthe 18th of September, 1946, being a reputed thief, did loiter about apublic place, to wit, First Division, Maradana, with intent to committheft, and thereby committed an offence punishable under section 451of the Penal Code.” He has been convicted and sentenced to undergotwo years’ rigorous imprisonment, two years’ police supervision, to paya fine of Rs. 10 and in default of payment of the fine to undergo a furtherterm of rigorous imprisonment for one week.
In my opinion this conviction cannot stand, as the prosecution hasfailed to establish beyond reasonable doubt the ingredients which cons-titute the offence charged.
In the first place, the words of section 451 are “ being a reputed thief”—'that is to say the burden is on the prosecution to show that at the timethe accused loitered or lurked about a public place, he had the reputationof being a thief. The prosecution does not discharge that burden byfirst arresting the accused on suspicion and then ex post facto establishingthat he was a thief, a fact which was unknown at the time the allegedoffence was committed. My view is supported by the dictum of mybrother de Silva J. in Perera v. The Police1 where he held that it is notopen to the prosecution to lead evidence of the previous convictions ofthe accused to establish the fact that he is a “ reputed thief ”. The
1 (1946) 32 C. L. IV. 108.
Lyris Silva v. Karunaratne.
evidence available to the prosecution should be evidence of the reputationof the accused apart from his previous convictions. The police witnessesin this case admit that at the time they arrested the appellant they didnot know he was a “ reputed thief That reputation attached to himonly after his finger prints had been taken and the expert had madehis report. On this ground alone this conviction cannot stand.
In the second place, it is not an unlawful act for a reconvicted criminalto walk abroad at 1 a.m. or to relieve his monotony by peeping throughthe plank shutters of the houses he passes. Such conduct may bereprehensible, or even suspicious—but can it be said that this appellantwas loitering ” ?
In Nair v. Velupillai1 the word “ loiter ” was defined to mean “ to lingeron the way, hang about, or travel indolently and with frequent pauses ”.It is doubtful whether the conduct of this appellant can be said to amountto loitering.
In the third place there are no circumstances to show that the intentionof the appellant in acting in this manner was to commit theft. Whencircumstances are capable of an innocent explanation, there is no warrantfor attributing to them a sinister significance. It may be the prosecutionhas established a strong case of suspicion against the appellant, butit has failed to establish beyond reasonable doubt the necessaryingredients of the offence charged.
therefore, set aside the conviction and acquit the accused.
MANSOOR, Appellant, and JAYATILEKE (S. I. POLICE ), Respondent