SRI SKANDA RAJAH, J.—Dharmaratne Thero v. Ojfftcer-in-Charge
1964Present: Sri Skanda Rajah, J.
DHARMARATNE THERO, Appellant, and OFFICER-IN-CHARGE, NITTAMBUWA POLICE, Respondent
S. G. 424/63—M. G. Gampaha, 70,300}A
Criminal trespass—“ Intent to commit an offence ”—Penal Code, ss. 433, 434.
Where a person was charged under section 433 of the Penal Code withcommitting criminal trespass with intent to commit an offence, to wit,“ forcible occupation ” of a temple—
Held, that the charge was bad in law for the reason that “ forcibleoccupation ” is not an offence known to the law.
Appeal from a judgment of the Magistrate’s Court, Gampaha.
H. W. Jayewardene, Q.G., with F. A. Abeyewardene, N. R. M.Daluwatte and 8. R. de Silva, for the Accused-Appellant.
D. 8. Wijesinghe, Crown Counsel, for the Attorney-General.
February 17, 1964. Ski Skanda Rajah, J.—
The accused in this case is a Buddhist monk. He has been chargedwith committing two offences, namely, criminal trespass and housetrespass.
The charges were amended twice and the amended charges as theystood at the time of the conviction read thus :—“ You are herebycharged that you did within the jurisdiction of this Court at Mangala-tiriya on 23.12.61 did commit criminal trespass by entering into thepremises of the Warana Rajamaha Viharaya the property in theoccupation of Rev. Eswatte Dhammatillake Thero the High Priest ofthe Warana Rajamaha Temple with intent to commit an offence, to wit,
168 SRI SKANDA RAJAH, J.—Dharmaratne Thero v. Officer-in-Charge,
forcible occupation of the temple and that you have thereby committedan offence punishable under section 433 of the Ceylon Penal Code,Chapter 19.
That at the same time and place aforesaid and in the course of thesame transaction set out in count 1 above, the abovenamed accuseddid commit house trespass by entering into the Warana RajamahaViharaya Awasaya the property in the occupation of the saidRev. Eswatte Dhammatillake Thero of the Warana Rajamaha Viharaya,Mangalatiriya, with intent to commit an offence, to wit, forcible occupationof the said Awasaya and that he has thereby committed an offencepunishable under section 434 of the Ceylon Penal Code, Chapter 19.”
The plaint in this case was filed on 3rd January, 1962, and the trialwas concluded after an inordinate delay only on 22nd February, 1963.Both charges refer to “ With intent to commit an offence, to wit, forcibleoccupation”. As soon as this appeal was taken up I asked the learnedCrown Counsel if “ forcible occupation ” is an offence known to ourlaw and he very rightly conceded that there is no such offence.
The Magistrate himself should have realised this when he framed thecharges or at least when he amended the charges for the second time.Therefore, the charges were bad in law and the accused should havebeen acquitted at least at the stage when the objection was taken at theconclusion of the trial.
I would, therefore, set aside the conviction and acquit the accused.I do not order a re-trial because of the inordinate delay. This seems tobe the order of the day in our Courts.
D. DHARMARATNE THERO, Appellant, and OFFICER-IN-CHARGE, NITTAMBUWA POLICE, Respo