007-NLR-NLR-V-39-GUNASEKERE-v.-DIAS-BANDARANAIKE.pdf
1936
Gunasekere v. Dias Bandaranaike.
IT
Present: Soertsz J.
GUNASEKERE v. DIAS BANDARANAIKE.
277—P. C. Colombo, 41,494.
Mistake of fact—Meaning of plea—Ignorance and mistake—Plying on aprohibited route—Penal Code, s. 72.
Where the driver of an omnibus was charged with plying his bus ona route not approved by the licensing authority and it was estab-lished that the accused was unaware that the licensing authority hadwithdrawn his approval of a section of the route,—
Held, that the- accused’s plea came within the exception created bysection 72 of the Penal Code, viz., nothing is an offence which is doneby a person, who by reason of a mistake of fact in good faith believeshimself justified in doing it.
Weerakoon v. Ranhamy ’ (23 N. L. R. 33) referred to.
18
SOERTSZ J.—Gunasekere v. Dias Bandaranaike.
^^PPEAL, from a conviction by the Police Magistrate of Colombo.
ds Jong for accused, appellant.
June 15, 1936. Soertsz J —
The accused-appellant was charged as follows:—“That he did on the4th of February, 1936, being the driver of omnibus No. X 8130 ply thesaid omnibus on a route not approved by the licensing authority . ..
in breach of regulation 1 (1) of the regulations made under OrdinanceNo. 20 of 1927 and published in the Government Gazette No. 8,160 ofOctober 25, 1935, and thereby committed an offence punishable undersections 80, 82, and 84 of Ordinance No., 20 of 1927 ”.
The facts upon which this charge was based are these. This omnibushad originally been licensed to operate on the route in question , in thiscase. But, on the 3rd of February last, the licensing authority acting under“ regulation 1 (4) (b) of the Fourth Schedule to Ordinance No. 20 of 1927,dated 24th October, 1935, and published in the Government Gazette of25th October, 1935 ” served a notice on the owner of this omnibus with-drawing his approval of a certain section of the route for which the omnibushad been licensed. This notice was served on the owner on the 3rd ofFebruary. In the early hours of the morning of the 4th of February,the accused who was the driver of this omnibus, in the usual course of hisduties, drove it from the garage in Maradana to Yakkala Junction inorder to ply it for hire between Yakkala and Colombo, the usual routeon which this omnibus operated. It was on its first trip from Yakkalato Colombo that the omnibus was stopped.
The accused has given evidence and his defence is that he had not beeninformed, and he was not aware that the licensing authority had with-drawn his approval of a section of the route. There is no reason whateverfor rejecting the accused’s evidence on this point. The only question iswhether his defence is good in law. I am of opinion it is. In Weerakoonv. Ranhamy *, a Bench of four Judges considered the question of mens reain relation to our law. They held that section 72 of the Penal Codewhich enacts that “ nothing is an offence which is done by any personwho is justified by law, or who by reason of a mistake of fact and not byreason of a mistake of law in good faith believes himself to be justifiedby law in doing it ” applies to all enactments alike, including thoseenactments which impose absolute obligations. The English law drewa distinction and made the plea of absence of mens rea inoperative in thecase of charges framed under “ certain exceptional enactments containingprohibitions which are interpreted as unqualified ”. Our law knows nosuch distinction. The only other question then is whether the accusedcomes within the exception created by section 72 of the Penal Code. Ishe entitled to say that he did what is now alleged to constitute his offence,“ by . reason of a mistake of fact. . in good faith believing
himself justified by law in doing it ”? Bertram C.J. in the case I havereferred to took the view that “ignorance is not the same as mistake.
.» (1921) 23 N. L. R. 33
Letchiman v. Murugappa Chettiar.19
Mistake …. implies a positive and conscious conception whichis, in fact, a misconception ”. If that is a correct discrimination, is theaccused’s plea one of “ ignorance ” or of a “ mistake ” of fact in thiscase? In my opinion, it falls to be described by both these words.As Ennis J. said in that case “The distinction between ignorance andmistake is very fine. To say * I did not know the land was at the disposalof the Crown ’ is an admission of ignorance. To say ‘ I thought this landwas not land at the disposal of the Crown ’ is a plea of mistake, but itinvolves the corollary, * therefore I did not know it was land at the disposalof the Crown ’ ”. In this case the accused is entitled to say “ I thoughtthat this route was as usual available to me”—a clear plea of a-mistakeof fact involving as a corollary “ I did not know it had been withdrawnin fact”—an admission of ignorance. Schneider J. took the view thatin section 72 “ the word mistake must be taken to include ignorance ”.That interpretation affords an easy solution of the difficulty. In this case,however, I think that even if the fine distinction between ignorance and.mistake is sustained for the purpose of interpreting section 72 of thePenal Code, the accused’s plea falls within the words “by reason of amistake of fact …. in good faith believes himself to be justifiedby law in doing it ”.
I would, therefore, set aside the conviction and acquit the accused.
Set aside…