003-NLR-NLR-V-37-GOONESKERE-v.-APPUHAMY.pdf
MAARTENSZ J.—Goonesekere v. Appuhamy.
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1935Present: Maartensz J.
GOONESEKERE v. APPUHAMY.
155—P. C. Dandagamuwa, 15,676.
Public servant—Offering obstruction to discharge of duties—Using force toprevent discharge of duty—Legality of public servant’s act—Penal Code,ss. 183 and 344.
Where a public servant, who was obstructed, was not acting withlawful authority, a person .who resisted him cannot be convicted undersection 183 of the Penal Code of obstructing a public servant in thedischarge of his public functions or under section 344 of using force withintent to prevent him from discharging his duty as public servant.
A person cannot be convicted under these sections unless the act of■the public servant was strictly legal.
A PPEAL from a conviction by the Police Magistrate of Dandagamuwa.Siri Perera, for accused, appellant.
Weerasooria (with him Eric de Soysa), for complainant, respondent.
Cur. adv. vult.
March 12, 1935. Maartensz J.—
This is an appeal by the first accused in this case who was convictedof (1) obstructing R. S. Goonesekere, Additional Deputy Fiscal, a publicservant, in the discharge of his public functions, to wit, the executionof an order of delivery of possession issued in the District Court of Negombocase No. 6,478, an offence punishable under section 183 of the CeylonPenal Code ; (2) using force on the said public servant by pushing himwith intent to prevent or deter him from discharging his duty as suchpublic servant, to wit, the execution of the said order of delivery ofpossession, punishable under section 344 of the Ceylon Penal Code.
In case No. 6,478 of the District Court of Negombo the plaintiff,Natchiappa Chettiar, obtained a mortgage decree on July 29, 1932, against.R. A. Appusingho Appuhamy as principal and Peter Wickramanayakeas surety for the recovery of a sum of Rs. 3,000 and interest. The decreeprovided that in default of payment the hypothecated properties shouldbe sold by Messrs. M. P. Kurera & Co., auctioneers.
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MAARTENSZ J.—Goonesekere v. Appuhamy
The mortgaged properties were sold in due course as payment was notmade, and they were purchased by the decree holder on November 10,
1932.
On May 17, 1933, the District Judge of Negombo issued the orderreferred to in the charge addressed to the Fiscal, North-Western Province,Kurunegala, directing him to put the plaintiff in possession of the landssold under the decree, of which the defendants were in possession, and,if need be, to remove any person bound by the decree, who may refuseto vacate the same.
On September 8 Mr. Goonesekere went with his assistant Mr. Dahi-gomuwa to place the plaintiff’s attorney in possession of one of the landscalled Kahatagahawatta ; there is a house on this land on the roadsidewith a portico in front extending almost up to the road reservation.The house cannot be entered except through the portico. The DeputyFiscal first explained to the first accused that he had come to execute theorder for delivering possession, to‘which the first accused replied that thehouse was his and that he would not “ allow anyone to come here ” ;behind him in a line were the other 10 men who were made accused andacquitted. Mr. Dahigomuwa then stepped on to the portico and waspushed out by the first accused and Mr. Goonesekere was also pushedout when he entered after Mr. Dahigomuwa. Mr. Goonesekere got theimpression that further violence would be used if he persisted in tryingto execute the order and he and his assistant left the place.
At that time the first accused did not take up the position he did atthe trial that he was the watcher of R. A. Appuhamy’s sister, Punchihamy.
The learned Magistrate has accepted the evidence of Mr. Goonesekereand Mr. Dahigomuwa, and I see no reason to dissent from his findingson the facts.
I entirely agree with the Magistrate for the reasons given by him thatthe first accused obstructed the execution of the order with a view torendering the plaintiff’s decree in the mortgage action ineffective.
In appeal a new line of defence was taken by Counsel for the firstaccused, namely, that the District Court of Negombo had no jurisdictionto issue the order for delivery of possession and that the first accusedcould not therefore be convicted of either obstructing or assaulting thepublic servant who sought to execute it. He also contended that evenif the Court had jurisdiction to issue the order the Fiscals officers had noauthority to execute it against the first accused who was neither a defend-ant in the mortgage action nor bound by the decree.
The first accused was certainly not bound by the decree nor was he adefendant and I am of opinion that the order could not be executedagainst him, whether it issued in terms of section 287. of the Civil Pro-cedure Code or under the provisions of section 12 (1) of the MortgageOrdinance, No. 21 of 1927. Now under section 12 of this Ordinanceproperty declared bound and executable by a mortgage decree may, indefault of payment, be sold by the Fiscal in like manner as if it had beenseized by the Fiscal under a writ of execution for the amount of the mort-gage, in which case section 287 of the Code is, inter alia, applicable to thesale; or it may be sold by a person designated for the purpose in thedecree, in this case the sections of the Code applicable to a sale by the
MAABTENSZ J.—Goonesekere v. Appuhamy.
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Fiscal are not applicable but the Court “ may, if it thinks fit, in thedecree or subsequently give such directions …. as to the deliveryof possession to the purchaser and as to the removal of any person boundby the decree from the property as it thinks fit ”.
Section 12 superseded section 201 of the Civil Procedure Code, whichenacted as follows : —
“ When the action is to enforce a right of sale under a mortgage,and the court finds for the plaintiff, the decree shall specify a day onor before which the money decreed to be due on the mortgage withinterest thereon from date of action to date of payment and costs ofaction shall be paid, and shall direct that in default of such paymentwithin the period so prescribed the mortgaged property shall be sold,and the court may in such decree for sale give such directions as to theconduct and conditions of the sale (including the terms on which theplaintiff shall be allowed to purchase), and the person who shall conductit, and as to the terms of the instrument of conveyance and the partyor parties by whom it shall be executed, as it may think fit.”
There is no provision in this section for the Court to give directionsfor the delivery of possession to the purchaser, and it was held in the caseof Allis Appu v. Andersonthat an order for delivery of possessionunder section 287 of the Civil Procedure Code cannot be made in favourof a purchaser of property sold by an auctioneer under the provisions ofsection 201 of the Civil Procedure Code. The headnote does not correctlysummarize the decision, for it was not held that an order under section287 could be made against the defendant in the mortgage action. Akbar
J.merely pointed out that the decision of Wood Renton J. in the case ofAbeyeratne v. Perera’ did not apply as the person against whom the orderunder section 287 was made was not the defendant in the action. WoodRenton J. did not in that case hold that an order under section 287could be made in favour of a purchaser of property sold under a mortgagedecree entered in terms of section 201 of the Civil Procedure Code againsta defendant; on the contrary he held that it could not.
The appellant was the purchaser of property sold by an auctioneer inexecution of a mortgage decree. He appealed from the District Judge’srefusal to grant him an order for the delivery of possession under theprovisions of section 287 of the Code. With regard to the order of theDistrict Judge, Wood Renton J. said “ I agree with the learned Dis-trict Judge that section 287 is concerned only with Fiscals’ sales ” anddeprived the appellant of the costs of appeal. But he sent the case backfor certain further proceedings as he was of opinion that the Court hadan inherent power to render a sal effectual against a defendant in pos-session who was bound by the decree in execution of which the saletook place.
The Soundness of this proposition was expressly questioned by Garvin•J. in the case of Fernando et al. v. Kadiravelu
It may possibly be argued now that the inherent power iiw@fced byWood Renton J. is expressly conferred on the Court by thg?{Envisionsof section 12 of the Mortgage Ordinance which I have cited aaaVfi.
> (1930) 31 N. L. R. 426.2 (1912) 15 N0l£ R. 347.
37/5
2 (1927) 28 N. L. R. 492.
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MAARTENSZ J.—Goonesekere v. Appuhamy.
The order (P 1) which the Deputy Fiscal sought to execute does notquote the authority in pursuance of which it was issued. But whetherit is treated as an order issued by virtue of the provisions of section 287of the Civil Procedure Code, or as an order in the nature of directionsgiven under the provisions of section 12 of the Mortgage Ordinance theorder was not one which could be executed against the first accused as hewas not bound by the decree in execution of which the land Kahatagaha-watta was sold. Respondent’s Counsel submitted that the accused wasnevertheless liable to be convicted of the offences with which he wascharged by reason of the provision in section 92 of the Penal Code that“ There is no right of private defence against an act which does notreasonably cause the apprehension of death or of grievous hurt, if done,or attempted to be done, by a public servant acting in good faith undercolour of his office, though that act may not be strictly justifiable by lawThis argument is not equally applicable to both charges. As regardsthe charge of obstruction under section 183 of the Penal Code it has beenheld in a series of cases, of which the earliest was a decision of a FullBench in the case of Canthapillai Odaiar v. Murugesu', and the latestFernando v. Silva’ that where the public servant who was obstructedwas not acting with lawful authority section 92 of the Penal Code did notapply and a person who merely resisted him was not liable to be convicted'under section 183 of the Penal Code. I am, as I said-in the latter case,bound by the decision of the Full Bench and the appellant must be ac-quitted of the charge made under section 183 of the Penal Code. In theformer case Burnside C.J: and Clarence J. expressed the opinion thatsection 92 might perhaps apply to a case where the accused had committedan assault on a public servant who was not clothed with lawful authority,in these terms:—Burnside C.J.: “I do not agree that section 92 of theCode touches the question before us. Had the complainant been suingfor an injury to his person from any act of the accused, it perhapswould not lie in the accused’s mouth to say ‘ 1 assaulted you in theexercise of the right of defence of my property which you had seized orwere attempting to seize’”. Clarence J.: “Had the officer then per-sisted in his attempt to seize, and had appellant in maintaining hisresistance done anything amounting to an assault upon the officer, it maybe that by the operation of section 92 the appellant would have beenopen to conviction if charged with the assault These dicta wererelied on by Counsel for the respondent in support of his contention thatthe appellant was liable to conviction on the charge laid under section344 of the Penal Code. Another line of argument was that the accusedwas liable to conviction irrespective of the provisions of section 92, as theassault was committed before the Deputy Fiscal had done or attemptedto'do anything towards the execution of the order to deliver possession.
Beside the cases I have referred to there are no local decisions upon theexception to the right of private defence enacted in section 92 of thePenal Code in regard to an act done by a public servant or by the direc-tions of a public servant acting in good faith under colour of his officethough that act or direction may not be strictly justifiable by law. This• section is, however, a verbatim reproduction of section 99 of the Indian
2 11 Ceylon Law Recorder 44.
1 1 Ceylon Lair Reports 90.
MAARTENSZ J.—Goonesekere v. Appuhamy.
IS
Penal Code and Indian decisions on section 99 as to when a publicservant would be held to be acting in good faith under colour of his officewould be applicable to section 92. The effect of section 99 has beenconsidered in cases arising from charges for breaches of sections 332 and353 of the Penal Code. They correspond to sections 323 and 344 ofour Code. Section 323 is applicable when hurt is caused to the publicservant. Section 344 provides a penalty where the injury falls short ofhurt but is sufficient to constitute “ assault ” or criminal force.
The Indian and local sections are identical in language.
Gour in his Commentary on sections 332 and 353 of the Indian Coderefers to the numerous decisions of the Indian Courts on these sectionsand section 99. The effect of these decisions he sums up thus : “ But thepresent trend of the case-law on the subject is anything but harmonious.For,, there are precedents which justify an assault to pre-
vent an illegal act merely because it is illegal, there are others in whichthe illegality is held to be no justification, there are others in which theabsence of good faith is inferred from the want of illegality, while thereare those in which the most outrageously illegal acts are held to justifyno assault. It cannot be said that the same Courts are throughoutconsistent with themselves”—Gour, Vol. 2, p. 1656 (1925 ed.). TheIndian decisions are therefore of very little, if any, assistance. ButGour on the same page lays down the following propositions of law asprobably affording a good working rule : —
That as a rule the two sections are intended only to apply to actsdone by public servants in the lawful discharge of their duty;
That those who maintain the accused (criminally liable under the
two special sections must show that their act was legal;
That the accused cannot be convicted under these two sections
unless the act was strictly legal ;
That failing these sections, it does not follow that the accused may
not be convicted under the general law. But in order to beexempted from its operation he may appeal to section 99 underwhich he may claim exemption—
if he had reasonable apprehension of death or grievous hurt;or
if the act of the public servant was wholly illegal; or
if his act was done otherwise than in good faith.
Lastly, the question whether an act is done in good faith is a questionof fact dependent upon the proved circumstances of each case.”
I venture to think these propositions do afford a good workingrule and I would apply them to this case. The complainant was admitted-ly a public servant; he was armed with an order directing him to placethe plaintiff in possession of Kahatagahawatta and if need be to removeany person bound by the decree who may refuse to vacate the same.He could not place the plaintiff in possession without evicting the personin possession if there was one in possession, but the right to evict is limitedto a person bound by the decree. If the accused was bound by thedecree the Deputy Fiscal would have been in a very strong position ifhe had been assaulted by him in resisting eviction.
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Eliyatamby v. Kathiravel.
The accused might have pleaded that the Court issuing the order hadno right to do so. Such a plea would give rise to difficult points arisingfrom the question of‘ jurisdiction. It might be necessary to draw a dis-tinction between an order which a Court has jurisdiction to make, for aCourt can make an order for delivery of possession, but which in theparticular case it had no right to make, and an order which the Court hasno right to make in any case. Fortunately, there is no necessity for meto consider this question as the accused was not a person bound by thedecree and it would have been unlawful on the part of the Deputy Fiscalto evict or attempt to evict him nor is it necessary for me to decide in thiscase whether the accused may appeal to section 90 of the Penal Codeand claim exemption on the ground that the act of the public servant waswholly illegal. He cannot do so for he assaulted the Deputy Fiscal beforethe need to defend himself arose.
The accused is clearly guilty of committing an assault on the DeputyFiscal. But there remains the question whether the accused was guiltyof an offence under section 344 or only guilty of simple assault. If theDeputy Fiscal had not commenced executing the order the accused wouldnot be guilty of assaulting him in the execution of his duty. Can he besaid to be guilty of assaulting him with intent to prevent or deter himfrom discharging his duty.
I have already pointed out that the order did not authorize the DeputyFiscal to evict the accused as he was not bound by the decree; it followsI • think that the accused cannot be convicted of assaulting him withintent to prevent him from discharging his duty.
I accordingly alter the conviction to one under section 343 of the PenalCode and reduce the sentence to six weeks’ rigorous imprisonment.
Varied.