012-NLR-NLR-V-25-INSPECTOR-OF-POLICE-KURUNEGGALA-v.-SABAPATHY.pdf
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Present; Jayewardene A.J.
INSPECTOR OF POLICE, KURUNEGALA, i>. SABAPATHY.
80—P. C. Kurunegala, 17,274.
Ordinance No, 11 of 1894—Intermeddling with suitors—Proctor askingInspector not to prosecute a person charged with an offence.
When a person who is charged with an offence appeals to aproctor for help and assistance, and the proctor asks the com-plainant not to prosecute, but to let the man off; it cannot besaid that the proctor intermeddled at all, or that he meddledwithout “ proper excuse/’
In the same way a father might interfere on behalf of his son,a master on behalf of his servant, and vice versa. In short, anyperson interested in a party concerned in any litigation, or in thelitigation itself, might do the same without becoming liable to becharged under section 5 of Ordinance No. 11 of 1894.
rpM facts are set out in the evidence.
Pereira, K.C. (with him Balasingham and Peri Sunder am), forthe accused.—The evidence shows that Casi Lebbe was engaged byaccused to milk his cow, and that he appealed to accused for helpwhen he was arrested. The conduct of the accused cannot inthe circumstances be said to be “ intermeddling.” The Ordinancedoes not apply to a person like the accused. See Menon v. AbdulLebbe1 and Keegel v. A sana Marikar.2
Dias, C.C., for the respondent.—The accused was not retainedby Casi Lebbe, and he was not acting as his proctor or legal adviser.It is clear that he wanted the Inspector not to prosecute his tout.He had no lawful or proper excuse for thus intermeddling with theInspector. Counsel referred to Mesu v. Karunaratne2May 15, 1923. Jayewardene A.J.—
This is an appeal by the accused, a proctor practising atKurunegala, who has been convicted under section 5 of Ordinance1 (1915) 5 C. If. B. 61. * (1912) 16 N. L. B. 69. 3 (1906) 9 N. L. B. 146.
1923.
1923.
Jaybwab-DENE A. J.
Inspectorof Police,Kuruneja'a,v.
Sabapathy
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No. 11 of 1894, called “ An Ordinance to suppress intermeddlers withsuitors in Courts of Justice.” The present section No. 5 has beensubstituted for/the original section by Ordinance No. 35 of 1917.It appears that one Casi Lebbe, who is described by the police as awell-known tout, was arrested by L. C. Pereira, a Sub-Inspectorof Police, for interfering with some witnesses in a case in whichthe Sub-Inspector was prosecuting. Casi Lebbe was brought intothe Police Court, and placed near the dock. The accused thenapproached the Sub-Inspector, who was in the company of twoothers—Sub-Inspectors Jacotine and Prins—and asked Pereira notto charge Casi Lebbe, but to let him off, as Casi Lebbe was histout. Pereira and Prins-were certain that the accused calledCasi Lebbe his tout, while Jacotine said that accused did not usethe word *•* tout,” but said “ do not prosecute as he is my man.”On these facts the accused was charged under section 5. Theaccused says that Casi Lebbe made gestures to him indicating thathe wanted his help, and he 6poke to the Sub-Inspector as the manimplored him. He denies haying called Casi Lebbe his tout, butadmits that he said : “ The man is known to me, let him off.” Inre-examination he added that Casi Lebbe lived close to his house,and sometimes milked his cow. The accused's proctor alsocontended for him that section 5 did not apply to legal practi-tioners. The learned Police Magistrate convicted the accused, andsentenced him to pay a fine of Rs. 100. He held, I think, rightly,that section 5 was wide enough to include a legal practitioner, if hewas not acting as such. He also held that the accused, on hisown showing, had intermeddled with Sub-Inspector Pereira, whowas a suitor before the Police Court of Kurunegala, and that itwas immaterial whether the accused used the word “ tout ” ornot. He did not find that Casi Lebbe was accused's tout, and hedid not disbelieve the accused when he stated that he spoke to theSub-Inspector, as Casi Lebbe appealed to him for help. At theargument before me I felt that the Magistrate had not dealt withthe accused's excuses for intermeddling with the suitor in question,and I sent the case back for him to express a definite opinion asto whether Casi Lebbe was the accused's tout or whetherhe was employed by the accused to milk his cow. When thecase went back, the accused's proctor applied that he be given anopportunity to urge further grounds on behalf of the accused.He wished to lead evidence to prove that Casi Lebbe was accused'smilkman. This was very properly refused by the Police Magistrate,who was, however, induced to send for the Police InformationBook, in which as Sub-Inspector Pereira had said at the trial he hadat once made a record of what had happened. The entry in theinformation, which is embodied in the Police Magistrate's reply,is “ Proctor Sabapathy (i.e., the accused here) implored of me notto charge the accused (i.e., Casi Lebbe), as he was one of his men.
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This proves that Sub-Inspector Pereira’s statement that accuseddescribed Casi Lebbe as his tout is incorrect. Pereira gaveevidence some months after the incident, and he would have beenbetter advised if he had refreshed his memory by referring to theentry he had made immediately after the incident, instead oftrusting to his treacherous memory on an important matter of thiskind. In view of the discovery of this entry, the Police Magistrate’sopinion is, as was to be expected, not very definite. – My own viewis this: That it has been proved, in fact it was never disputed,that Casi Lebbe is a well known tout. It may be he milks theaccused's cow sometimes when he is not engaged in touting. Thefact that Casi Lebbe was a tout must have been known to theaccused who has practised in the Minor Courts at Kurunegalafor about three years, and when the accused stated that CasiLebbe was “ one of his m£n,” as recorded in the information book,he must have meant that he was one of his touts, and what Ifeel is that Sub-Inspector Pereira drew this inference from whatthe accused told him. Even if Casi Lebbe was the accused’s“ tout,” can he be held to be guilty of an offence under section 5,and can it be said that he had meddled or intermeddled onCasi Lebbe’s behalf “ without proper excuse,” on the facts ofthis case ? I have not the slightest doubt that the accusedassumed, if he did not know, that Casi Lebbe had been arrestedfor intermeddling with some suitor or other person having businessin Court, and he construed the gestures as an appeal or invitationto him to interfere on his behalf. That Casi Lebbe did makegestures is stated by the accused, it is not contradicted or supportedby other evidence. One would not expect these gestures to benoticed in a Court, especially if it was crowded, but when his manwas placed under arrest, the accused would naturally look towardshim, and Casi Lebbe would, as a matter of course, appeal to hismaster for assistance to get him out of his trouble. The accusedwould be too ashamed to approach his tout, or to speak to himpublicly, and thereby proclaim his connection with him. Therequest under these circumstances would be conveyed by appealinggestures. I find that Casi Lebbe did make gestures which theaccused construed as a request for his interference and assistance.Section 5 is an extraordinary enactment, and I do not think itsparallel can be found in any system of law known to us. InNarayenaswami Deogu1 Laurie J. pointed out “ with force andhumor ” its difficulties and its defects. In Mem v. Karunaratne(supra) Wendt J. said: “ This section is so vague that it has practi-cally been a dead letter.” Wood Benton J., on the contrary(see Keegel v. Assert Lebbe),2 thought that, as the section was a partof the living law of the Colony, effect must be given to it when thefacts proved were covered by it. That was, however, a bad case,1 (im) 2 N. L. P. SI.* (1906) 9 N. L. R. 147.
1923.
JaVewar-DBNE A.T.
Inspectorof Police,Kurunegala,v.
Sabapathy
1923.
JA YE WAR-DENS A.J,
Inspector
of PoUcetKurunegala,v.
Sabapathy
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and the learned Judge observed that if the Touting Ordinance wasinapplicable, the law as to contempt of Court was quite simpleand close at hand. In Keegel v. Asana Marikar (supra) Ennis J.thought that section 5 applied only to touts and vagrants, as thepreamble stated that the Ordinance was intended to prevent themischief caused by touts and vagrants meddling with partiesseeking redress in Courts of Justice. The Legislature, however,still believed in the necessity and usefulness of section 5; and byOrdinance No. 35 of 1917, it amended the preamble by substitutingthe word “ persons ” in place of the words “ touts and vagrante ”and amplified the terms of section 5. Notwithstanding this amend-ment and amplification) De Sampayo J. in Menon v. Abdul Lebbe(supra) thought that section 5 applied not to persons who pursue alawful trade, but to persons who were aimed at in the originalpreamble to the Ordinance. The amendment and the amplifica-tion have not rendered easier the construction of section 5. Thequestion then is, does section 5 cover the facts proved here, andhas the accused offered a “ proper excuse ” for his meddling asrequired by the Ordinance ? If his excuse is a proper one, thenhis meddling is not an offence under section 5. The accused isa legal practitioner, and he is entitled to appear for and on behalfof and to represent any client who requests him to do so. If heso represents a client, he is entitled to ask the complainant to settleor withdraw a case without committing an offence under section 5.Then, in my opinion, he would have a proper excuse for so doing.“ Meddling ” or “ intermeddling ” is described as “ the unauthorizedact of one who is busy in things that ought not to concern him.”In the same way a father might interfere on behalf of his son,a master on behalf of his servant, and vice versa. In short, anyperson interested in a party concerned in any litigation, or in thelitigation itself, might do the same without becoming liable to becharged under section 5. See Narayenaswami v. Deogu (supra).In Mean v. Korunarotne (supra) it was held that a person whodrew up a plaint for a suitor at the suitor’s request cannot be saidto have intermeddled with the suitor without lawful excuse. Inthe same way when a person who is charged with an offence appealsto a proctor for help and assistance, and the proctor asks the com-plainant not to prosecute, but to let the man off ; it cannot, in myopinion, be said that the proctor intermeddled at all, or that hemeddled without “ proper excuse.” It may be that the tie whichbinds the proctor to his tout makes him do so more readily, butthat cannot affect the legal position. I hold, therefore, that theaccused “ intermeddled ” on behalf of Casi Lebbe at the latter’srequest, but that he cannot be said to have meddled with a suitorwithout proper excuse within the meaning of section 5 of theOrdinance. I allow the appeal, and acquit the accused.
Appeal allowed.