065-NLR-NLR-V-43-JAYASEKERA-v.-APPU.pdf
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MOSELEY J.—Jayasekera v. Appu.
1M1-Present: Moseley S.P.J.
JAYASEKERA v. APPU.551—Af. C. Galle, 30,220.
Wrongful restraint—Cutting a drain across a road—Essence of offence—Obstruction to person—Penal Code, s. 332.
Obstruction of a vehicle alone in the absence of evidence that anyperson had been obstructed does not amount to wrongful restraint.
^^PPEAL from a conviction by the Magistrate of Galle.
Sri Nissanka (with him E. B. Wikremahuyake), for 2nd accused,appellant'.
L. A. Rajapakse (with him K. K. Subramaniam), for complainant,respondent:
Cur. adv. vult.
November 5, 1941. Moseley J.—
The appellant was convicted on a charge of having “ cut a drain acrossa cart way .- … so as to obstruct voluntarily the users of this
road from proceeding in the direction in which the public have a rightto proceed,” an Offence punishable under section 332 of the Ceylon PenalCode. He appealed on the ground that the complainant had failedto prove that the path obstructed was a public path.
The appeal was argued on this footing, but it seems to me that it must bedecided on a point which goes more directly to the root of the matter.The essence of the offence is that the obstruction alleged shall be to aperson. “ Obstruction of a vehicle alone (when no men are obstructed)cannot amount to wrongful restraint. ” (Ratanlal: The Law of Crimes,14th ed., page 827.)
In applying for process the complaint affirmed that the drain in■question was cut obstructing the public road. He added “ I cannot useit now ”. Thereafter the proceedings appear to have been continuedupon the footing that the obstruction has *been caused in respect of acart road. The co-accused of the appellant, who was acquitted, in givingevidence described the drain as fairly broad and one across which onehad to jump. The appellant himself said that anyone can jump over it.The learned Magistrate in the course of his statement of reasons foundthat the appellant ini cutting the drain did so to obstruct the user of thatcart way and proceeded to convict the appellant on the ground' that theobstruction caused “ whether it be to the cart road or to the foot pathwas not caused bona fide ”. He does not' appear to have directed hismind to the question of whether or not any person-had been obstructed.For this reason I am of opinion that a conviction of the offence definedin section 332 of the Ceylon Penal Code cannot be sustained. I mayadd that in my opinion process should not have been issued in the absenceof explicit evidence that the complainant personally had been obstructed.
The appeal is allowed. The conviction and sentence is set aside.
Set aside.