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Present: Mr. Justice Wood Renton.KNATCHBULL v. FERNANDO.P. C., Colombo, 99,325.
Toll—Passing toll bar—Officer in uniform but not on duty—Liability to pay/
toll—Detention without attempting to ascertain identity—Wrongful
restraint—Ceylon Penal Code, section 832.
The complainant, a military officer, charged the accused, a toll'keeper, with wrongful restraint under section 332 of the Penal Code.It appeared that the complainant, who was in uniform, but not onduty, on the occasion in question,' rode his bicycle through the tollbar butdid not passthe bridge,andon beingasked bythe ac-cused topaythe toll refused todo so on thegroundthat hewasin
uniform. The accused did not ask the complainant for his name andaddress,butdetained him tilla constablearrived,who tookthe
complainant’s name and address and let him go.
Held,thatthe complainantwas liable >to pay toll,ashe
was not on duty, although in uniform.
Held,also that thecomplainantwasliable topay toll,although
he did not pass the bridge.
Judgment of Bonser C.J. in Punchi Sinno v. Perera (3 N. L. R.188) questioned.
WoodBenton J.—When a passenger oncepassesthe tollbarhe
passes the statutory rubicon, and mnst pay toll, whether he choosesto pass the bridge or not.
Held,further, thatthe accusedwasguilty ofwrongfulrestraint,
as he was not justified in detaining the complainant withoutattempting to ascertain the complainant’s identity.
^^PPEAL from a conviction under section 332 of the Penal Code.
The facts and arguments sufficiently appear in the judgment.
H. J. C. Pereira, for the accused, appellant.
13th July, 1906. Wood Renton J.—
This case raises some interesting questions as to the rights andduties of toll-keepers. On the 20th of June last the complainant,Captain Knatchbull, rode his bicycle through the Bambalapitiyatoll bar on his way to Colombo from Mount Lavinia. He was inuniform at the time, but he was not on duty. The accused appellantFernando is the toll-keeper of Bambalapitiya, and on the occasionin question he stopped Captain Knatchbull and called upon him topay the toll before he passed the bridge. In point of fact Captain
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Knatchbull did not at any time pass the bridge. On the appellant s 1906.
demand for toll he replied that he was in uniform, and that therefore July 13~
he was not liable to pay anything. The appellant refused to accept Wood
thin plea, and he detained Captain Knatchbull for about fortyminutes till he succeeded in getting a constable brought to the scene.
The constable took the complainant's name and address and thenlet him go. Prior to the arrival of the constable Captain Knatchbullhad offered to repass the toll bar and go back, but the appellantdeclined to allow him to do so. I should add that the appellant didnot ask Captain Knatchbull for his name and address, and thatCaptain Knatchbull did not tender either of these until theconstable came on the, soene. The complainant in consequence ofthese proceedings in the first place prosecuted the appellant undersection 19 of “ The Tolls Ordinance, 1896,” for having demanded atoll illegally, inasmuch as he was, at the time of the demand, in hisuniform. At the hearing of the charge, however, it was pointed outby the learned Police Magistrate that it is only when an officer is onduty as well as in uniform that he is entitled to the benefit of thestatutory exemption. It was admitted by Captain Knatchbullthat he was not on duty at the time when he passed through theBambalapitiya toll bar, and the charge was therefore properlydismissed.
In the next place, the complainant charged the appellant undersection 332 of the Penal Code with the offence of wrongful restraint,and on this charge the appellant has been convicted by the Magistrateand sentenced to pay a fine of Es. 20. So far as I have been able todiscover, there is no direct, authority either in the Colonial decisionsor in the English Law Eeports on the question as to what the rightsand duties of toll-keeper6 under such circumstances as those inwhich the appellant found himself are. At the argument before meMr. H. J. C. Pereira, his counsel, called my attention to section 35of the Criminal Procedure Code, which deals with the right of arrestby private parties in the case of cognizably offences. Where suchan offence has been committed in the presence of a private personhe is entitled to detain the offender until he can hand him over tothe custody of the nearest police officer. But the offence alleged inthe present case does not come within the category of ” cognizableoffences ” under the Criminal Procedure Code, and the questionbefore me has therefore to be decided upon general principles. Itappears to me that a toll-keeper is entitled to detain a person whoattempts, whether under the allegation of a legal right to do so or not,to pass a toll bar, for the purpose of seeming his identification in anysubsequent proceedings and for that purpose alone. If he can
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the identity of the alleged offender without detaining him,it is his duty to do so; and I think that he ought in all cases to en-deavour to find out the name and address of the person in question.It may quite well be that in the present case a good deal of troublewould have been avoided if Captain Knatchbull had himself tenderedhis name and address in the first instance without awaiting thearrival of the constable. Perhaps he was relying on the Bimple factof .his being in pniform &6 a complete answer to the claim, or perhapsboth sides had been exasperated by the words that had, as it appearsfrom the record, passed between them. In any event the onus ofjustifying the detention rested with the toll bar keeper, and as hemade no attempt to .ascertain the complainant’s identity beforedetaining him at the toll, it appears to me that he was guilty of“ wrongful restraint ” within the meaning of section 332 of the PenalCode.–Both the conviction and the sentence-must be affirmed.
I only desire to add a word on a subsidiary point in connectionwith the case which I have myself discovered since it was arguedhere a few days ago. It appears on the face of the evidence thatCaptain Knatchbull only passed the toll bar, and that he made nouse of the bridge, the access to which the toll bar was intended toguard. It was held by Chief Justice Bonser in Puncki Sinno v.Per era (1), a prosecution under section .21 of the very Ordinance inquestion here (“ The Tolls Ordinance, 1896 ”), that an owner of avehicle must pass over a bridge in order to render the owner of suchvehicle liable under the sectionI have referred to, and that the merefact of his passing a toll bar does not entitle a toll-keeper to exacttoll. “ The Ordinance,” said the learned Chief Justice, “ does notmake the owner of a vehicle liable to toll for passing the bar, but forusing the bridge.” I can only say, in view of section 21 of theOrdinance of 1896, that I should have had great difficulty in follow-ing this decision if the present case had in. any way depended onits application, for section 21 of the Ordinance of 1806 imposes apenalty upon any person who forcibly takes his vehicle throughany place duly appointed for the collection of tolls ”. It appears tome that when once a passenger has passed through a toll bar he hascrossed the statutoiy rubicon and must pay his toll, whether hechooses to avail himself of the privilege, which it purchases for him,of making use of the bridge or not. 1
(1) (.1898) 3 N. L. R. 188.
KNATCHBULL V. FERNANDO