040-NLR-NLR-V-53-PONNUSAMY-Appellant-and-ALPHONSUS-Respondent.pdf
Ponnusamy o. Alphonsus –
189
3951Present : Dias S.P.J. and Gunasekara J.
PONNUSAMY, Appellant, and AXiPHONSUS, RespondentS. G. 212—M. G. Hatton, 17,180
Rural Courts Ordinance, No. 12 of 1945, es. 10 (b), 11—Criminal trespass with inten-tion to intimidate, insult or annoy—Right of Rural Court to try such offence—Penal Code, ss. 427, 433.,
A Sara! Court has no jurisdiction to try an offence of criminal trespass -wherethe intent is to intimidate, insult or annoy.
PPPiAT, from a judgment of the Magistrate’s Court, Hatton. This–appeal was reserved for adjudication by a Bench of two Judges on areference made by de Silva J.
M. M. Kumarakulasingham, with J. G. Thurairatnam, for the accusedappellant.
H. V. Perera, K.C., with F. C. W. van Geyeel, for the complainantrespondent.
Cur. adv. vvlt.
190GTJNASEKABA. J.—Ponnusamy v. Alphonsus
August 20, 1951. Gunasekara J.—
The appellant in this ease was convicted by the Magistrate's Courtof Hatton on a charge of criminal trespass, punishable under section 433of the Penal Code, which alleged that the intent of the trespass was “ to-insult and/or intimidate ” the complainant. The case comes before usfor the decision of a., question that has been reserved by de Silva J.Section 48 of the Courts Ordinance (Cap. 6) provides that whenever anyquestion shall arise for adjudication in any case coming before a single'Judge of the Supreme Court, which shall appear to such Judge to be aquestion of doubt or difficulty, it shall be lawful for such Judge toreserve such question for the deoision of more than one Judge of thatCourt; and section 48a provides that any question so reserved shallbe decided by a Bench, constituted in accordance with an Order madeby the Chief Justice in that, behalf, of two or more Judges of that Court.
The present question arose before de Silva J. in the unusual form of apreliminary objection taken by the appellant’s Counsel, as appears fromthe following passage in his order:
“ Learned Counsel for the accused-appellant has raised a preliminaryobjection. He submits that the Magistrate’s Court has no jurisdictionto try this case. He cites Sec. 11 of Ord. 12 of 1945 (Bur&l Courts)
• and submits that the Rural Court has exclusive jurisdiction to try thiscase—vide schedule 2 attached to the said ordinance ”.
This submission assumes, of course, that there is a Rural Court whichhas jurisdiction over the place where the offence is alleged to have beencommitted and upon that assumption the question for decision is whetherthat Rural Court has jurisdiction to the exclusion of the Magistrate’sCourt of Hatton to try the offence charged. The point appears to becovered by the decision in Maruthappen v. Ashton 1 where the intentci the trespass charged was alleged to have-been to annoy the complainant,and my brother Bias held that for that reason a Rural Court had nojurisdiction to try the offence. My brother de Silva having cited thiscase sets out as follows his ground for reserving the question for thedecision of a larger Bench :
“ I have already read this judgment and the second schedule to theordinance and I feel that this matter requires consideration by a fullerBench. This is a matter of importance and I should like the matterto be considered by a Bench of two Judges. I accordingly refer theprp.1iminn.ry objection raised by learned Counsel for the appellantfor consideration and determination by a Bench of two Judges of theSupreme Court.”
Section 11 of the Rural Courts Ordinance, No. 12 of 1945, providesthat (subject to certain exceptions) the jurisdiction conferred by thatOrdinance on Rural Courts shall be exclusive and that cases within thatjurifediction shall not be entertained, tried or determined by any courtestablished under the provisions of the Courts Ordinance. The criminal
1 {1948) 49 N. L. R. 132.
GUNASKKABA J.—Pomiusamy v. Alplionsns
191
jurisdiction of Rural Courts is defined by section 10, and it is contendedfor the appellant that the offence of which he has been convicted fallswithin the class defined in (b) of that section as follows: —
“ the offences for the time being included in the Second Scheduleto this Ordinance, that is to say, such of the offences under the pro-visions of law enumerated in the first column of that schedule as arespecified or described in the corresponding entries in the second columnof that Schedule, but subject in the case of each of those offences toany limitations, restrictions or conditions set out in respect of thatoffence in the third column of that Schedule;”
The Second Schedule, which is headed “ offences within the jurisdictionof Rural Courts ”, is in four columns headed respectively as follows:
”1. Ordinance and section thereof by which the offence is declaredor made punishable.
Description of offence.
Limitations, restrictions or conditions.
Additional powers ”.
Among the provisions of law enumerated in the first column issection 433 of the Penal Code, which provides a penalty for criminaltrespass, and the corresponding entry in the second column is “ Criminaltrespass, as defined in section 427 of that Code There is set out inrespect of this offence in the third column the following limitation,restriction or condition:
“ A Rural Court shall have jurisdiction only in cases where the•offence intended to be committed is an offence within the criminaljurisdiction of a Rural Court.”
One of the ingredients of criminal trespass is an intent to commit anoffence (as defined in section 38 (2) and (3) of the Penal Code) or tointimidate, insult or annoy any person in occupation of the propertythat is trespassed upon. Intimidation is not an offence unless it amountsto criminal intimidation as defined in section 483 of the Penal Code,and in any event criminal intimidation is not within the jurisdiction ofa Rural Court. Insult is one of the ingredients of the offence madepunishable under section 484 of that Code and is not by itself an offencewithin the meaning of section 427. Nor is annojanee an offence. Thequestion for decision therefore resolves itself into a question whether aRural Court has jurisdiction to try an offence of criminal trespass wherethe intent is to intimidate, insult or annoy the person in occupationof the property.
The offences in respect of which jurisdiction is given to Rural Courtsby (b) of section 10 of the Rural Courts Ordinance are those specifiedin the second column of the schedule, being offences that belong to theclass specified in the first column, subject to any limitations, restrictionsor conditions set out in the third column. Accordingly, but for the limi-tation set out in the third column, a Rural Court would have jurisdictionto try any offence of criminal trespass punishable under section 433 of the18-N. L. R. Vol.-Liii
192
GUNASEKABA J.—Ponnusamy v. Alphonsus
Penal Code. It is contended for the appellant that the effect of thewords in the third column is to create an exception in the case of thoseoffences of criminal trespass punishable under section 433 where theintent is to commit an offence and the offence intended to be committedis outside the jurisdiction of a Rural Court, and that therefore RuralCourts are given jurisdiction to try all other offences of criminal trespasspunishable under section 433 of the Penal Code. What is stated in thethird column does connote that Rural Courts have no jurisdiction to tryoffences of the former class, but the whole of the limitation on the juris-diction of a Rural Court to try offences of criminal trespass is not containedin that connotation. It is stated positively that such a court shall havejurisdiction only in cases where the offence intended to be committedis an offence within the criminal jurisdiction of a Rural Court. It seemsobvious that all other cases of criminal trespass, and therefore all caseswhere the intent is to intimidate, insult or annoy the person in occupationof the property, are outside the jurisdiction of Rural Courts.
Mr. Kumarakulasingham contends that it cannot be that the Legisla-ture intended to exclude from the jurisdiction of Rural Courts cases wherethe intent is merely to insult or annoy some person but include, as ithas done, graver forms of criminal trespass. There is much force in thiscontention, but if the Legislature did intend to give these courts jurisdic-tion to try such cases it has failed to give effect to that intention. Iwould say. with all respect, that the case of Manithappen v. Ashton 1was rightly decided. In my opinion the offence in question in the presentcase is not one that a Rural Court has jurisdiction to try.
Dias S.P.J.—For the reasons given by my brother Gunasekara I agreethat the case of Maruthappen v. Ashton 1 was rightly decided.
Objection relating to jurisdiction of trial Court overruled.
>(1948) 49 A L. It. 132.