002-NLR-NLR-V-35-JAMEL-v.-HANIFFA.pdf
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Jamel v. Hanifia.
1933Present: Drieberg J.
JAMEL v. HANIFFA.
831—P. C. Batticaloa, 55£24.
■Public servant—Causing hurt to a Sanitary Inspector—Penal Code, s. 19.
The Sanitary Inspector of a Local Board is not a public servant withinthe meaning of section 19 of the Penal Code.
^j^PPEAL from a conviction by the Police Magistrate of Batticaloa.
R. L. Pereira, K.C. (with him Kariapper), for accused, appellant.
Pulle, C.C., for respondent.
> (im) 3 Browne 5.
3 (1920) 2 C. L. Res. 15.
DRU3BERG J.—Jame I v. Haniffa.
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March 14, 1933. Drieberg J.—
The Sanitary Inspector of the Local Board of Batticaloa noticed in thegarden of a house offal and fresh goat's dung which suggested to him thatgoats had been slaughtered there. He entered the garden and saw thecarcases of three goats hanging in the house and a hand balance and apair of scales. He was of opinion that an offence against the by-lawshad been committed, the goats having been slaughtered in an unauthorizedplace and a sale there being contemplated. He was not sure as to whataction he could take and he sent someone for the police. In the intervalthe appellant, who is a licensed butcher, came there and asked him tooverlook the matter and take no action. This, I take it, is what theInspector means when he says that the appellant asked him to excuse him.The Inspector declined to do so and the appellant lost his temper, pulledthe notebook from the Inspector and threw it away and struck him.The Inspector ran away and he says the appellant threw a brick at him.
The appellant was charged and convicted on three counts. The firstwas of causing hurt to a public servant in the discharge of his duty withintent to deter him from discharging his duty (section 323 of the PenalCode). The second charge was of assaulting or using criminal force ona public servant with intent to deter or prevent him from discharging hisduty (section 344 of the Penal Code). The third charge was under section314 of voluntarily causing hurt, this offence having no reference to thecapacity in which the Inspector was acting. The accused was sentencedto one year’s rigorous imprisonment on each of the first two counts andto two months’ rigorous imprisonment on the third, sentences to runconcurrently.
If the Sanitary Inspector is not a public servant as defined in section 19of the Penal Code, the conviction on the first two counts cannot besustained. There was also some argument that it had not been shownthat what the Inspector did was within the ordinary scope of his officialduties, but it is unnecessary to consider this for it has not been establishedthat the Sanitary Inspector is a public servant.
There is no evidence that the duties of the Inspector are anything otherthan the name of the office indicates. A sanitary officer is one whoseduties are directed to the protection of the public health; he would fallwithin the ninth definition in section 19 if he were an officer of Govern-ment, but this he is not. An endeavour was made, and it succeeded, tobring him within the eleventh definition, and the learned Police Magistratefollowing the ruling in King v. Selliah' held that his case was coveredby definition eleven, which is as follows : —“ Every officer whose duty it is,as such officer, to take, receive, keep, or expend any property, to make anysurvey or assessment, or to levy any rate or tax for any secular commonpurpose of any village, town, or district, or to make, authenticate, orkeep any document for the ascertaining of the rights of the people of anyvillage, town, or district. ” It will be noticed that this definition con-templates duties connected w.ith the receipt and expenditure of incomethe levying of rates, and all that is necessary for determining and ascer-taining the amounts to be levied, and keeping and controlling all documents
j (1922) 24 N. L. R. 18.
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DMEBERG J.—Jamel v. Hanifja.
and records for such purposes. In King v. Selliah (supra), the* complainantwas the Secretary of a Local Board. Evidence was led regarding his dutiesand it is hardly necessary to point out how obviously such duties wouldbring him within the eleventh definition. It is not possible to apply thedecision in this case to a Health Officer of a Local Board. It may be thatthe Inspector performs duties which one would not ordinarily associatewith the name of his office, duties which may bring him within the eleventhdefinition. But there is no evidence of this. The conviction on the firstand second counts must therefore fail.
I accept the finding of the leahied Police Magistrate on the facts andthe only question which I have to decide is the sentence imposed for theconviction on the third count. I agree with the Magistrate that the caseis a bad one, and even though one keeps out entirely the thought that thiswas done to the Inspector while he was discharging his duties, I canproperly take into consideration the relative positions of the complainantand the accused and the circumstances under which the assault wascommitted. There is no suggestion of any aggressive conduct on thepart of the Inspector; on the contrary, he acted with restraint and carein sending for the police. The garden which he entered was not, so faras I can see, that of the appellant. If the Inspector had not run away,he would probably have been subjected to more violence.
The Police Magistrate assumed jurisdiction as District Judge on accountof the first and second charges. Had he to deal with the third chargealone, he would, of course, have tried the case as Police Magistrate and thesentence which the accused can receive on a conviction on section 314alone can be only that within the jurisdiction of a Police Court. It wasurged that the Magistrate had in mind the possibility of the first twocharges failing by reason of difficulties in establishing the status of theInspector, and it is for that reason that he framed a charge under section314. It was said that the sentence which he has imposed, two months’rigorous imprisonment, indicates his opinion of an appropriate sentencefor a conviction under section 314, uninfluenced by any consideration ofoffences on the Inspector as a public servant. I am by no means certainthat this is so. It is not unusual when a Judge imposes sentences ofimprisonment to run concurrently, the maximum sentence really deter-mining the punishment, that the sentence imposed for a lesser offenceinvolved is not what it would be had it been the main object of considera-tion in the case. The sentence here was one of 1 year’s rigorous imprison-ment, and it did not really matter very much what sentence less thanthat was given for the others.
In my opinion, a sentence of two months’ rigorous imprisonment isinadequate and from the opinion which the Magistrate has expressed,I feel sure, except for the sentences passed on the first and second counts,he would have awarded the maximum sentence which a Police Magistratecould have imposed.
I set aside the convictions under sections 323 and 344, and I alter thesentence on the third charge, section 314, from two months’ rigorousimprisonment to six months’ rigorous imprisonment.
Set aside.