( 146 )
Present: Maartensz A.J.JOHOBAN v. SABANELIS.
414—P. G. Kandy, 28,781.
Escape ■ from custody—Lawful arrest—Unlawful gambling—Rules ofVillage Committee—No charge—Penal Code, $. 219.
Where the accused escaped from the lawful custody of a policeofficer who arrested him for committing unlawful gambling in hispresence.—
Heldf that the accused was guilty of an offence under section 219of the Penal Code.
It is not essential under the section that the person escapingfrom custody should be jharged with an offence at the time ofhis arrest.
^^PPEAL from a conviction by the Police Magistrate of Kandy.
Navaratnam, for accused, appellant.
Basnayake, C.G., for the Crown.
August 30, 1929. Maartensz A.J.—
The accused-appellant was convicted of escaping from thecustody of a police constable, who had lawfully arrested him cn acharge of gambling, an offence punishable under section 219 of theCeylon Penal Code, and of using force to the constable and causinghurt to him.
Under the rules published in the Government Gazette dated Febru-ary 18, 1927, in pursuance of the powers vested in His Excellencythe Governor by section 95 of the Village Communities Ordinance,1924, any police officer may without a warrant arrest any personwho in his presence commits the offence of gambling.
( 147 )
The . accused was, according to the evidence, arrested by1929.
Police Sergeant Johoran while gambling with eight others and Maa^“N82escaping from custody on the way to the police station atA.J.
I see no reason to dissent from the finding of the Magistrate that Saranelh■ the accused was arrested while gambling. The sergeant’s evidencehas not been rebutted by any evidence for the defence, and there isno foundation for the suggestion that the accused was merely anonlooker.
The main contention in appeal was that the accused was in lawnot guilty of the oifence of escaping from legal custody undersection 219 of the Penal Code as he was not at the time he escapedcharged with an oifence. I was referred in support of this conten-tion to the case of Nawana v. Fernando1 and the King v. Abubakkcret al.2
In the former case, Wood Eenton J. held that “ A peison whohaving been arrested by a police officer on suspicion of having beenconcerned in the commission of the offence of theft, escapes fromthe custody of such police officer, is not liable to conviction undersection 219 of the Penal Code.” And that “ It is only where anaccused person has been either charged with, or convicted of, anoffence that he comes within the purview of section 219 of the PenalCode.”
In the latter case, the headnote is as follows:“On a complaint
being made to the Pettah Police by X that he had been stabbedby T and Z, an Inspector of Police and three constables set out toarrest Y and Z, which they effected at Barber street. While theywere being taken to the police stat’on, Y and Z escaped from thecustody of the police. When Y and Z were charged under section219 of the Penal Code with having caused resistance to their lawfulapprehension,” it was held “ that, in the circumstances the con-viction under section 219 could not be sustained. It is of theessence of the section that the resistance should be in respect of anoffence with .which the accused is charged or for which he has beenconvicted. The words ‘ any such offence ’ contained in the latter-portion of the section means any offence with which the accusedis'charged or for which he has been convicted.”
I am of opinion, with all due deference, that too narrow a meaninghas been given to the words “ charged with an offence.” And thiswas the opinion of Bertram C.J., who said in .the case of- Obeysekerav. Perera,3 “…. as at present advised, I am not prepared to
hold that the word ‘ charge ’ in section 219 refers to a charge before
a Police MagistrateI am disposed to think that the
word ‘ charge ’ is used in the same broad sense in which the word‘ charge ’ is used in section 208.”
1 11908) 11 X. L. R. 276.1 (1923) 1 Times L. R. 168.
3 (1920) 7 C. W. R. 140.
( 148 )
Section 219 is a verbatim reproduction of section 224 of the IndianPenal Code. Gour (3rd edition, page 1148) on the authority of thedecision referred to-by him lays down that the word charged ” herehas been used in the popular sense as implying an imputation of thealleged offence as distinguished from the judicial, formulated afterthe recording of evidence in Court. A policeman arresting anotheron a suspicion of an offence accuses or charges him with an offence,so that this resistance to his apprehension or his escape from custodywould constitute an offence punishable under this section. The“ charging ” must, of course, be by a person duly empowered, andunder circumstances justifying it.
Section 225 B of the Indian Code referred to by Wood Benton J.in the case of Nawana v. Fernando (supra) was according to Gour(page 1159) “ enacted in consequence of two cases in which it hadbeen held that a person escaping from custody when being takenbefore a Magistrate and for the purpose of being bound over to be ofgood behaviour not being punishable under either section 224 or225, was not punishable at all.”
At page 1160 he says ” added to which there may be cases ofarrest under civil process, resistance to which would also be punish-able under this section. But whatever may have been the occasionfor the arrest, two things are essential to make the section applicable—(a) that the arrest must be for an offence (the italics are mine),and (b) that it must be lawful.”
These observations apply to an ” escape ” from custody penalizedby the section.
It is clear therefore that s€ ition 225 B was not introduced asWood Benton J. thought for the purpose of meeting a case of thekind that was the subject of the appeal.
Section 225 B has since this judgment been added to our Codeas section 220 A by section 4 of Ordinance No. 10 of 1909.
I agree .with the view taken in India and hold that the word“ charged ” has been used in section 219 in the same sense, that isas implying an imputation of the alleged offence as distinguishedfrom the judicial charge formulated after the recording of theevidence in Court.
A point was made by the appellant’s Counsel that the rule whichmade gambling a cognizable offence was not produced at the trialof the accused. I see no reason for interfering on this ground, forthe trial which began on April 15 only terminated on June 7 andaccused’s proctor had ample time to acquaint himself with thegrounds on which the accused was charged.
I dismiss the appeal.
JOHORN v. SARANELIS