WIJEYEWARDENE J.—Perkins v. Sri Rajah.
1940Present: Wijeyewardene J.
PERKINS v. SRI RAJAH.898—M. C. Badulla, 1,577.
Local Government Ordinance—Permit to preach within U. D. C. limits—
Revocation of permit—Authority of Chairman—Validity of by-law—
Defect in charge.
The accused was wrongly charged under sections 164 and 168 of thePenal Code with having addressed an assembly within the limits of theUrban District Council of Badulla without a valid permit from theChairman of the Council in breach of a by-law framed under the LocalGovernment Ordinance.
It appeared that the accused had obtained a permit from the Chairmanand that the latter had revoked it subsequently on representations madeby the Police.
Held, that the. Chairman had no power to revoke the permit arbitrarily.
Held, further, that the charge which was read out of the summons wasbad as it did not refer to the by-law under which the accused was chargedand to the Gazette in which it was published.
Quaere, whether the framing of the by-law in question could be justi-fied under section 168 (8) of the Local Government Ordinance ?
^ PPEAL from a conviction by the Magistrate of Badulla.
R. R. Crosette-Thambiah, C.C., for complainant, respondent.
No appearance for accused, appellant.
Cur. adv. vult.
March 20, 1940. Wijeyewardene J.—
The accused-appellant has been convicted of the offence of preachingto an assembly within the limits of the Urban District Council, Badulla,without a valid permit from the Chairman, Urban District Council, andsentenced to pay a fine of Rs. 20, and in default undergo simple imprison-ment for three weeks.
On a written report made by an Inspector of Police under section 148 (b)of the Criminal Procedure Code, the Magistrate ordered summons to issueon the accused. When the accused appeared in Court on receiving thesummons the Magistrate read the charge to him from the summons, andthe accused pleaded not guilty. The summons sets out the charge asfollows: —
“ You did on the 1st day of August, 1939, atpreach or
address an assembly or crowd within the limits of the U.D.C.,Badulla, without a valid permit from the Chairman, U.D.C.,and you thereby committed an offence punishable undersections 164, 168 (8) (d) of the Penal Code. ”
Now section 164 of the Penal Code refers to a fraudulent or maliciousinfraction of duty by. a public servant employed in the Government Tele-graph Department, and section 168 of the Penal Code refers to the offenceof personating a Public Servant. There is no section in the Penal Code
476WIJEYEWARDENE J.—Perkins v. SA Rajah.
numbered as 168 (8) (d). Mr. Crosette-Thanibiah who appeared for. thecomplainant showed me a by-law published in the Government GazetteNo. 7,973 of March 24, 1933, which enacts—1
“ No person shall preach or address any assembly or crowd or hold anymeeting on any thoroughfare within the limits of the BadullaUrban District Council area except in pursuance of a permitfrom the Chairman of the Urban District Council and within thetimes and limits specified on such permit. Any person whoshall commit a breach of this by-law shall be guilty of an offenceand shall be liable on conviction to a fine not exceeding Rs. 50 ”.
This by-law is purported to have been made by the Urban DistrictCouncil in the exercise of its powers under sections 164, 168 (8) (d) of theLocal Government Ordinance, No. 11 of 1920. The reference in thesummons to the Penal Code is clearly a mistake for the Local GovernmentOrdinance, No. 11 of 1920, due to carelessness on the part of an officerof the Magistrate’s Court. Moreover, the summons was defective as itdid not refer to the particular by-law and the Gazette in which it waspublished. These defects in the summons show serious carelessness onthe part of some responsible officer and it is somewhat disconcerting tofind that the learned Magistrate did not detect them when, accordingto the record, he explained the charge to the accused from the summons.The conviction of the accused cannot be sustained in view of thesedefects.
The facts of the case are briefly as follows:—The Chairman issued apermit P 2 of May 24, 1939, granting the accused permission to “ preachin the streets between the hours of 6 a.m. to 6 p.m. in the town of Badulla,for a period 24.5.39 to 23.11.39”. The permit stated that it was .liableto be revoked—
when the meeting was attended by any obstruction to traffic or
when the preaching caused annoyance to the public ;
if the holder failed to produce the permit when requested to do so
by any Police Officer.
On July 22, 1939, the Chairman addressed a letter to the accused andsent it by registered post informing him that the permit was cancelledand requested him to return it to the office. This letter was infact delivered by the postal authorities to the keeper of a boutique^where the accused took his meals often. The boutique-keeper handedthe letter to one Perera who says he gave the letter to the accused onAugust 1 or 2. Both the boutique-keeper and Perera are witnesses for•the prosecution. On August 1, 1939, the Assistant Superintendent ofPolice, Uva, found the accused preaching at 8.30 a.m. on a public road.The Assistant Superintendent of Police says that he was aware at the timethat' the accused’s permit had been cancelled by the Chairman of theUrban District Council. He went to the accused and got the permitfrom the accused. He adds—
“When the accused took this permit out he also handed to me with itan envelope containing a letter from the Chairman, U. D. C.,addressed to him. P 3 dated July 22, 1939, is a copy of the
WIJEYEWARDENE J.—Perkins v. Sri Rajah.
letter that was in the envelope handed to me by the accused.The letter came out from the accused’s pocket accidentally. Iread it and handed it back to the accused immediately. I madea note of the number of the letter and the date …. ”.
The Police Officer appears to deserve commendation for efficiency forobserving the letter which came out by accident from the accused’spocket and for having thought it useful to read the letter and note its dateand number in spite of the fact that he was then aware that the permithad been cancelled by the Chairman and he had no reason to believe thatthere would be any question as to the letter having reached the accusedwithout delay. The learned Magistrate accepts “ unhesitatingly ” theevidence of the Assistant Superintendent of Police on this point dridstates that he has not the “ slightest doubt ” in holding that theChairman’s letter must have reached the accused before August 1,in spite of some difficulty created by the evidence of two other witnessesfor the prosecution, the boutique-keeper and Perera. I may add that theaccused appears to have charged the Superintendent in M.C., Badulla,No. 1,394 with assault, wrongful restraint and wrongful confinement inrespect of certain acts alleged to have been committed by him at the timeof the arrest. The Magistrate acquitted the Assistant Superintendent ofPolice on August 21, 1939.
There is a conflict of evidence with regard to the reasons for thecancellation of the permit. The evidence of the Assistant Superin-tendent of Police on this point is—
“ I wrote to the Chairman on 22.7.39 asking him to withdraw thepermit issued to the accused as I found that the accused hadpublished a pamphlet inciting communal feelings and he Wasalso distributing similar pamphlets. I do not hear what theaccused preached. I thought the accused was a dangerous manto be allowed to preach. ”
The Chairman, Urban District Council states in his evidence—
“ On 22.7.39 on representations made to me by the A. S. P., Uva, Iwrote to the accused a letter …. informing him thatthe street preaching licence issued to him is cancelled .
I thought that if I could issue the permit I could also withdrawit. I thought the object of the by-law was to control preaching.
I went through the file of the accused and found that he was onthe Black List of the D.I.-G. of Police The accused had refusedto give the permit to the Police and I was satisfied with' it.When I withdrew the permit I did not look into the by-lawspecially. ”‘
The Chairman whose attention was drawn to the permit and the by-law"in. the course of his cross-examinations appears to justify the revocationof the permit on the ground that the accused had committed a breach ofcondition (3) appearing on the permit requiring the production of thepermit when requested to do so by a Police Officer. Besides the Chair-man, the prosecution has called seven witnesses including two membersof the Police Force. But none of these witnesses have stated that the
478WIJEYEWARDENE J.—Perkins v. Sri Rajah.
accused at any time committed a breach of condition (3) given in thepermit. In one part of his evidence the Chairman seems to suggest thatthe “ cancellation ” was induced by some discovery which he made in“ the Black List of the Deputy Inspector-General of Police In theabsence of any evidence as to the character and contents of this BlackList to which the Chairman makes a cryptic reference I am unable tounderstand the exact nature of the reason Tyhich the Chairman suggestsas one of the possible reasons.
I wish to add moreover that if it became necessary for me for thepurpose of this appeal to consider the soundness of the reasons given bythe Assistant Superintendent of Police for the action taken by him inasking the Chairman to revoke the permit I would have had no materialbefore me on which I could have reached a decision as to the adequacyof the reasons given by him. The Assistant Superintendent of Policehas merely stated that in his opinion the pamphlet issued by the accusedincited communal feelings. A Court cannot be expected to surrender itsjudgment to a Police Officer and hold that the tendency of the pamphletwas to incite “ communal feelings ” and the person publishing thepamphlet was therefore a “ dangerous man ” merely because the PoliceOfficer states so in his evidence.
I am not satisfied on the evidence that the accused has committed abreach of the conditions subject to which the permit was issued to him.Nor do I think that the Chairman of the Urban District Council couldarbitrarily revoke the permit. The authority cited by the learnedMagistrate (Inspector, Sanitary Board, Wadduwa v. Podi Nona') dealswith building regulations and has no application in the present case.
The accused was not represented at the hearing of the appeal and I didnot have therefore the advantage of hearing Counsel on the questionwhether the by-laws referred to are not ultra vires. Section 164 of theLocal Government Ordinance, No. 11 of 1920, empowers a DistrictCouncil subject to the approval of the Local Government Board to makeonly such by-laws as may appear to the Council necessary for the purposeof the exercise of its powers and duties under the Ordinance. Now theparticular by-law discussed in this case is purported to have been madeunder section 168 (8) of the Ordinance which sets out the purpose asfollows : —
“The regulation of processions and "assemblages and of the performanceof music in thoroughfares ”.
It is, to say the least, open to serious doubt whether the framing ofthis particular by-law could be justified under section 168 (8) of theOrdinance. On the other hand section 166 of the Ordinance declares” that by-laws purporting to be made under the Ordinance shall, whenpublished in the Government Gazette, become as legal, valid and effectualas if they had been enacted in the Ordinance and the modern tendency ofthe Courts has. been not to scrutinize too strictly the by-laws made by apublic body on the ground of unreasonableness but to support them ifpossible by a benevolent interpretation—unless it is quite clear that the
1 28 N. L. if. 415.
DE KRETSER J.—Perera v. Rajakariar.
public body has exceeded its powers—and credit those who are toadminister them with an intention to do so in a reasonable manner.(Cassell v. Jones ) I do not think it however desirable that I shouldexpress a definite opinion on the validity of the particular by-law as thematter was not argued before me.
I allow the appeal and acquit the accused.
PERKINS v. SRI RAJAH