HOWARD C.J.—James Per era v. Waldron (&*P.).
1046Present : Howard C.J.
JAMES PERERA, Appellant, and WALDRON (S.P.), Respondent.344—M. C. Colombo, 11,019.
Defence (Miscellaneous) Regulation IT (1)—Charge under—Actual words used,by accused not set cut in charge—Legality of conviction.
Where the charge against the accused was that in contravention ofRegulation 17 (1) of the Defence (Miscellaneous) Regulations he addresseda large number of persons engaged in the performance of essential servicesin terms which were likely to prevent or interfere with the carrying onof their work by persons engaged in the performance of essential services—Held, that the charge should have set out the actual words used by theaccused who spoke in Sinhalese.
PPEAL against a conviction from the Magistrate’s Court of Colombo
H. V. Perera, K.C. (with him Walter Jayewardene, CC., Rasa – Ratnamand G. E. L. Wickremesinghe), for the accused, appellant.
E. P. Wijetunge, C.C., for the Attorney-General.
Cur. adv. wit.
May 29, 1946. Howard C.J.—
The appellant was convicted under Regulation 17 (1) of the Defence(Miscellaneous) Regulations on a charge that, at Colombo on November21, 1945, he did an act, to wit, address a large number of persons engagedin the performance of essential services thus : “ From the 1st of thismonth lightermen have worked only an 8-hour day. From the 13ththey struck work. We welcome the motor workers who have joined inthe strike and I hope many others would join too ”—having reasonablecause to believe that such act will be likely to prevent or interfere with thecarrying on of their work by persons engaged in the performance ofessential services. Against this conviction the appellant appeals.
The evidence against the appellant was that of the Police officersSub-Inspector Goonetileke and Sergeant Chandrasekera who attended
HOWARD C.J.—James Per era v. Waldron (SJ*.).
the meeting at which about 300 persons were present consisting of lighter-men from Colombo harbour and motor workers. There was a strike inprogress. The appellant, according to the two Police officers, madea speech in Sinhalese. After the meeting the two officers went to thePettah Police Station and made a note in English of the speech made bythe appellant. These notes were made ten minutes after the meeting.The prosecution was based on the words set out in the charge which weretaken from these notes. The Inspector stated that he did not take downall that the appellant said and only noted down what he consideredimportant. Mr. Perera has contended inter alia that the convictioncannot be maintained inasmuch as the charge does not contain the actualwords used by the appellant who spoke in Sinhalese and not English.Moreover the whole of the appellant’s speech was not recorded, and theappellant was charged on what amounted to a precis made by theInspector of what had actually been said. In my opinion there isconsiderable substance in Mr. Perera’s contention. So far as the proofof what the appellant actually said is concerned I am of opinion that thesame principles must apply aa in a case of a seditious libel. In the 31stedition of Archbold p. 1117 it is stated that the seditious parts of thepublication relied on should be set out in the indictment correctly. Ifthe libel is in a foreign language, it should be set out in such languageverbatim together with a correct translation. In this connection I would .refer to Zenobia v. AxteU 1. In the present case the words set out inthe charge were not the actual words used, but an English translationof the words used made from memory by the Police officers. The actualwords used should have been set out in the charge. The appellantdid not go into the witness box and say what words he actuallyused.
In that connection Crown Counsel has referred me to the case of Khare v.Massani 2. In that case the complainant, Dr. Khare, brought criminalproceedings for defamation against the defendant on the ground that thelatter in a paper known as The Nagpur Times published defamatorymatter in relation to words used by the complainant on a certain occasion.The complainant was not able to give the actual words he used andin those circumstances the Court held that it could only gather theirimport from the impressions left on the mind of those present. It wasargued that as the appellant in this case failed to give evidence as to thewords he used the Court was entitled to gather their import from theimpressions left on the minds of the Police officers. I am of opinionthat this case has no relevance in a criminal charge such as this where aburden rests on the prosecution to prove what words were actuallyemployed.
On this ground alone I allow the appeal and set aside the conviction.
Term Reports 162
* 43 Criminal Low Journal of India 856.