082-NLR-NLR-V-31-KING-v.-DINGIRI-MENIKA.pdf
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Present: Lyall Grant J.
KING v. DINGIRI MENIKA.102—D. C. (Grim.) Kandy, 4,276.
Public servant—Charge of obstruction—Appointment of public servant—Proof—Evidence Ordinance, s. 91.
Where in a charge of obstructing a public servant in the dischargeof his public duties, the public servant states that he holds theappointment in question and the statement is not contradicted,it is not necessary to produce bis act of appointment.
^^PPEAL from an acquittal from the District Court of Kandy.
Ilangakoont C.G., for the appellant.
December 3, 1929. Lyall Gbant J.—
This is an appeal by the Attorney-General from an acquittal.Four persons were accused of voluntarily obstructing an arachchiin the discharge of his public functions and with cognate charges.After evidence was led for the prosecution and the prosecution caseclosed it was argued for the defence that there was no proof thatthe arachchi was acting for the arachchi of Palle Talawinna, thearea or wasama in which the accused were arrested by him. Thelearned District Judge found that the prosecution had failed'toprove that the complainant arachchi was a public servant and thathe acted for the arachchi of the particular wasama on this particularday, and that consequently the arrest of the accused was illegal.He says that the nature of the charges against the accused made itincumbent on the prosecution to prove from the proper source thatthe arachchi was acting on this particular day for the arachchi of thisparticular wasama and that the functions he exercised were within
1929
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1929
LyaixChant J,
King v,DingiriMentha
the scope of his authority. The Crown then asked for an oppor-tunity to produce the necessary proof ajb that stage but the learnedDistrict Judge was of opinion that he had no power to do so.
The complainant arachclii admitted in cross-examination that theaccused lived in a village not in his wasama,.but he said he had beenacting for the arachchi of their wasama in January, 1929, and was stillacting for him. He was not asked to produce his letter of appointment.
I think .that in the absence of conflicting evidence, and in theabsence of any request to produce his authority, the arachchi’sevidence as to his authority to act in the particular place must beaccepted. By section 91 of the Evidence Ordinance, exception 1,when a public officer is required by law to be appointed in writing,and when it is shown that any particular person has acted as suchofficer, the writing by which he is appointed need not be proved.The arachchi’s evidence that he acted as arachchi in the place inquestion on the day in question and that he did so by properauthority has not been contradicted in any way, and in suchcircumstances I am of opinion that this exception applies, andthat there was no need for him to produce his letter of appointmentfor the purpose of proving the appointment. In his judgment,however, the learned District Judge has gone rather beyond theobjection which was taken by the defence inasmuch as he says thathe considers that the nature of the charges against the accusedmade it incumbent on the prosecution not only to prove from theproper source that the arachchi wras acting on this particular dayfor the arachchi of this particular wasama, but also that the functionshe exercised were within the scope of his authority. No questionwas raised at the trial as to the scope of the authority of the arachchi,and the trial appears to have proceeded on the assumption thatthe functions of the arachchi were those of a Peace Officer as definedin the Criminal Procedure Code, and that therefore he was a publicservant under section 19 of the Penal Code. As, however, the pointhas been raised and as the case will have to go back, I think it will bemore in order that the arachchi should be given an opportunity ofproducing his letter of appointment in order that the Court may beable to ascertain whether or not he was acting within the scope ofhis authority when he proceeded to the arrest of the fourth accused.
The order of acquittal is set aside, and the case is sent back inorder that the prosecution may be enabled to lead further evidenceon this point and for further proceedings. From the record beforeme it is not apparent that the defence had an opportunity of leadingevidence. At the close of the prosecution case the technical pointwas raised and upon that technical point the case has been decided.In fairness to .the accused they ought to have an opportunity ofleading any evidence which they may desire to lead.
Set aside.