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1896.The section of the Code under which they 'have been convicted
September21. is section 183. That Beotion runs as follows:—
Bonsbb, C.J. <* whoever voluntarily obstructs any public servant, or any“ person acting under the lawful orders of such public servant, in“ the discharge of his public functions, shall be punished with“ imprisonment of either description for a term which may extend“ to three months, or with fine which may extend to one hundred“ rupees, or with both.” The words “ or any person acting underthe lawful orders of such public servant ” are an addition oflocal manufacture. They are not found in the Indian PenalCode; and it is very difficult to give any meaning to them. Thewords “ in the discharge of his public functions ” must refer to apublic servant, because the person acting under the lawful ordersof a public servant is supposed not to be himself a public servant,and therefore cannot exercise public functions. If he were apublic servant, these added words would be unnecessary. Theyassume that he is not a public servant. I have some difficulty inunderstanding how a person can be obstructed in the discharge ofanother person’s public functions, but perhaps what was meantwas a case like this: a Magistrate, in the exercise of his publicfunctions, orders the arrest of a man in his presence, and callsupon the bystanders to assist him. Then, if the bystanders, inattempting to execute the order of the Magistrate, are obstructed,that may be regarded as an obstruction of the Magistrate himself.
In any case, where the person obstructed is not a public servant,ii must be proved that the person obstructed was acting underlawful orders. Not that he believed that his orders were lawful,but that the orders were in fact lawful, and he was acting in theexercise thereof, and that what he was doing was what the manwho ordered him was entitled in the discharge of his publicfunctions to do.
Now, what was the surveyor doing in this case? He was not apublic servant. He was surveying the land for the purpose ofmaking a map to be attached, I suppose, to the purchaser’sconveyance which is required by section 286 of the Civil Proce-dure Code. The Fiscal had no power to survey himself, becausethe section says that the plan shall be made by a licensed surveyor.Therefore, there was no obstruction of the Fiscal in the per-formance of his public fuctions. It was suggested that thesurveyor might be deemed to be a public servant by virtue ofsection 286 of the Civil Procedure Code, which provides that thesurveyor is to be an officer of the Fiscal, but the concluding wordsof that section limit its application. He is only to be an officerof the Fiscal within the meaning of section 325, which means
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that he is not to be regarded as such officer except for the purposeof that section. Section 325 provides a special remedy for anyobstruction to the Fiscal and his officers. In my opinion, if theseaccused were guilty of any offence, they ought to have been dealtwith under section 325 of the Code.
Again, the complaint is made by Mr. Brodhurst, who describeshimself as Deputy Fiscal of Kalutara. We are told that theillegible signature is that of a Mr. Keuneman. It appears thatMr. Keuneman has been appointed Deputy Fiscal of Kalutara, butwith this limitation, that he is only to act as such “ in the absenceof the Deputy Fiscal of the station on duty.” It ought to havebeen proved that the Deputy Fiscal was absent on duty at thetime that this document authorizing the survey to be made wassigned by Mr. Keuneman.
But there is another objection to these proceedings. Noprevious sanction of the Attorney-General has been proved to havebeen obtained to this prosecution. Section 149 of the CriminalProcedure Code provides that no offence under this section' shallbe taken cognizance of by any Court, “ except with the previous“ sanction of the Attorney-General or on the complaint of the“ pubic servant concerned or of some public servant to whom he" is subordinate.” Mr. Keuneman has not complained, and asDeputy Fiscal he is not subordinate to Mr. Brodhurst, but to theFiscal of the Province. The Court, therefore, had no jurisdictionin this case to entertain the complaint. The conviction shouldbe set aside.
September 21.Bosses, C.J.