Kulatunga v. Simon.
1936Present: Soertsz A.J.
KULATUNGA v. SIMON136—M. C. Colombo, 14,100.
Motor omnibus—Setting down a passenger at a place other than an authorizedhalting place—Particulars of charge—Passenger alighting when the busslowed down—No offence—Motor Car Ordinance, No. 20 of 1927,schedule 4, s. 4.
Where the accused was charged from the summons which stated thathe “ being the driver of a bus set down a passenger out of a haltingplace and thereby committed an offence under section 84 of OrdinanceNo. 20 of 1927,—
Held; that the charge was defective in that it did not state that theaccused, was acting in breach of section 4 of Schedule 4 of OrdinanceNo. 20 of 1927, which set out the particulars of the offence.
Held, further, that, where a passenger alighted from an omnibus whenit slowed down, the driver is not guilty of the offence of setting down apassenger at a place other than an authorized stopping place.
PPEAL from a conviction by the Municipal Court of Colombo.
C. T. Olegasegeram (with him Shelton de Silva), for appellant.
Cur. adv. vult.
Nagoor Pitche v. Kawala Umma.
May 15, 1936. Soertsz A.J.—
This is another case from the Municipal Court of Colombo, in whichthe charge made against the accused is bad. The accused was chargedfrom the summons which stated that he “ being the driver of bus J 23set down a passenger out of a halting place and thereby committed anoffence punishable under section 84 of Ordinance No. 20 of 1927 ”. Now,section 84 is the general penal section. There is no reference in thesummons to the provisions of law which makes it an offence to set downa passenger at a place other than an authorized stopping place. Ifind from the report made to the Court by the prosecuting officer that itis alleged that the accused was acting “ in breach of section 4, schedule 4of Ordinance No. 20 of 1927, and published in Government Gazette No. 7,902of January, 1932”. That section is as follows:—“Where in an urbanarea any notice is exhibited by a licensing authority indicating a stoppingplace or public stand for omnibuses, which has been provided or allottedfor stopping or standing of omnibuses, no passengers may be taken up orset down from an omnibus in the urban area except at such stoppingplace or public stand ”. If I consider this case on the supposition thatthere was a reference to this section in the charge, I am still unable tosustain the conviction for there is no evidence to show that the accusedset down a passenger in an unauthorized manner. Police SergeantKulatunga says, “ I saw bus J 23 coming …. It slowed oppositethe former Eastern Garage and a passenger got down from the front seat…. Passenger got down as bus was turning round the bend ”.
P.C. Badoordeen says, “ I saw bus J 23 coming …. The driverjammed his brakes. We looked to see and saw a gentleman getting offthe front seat ….”
This evidence is consistent with the driver having slowed down in orderto take the bend and the passenger taking the opportunity to alight. It isinsufficient for establishing a voluntary setting down of the passengerby the driver.
For these reasons, I set aside the conviction and acquit the accused.
KULATUNGA v. SIMON