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July20, i9iiPresent: Wood Renton J.
TISSERA v. FERNANDO.
445—P. C. Chilaw, 33,868.
Obscene words—Annoyance to a sinyle person—Penal Code, s. 287.
A person who utters obscene words in a public place is guilty ofan offence under section 287 of the Penal Code, even if a singleperson was annoyed thereby.
Wood Renton J.—There is nothing either in section 287 itself,or in the reason of the thing .apart from that section, to justify mein holding that a sufficient number of persons to constitute thepublic must be present in order to bring any one who uses indecentlanguage in or near a public place within the prohibition and thepenalty of the section.
PPEAL against an acquittal with the sanction of the Attorney-General. The facts are set out in the judgment.
Goonetilleke (with him Mendis), for the appellant.—To constitutean offence under section 287 of the Penal Code it is not necessarythat the obscene words should have been uttered in the presence ofseveral people. Counsel cited Mayne's Criminal Law, 3rded., p. 145.
No appearance for the respondent.
July 20,1911. Wood Rbnton J.—
This is an appeal, with the sanction of the Attorney-General,against the acquittal of one Albano Fernando in the Police Court ofChilaw, on a charge of having uttered obscene words in or near apublic place “ to the annoyance of others,” in contravention of theprovisions of section 287 of the Penal Code. The learned PoliceMagistrate was satisfied, as I can gather from the record, that thewords were used, and that they were obscene. But he acquittedthe accused on the ground that the words in question were notuttered in the hearing of the public generally, but only within thatof the lady abused and several of her employees. “Iam confronted,”says the Police Magistrate, “ with the difficulty that the annoyancemust be to the public.” Section 287 does not say that the annoy-ance must be caused to the public. It is sufficient if the indecentwords are spoken, as they were here, in a public place to theannoyance of “ others,” and under section 8 of the Penal Codethe plural number includes the singular, unless the contrary appearfrom the context. There is nothing either in section 287 itself,or in the reason of the thing apart from that section, to justify me
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in holding that a sufficient number of persons to constitute thepublic must be present in order to bring any one who uses indecentlanguage in or near a public place within the prohibition and thepenalty of the section. We have not to consider here the commonlaw of England, according to which it would seem (see the case ofRegina v. Webb ’) that such acts as the accused has been convictedof even if committed in a place of public resort, were not indictableif only one person could have been annoyed by them. We haveto construe the provisions of the Penal Code. I would adopt aspart of my own judgment the following language used by Mr. Maynein his commentary on section 294 of the Indian Penal Code, whichcorresponds to section 287 of our own Code : “ There certainly isno reason why a person who bawls out an indecent song in a railwaycarriage to the annoyance of a single lady should not be punishedfor it.” I set aside the acquittal, and send the case back to thePolice Court of Chilaw in order that the accused may be convictedand sentenced. It will.be open to the Police Magistrate, in accord-ance with the judgment delivered a few days ago by my brotherMiddleton and myself, and which, in view of its importance to thecourts of first instance throughout the Colony, will, I hope, findits way into the Official Law Reports at the earliest possible date,to receive any legal evidence on oath that may be tendered to himeither by the prosecution or by the defence, or that he may himselfthink it right to call, bearing on the question of the character andthe antecedents of the accused, before passing sentence.
11 Dm m.
TISSERA v. FERNANDO