051-NLR-NLR-V-23-ISMALANNE-LOKKA-v.-HARMANIS.pdf
1920.
( 1«2 )
Present: Shaw A.OJ.
ISMALANNE LOKKA v. HARMANIS.
214—C. R. AvissaweUa, 10,828.
Action for malicious arrest and prosecution against police headman—Action brought after three months-*—Police Ordinance,IS 68, e. 79—Is a police headman a police officer t—May a police officer whoacts maliciously plead the limitations of s. 79 fIn an action for malicious arrest and prosecution against apolice headman, which was brought five months after the conclusionof the prosecution, the headman pleaded section 79 of the PoliceOrdinance, 1865, as the action was not brought within three months*Held, that the objection wees bad, as (l) a police headman wasnot a police officer within the meaning of the Ordinance, and (2) asa police officer who acts maliciously and not in the bona fidsexemxsa- o>i his official duties is not entitled to rely on the limitationpi actions provided in section 79.
^J^HE faota appear from the judgment.
E. 0, P. Jayatilehe (with him M. W. H. de Silva), for the appellant.
Garvin, for the respondent.
December 10, 1920. Shaw A.C.J.-
This was an action for malicious arrest and prosecution broughtagainst a police headman. The prosecution, which is said to havebeen malicious, was concluded on November 3, 1919. The presentaction was commenced on May 7, 1920. The defendant took theobjection that the .action was prescribed in consequence of theprovisions contained in section 79 of the Police Ordinance, 1865.That section provides that all actions and prosecutions against anyperson which may be lawfully brought for any act done or intended' to be done under the provisions of this Ordinance or under thegeneral police powers hereby given shall be commenced withinthree months of the act complained of. The section then goes onto provide for notice of action and other matters. The Commis-sioner has decided this case on a preliminary i&ue, and has heldthat the action not having been commenced within three months isprescribed under the section 1 have read. It has been held that apolice headman is not a police officer within the meaning of thePolice Ordinance, 1865. See Don Lewis v. Kaluappu} It has alsobeen held' in Van Haght v. Keegel2 that a police officer who is foundto have acted maliciously and not in the bona fide exercise of hisofficial duties is not entitled tc rely on the limitation of actionsprovided in section 79 of the Police Ordinance. For both thesereasons I think the decision of the Commissioner is incorrect, andI allow the appeal with costs, and send the case back to the Com-missioner for him to hear the evidence.
Sent bade.
1 {1909) 2 L. L. R. 104.• {1917) 4 G. W. R. 288.