MACDONELL O..T.—Karunoratne c. Siyatu.
1931Present: Macdonell C.J.KARUNABATNE v. SIYATU.458—P. C. Gampola, 53,967.
Escape from lawful custody—Mraninff of tin• words “ dmrycd uith nilrnrc '' —Must the accused be told the ojfcncr' -Penal t'otir. a. 219.
Where a person is chargrri with escaping from lawful cmin<lv. n mnot necessary for the prosecution to prove that the officer arresting himtold him what the offence was with which he U charged.
^^PPEAL from a conviction by the Police Magistrate of Gampola.
H. E. Garvin, for accused, appellant.
M.F. S. Pulle,for Crown, respondent.
September 8, 1931. Macdonell C.J.—
In this case the accused was charged and convicted under section 323,the appeal against which conviction was dismissed. But at the sametime I reserved the question of whether the conviction for a contraventionof section 219, ?.e., escaping from custody in which he was lawfully•detained, could be sustained. The section reads as follows: —
** Whoever intentionally offers any resistance or illegal obstructionto the lawful apprehension of himself for any offence with which he i6charged or for which he has been convicted, or escapes or attempts toescape from any custody in which he is lawfully detained for any suchoffence, shall be punished with imprisonment of either ‘description for ,a term which may extend to two years, or with fine, or with both. ”
At one time the tendency was to hold that there could not be a con-travention of this section unless the person had actually been chargedbefore a Magistrate. See particularly Nawana v. Fernando1 and Rex v.Abuhakker2. But in Obeyesekera v. Perera3 Bertram C.J. held that theword “ charged ” in this section must not be restricted to a charge beforeA Police Magistrate.
The further question arises. To contravene this section must a personhave been actually told the offence with which he is charged so as to makehis escape from custody punishable under section 219? In the presentoase the accused was caught while he was unlawfully selling toddy, or atleast the very moment after. But there is no evidence that the personarresting him spoke to him any words to acquaint him of what the chargeAgainst him was for which he was arrested. It was proved in this casethat the arrest was lawful, but there is nothing to show that at the tiriieof the arrest or of the escape from arrest—the whole thing happened in aiew seconds—any words had been uttered to show the offence for which111 N. L. R. 276.* J Times L. R. 168.* 7 G. W. R. 140.
Bbrahim e. Thiagarajah.
accused was being arrested. This point, however, seems to have beenadequately dealt with by Gout, 3rd ed., p. 1148: “ The word ‘ charged 'here has been used in the popular sense as implying an imputation of thealleged offence as distinguished from the judicial charge formulated afterthe recording of evidence in Court. A policeman arresting another on asuspicion of an offence accuses or charges him with an offence, so that his-resistance to his apprehension or his escape from custody would constitutean offence punishable under this section. The ‘ charging ’ must, ofcourse, be by a person duly empowered, and under circumstances justi-fying it. " The point is put even more tersely by Mayne, 4th ed.,p. 142: “ An arrest of a person by a duly authorized officer is a charging,t.e., an imputation of an alleged offence, though only a prim& facieimputation until the case goes before a Magistrate. ”
If this be the law, then it is perfectly clear that the accused in this casehad contravened section 219 and the appeal on that charge must be'dismissed also.
KARUNARATNE v. SIYATU