066-NLR-NLR-V-70-I.-K.-WIJEWARDHENA-Appellant-and-THE-INSPECTOR-OF-POLICE-PANADURA-Respondent.pdf
Wijewardhena v. The Inspector of Police, Panadura
281
1967Present : Alles, J.
K. WIJEWARDHENA, Appellant, and THE INSPECTOR OFPOLICE, PANADURA, Respondent
8. C. 632j1966—M. C. Panadura, 93889
Charges of criminal tresjxiss and intentional insult—Jurisdiction of Magistrate'sCourt- Objection that alleged offences were committed in a Conciliation Boardarea—Burden of proof—Conciliation Boards Act No. 10 of 195S, as amendedby Act No. 12 of 1903, ss. 3 (2), 3 (3), 14 (1) {b).
Where, in a prosecution in a Magistrate’s Court for an offence specified inPart I of the Schedule to the Concilliation Boards Act, it is submitted onbehalf of the accused that the Court has no jurisdiction to entertain theprosecution in view *of the provisions of section 14 (1) (6) of the ConciliationBoards Act, the burden is on the accused to show that the area in whichthe offenco is alleged to have been committed has been declared to bea Conciliation Board area.
-A.PPEAL from a judgment of the Magistrate’s Court, Panadura.
M. M. Kumaraku lasing ham, with F. N. D. Jayasuriya, for theaccused -appellant.
Wakeley Paul, Crown Counsel, with S. If. B. Wadugodapitiya, CrownCounsel, for the Attorney-General.
1
(1960) 62 N. L. R. 169 at page 182.
Cur. adv. milt.
282
ALLES, J.— Wijewardhcna v. The Inspector of Police, Pcinadura
September 13, 1967. Alees, J.—
Plaint was filed in this case charging the accused-appellant and hiswife in the Magistrate’s Court of Panadura on three counts. On thefirst count they were charged with committing criminal trespass byentering Ward No. 1 of the Panadura Hospital and remaining thereto the annoyance of Dr. S. Weeratne, an offence punishable under section434 of the Penal Code ; on the 2nd and 3rd counts the appellantalone was charged on two counts under section 484 of the Penal Codewith intentionally insulting Dr. Weeratne and Dr. M. V. O. Peiris ofthe same Hospital. After a lengthy trial, the appellant and his wife wereacquitted on the charge of trespass but the appellant was convicted onthe charges of insult and sentenced to pay fines of Rs. 100 on each of thetwo charges.
The case was a sequel to an incident which had taken place in WardNo. 1 of the Panadura Hospital on 11th July, 1965. On that day,Mangala Wijewardhena, the son of the appellant and his wife had metwith a motor accident in which he and one Attanayake were injured.The two injured persons were admitted to the Hospital about 12 noonthat day and attended on by Dr. Weeratne. Dr. Weeratne had com-pleted examining Mangala Wijewardhena’s injuries about 12.40 p.m. andsent him to the dressing room and commenced to attend on Attanayake.In the meantime, the appellant and his wife had come to the Hospital.It would appear that they had come to the Hospital soon after the visitinghours, which were from 12 noon to 1 p.m. By that time, Mangala hadbeen brought to the ward from tho dressing room. He had multipleinjuries on his face and hands and also an injury on his head which hadapparently escaped the notice of the Doctor. The appellant pointed outthis injury to the Doctor and Dr. Weeratne examined the injury andfound it to be a trivial one and only skin deep and told the appellant thathe would attend to the injury after he had attended to another patientwho had been admitted to the Hospital with a history of an assault witha club and asked the appellant to leave the Hospital since it was aftervisiting hours. The appellant then turned abusive and started creatinga disturbance in the ward and uttered insulting words to Dr. Weeratnein the presence of the attendants, patients and nurses. The appellantrefused to leave the ward and as Dr. Weeratne was summoned to treatanother patient in the medical ward and as the appellant and his wifewere continuing to create a disturbance he summoned Dr. Peiris. WhenDr. Peiris came to the ward, he too told the appellant that the injury wasa trivial one and that Dr. Weeratne would attend to the patient, where-upon the appellant began to abuse him too in insulting language. ThePolice who had been summoned by Dr. Weeratne then arrived and whenSub-Inspector Isurupala requested tho appellant and his wife to leave theHospital, they refused to do so. Another witness. Advocate C. M. Fer-nando who had arrived at the Hospital to see Attanayake, says that theappellant and his wife were creating a disturbance.
ALLES, J.— Wijeivardhena v. The Inspector of Police, Panadura
283
The appellant gave evidence and denied that he had used the insultingwords referred to in the charges at the Doctor and stated that the Policeofficers who came to the Hospital for investigation abused him and hiswife.
The learned Magistrate in a considered judgment has disbelieved theappellant and his witnesses and held that the appellant did use theabusive words referred to in the charges. I see no reason to interferewith the findings of the Magistrate both on the facts and the law that theappellant was guilty of the offences of which he was convicted. Theease has been bitterly contested in the trial court ; the Doctors and thePolice officers have been severely cross-examined ; evidence was led onbehalf of the defence and Counsel have addressed the Magistrate both onquestions of fact and on the law applicable to the case. There wereseveral dates of trial and the Magistrate, after a careful analysis of theevidence, has found the appellant guilty of the charges of insult.
At the argument of the appeal, learned Counsel for the appellant raisedthe question of jurisdiction ; he submitted that the Magistrate’s Court ofPanadura has no jurisdiction to entertain the Police plaint in view of theprovisions of section 14 (1) (b) of the Conciliation Boards Act No. 10 of1958 as amended by Act No. 12 of 1963. That section states that—
“ Where a Panel of Conciliators has been constituted for any villagearea no prosecution for any offence specified in Part I of the Scheduleto this Act as is alleged to have been committed in such village areashall be instituted in. or be entertained by, any court unless the personinstituting such prosecution produces a certificate from the Chairmanof such Panel that the alleged offence has been inquired into by aConciliation Board and has not been compounded.”
The offences of criminal trespass and intentional insult are offencesmentioned in Part I of the Schedule to the Act and the expressionvillage area ” has the same meaning as in the Village CouncilsOrdinance (Cap. 257). Under section 3 (2) of the Conciliation Boards-Act, the Minister of Justice by Notification appearing in GovernmentGazette No. 13,950 of 21.2.64 notified that he intended to constitute aPanel of Conciliators for the Panadura Urban Council area and undersection 3 (3) called for recommendations in regard to persons who are tobo appointed to the Panel of Conciliators of such area. Presumablyafter receiving such recommendations, the Minister by Orderpublished in Government Gazette No. 14.276 of 1.1.65 appointedcertain persons to bo members of the Panel of Conciliatorsconstituted for the Panadura Urban Council area. In the VillageCouncils Ordinance referred to earlier, the term “ village area ”lias been interpreted to mean a portion of a divisional revenueofficer’s division declared to be a village area by Order under section3 or deemed by virtue of any written law to be a village area underthe Ordinance. There is however no evidence* led in this case thatthe Panadura Civil Hospital falls within the Panadura Urban Council areanor is there any evidence that the Panadura Urban Council area has been
284
Margaret Nona v. Bazeer
declared to be a Conciliation Board area. I am not prepared to take ajudicial notice of these facts ; it was incumbent on the party relying onsuch evidence to place that evidence before Court. The preliminaryobjection to the jurisdiction of the Magistrate’s Court therefore fails.
On the question of sentence, although I agree that it is necessary thatdoctors should be able to maintain discipline in a large institution like ahospital without interference from the members of the public, I thinkthis is eminently a case in which the Court should have acted undersection 325 of the Criminal Procedure Code. The accused is not a personwith a criminal record, nor is he one whom one usually associates withcriminals ; he is a proprietary planter and a man of respectability ; it isin evidence that he has been a benefactor of this Hospital donating radioequipment worth over Rs. 2,000 ; he had a previous unfortunate experi-ence in this same Hospital wdien a servant boy of his Avas brought to theHospital after an accident, discharged a feAv days later and again rushedback to the Hospital from where he was conveyed to the General Hospitaland died after an operation. On this occasion his only son had beenentered to the Hospital after an accident, there AA’as a head injuryunnoticed by the Doctors and he Avas naturally anxious for the Avelfareof his son and must have been undergoing severe mental stress whenthis unfortunate episode occurred. I hold that the charges have beenproved but without proceeding to conviction I order that the accused bedischarged conditionally to be of good behaviour for a period of oneyear on his entering into a personal bond in a sum of Rs. 500. Thefines already paid should be returned to the appellant.
Accused discharged conditionally.