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Present: Ennis J.
ALWIS 17. KUMARASINGHE.P. C. Matara, 3,696.Revision—Criminal trespass—Order to give security to keep the peace—
Absence of charge—Criminal Procedure Code, ss. 80, 357.
Where a person was convicted of the offence of criminal trespass,and the facts indicated an intention on the part of the accused tocommit a breach of the peace,—
Held, that the Court had the power to order him to give securityto keep the peace.
Ennis J.—The informalities in the case, namely, the absenceof a charge and the fact that the formal conviction is for “ entering ”the premises, instead of, as found in the judgment, for “ remaining ”on them, do not, I consider, justify the exercise of re visional powers,as it is clear that the accused was fully aware of the charge againsthim, and has had a fair trial.
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'J' HE facts appear freon the judgment.
A. Jayewardene (with him F. H. B. Koeh), for petitioner.—An offence involving a breach of the peace means an offence inwhich the breach of the peace necessarily enters as a constitutingelement. Even if a breach of the peace is committed by a personin the course of the commission of an offence, of which breach of thepeace is not a necessary ingredient, the provisions of section 80do not apply. The offence of criminal trespass may in certaincircumstances involve a breach of the peace, but in this case thereis no evidence that any breach of the peace was committed. ArmSamantu v. Emperor,1 Muttiah Chetty v. Emperor.2
A. St. V. Jayewatdene, for the complainant, respondent.—Wherethe conduct of the accused in a prosecution for criminal trespasspoints to an intention to commit a breach of the peace, the Courthas the power to order the accused to give security to keep thepeace. Counsel cited Queen v. Gendoo Khan* Re Jfcapoo,4 BaidyaNath Majundus v. Nibaran Chander Gapets 72—P. C. Ratnapura5,181,6 De Silva v. James.7
October 9, 1912. Ennis J.—
In this case the accused has been convicted under section 438 ofthe Penal Code of criminal trespass by remaining on certain premiseswith intent to annoy the persons in occupation, and has been boundover to keep the peace under section 80 of the Criminal ProcedureCode.
There is no appeal in this case, but the Supreme Court is askedto interfere in revision and set aside the conviction and order. Theinformalities in the case, namely, the absence of a charge and thefact that the formal conviction is for “ entering *’ the premises,
instead of, as found in the judgment, for “ remaining ’* on them,
do not,/I consider, justify thfe exercise of revisional powers, as it isclear that the accused was^fully aware of the charge against him,and has had a fair trial. Tt has been urged that the accused did .not, in fact, remain on the premises after he had notice to go, butthe accused admitted that he remained tilt July 15, and it appearsthat he had been told to go on the 12th. I see no reason tointerfere with the conviction on the facts of the case.
The only other point raised is whether under section 80 of theCriminal Procedure Code an order for security for. keeping the peacecould be made. Under that, section such an order can be made
4’S0 W. R.Cr. 37.s SO Cal. 93.
• 8. C. Min. Feb. IS, 1907.*8 8. C. D.80.
i 80 Cal. 806.
* 29 Mad. 190.*7W.R. Cr. 14. .
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whenever any person is convicted of any offence which involvesa breach of the peace.
Two Indian cases, Arm Samantu v. Emperor 1 and Muttiah Chettyv. Emperor,a under similar sections in the Indian Code, have beencited to show that before an order for security could be made abreach of the peace must have taken place, and that a breach ofthe peace must itself be an ingredient of the offence under whichthe conviction is had.
On the other hand, other Indian cases, viz., Queen v. GendooKhan* and Be Jhapoo* and Baidya Nath Majuiidus v. NibaranChander Chips,1 have been cited, in which an order for security to ■keep the peace was held necessary and lawful when the factswhich constituted the offence of criminal trespass were such as toindicate an intention to commit a breach of the peace. The cases72—P. C. Batnapura 5,131# (unreported) and De Silva v. James 7in thin Court seem also to have been decided on the same lines.
In tiie present case the conviction is for criminal trespass with- intent to annoy, and upon examining the facts it appears that theannoyance consisted of threats to kill the persons employed on thepremises, and not merely attempts to stop the work and refusalto surrender account books.
In these circumstances, I consider that the offence was onecalculated to involve a breach of the peace; and following theprevious decisions of this Court, I hold that the order was properlymade, and that there is no good ground to exercise the revisionalpowers of the Court.
Altois 9,Humani-sing he
*20 W.R. Cr. 87.
* 80 Cat. 98.
6 8. C. Min., Feb. 18,1907.
i 80 Cal. 866.
* 29 Mad. 190.
*7 W.R. Cr. 14.
» 8 8. C. D. 80.