106-NLR-NLR-V-30-HERATH-v.-WILLIAM-SILVA.pdf
( 376 )
1928
Present: Lyall Grant J.
HERATH v. WILLIAM SILVA.
503—P. C. Kalutara, 26,770.
Wrongful restraint—Obstruction—Act which prevents a person from
proceeding along a certain direction—Penal Code, s. 332.
Where the accused was seated in the middle of a road and asa motor lorry approached, got up and walked backwards so thatthe driver of the lorry could not proceed without running overhim,—
Held, that the accused was guilty of the offence of wrongfulrestraint.
A PPEAL from a conviction by the Police Magistrate of Kalutara.
The facts appear from the judgment.
Deraniyagala, for accused, appellant.
Grenier, C.C., for respondent.
1928
( 377 -) *
October 23, 1928. Lyall Grant J.—
The accused was convicted of having wrongfully restrainedthe complainant from proceeding along the Colombo-Galle roadin a lorry, an offence punishable under section 332 of the CeylonPenal Code. The complainant’s story, which Was believed by thePolice Magistrate, was that he was driving a lorry and that as hewas driving the lorry the accused with one or two others wasseated on the middle of the road and as the lorry approached theaccused sprang up and walked backwards so that the driver couldnot proceed without running over him. ,
The complainant edged towards the side of the road and theaccused moved in the same direction obstructing the passageof the lorry. The result was that the lorry ran off the road andwas upset. The conviction was challenged both on the factsand on the law. On the facts there is ample evidence to supportthe Police Magistrate’s conclusion and I see no reason to differfrom his finding. The objection in law which is raised to theconviction depends upon the construction of the word “ restraint ”in section 332. The words “ wrongful restraint ” are definedin section 330 as follows :—
Whoever voluntarily obstructs any person so as to preventthat person from proceeding in any direction in whichthat person has a right to proceed is said wrongfullyto restrain that person.
The word “ obstruct ” in section 330 has not, so I am informed,been the subject of decision in Ceylon.
I was, however, referred to some Indian decisions which arereferred to in Gour’s Penal Law of India. Sir H. S. Gour saysthe obstruction referred to must be direct and actual and notindirect and ideal, and he refers to a case where putting Pariahsin the way of a Hindu procession, an act which deterred thelatter from proceeding on its way, was held not to be obstruction.
Obstruction, he says, may consist of a physical impedimentor of the use of physical force to control one’s movement; it mayalso, however, consist of a threat or order which may operateon another’s will and in consequence of which he changes its naturaloperation. In fact the offence is determined by the effect causedand not by the nature of the act by which it is brought about.
Counsel for the appellant, founding on this case and these andother remarks in Gour’s commentaries, attempted to draw thefollowing distinction. He said that the obstruction must be onewhich raises in the person obstructed a fear for .his own safetyand not merely a fear for the safety of the person obstructing.I do not think this is the only consideration- arisingMn^this casenor do I think that the distinction is a sound one.
Herathv.WiUiamSilva
{ 378 )
1928
Lyall■Grant J.
Herath v.•WilliamSilva
The accused put an actual physical obstruction in the way ofthe lorry, namely, the obstruction of his own body. The merefaot that physically the .person obstructed might have been able toovercome the obstruction does not seem to me to alter the natureof the accused’s act. The complainant could not have overcomethe obstruction except by running the accused down, which wouldhave been a criminal act.
An act by one person which prevents another from proceedingin a direction in which he has a right to proceed, unless the latterchooses to commit a criminal act, seems to me to amount towrongful restraint.
In my view the Police Magistrate’s finding is correct and the■appeal is dismissed.
Affirmed.