118-NLR-NLR-V-31-HORAN-v.-JAMES-SILVA.pdf
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1980Present: Drieberg J.
HOKAN v. JAMES S1LYA.786—M. C. Colombo, 12,189.
Motor CarOrdinance—Using offensive and quarrelsome language— ■
Omission to state the words used in the charge not a fatalirregularity—Motor Car Ordinance, 1927, rule 26 (1) schedule 4.
Where a person is charged with using offensive. and quarrelsomelanguage directed to the. passengers of an omnibus, the omissionto state in the charge the precise words used is not a fatalirregularity provided the proceedings show that the nature and theparticulars of the charge were understood by the accused.
A
PPEAL from a conviction by the Municipal Magistrate ofColombo.
if. C. de Fonseka, for accused, appellant.
April 15, 1930. Drieberg. J.—
The appellant was found guilty of using offensive and quarrelsomelanguage directed to the passengers in omnibus No. B 1685 whilehe himself was travelling in the said omnibus, an offence punishableunder rule26 (1) ofschedule 4 andsection84 of theMotor Car
Ordinance,1927. Hewas sentencedto paya fine ofBs. 50, in
default one month’s rigorous imprisonment.
I see no reason to question the correctness of the finding on thefacts. The appellant himself gave evidence and called witnesses,whose evidence, if believed, would have entitled him to an acquittal.In a carefully considered judgment the learned Magistrate hasgiven what I thinkare very goodreasons for theopinion he
formed.
Mr. Fonseka contends that the conviction was bad as the chargedid not set out the offensive and quarrelsome language used by theappellant.He reliedon the judgment inMohamedv. Bastion
( 429 )
Aupu,1 in which it was held that it was a fatal irregularity
in a convietion under section 287 of the Penal Code if the dbiebebg J.
obscene words which caused annoyance were not set out in the
Horan v.
charge.Jame» Sih>a
In view of what has been held in other cases it is necessary to _state how this charge came to be framed.
Summons was issued on a written complaint by the police chargingthe appellant with an offence under rule 26 (2) of schedule 4, viz.,wilfully interfering with the comfort of passengers. The appellantappeared on October 7 and pleaded not guilty, and the trial wasfixed for the 16th. On the 16th the appellant was present andwas represented by a proctor. One of the passengers against whomtlie offensive language was directed, W. Deutrom, a Customsofficer, was examined, and his evidence, so far as it concerns thispoint, was that he and three friends entered the appellant’s busNo. A 1075 at the Lotus Pond stand, but that as the appellantdelayed in starting they left his bus .and took seats in No. B 791,in which they went as far as Parsons road; there the appellant,who had followed in his bus, went up to the driver of their bus andsaid “Put these three Burgher pariahs out of the bus,” and hepulled Deutrom out.
Deutrom and two of his companions took another bus, B 1685,and near Galle Pace the appellant came up, boarded their bus,and addressed the driver of it, referring offensively to them-Deutrom says that he used the same expression as before, referringto them as Burgher pariahs, and said that they were not fit personsto wear coats and trousers.
The Magistrate then notedthaton theevidenceof Deutrom he
framed an additional charge.Thisis thecharge under rule26 (1)
for using offensive or quarrelsome language. It was read and-explained to the appellant, who said .that he had cause to show.
His proctor said that he was notreadyto meetthe newcharge
and the trial was adjourned.Theappellant gaveevidenceat the
trial and denied that he entered bus No. B 1685 and that he usedoffensive language.
I take it that in the case of this offence the offensive languageshould be set out in the charge in the same way as in a charge undersection 287 of the Penal Code.
In the case of offences under section '287 of the Penal Code itcannot be said- that the mere failure to set out the words in thecharge is a fatal irregularity. In Mohamed v. B&stian Appu('supra) Loos A.J. said that the accused was not aware of the chargeto which he had to plead and that he had not given evidence.
1 (1920) 2 C. L. Bee. 24.
1980
Dh us berg J.
Horan v.James Silva
( 430 )
The earlier eases of Nell v. Muttu 1 * and Jlatnayahc v. Dioim – donot appear to have been cited.
In Nell v, Muttu (supra) Bonser C.J. held that where the accusedhad not been prejudiced by the words not being set out in thecharge the omission was merely a technical one, and lie dismissedthe appeal and directed the Magistrate to amend the conviction bysetting out in it the obscene words which he found were used.
In Batnayake v. Dionis (supra) de Sampayo J. approved of thedecision in Nell v. Muttu (supra), and said that the irregularity mightbe overlooked if the words were in fact proved by the evidence.
In this case it cannot be suggested that the appellant was in anyway prejudiced. It was a new charge framed by the Magistrate;time was taken to meet it, and the proceedings show that the natureand particulars of the charge were quite understood by the appellantand his proctor.
The other objection is that the Magistrate after reserving judg-ment examined the information book of the Kollupitiya PoliceStation, where Deutrom made his complaint. The Magistratedirected that a copy of the information be filed of record. Theinformation was given by Deutrom at the Kollupitiya Station veryshortly after the incident. The Magistrate seems to have beeninfluenced by it to this extent: he considers it a point in favour ofDeutrom that he and his companions, Woutersz and Bilsborough,went together to the station, that it was not likely that betweenChrist's Church, Galle Face, and the police station they could havemade up the long account of the incidents at Lotus Pond stand,Parsons road, and Christ's Church; that going together they ranthe risk of being separately questioned. These are fair inferences.
It cannot be said that it was used as evidence of any date, fact,or statement contained in it. (Hamid v. Karthan3)
The complaint was not one made in the course of an investigationunder chapter XII. of the Criminal Procedure Code and was notwithin the provisions of section 122, and its use by the Magistratewas not limited by section 122 (3).
. . But even if this was not a proper use of the information book, itwould not necessarily vitiate the conviction if there was other andreliable evidence to support the conviction (King v. Soysa *), andthere is such evidence in this case.
I follow the course adopted by Bonser C.J. in Nell v. Muttu(supra), and send the case back to the Magistrate in order that hemight set out in the conviction the offensive and quarrelsome wordswhich were used.
The appeal is dismissed.
Appeal dismissed.
1 (1897) 2 N. L. R. 321.3 {1917) 4 C. W. R. 363.
1 (1910) 2 C. W. R. 21.4 [1924) 26 N. L. R. 324.