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Police vidane—Village, headman—Peace officer—,Criminal Procedure Codes. 3—Search for stolen property without search warrant—Criminaltrespass—Penal Code, s. 434.
_ A police vidane who searches a man's house for stolen property,believing that he has the power to do so, cannot be convicted of.criminal trespass with intent to commit theft.
A police vidane appointed by the Government Agent “ by virtue ofthe powers vested by the Governor ” is a “ peace officer ” as defined bysection 3 of the Criminal Procedure Code.'
HE accused was found guilty of committing house trespass byentering into a human dwelling in the occupation of Juwanis
de Costa with intent to commit theft, and so*committing an offencepunishable under section 434 of the Penal Code, and with com-mitting theft of certain property .then and there.
COSTA v. SINHO.
P. C., Colombo, 81.752.
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The Police Magistrate, Mr. W. E. Thorpe, said: —
“ This case raises a very important point in connection with Police.'Administration in the rural districts. The first accused, a policevidane, has searched the complainant’s house for stolen property'without a search warrant. A regular policeman has this powerunder section 59 of the Ordinance No. 16 of 1865, and under theold Code, by the definition of police officer, village headmen havethis power as well. But by the definition of police officer and.peace officer in the new Criminal Procedure Code this power iataken away, and village headmen cannot search without searchwarrant.
‘It is a most serious deficiency, as now, unless they want to ex-.pose themselves to a criminal charge, most important evidencemust be frequently lost. A man may be robbed and the stolenproperty known to be in the accused’s house, but the peace officerwithout a warrant has no legal power to search. This defectin the machinery for administering justice calls for the speediestremedy.
" I must convict the police headman of criminal trespass andtheft, as he had no legal power to take away the property found.
The accused appealed.
Allan Drieberg, for appellant.
Batuwantudawe, for complainant, respondent.
Fernando, C.C., for the Crown.
7th August, 1903. Grenier, A.J.—
The appellant in this case is a police vidane, and the chargeagainst him was that he committed house trespass with intent tocommit theft. It appears that the appellant searched the conv-plainant’s house for stolen property without a search warrant, andthe Police Magistrate was of opinion that he was not entitled to dothis because he was a village headman and not a police officer orpeace officer within the meaning of the Criminal Procedure Code,section 3. I was in doubt at first as to whether the appellant heldany appointment from Government, and I therefore sent the pro-ceedings back to the Magistrate with a request that he shouldcall upbn the appellant to produce his appointment, if he had one.The appellant Ijas produced his appointment, which is signed bythe Government Agent* for the Westefn Province “ by virtue ofthe powers vested in* him by the'Governor. ” The act of appoint-ment does not show what the duties of the appellant are, but, fromthe fact of the appellant being appointed a police vidane—I wouldwish to emphasize the word “ police ”—I take it that he is to>
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perform police duties, because it seems to me that we must look tothe popular meaning of the words and to the sense in which theyare universally understood. Now, there can be no doubt that, asa matter of fact, a police vidane performs police duties in arrest-ing persons charged with criminal offences, whether with orprithout a warrant, as the case may be; and that, generallyspeaking, a police vidane is expected to and actually does performduties in the maintenance of peace and the detection and suppres-sion of crime. Perhaps the question does not properly arise inthis case, but I am prepared hold that a police vidane,'appointed by the Government Agpnt in the manner in which thisappellant has been. appointed, comes within the definition of apeace officer, as the term peace officer is defined by section 3 ofthe Criminal Procedure Code. In this view the appellant wasjustified in searching the complainant's house for stolen propertywithout a’ warrant.
I shall, however, at the same time deal with the case with refer-ence to the validity of the conviction on the materials in the record.According to the Magistrate himself, the appellant appears tohave acted in a perfectly bond fide manner, assuming that he wasnot a peace officer within the meaning of section 3. The state-ment that he made to the Magistrate cannot be construed into anunqualified admission of “ legal guilt, ” as the Magistrate puts it,simply because, in the opinion of the Magistrate, the appellant hadno power to search. Even if he had no power to search, I failto see anything in the statement amounting to an unqualifiedadmission that the appellant committed house trespass with intentto' commit theft, which is a specific charge and must be supportedby sufficient proof or by a clear and unqualified admission of guiltwith full knowledge both of the meaning of the charge and theeffect of such an admission as I have indicated. On the contrary,the appellant’s statement entirely exonerates him from all crimi-nality in regard to this transaction. He never entered the houseof the complainant with intent to commit theft, nor did heactually commit any theft of the articles mentioned in the charge,because he distinctly states that .the watch that he took from thehouse was subsequently produced by him in Court with his report,an<l there is nothing in thfe whole of the complainant’s evidenceto support his present charge against the appellant.
The appellant must be acquitted a!hd discharged.
COSTA v. SINHO