018-NLR-NLR-V-61-JUSTIN-PERERA-and-other-Appellants-and-P.-B.-RATNAYAKE-Inspector-of-Police.pdf
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T. S. FERNANDO, J.—Justin Perera v. Ratnayake
Present: T. S. Fernando, J.JUSTIN PERERA and others, Appellants,-and ~P. B. RATNAYAKE(Inspector of Police), Respondent
8. C. 1,123—1,135—M. G. Colombo South, 75,832
Wrongful restraint—Ingredients of offence—Must obstruction be to a person only ? —Obstruction of vehicle while it is being driven—Culpability—Penal Code, s. 330.
Obstruction of a vehicle whan it is being driven by a man can amount towrongful restraint of that man within the meaning of section 330 of the PenalCode. In such a case the fact that the man is allowed to go unmolestedprovided that he does not attempt to take the vehicle -with him is immaterial.
xA^PEAT; from a judgment of the Magistrate’s Court. Colombo South.
M. M. KumaraJeulasingham, with D. R. P. Goonetitteke, for the accused-appellants.
K.V. S. ShanmuganatTian, Crown Counsel, for the Attorney-General.
Cur. adv. vuli.
March 14, 1957. T. S. Fskstastoo, J.—
The appellants (thirteen of them) were convicted in the Magistrate’sCourt on two charges. The first charge alleged that they were membersof an unlawful assembly, the common object of which was wrongfully torestrain one Albert Silva from proceeding from the premises of a garage ofa bus company driving a bus of that company on to the main road outsidethe garage. The second charge alleged that in prosecution of the saidcommon object they committed the offence of wrongfully restrainingAlbert Silva in the manner alleged in the unlawful assembly charge.
The facts alleged in the evidence led by the prosecution were not dis-puted by the defence. The appellants were on the day in question eitheremployees, ex-employees or sympathisers of the employees of the buscompany referred to above. It would appear that, without any pre-vious warning to the company, most of its employees had struck workand had assembled early morning outside the gate of the garage premises.It is quite unnecessary for the purpose of this appeal to go into the causeswhich led to the strike. The management of the bus company, beingthus deprived of the services of most of their drivers and conductors,had requested Albert Silva, one of their employees who had not joinedthe strike, to drive bus No. IC 1510, one of its buses, out of the garage
T. S. EBRNANDO, J.—Justin Per era v. JRatnayake
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and on to the road preparatory to commencing their daily passengerservice. This was the first of the buses lined up for transport of passen-gers that day, and the evidence shows that there were about thirteen otherbuses behind it manned by non-strikers and ready to be driven off. Itis not contested by the defence that driving off became impossible as aresult of the appellants, and possibly a few others who have not beencharged in this case, jumping in front of the leading bus IC 1510 as itemerged out of the gate on to the space outside and before it could reachthe tarred portion of the road. Having jumped forward, the appellantsand the others either sat down or reclined oh the ground in front of thisbus, and some of the appellants declared or announced that Albert Silvawould not be permitted to get on to the road driving that bus and theyeven challenged him to attempt to drive off by running over them. Theobstruction thus offered to Albert Silva driving off was admitted in anunusually candid statement made in the witness-box by the 12th accused-appellant who testified that the object of the appellants was to preventthe buses of the company concerned leaving the garage on the day inquestion and that it was their intention not to allow a single bus to leavethe premises. Albert Silva was held up in this way from about 5.15 a.m.till 2.45 p.m. when police officers arrested the appellants and led them-away to the police station, incidentally removing the obstruction to thepassage of the buses of this bus company.
The only point raised against the conviction is one of law and is for-mulated in the manner set out below. It is urged that, as the obstructioncaused was to Albert Silva driving off in the bus and as Albert Silva wasfree to get out by himself without attempting to take the bus with him,no offence of wrongful restraint was committed. It is contended that"the essence of the offence is that the obstruction alleged shall be to aper son, and it is argued that here no obstruction was caused or even in-tended to be caused to Albert Silva proceeding out of the gate on to theToad by himself. It would appear that a similar point has been raised-successfully in certain High Courts of India, but it must be noted thatIndian Courts have not taken a uniform view on this point. I shallrefer later to a few of the Indian decisions which have definitely rejectedthe point as unsustainable.
While it is correct that the offence of “ wrongful restraint ” is includedin our Penal Code in the group of “ Offences Affecting the Human Body ”^'Chapter XVI), the definition of the offence in section 330 :—
” Whoever voluntarily obstructs any person so as to prevent thatperson from proceeding in any direction in which that person has aright to proceed is said ‘ wrongfully to restrain ’ that person. ”
itself appears to throw some light on the question of law that has beenraised. Is not a person prevented from proceeding in a direction in which-that person has a right to proceed when he is not permitted to proceedarmed or equipped or even encumbered with anything with which hemay lawfully be armed, equipped or encumbered ? If it is lawful,for instance, for a person to lead his dog along the road, is he not beingwrongfully restrained within the meaning of section 330 when obstruction
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T. S. FERNAJTDO, J.—Jztstin Perera 0. Ratnayake
is offered to his so leading the dog, although it is made dear to him thathe would he allowed to proceed if the dog is not brought along with him ?
I should myself have thought that the question does riot admit of serious-argument had it not oeenr eamestty raised by -Mr. Kamaraknlasrnghamwho contended that the state of the decisions both here and in India leftthe question in some doubt.
Such examination as I have been able to undertake of the state of the-decisions in Indian Courts on the interpretation of section 339 of theIndian Penal Code (which is in exactly the same terms as section 330 ofour Code) confirms the opinion that first commended itself to me that thequestion must he answered against the appellants. In Emperor v..Lahanua, a case where there was an obstruction to the complainant-proceeding with bis bullocks in a direction in which he had a right to-proceed, Fawcett J., also dealing with the argument that obstructionmust be to a person, made the following observations which are verypertinent to the question I have formulated above in respect of a manleading bis dog along a road :—
“ On the other hand- this view of personal obstruction must obviously"have some limits. Suppose A wants to proceed in a certain direetion.with a pair of boots on, and B says : ‘ I will not allow you to do this.You must take your boots oft and go without them if you want toproceed.5 If B has no right to say that A cannot wear bis boots while-proceeding, surely there is wrongful restraint falling within the defi-nition in section 339, Indian Penal Code. Again, supposing A has astick or bos with him and B wrongfully prevents him taking it with, him,would not this'be wrongful restraint 1 And similarly, if A is wrongfully"prevented from taking a bicycle with him, or riding it, on his way to a.place, I can see no adequate ground for the view that there is no wrong-ful restraint if B is willing to let him proceed without his bicycle. The-circumstances of the case must, in my opinion, be considered, and if theobstruction to A’s taking a thing with him amounts to obstructing A_himself from going in a manner he has a right to go, I think there is-wrongful restraint. ”
I would take the liberty of adopting respectfully the observations ofFawcett J. reproduced by me above and state that the offence does notcease to he an offence of obstruction to the person because the obstruction,offered is to the person proceeding armed, equipped or encumbered withsomething with which he is lawfully entitled to be armed, equipped orencumbered and no obstruction is offered to the same person proceeding:after shedding or leaving behind such arms, equipment or encumbrance.This point appears to me to be well brought out in the following comment-on section 339 of the Indian Penal Code contained in Ratsnlal andThakore : The Law of Crimes (19th edition), at page 844 :—
“ The slightest unlawful obstruction to the liberty of the subject togo when and where he likes to go. provided he does so in a lawful manner..cannot be justified, and is punishable under this section. " 1
1 {1926} A. I. JS. {Bomb.) US-
T. S. F'ERN'AI'nDO, J.—Justin Per era v. Ratnaya/ee93
Hr. ~K~wTYin.rft.lnila.fiiTighfl.nfi cited two Ceylon decisions on the interpre-tation to be placed on section 330 and appeared to me to contend that thetwo Judges who heard these two appeals had taken contradictory viewsas to the meaning of the section. In the earlier of these two cases, Herathv. William Silva 1, in which the facts were that the accused was seatedin the middle of the road and, as a motor lorry approached, got up andwalked backwards so that the driver of the lorry could not proceed withoutrunning over him, Lyall-Grant J., in holding that the accused was guiltyof the offence of wrongful restraint, stated :—
“ The accused put an actual physical obstruction in the way of thelorry, namely, the obstruction of his own body. The mere fact thatphysically the person obstructed might have been able to overcome theobstruction does not seem to me to alter the nature of the accused’sact. The complainant could not have overcome the obstruction exceptby running the accused down, which would have been a criminal act.An act by one person which prevents another from proceeding in adirection in which he has a right to proceed, unless the latter choosesto commit a criminal act, seems to me to amount to wrongfulrestraint. ”
I would respectfully agree with the statement of law contained in theabove citation, and in that view of the matter it seems to me that thereis no room for the argument that the appellants were not rightfullyconvicted.
I do not consider that there is anything stated in the course of thejudgment of Moseley J. in the later case of Jayasekera v. Appu 2 whichis of any assistance to the appellants. An examination of the facts ofthat case will reveal that there was no actual obstruction of any personat all. The obstruction complained of consisted merely of the cutting of adrain across a cartway. There was not even any evidence that anyperson actually attempted to take a cart across or indeed tried to go overthe cartway and found that he could not do so by reason of the existenceof the drain. In truth, such observations on the law as appear in thejudgment of Moseley J. are against the view contended for by Mr. Ku-mfl.-rfl.kii~lasingha.Tin. After stating that the essence of the offence is thatthe obstruction alleged shall be to a person—which is really no more thana reproduction of part of the definition of the offence—Moseley J. states“ Obstruction of a vehicle alone (when no men are obstructed) cannotamount to wrongful restraint ”. It would therefore almost appear thathad it been necessary in that case the learned judge would have been pre-pared to say that obstruction of a vehicle when it is being driven by aman can amount to wrongful restraint of that man.
It is hardly necessary in the circumstances to enter upon a furtherdiscussion of the question, but it may perhaps be useful to refer to certaindicta contained in two fairly recent decisions of the Madras High Court.
1 (1918) 30 N. L. R. 376.
s (1941) 43 N. L. R. 260.
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T. S. FERNANDO, J.—Justin Per era v. Ratnayake
In Qopala Reddi v. Rakshmi Reddi 1, where a person driving a cart alonga path, in front of the house of the accused was obstructed by the latter,Happell J. observed that he was “ unable to see why the voluntary ob-struction of a vehicle in which persons were travelling should not amountto the wrongful' restraint nf the persons ih'fHe vehicle. The fact that theperson or persons may get down and then be left at liberty to proceedon their way unmolested seems to ine immaterial ”. The limits to whichargument can be stretched are illustrated in the remarks quoted belowfrom the judgment in the case of In re Abraham 8 where the act of theaccused which constituted the wrongful restraint was the placing of a busacross a road in suoh a way as to prevent another bus from proceedingin the direction in which it was intended to be driven :—
“ It is absurd to say that because the driver and the passengers ofthe other bus could have got down from that bus and walked away indifferent directions, or even gone in that bus to a different destinationin the reverse direction, there was therefore no wrongful restraint.Such a contention will make * wrongful restraint ’ under the PenalCode infructuous and meaningless. Proceeding in any direction mustonly mean proceeding in that direction and not in any other direction,much less in the reverse direction.”
As I have already indicated, the question of law raised on behalf ofthe appellants fails and the convictions must be affirmed.
On the question of punishment, the appellants have been sentencedto undergo a term of six months’ rigorous imprisonment on each ofthe two counts, the sentences to run concurrently. In passing whatappears to be a severe sentence on persons who have all hitherto beenof good character, the learned Magistrate has stated that there can he noquestion of clemency in a case of this type. It must not be overlookedthat the appellants were unarmed and the evidence discloses that theywere indulging in some kind of protest at the buses being manned thatday by persons who had not joined the strike and who were not the re-cognised drivers and conductors of the company. It may even be thatin obstructing the new and obviously temporary drivers the appellantswere acting under a misconception as to the law. The strike, sueh asit was, was of but eight hours’ duration at the time the appellants werearrested and negotiations for a settlement of the strike were in progressfrom early morning till the time of arrest. In all the circumstances itseems to me that the facts do not call for the infliction of punishment of anexemplary nature. I would therefore set aside the sentences of imprison-ment passed on the appellants and direct that each of them do pay a fineof Rs. 25 (and in default of payment of each fine undergo rigorousimprisonment for two weeks) on each count, making an aggregatefine of Rs. 50.
Convictions affirmed.Sentences reduced.
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