057-NLR-NLR-V-08-BOWES-v.-MEERA-TAMBY.pdf
C 311 )
^l7vv«
BOWES v. MEERA TAMBY.March 31.
P. 0. Puttalam, 9,877.
Commissioner appointed under Partition Ordinance—Obstruction—PenalCode, s. 183.
Obstruction to a person acting in pursuance of a commissionissued to him by a Court under the provisions .of the PartitionOrdinance (No. 10 of 1863) is punishable under section 183 of thePenal Code.
• Brodhurst o. Hendrick Sinno (4 N. L. R. 213) dissented from.
IN BEVISION.
HE facts sufficiently appear in the judgment.
H. A. Jaycwardene, for applicant.
Van Langenberg, for respondent.
31st March, 1905. Layabd, C.J.—
The principal question raised in this matter in revision is as to theconstruction to be placed on section 183 of the Penal Code. Itappeals to me that the section was intended to meet .the case ofthe voluntary obstruction of any public officer in discharge of hispublic functions, or any person acting under the lawful orders of suchpublic servant, when such orders have been made by such publicservant in the discharge of his public functions.
The wording of this section has been criticized by Bonser, C.J.,in his judgment in the case of Brodhwst v. Hendrick Sinno (4N. L. R. 213). I think that he has put a. false construction onthe words of section 183, and I find some difficulty in understandinghow he could have arrived at the construction at which.he did, inyiew of the language used by the Legislature in that section. To 'put the construction which Bonser, C.J., has put on the wording ofthe section, is to make entirely inoperative the words which wereinserted by our Legislature in section 183, namely, the words “ orany person acting under the lawful orders of such public servant.”
It is true, as pointed out by Bonser, C.J., that they are not joinedin the Indian Code, and it is also true that he found it difficult togive any meaning to them. At the same time the Legislature didinsert them, and I consider that it is our duty to interpret them andto try to ascertain what it was the' intention of the Legislature tomeet. It appears to me that the Legislature meant to protect apublic servant from obstruction when he was acting in the discharge
I 312 )
1905. of a public duty, and also to protect " any person acting under theMarch Zl. lawful order of such public servant " when such order was made byT.ivtttn n.T- a public servant “ in the discharge of his public functions. ”
In the case actually before us the Commissioner was appointed by*the District Judge in a partition suit, and he was purporting at thetime he was obstructed to act in pursuance of the lawful orders ofthe District Judge, made by him in discharge of his duties as District.Judge, and in conformity with the provisions of the Partition Ordi-nance. If my construction of the words used by the Legislature iscorrect, then the resistance offered to the Commissioner would, underthe provisions of section 183 of the Penal Code, be an offence, aqd thepersons resisting would be liable to the punishment provided by thatsection.
The Police Magistrate in the order now under revision has failedto determine one point which it was necessary to determine to renderthe action of the accused obnoxious to the provisions of section 183,namely, whether the Commissioner appointed by the District Judge*and directed to survey certain lands within certain limits, had wrong-fully exceeded the limits of the land described in his commission,and so was not acting under the lawful orders of the District Judge*who appointed him Commissioner. We are asked in revision by therespondent to decide as to whether the Commissioner had exceededhis authority or not. I find it impossible to decide that question,and as I consider the order of the Magistrate was bad for uncertaintyI think our order should be that the acquittal of the accused be setaside, and . the case remitted to the Magistrate to determine whetherthe Commissioner was acting lawfully or without authority. On thecase being returned to the Magistrate in the fiast instance we directthat he should send for the accused and point out to them that if theyobject to their land being included in the partition suit, they shouldtake proceedings in that action itself and allow the Commissionerto continue his survey. In the event of the accused agreeing to thatcourse, it will be unnecessary for the Police Magistrate to proceed anyfurther in the matter. If however they should decline, he mustdecide as to whether the Commissioner exceeded the lawful ordersgiven him by the District Judge.
Moncreiff, J.—I agree.
Middleton, J.—I agree.