( 170 )
1911.Present: Wood Renton J.
THE ATTORNEY-GENERAL v. BANDA.
736—P. C. Kandy, 26,974.
Conducting an elephant along a public road at midday outside theMunicipal limits—Offence under s. 84 of the Police Ordinance—" Throughout the Island ” means every part of the Island, and notinhabited parts only1—Ordinance No. 16 of 1865, ss. 12, 84, 90.
Section 12 of Ordinance No. 16 of 1865 enables the. Governor tobring any provision of tbe Ordinance into operation, either through-out the Island (that is to say, in every part of the Island, and notin inhabited parts only), or in any province, district, town, or place.
The Courts ' have ample power to discourage prosecutions, eitherby a refusal to issue process or by the infliction of a purely nominalpenalty, in cases where it would be absurd and unjust as a* matterof administration to enforce the provisions of the Ordinance inuninhabited places.
Tillainather v. Vadivelu 1 commented upon.
PPEAL by the Attorney-General against an acquittal. Theaccused was charged under section 84 of Ordinance No. 16
of 1865 for having conducted an elephant at 1 o’clock in the after-noon along a public road outside the Municipal limits of Kandy.The learned Magistrate made the following order: —
Mr. Jonklaas urged that there is no necessity to obtain a licenseto conduct an elephant along the high road anywhere except withinthe limitsofaMunicipality ortown. But aide extractfrom Gazette
No. 5,588 ofDecember 2, 1898, andthedefinition of- the word “town ”
the beginning of Ordinance No.16of 1865; thisdefinitionwould
appear tomean that an offenceagainst section84canbe committed
on any road in the Island; but “ set out for the purpose of thisOrdinance ”isnotclear to me. Iam unable tofindanySupreme Court
decisions onthe point, and askedforinstructions asto thecorrect
interpretation of the word “ town ” in this Ordinance.
The Attorney-General declines to give instructions in summarycase. As tbeOrdinance is not clear,andas I have noproof before me
of the useofthewords “ town limits " to coveranyvillage road in the
Island, the accused will get the benefit of the doubt, and I acquit him.
The Attorney-General appealed.
Walter Pereira, K.C., S.-G., for the appellant.—By virtue of thepowers vested in the Governor by section 12 of the Ordinance, ithas been declared by the Proclamation dated November 29, 1898,that section 84 of the Ordinance No. 16 of 1865 shall have operation
>■ (1905) 8 N. L. R. 164.
( 171 )
“throughout the Island.’’ The term includes every part of theIsland, and every road. The interpretation of the words “ set outfor the purposes of this Ordinance ’’ is not necessary for this case.
H. A. Jayewardene, for the respondent, relied on Tillainather v.Vadbelu.1
November 14, 1911. Wood Benton J–—
This is an appeal by the Attorney-General against the acquittalof the accused-respondent, who was charged in the Police Court ofKandy with having conducted an elephant along the public roadat 1 o’clock in the afternoon in breach- of section 84 of OrdinanceNo. 16 of 1865. The learned Police Magistrate has not adjudicatedupon the facts, and if he is wrong in his decision on the law, thecase will have to go back for trial in due course. Section 84 ofOrdinance No. 16 of 1865 provides that no elephant shall be allowedto pass along any street, road, or thoroughfare within any townand limits, except' between the hours of 2 and 8 in the morning,and that any person committing a breach of this provision shall beguilty of an offence punishable with a fine not exceeding £5. Theevidence for the prosecution showed that the act of the accused-respondent in conducting the elephant had been committed outsidethe Municipal limits and not in any town, and the Police Magistratetook the view that under those circumstances the respondent hadnot brought himself within the prohibition created by section 84 ofOrdinance No. 16 of 1865, inasmuch as under section 6 of thatOrdinance the word “ town ” is defined as including any village orlimits set out for • the purposes of the Ordinance. The PoliceMagistrate said that he was unable to interpret the words “ set outfor the purposes of the Ordinance,” and as the Attorney-Generaldeclined to give instructions in a summary case, he acquitted therespondent. The present appeal is brought against that acquittal.
It appears to me that the decision of the Police Magistrate iswrong in point of law. Section 12 empowers the Governor, with theadvice and consent of the Executive Council, by Proclamation inthe Government Gazette from time to time, to declare that such ofthe provisions of Ordinance No. 16 of 1865 as to him may seemadvisable “ shall come into operation throughout the Island, orin any province, district, town, or place as shall appear to him torequire the same.” In the present case, by Proclamation datedDecember 2, 1898, and made under section 12 of the Ordinance of1865, section 84 of that Ordinance has been brought into operationthroughout the Island. Apart from any judicial authority bearingupon the question, the construction of section 12 of OrdinanceNo. 16 of 1865 seems to me to be clear. It enables the Governor,with the prescribed formalities, where he may consider it desirable
1 (1905) a N. L. B. 164.
( 172 )
1911, to do so, to bring any provision, of the Ordinance into operation,WoOD either throughout the Island—that is to say, in every part of theRuntOhJ. Island, or in any province, district, town, or place. It would be,
I think, to run counter both to the letter and to the intention ofAttorney- section 12 to treat the words “ throughout the Island ” as if they°BandaV came after the clause “ or in any province, district, town, or place, ”instead of before it. The section to my mind presents no difficultyin construction, and I do not- see that there is anything unreasonablein the law which it enacts. It may quite well be that there areprovisions of the Ordinance, such, for example, as section 90, inwhich the beating of tom-toms is forbidden, which it would be^absurd and unjust as a matter of administration to enforce inuninhabited parts of the Island. But the Courts have ample powerto discourage prosecutions in such cases, either by a refusal to issueprocess or by the infliction of a purely nominal penalty, withoutour being compelled to seek relief by construing section 12 ofOrdinance No. 16 of 1865 in a sense which its language does notadmit- The case, however, of Tillainather v. Vadivelu 1 has beencited by the respondent’s counsel in support of a contrary construc-tion of section 12 of the Ordinance of 1865. That was a decisionof three Judges, and if it is clearly applicable to the present case,I am of course bound by it. It is very difficult, and my difficultyon this point is, I find, shared both by the Solicitor-General andby the counsel for the respondent, to understand what the ratiodecidendi in Tillainather v. Vadivelu 1 actually was- Sir CharlesLayard dissented from the view of the majority of the Court, which,so far as I am able to interpret it, seems to have been this. Thequestion to be decided was whether by a Proclamation under section12 of the Ordinance, identical in terms with that with which wehave here to deal, the provisions of section 90, by which the beatingof tom-toms is forbidden, had been extended to the village of Batti–cotta, the limits of which had not been defined in the Proclamation.Section 12 does not in terms require this to be done. But thecontention would seem to have been put forward that the provisionsof section 13, which enact that the Proclamation establishing apolice force in any town shall specify and define the limits of suchtown, applied by wray of analogy to Proclamations under section 12.The majority of the Court rejected that argument, and held that asBatticotta was a village, the Proclamation of section 90 had madethe provisions of that section applicable to it as such. I cannotfind that either of the Judges constituting the majority of theCourt expressly held that the provisions of section 90 could onlybe extended by a Proclamation under section 12 to villages. Inthe course of his judgment Mr. Justice Grenier said that thewords “ throughout the Island ” in section 12 must be taken tomean throughout the inhabited parts of the Island, and not also
» (1905) 8 N. L. R. 164.
( 173 )
throughout the uninhabited parts. In the present case the allegedoffence under section 84 was committed on a high road. It is, there-fore, unnecessary for me to give a formal decision as to the meaningof the words " throughout the Island ” in section 12. But I feelbound to say that if it were necessary to do so, I should myselfrespectfully construe these words as meaning through every partof the Island, and should leave cases of hardship or of absurdity tobe discouraged by those who are charged with the administrationof the law. On the grounds that I have indicated I set aside theacquittal of the accused-respondent, and send the case back fortrial in due course in the Police Court of Kandy-
Set aside and sent back.
THE ATTORNEY-GENERAL v. BANDA