098-NLR-NLR-V-25-GUNASEKERA-v.-SOLOMAN-et-al.pdf
( 474 )
1923.
Present: Bertram C.J.
GUNASEKERA v. SOLOMON et ah682—P. C. Matara, 29,021.
Theft—Intention to. cause annoyance to complainant—Larceny—Differencebetween English law and the Penal Code—First offenders—Sentenceof imprisonment inappropriate.
Where accused havifrg an intention not of stealing but only ofcausing annoyance or “ injury ” to the complainant drove awayhis cart and bull.
Held, in the circumstances that he was not guilty of theft.Bebtbam C.J.—“ I do not think that there is any substantialdifference between the English law.of larceny and the Ceylon lawof theft so far as this class of case is concerned. The English lawdraws a distinction between trespass and larceny. Many acts areacts oi unlawful trespass which nevertheless cannot be consideredas crimes.”
“ The policy of the law is that first offenders should so far aspossible should not be sent to jail.”
H. J. C. Pereira, K.C. (with him Wijesekere), for the appellants.
B. L. Pereira, for the respondent.
December 12,1923. Bebtbam C.J.—
I have every sympathy with the learned Magistrate’s desire toenforce order in his district, and every respect for his opinion that asentence of imprisonment in cases like this is the best means of
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enforcing order. On the other hand, I do not think that he hasapplied his mind to the legal question which the case involves.Despite the refined expositions which one may discover in text-bookson the subject, I do not think that there is any substantial differencebetween the English law of larceny and the Ceylon law of theft sofar as this class of case is concerned. The English law draws adistinction between trespass and larceny. Many acts are acts ofunlawful trespass which nevertheless cannot be considered ascrimes. There is a case cited (2?. v. Philippa1), where some men atnight broke into a stable, took out the horses, and drove them forthirty miles, left them at an inn, and went on their journey. Thatwas held to be a case of trespass and not of theft. There is an Indiancase which is very much on all fours with the present. I refer tothe case of Nabi Babsh v. Quern Empress.2 There the Court said—
“ To constitute theft there must be an intention to take thething in question dishonestly, that is, with intent to causewrongful gain or wrongful loss, and can it be said thatremoving a box ‘ to put the owner to trouble ’ is necessarilyand in every case causing ‘ wrongful loss ? * The answermust, we think, be in the negative. No doubt the languageof section 23 of the Indian Penal Code which defineswrongful loss, and says a ‘ person is said to lose wrongfullywhen such person is wrongfully kept out of any propertyas well as when such person is wrongfully deprived ofproperty,’ might at first sight seem to create a difficultyin the way of accepting the view we take. But the diffi-culty is only apparent and not real. Of course, when theowner is kept out of possession with the object of deprivinghim of the benefit arising from the possession even tempora-rily, the case will come within the definition. But wherethe owner is kept out of possession temporarily not withany such intention, but only with the object of causinghim trouble in the sense of moral anxiety, and with theultimate intention of restoring the thing to him withoutexacting or expecting any recompense, it is difficult to saythat the detention amounts to causing wrongful loss inany sense.”
1923.
Bebtbam
C.J.
Gunasekerav. Solomon
In this case the Magistrate says that there can be no doubt thatthe accused were not bent so much on stealing the bull and half cartas on causing annoyance or injury to the complainant by theirdriving away the cart and bull. The injury there referred to isnot an injury in the nature of wrongful loss. It is clear that thiswas an act of trespass of a malicious nature done with the objectof causing annoyance, and I do not think that it can be consideredas theft within the meaning of our law.
111 East 662'2 J- L' R- €<d' XXV., 470.
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1988.
Bertram
C.J
Qiinatekerav. Solomon
Nevertheless, the act is highly reprehensible. It seems un-fortunate that there is no offence in the nature of criminal trespassin respect to movables. There is one offence, however, which theaccused persons have committed as part of the same transaction,and that is the offence of criminal intimidation. I propose,therefore, to amend the conviction to a conviction under sections483 and 486.
The learned Magistrate has sentenced the accused to imprison-ment. I feel the force of what he says. Nevertheless, it isbrought to my notice that these offenders are young men, andthat this is their first conviction. It is most undesirable tofamiliarize young men of this description with the inside of a prison.Their act is no doubt reprehensible, but there are other ways ofdealing with the act than imprisonment. I am informed that theyare of a respectable class. The policy of the law is that first offendersshould, so far as possible, not be sent to jail, and I think that in thiscase it would be best that I should extend leniency to the accused.I propose, therefore, to send the case back to the learned Magistrateso that he may bind over the convicted persons under section 325 (2)of the Criminal Procedure Code. If action is taken under thatsection they may be required to come up for judgment when calledupon; and if this case does not prove a sufficient warning, they willbe punishefl for this offence, if necessary, by being sent to prison.I trust that the learned Magistrate, in binding over the accused tobe of good behaviour and to appear for sentence when called uponin such sureties as he considers appropriate, will address a fittingwarning to the accused, and will make it clear to them that theirpunishment in thi3 case is not remitted, but only suspended.
Conviction and sentence varied.
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