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QUEEN v. PODI BABA.D. 0. (Criminal), Kalutara, 618.
Defective warrant of arrest—Competency of a police headman as public servantto arrest a person charged with robbery, independently of a warrant—Causing hurt to such servant—Plea of private defence.
Causing hurt to a police headman, while in good faith and undercolour of hie office he was executing a defective warrant of arreet upona person charged with robbery, is an offence under section 32S of thePenal Code.
And in the absence of any act on the headman’s part to cause reason-able apprehension of death or grievous hurt, the right of private defeooecannot be availed of against an arrest made by such public servant, whobelieved bond fide that he had the power to make the arrest.
rpHE accused having been charged with robbery, a warrant ofarrest was issued against him, addressed to one Jayasuria,Deputy Fiscal and Mudaliydr of Rayigam k6ral£, who entrustedit for execution to the complainant, Jayatilaka, Police Qeadmanef Rambukkana. Upon arresting the accused, the accused causedhim hurt by autting him with a knife.
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The District Judge convicted the accused under section 328 ofthe Penal Code.
On appeal, Jayawardana appeared for defendant,and contendedthat the complainant had no authority to arrest the defendant,and that the warrant was informal because it did not disclosethe district over which the signing Magistrate had jurisdiction,nor set forth sufficiently clearly the offence with which thedefendant was charged.
Cur. ndv. vult.
19th March, 1895. Withers, J.—
The question is whether the accused has been rightly convictedof an offence under section 323 of the Ceylon Penal Code,in that on a certain day in January last he voluntarily causedhurt to the prosecutor, being a public servant, in the dis-charge of his duty as such public servant. It was strenuouslypressed upon me by Mr. Jayawardana that the warrant committedto the prosecutor was bad, and that the prosecutor had no powerto execute it.
The prosecutor, one David Perera Jayatilaka, is a Police Head-man of Rambukkana. The duty he was supposed to be discharg-ing at the time the accused assaulted him was the execution of awarrant of arrest signed by the Police Magistrate of Panadure.
The warrant was produced before the Court, and is marked withthe letter A. The warrant, it was urged, does not particularizewith sufficient certainty the offencfe with which the person to bearrested under it stands charged, and it does not disclose thedistrict over which the signing Magistrate has jurisdiction. Inaddition to these defects this warrant was not directed to the saidDavid Perera Jayatilaka : it was directed to the Deputy Fiscal,Bandaragama.
That officer did Dot, as he might have done, endorse the nanieof D. P. Jayatilaka upon the warrant. Hence Jayatilaka was notauthorized to arrest the accused under that warrant. I think thewarrant Bhould have specified the time and place of the committalof the offence, and that the local jurisdiction of the Magistrate todeal with it should have been disclosed on the face of the warrant.It is certainly clear that Jayatilaka was not authorized to executethe warrant.
Still, this is not a complete defence in the circumstances.Jayatilaka is a public servant, and might have arrested the accusedon the charge of robbery without a warrant. He was acting ingood faith under colour of his office. He was executing a warrantsigned by the Police Magistrate of the district which had been
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handed to him for execution. He himself believed he had a rightto execute it. In acting under it he did nothing to excite thereasonable apprehension of death or grievous hurt to the accusedor to any one.
The 92nd section, sub-section 2, of the Penal Code enacts that“ there is no right of private defence against an act which does“ not reasonably cause the apprehension of death or of grievouB“hurt, if done, or attempted to be done, by the direction of a“public servant acting in good faith under colour of his office,“ though that direction may not be strictly justifiable by law.”The conviction must therefore be affirmed.
QUEEN v. PODI BABA