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CADIRAVELU v. SUPPAIYA.P. C., Trinoomaee, 1,979.
Beating of tom-toms—Ordinance No. 16. of 1866, s. 90—Prosecution against
person mho caused tomtoms to be beaten—Penal Code, ss. 38, 102. 107.
Under section 90 of Ordinance No. 16 of 1666 and sections 38,' 102and 107 of the Penal Code a person who being present causes tom-tomsto be beaten without a license is liable to the penalty provided insection 90 of the Ordinance No.- 16 of 1865.
The .mere- possession of a license to do any of the acts mentioned insection 90 of the Ordinance No. 16 – of 1865 will not protect a person fromproceedings taken against him under the Penal Code for doing those acts.
The license merely protects him from prosecution under section 90.
EE appellant, who was the manager of a Hindu temple,personally supervised, though he did not take part in, the
beating of tom-toms, which under his orders continued until11 o’clock at night. He was convicted under section 90 ofOrdinance No. 16 of 1865. He appealed.
H. A. Jayawardene, for appellant.—The accused is not liable,as he did not beat the tom-tom. Bell v. Senanayaka, 7 N. L. R.126; Jansz v.' Endoris, 9 8. C. C. 204.
Rdmanatlian, S.-G., for respondent.—If section 90- of Ordi-nance No. 16 of 1865 be read with sections 38, 102, and 107 of thePenal Code this case is clearly punishable under section 90 of theOrdinance No. 16 of 1865. It has been decided by the Full Courtin Jansz v. Endoris., 9 S. C. C. 204, that if a person is present andpersonally directs that to be done which the law prohibits, heis a principal in the first degree.
Cur. adv. vult.
21st June, 1904. Moncreiff, A.C.J.—
The appellant w& charged with “ beating tom-toms at Maraya-valli Pullayar temple in the night so as to disturb the repose ofthe inhabitants without having obtained a license from theproperauthority”—anoffence punishable under Ordinance
No. 16 of 1865, section 90. The tom-toming continued until 11o’clock at night. At first it did .not appear who the appellantwas, or whether he was present in the temple when the tom-toming took place.. Now I learn that he'- is styled the manager ofthe temple, that he was present directing, and that he admitted
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to 'constable Suppiah that he had. ordered the tom-toming. He ,1904.had ho license so t6 disturb the repose of the inhabitants. At 'the Jtme 21.argument Mr. Jayawardene, for the appellant, quoted J3etl v.Senanayaka, 7 N. L. R. 126, but apparently the only question A.CUF.raised before the Chief Justice in that case was whether theowner of a plumbago store whose servants – on his instructions,but in his absence, create a noise by coopering barrels at night, isliable to be proceeded against under this section as a principal bna charge of disturbing the repose of the inhabitants without alicense. Clearly he is not. I am bound on that point by thedecision of the Full Court in 9 S. G. C. 204.
Tlje following propositions which I gather from the authoritiesin the Penal Code will, I think, make this matter clear: —
The mere possession of a license to do any of the actsmentioned in section 90 of Ordinance No. 16 of 1865 will notprotect a person from proceedings taken against him under thePenal Code for doing those acts. The license merely protectshim from prosecution under the section (I N. L. R. 179).'
I am bound by the Full Court’s decision referred to, to holdthat a person who, not having a license to do so, has caused tom-toms to be beaten cannot be charged as a principal under'thissection with beating tom-toms if he was absent at he .timeof bqating. The principal offence is beating tom-toms, not .causingtom-toms to be beaten.
A person who instigates the heating of tom-toms with-out a license or intentionally aids or of course causes by any actor illegal omission the. beating, is at least an abettor of theoffence within the meaning of chapter V. of the Penal Code. He'may be charged under section 102 of the Penal Code withabetting the commission of the offence, and punished with thepunishment provided for the offence itself. He is, Moreover'liable upon a charge of beating tom-toms without a license to becompeted as an abettor. (See sections 182 and 183 of the CriminalProcedure Code.) Reference to section 38 of the Penal Codashows that the word “ offence ” used in sections 100—103, 105, and107—113 of the Code (which relate to abetment) denotes a thingpunishable in Ceylon under any law other than the Code as wellas a thing. punishable under the Code. An offence which ischarged under section 90 of No. 16 of 1865 is therefore subject to thelaw of abetment as set out in the above sections of the Penal Code. •
If a person who has not personally taken part in thecommission of the offence, for example the accused in this case,who dicl not himself beat the tom-toms, but has instigated orcaused others to commit it, or has aided them in the commission
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of it, is present when the offence is committed, he is by the termsof section 107 of the Penal Code deemed to have committed theoffence itself.
The appellant was present in the temple when the beating oftom-toms complained of took place, and admitted that it tookplace under his orders. He is, therefore, in accordance withsection 107 of the Penal Code, deemed to have committed theoffence itself, and was -rightly convioted. The conviction isaffirmed.
CADIRAVELU v. SUPPAIYA