Joseph V. Sivasubramaniam
1971Present: G. P. A. Silva, S.P.J.
A. S. JOSEPH, Appellant, and C. SIVASUBRAMANIAM(S. I. Police), Respondent
S.C. 552/71—M.C. Colombo, 40393/A
JPenal Code—Section 451—Offence of loitering about by reputed thief—Proof—Evidence Ordinance, s. 54.
In a prosecution under section 451 of the Penal Code for loiteringabout a public place by a reputed thief, the proof of a number ofprevious convictions for thefts is sufficient to establish the ingredientthat the accused was a reputed thief. In such a case, section 54 ofthe Evidence Ordinance does not stand in the way of such evidencebeing led.
G. P. A. SILVA, S.P.J.—Joseph v. Sivasubramaniam
A PPEAL from a judgment of the Magistrate’s Court, Colombo.R. C. Gooneratne, for the accused-appellant.
N.J. Vilcassim, Crown Counsel, for the Attorney-General.
December 10, 1971. G. P. A. Silva, S.P.J.—
The charge against the accused was that he, being a reputedthief, did loiter about in a public place, to wit, the Central BusStand, Pettah with intent to commit theft and that he therebycommitted an offence punishable under section 451 of the PenalCode.
The evidence for the prosecution consisted of that of aSub-Inspector of Police and a Constable belonging to the ViceSquad, Fort. The Sub-Inspector’s evidence was that he was inplain clothes at the Pettah Bus Stand where there were aboutfifty people waiting for buses and that when he was looking outhe saw this accused peeping into the pockets of the people whowere at the bus stand. When the bus arrived some people got offthe bus and others got in. A person clad in white trousers alsogot into the bus and this accused followed that person, got intothe bus and as the bus started to go off, the accused picked thepocket of the person getting into the bus and thereafter got off.He went up and got hold of the accused but did not find anythingwith him. He took the accused to the Pettah Police Station andsubsequently learnt that he was an Island Reconvicted Criminalbearing No. 340/58. The Police Constable who was working withhim supported the Inspector on these points.
The prosecution also led the evidence of a Police Officer ofthe Office of the Registrar of Finger Prints who produced theprevious conviction sheet of the accused which disclosed thathe had seven previous convictions, five of them being for theft,one for robbery and one for loitering in a public place.
The accused when called upon for his defence made a statementfrom the dock in which he said that he was at the bus halt andthat he got into the bus and got off as there v/ere too manypassengers and that he was thereupon arrested by the Sub-Inspector and the Constable, who took him to the Pettah Policein a cab and thereafter produced him in Court the following day.Impliedly, of course, he denied the charge. The learned Magistrateconvicted him on this evidence and sentenced him to a term oftwo years rigorous imprisonment and two years police supervi-sion and also fined Rs. 25, in default two weeks rigorousimprisonment.
Ci. P. A. SILVA, S.P-T.—Joseph v. Sivasubramaniam175*
The first point taken up on behalf of the accused by his Counselis that evidence of previous convictions alone was not sufficientto establish that the accused was a reputed thief, such reputationbeing an essential ingredient in the offence with which theaccused was charged. His contention was that evidence of pre-vious convictions given by the Police constituted suspicion andnot reputation and that evidence of wide publicity of previousconvictions was necessary in order to establish the ingredientthat the accused was a reputed thief. He cited several Englishcases in support of his contention, that previous convictions onlyhelped to establish suspicion and not reputation. By itself, I mayeven agree with the proposition that a previous conviction in aCourt would establish suspicion and not necessarily reputation,but when a person has seven previous convictions at differenttimes, whether it be in the same court or in different courts ofthe Island, the only reasonable inference is that the accusedearned sufficient publicity in those cases to have the reputationof being a thief. It is to be noted that out of the seven previousconvictions, five were for theft and one for robbery. Havingregard to the fact that trials of criminal cases of the type thatthe accused has been convicted of take place in public inMagistrate’s Courts or District Courts where police officers andwitnesses are associated with the case before it reaches the stageof conviction, no other inference is possible than that the proofof a number of convictions for theft gives the person convictedthe reputation of being a thief.
Certain decisions were cited in support of the contention thatprevious convictions alone are not sufficient to prove theingredient of the accused being a reputed thief. Two judgmentscited in support of this were : Mansoor v. Jayatileke,1 48 N.L.R.308 and Perera v. The Police,2 32 C.L.W. 108. In Mansoor v.Jayatileke, it was held that the burden was on the complainantto show that at the time the accused loitered or lurked about &public place, he had the reputation of being a thief. Dias, J., wenton to say that the prosecution does not discharge that burden byfirst arresting the accused on suspicion and then ex post factoestablishing that he was a thief, a fact which was unknown atthe time the alleged offence was committed. With great respectI am unable to agree with that observation. That observationpresupposes same additional ingredient of Section 451 of thePenal Code which the prosecution is not obliged to prove. Thewords of the Section are not, “ Whoever being known by theofficer arresting him to be a reputed thief loiters or lurks
about” or words to that effect but, “ Whoever, being a
reputed thief, loiters or Jnrks about. . . .”. I entirely agree with
1 (1947) 48 N.L.R. 308.
(1946) 32 O.L.W. 108.
G. P. A. SILVA, S.P.J.—Joseph v. Sivasubramoniam
the view taken in this matter by Tennekoon, J. in the case cfSamson v. Inspector of Police Maradana3, 72 N.L.R. 330 in whichI find that he had disagreed with the view expressed by Dias J.which I have referred to. It is quite sufficient for the prosecutionto prove a series of previous convictions of theft in order toestablish the ingredient that the accused was a reputed thief.
Counsel for the appellant also argued that there was noevidence in this case that the accused loitered about a publicplace. I think the evidence of the Inspector that he watchedthis accused peeping into the pockets of the people who wereat the bus stand ; that he moved and boarded another bus andthat he attempted to pick a person’s pocket, was sufficient toestablish that he was loitering about a public place, namely thePettah Bus Stand. There is therefore no substance in either ofthese contentions. The last submission of Counsel for theappellant was that under Section 54 of the Evidence Ordinance,the evidence of previous convictions could not have been ledby the prosecution as part of its case. While section 54 preventsthe prosecution from leading evidence of bad character in acriminal proceeding, explanation (1) of this section makes thisprovision inapplicable in cases in which bad character of anyperson is itself a fact in issue. One of the ingredients of a chargeunder section 451 of the Penal Code being that the accused is areputed thief, the prosecution in presenting its case willnecessarily be compelled to lead evidence of bad character of theaccused, namely, that he was a reputed thief. Therefore, it wasquite in order for the prosecution, in order to establish thecharge in this case, to lead evidence of bad character, to theextent of showing that the accused was a reputed 1hief andsection 54 will not stand in the way of such evidence being led.Along with this contention a further submission was made, thatthe mode of proof which the prosecution employed to prove theprevious convictions, namely by calling an officer of the Registrarof Finger Prints to produce the previous conviction sheet, wasnot one warranted by the Evidence Ordinance. It is correct thatthis mode of leading evidence of previous convictions is oneprescribed by the Prevention of Crimes Ordinance, Chapter 22and that it was to be adopted only after the conviction of anaccused. However, in the absence of an express provision inregard to the mode of proof of a previous conviction in theEvidence Ordinance, I can see no serious objection to theprosecution having recourse to this mode of leading evidencewhich is sanctioned by law although in a different connection.There may have been some substance in this complaint if indeedthe position of the accused was that these previous convictions
(1967) 72 N.L.R. 330.
ALLES, J.-—Sinnalhurai v. Tharmalingam
did not occur. It is to be noted, however, that when this evidencewas led, the accused did not contradict that position by cross-examining the witness nor did he take up the position even whenmaking his statement from the dock that those previous con-victions did not apply to him. Even if there was a technical errorin the method of proof, therefore, having regard to the positiontaken by the accused, I am of the view that no prejudice wascaused to him at all by such error. In the circumstances I seeno reason to interfere with the conviction in this case. The appealis accordingly dismissed.
A. S. JOSEPH, Appellant, and C. SIVASUBRAMANIAM (S. I. Police), Respondent