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Present: Mr. -Justice Wendt.
ZILVA v. GIBIGORIS.
P. C., Galle, 39,214.
Person licensed to seize dogs—Public servant—Municipal Inspectorholding license—Resistance ■and causing hurt—Penal Code, ss. 181and 344.
A person who holds a license from the Municipality to seize straycattle is not a " public servant " within the meaning of the PenalCode, and resistance to a Municipal Inspector, acting under theauthority of such a license, is not an offence, and is not punishableunder the Penal- Code.
PPEAL by the accused from a conviction under sections 1S1and 344 of the Penal Code.
The facts sufficiently appear in the judgment.
A. St. V. Jayewardene, for the accused, appellant.
R. L. Pereira, for the complainant, respondent.
11 M. C. C. SOS.3 (1901) 3 Bom. L. B. SOS.
3 8 Burma L.. R. 81.
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February 7, 1908. Wendt J.—
The appellant has been convicted, first of using criminal force toa public servant, to wit, Mr. G. C. de Zilva, Inspector of GalleMunicipality, Ward No. 4, in the execution of his duty as suchpublic servant, namely, in seizing a stray calf belonging to theaccused, an offence punishable under section 344 of the Penal Code;secondly, of offering resistance to the taking of the said calc by thelawful authority of the said G. C. de Zilva, knowing or having reasonto believe that he was a Municipal Inspector, an offence punishableunder section 181 of the Penal Code. To support the convictionunder either charge it must be shown that De Zilva was a publicservant, and was in the execution of his duty as such in seizing andtaking the calf. It is proved that he is a Municipal Inspector ofNo. 4 Ward, and that he also holds a license to seize cattle in thatWard dated January 29, 1907, in which he is described as Mr.George C. de Zilva, Inspector of Ward No. 4. It is a fair inferencethat if, as Municipal Inspector, he had the power to seize stray cattle,the license would have been unnecessary, and would not have beenissued. The mere holder of such a license, it has been decided, andI think, properly decided, is- not a “ public servant ” within themeaning of the Penal Code (Jayawardana v. IsmailcompareP. C-., Anuradhapura, 19,719.2) A Municipal Inspector, however,is expressly stated in the illustrations to section 19 of. the PenalCode to be a “ public servant.” The .Magistrate in his judgment-states that the complainant “ as a Municipal Inspector is authorizedto seize cattle. He is paid from Municipal funds.”
This may mean either that his powers qua Inspector authorizehim to seize cattle, or that the license which gives him that authoritywas entrusted to him because he was such an Inspector. The com-plainant himself gives no evidence whatever as to his powers beyondsaying “ I am Municipal Inspector paid from Municipal funds. Itis my duty to prevent nuisances, and I have a license to seize cattle.”The Solicitor-General, appearing for the prosecution, referred me tosection 70 of the Municipal Councils’ Ordinance, which enacts thatevery Municipal officer and servant of every description paid out ofthe Municipal fund shall be held to be a public servant within themeaning of. the Penal Code. There is no proof on the record as tohow' a cattle seizer is paid, but by-law No. 18 of chapter X. of theMunicipal by-laws for Galle, published by the Proclamation ofJanuary 21, 1903 (Gazette of January 23, 1903), the very by-law 18under which the license was issued to complainant, makes it clearthat a cattle seizer is paid a certain sum for each animal seized, to bepaid by the owner or levied by sale of the animal, and the balanceproceeds sale, if unclaimed, goes to the Municipal fund. The cattleseizer therefore is not paid out of the Municipal fund within the
1 (1905) 2 Bed. 186.
* Koch's Reports 63.
meaning of section 70. There is no proof that- the animal which thecomplainant- attempted to seize was a nuisance, so as to bring theseizure of it within the complainant's own definition of his duties.
In my opinion, therefore, it has not been shown that the com-plainant was a public servant acting in the execution of his duty as•such. I therefore set aside the conviction and acquit the appellant.
Appeal allowed; accused acquitted.
February 7.Wendt J.
ZILVA v. GIRIGORIS