078-NLR-NLR-V-33-FERNANDO-v.-WICKREMESINGHE.pdf
304
Fernando c. Wickremesinglie.
1931
Present: Maodonell G.J.
FERNANDO v. WICKREMESINGHE.
409—P. C. Colombo, 2,647.
Obstructing a public 'servant—Inciting others by words to obstruct—Overt act—Penal Code, s. 183,
Where the accusedby words incited others to obstruct a police
officer empowered to execute an order under section 114 of the CriminalProcedure Code,—
Held, that he was guilty of voluntarily obstructing a public servantin the discharge of his functions.
^^PPEAL from a conviction by the Police Magistrate of Colombo.
N.E. Weerasoorio, for accused, appellant.
MACDONELIi C.J.—Fernando v. Wtckremesinghe.
305
August 31, 1931. Macdontell C.J.^
In this case the accused was charged under section 183 of the CeylonPenal Code with voluntarily obstructing a public servant, namely,. nSuperintendent of Police, in the discharge of his public functions, wasconvicted and fined, and brings an appeal from that conviction. Thefacts were that a Police Magistrate had issued an order under section 114■of the Criminal Procedure Code prohibiting the picketing of a certainnewspaper office in Colombo. No exception is taken to that order whichneed not therefore be set out. The evidence as to obstruction was asfollows:—The Superintendent of Police said: “ 1 saw this accused come«up Main Street leading a small party of women, i.e., four women. Theyturned into Bristol Street and I stopped them—with Sub-InspectorMarriott. I asked the women to go quietly away and to move on. AsI was not certain^ if they understood me I called Sub-Inspector Fernandoand asked him to explain the emergency order of this Court made in caseNo. 26,411 which I had in my hand. While the Sub-Inspector wasexplaining this and interpreting for me, this accused came between me andthe party of women and told .them in Sinhalese to sit down. He alsomade a downward motion with his hands. I ordered his aiTest and gavehim in charge of Sub-Inspector Fernando—I then repeated my order tothe women to move on and they obeyed it. Accused was released lateron personal bond to appear before this Court. Beyond this obstructioncomplained of, accused was quite orderly.”The evidence of the Sub-
Inspector was: ” The Superintendent asked me to interpret what hesaid. As I was doing so accused turned round to the women and asked.them not to go away but to sit down there. He was exhorting thewomen to sit down. Mr. Muller ordered me to arrest the accused. Whenaccused interfered the women did not go away—they did not sit down.There were about five women and accused led them. ” The learnedMagistrate accepted this evidence and in particular that tjie accusedmade a motion with his hands.
It has been argued that this was ** a mere verbal refusal to allow apublic servant to perform his duty and so that it does not' constitutevoluntarily obstructing ” within the meaning of section 183 (perLascelles C.J. in Fernando v. Alia Marikar1). The same judgment goes onto say: “ There must be some overt act done or physical means used.
I think in this case there was something more than a mere verbal refusal,and that there was an overt act done or physical means used. Theaccused did not refuse to obey the order but* he said and did somethingwhich amounted to an incitement to other people to disobey that order.If the women in question had done as he requested, namely, sat down inthe public street, theret would have been an act by them which wouldhove ** rendered force necessary ” for the due enforcement of the Magis-trate’s *order—see Rasavasagram v. Siwandi2. Per Wood Benton J. Theaccused had endeavoured to place “ an obstacle " in the way of carrying
1 Court of App. Cases 175.
« 9 N.L. R. 55.
Mendts v. Gunasekcre.
Stffl
out of the order and this was an obstruction to the public servantattempting to see that order carried out. One may compare the case to thelaw as to assault-. Mere words do not amount to assault, but if they are-accompanied by a threatening attitude they may constitute an assault.Here there were words and an overt act instigating to disobedience of'this order, and therefore I think an obstruction to the public servant'attempting*^ carry it out.
For the above reasons I am of 'opinion that this appeal must be'dismissed.
Appeal dismissed..