115-NLR-NLR-V-71-M.-MUTHULINGAM-Appellant-and-INSPECTOR-OF-POLICE-CHUNNAKAM-Respondent.pdf
Mtdhulingam v. Inspector of Police, Chtmnakam
671
Present: do Kretser, J.M. MUTHUUNGAM, Appellant, and INSPECTOR OF POLICE,
CHUNNAKAM, Respondent
8. C. 771167—M. C. MaUakam, 19888
Prevention of Social Disabilities Act, No. 21 of. 1957—Sections 2 and 3 (a) (vi)—Charge thereunder—Form—JBurden of proof.
In a prosecution under section 2, read with section 3 (a) (vi), of the Preventionof Social Disabilities Act for the offence of imposing a social disability on aperron by reason of his caste, by preventing him from obtaining the serviceprovided at a public hair-dressing saloon, it is an essential requirement that thecharge should specify that the hair-dressing saloon in question was a public one.Thereafter, the burden is on the complainant to prove that fact.
Appeal from a judgment of the Magistrate’s Court, Mallakam.
Q.E. Chilly, Q.C., -with P. Navaratnarajah, Q.C., JR. Rajasinghamand M. Mansoor, for the Accused-Appellant. . V.
V. 8. A. PuUenayegum, Crown Counsel, with Ranjit QunatiUeke,Crown Counsel, for the Attorney-General.
Cur. adv. vult. >
41N. L. R. 510.
572 DE KRETSER, J.—Muthulingam v. Inspector of Police, ChunnakamFebruary 18, 1969. de Kbetseb, J.—
The following sections of the Prevention of Social Disabilities ActNo. 21 of 1957 are relevant for the purposes of this order :
(2) Any person who imposes any social disability on any other personby reason of such other person’s caste shall be guilty of an offenceand shall on conviction after summary trial before.a Magistrate,be liable to imprisonment of either description for a term notexceeding six months or to a fine not exceeding one hundredrupees.
. (3) For the purpose of section 2, a person shall be deemed to impose asocial disability on any other person—
(a) if he prevents or obstructs such other person from or in(vi) entering, or obtaining the service provided at, apublic hair-dressing saloon or laundry.
The charge against the accused was framed as follows: “ That you
didwilfully obstruct Sebamalai Pankirasa of Tellipallai from
obtaining the services provided at a hair-dressing saloon, to wit: hair-cutin breach of section 3 (a) (vi) of the Prevention of Social DisabilitiesAct 21 of 57 and thereby committed an offence punishable under section2 of the said Act 21 of 1957.” The accused pleaded I am not guilty tothe charge, and the trial took place. The following facts appear fromthe evidence, viz., that on the 14th December at about 8.00 a.m. SebamalaiPankirasa a clerk in the Agrarian Services in Colombo, a Ceylon Tamilof the Paraya caste and Nagamuttu Pulendram a bus-conductor of theCeylon Transport Board, a Ceylon Tamil of the Palla caste had goneto the Barber’s Saloon run by M. Muthulingam the accused a CeylonTamil of the Barber caste. At that time only the accused and one ofhis employees were in the saloon. The five chairs used by customerswere unoccupied. Pankirasa and Pulendram having entered the saloonPankirasa wanted Muthulingam to cut his hair. Muthulingam refusedto do so on the grounds that Pankirasa was a Paraya and ordered bothPankirasa and Pulendram out of the saloon. They went and complainedto the Chunnakam Police and this case is the sequel. These facts arenot contested by the accused, nor were the facts that Muthulingam is aBarber by caste and profession and renders service at this saloon eversince it was started 12 years ago only to the Vellala caste people and thatthe depressed classes had their own saloon and own barbers contestedby the prosecution.
It will be observed that there is no evidence that this is a public saloon.An affidavit has been filed that the accused’s evidence given undercross-examination that the licence of his saloon was to cater to all peoplehas been wrongly recorded. He has filed an affidavit that the onlycondition in the licence related to sanitation and has submitted a copy ofthe printed form issued in respect of such^^ns by the Village Committee
jDE KRETSER, J.—Muthulingam v. Inspector of Police, Chvnnatam673
Office for he says his own licenoe is not in eoristenoe now. In thesecircumstances I do not propose to make.use of the accused's answeras recorded under cross-examination for the purposes of this case.
It was only when he came to write his judgment that the Magistrate(Mr. D. 6. Nethasinghe) realised that all was not well with the charge itwas his responsibility in terms of the Cr. P. C. to frame, whichresponsibility he had quite evidently left in other hands.
“ It seems to me," he said, “ that the charge is bad for section 3 is onlya defining section. What constitutes the offence is the imposition of aSocial Disability on another by a reason of another’s caste. The offenceis in section 2.” He then set out the charge as he considered it shouldhave read : “ That you did, by reason of the caste of Sebamalai Pankirasaimpose on the said Pankirasa a Social Disability by ordering him outof a public hair-dressing saloon and denying him the service providedtherein saying he was of the Paraya caste in breach of section 2 readwith section 3 (a) (vi) of Act 21 of 1957 and that you thereby did commitan offence punishable under section 2 of the said Act." Whatever.may be said in regard to the elegance of the drafting, the charge nowcontained all that the charge need have contained. The Magistrategave his mind as to whether he should not amend the charge in terms ofsection 172 (1) of the Cr. P. C. read with the other relevant sections. but decided against that course and made up his mind to “ proceed toa verdict on the charge as it standsbecause—
the relevant sections are set out in the charge.
the facts which give rise to the offence are for the most part set
out.
the accused was not misled.
He thereupon examined the evidence before him and the legalsubmissions made in regard to that evidence on the basis of what heconsidered the correct charge and then convicted the accused of thecharge as it stood l It appears to me that the Magistrate entirelymisdirected himself.
If he paused to consider that the defence could well have been differentif the charge was framed as he decided it should have been I think hewould have seen that the accused could have well been misled by thecharge as it was. I need only point to the fact that in the charge as itshould have been the prosecution would have had to prove that the hair-dressing saloon in question was a public one. On the evidence as itBtood that fact was not proved and so the accused could have taken theposition that the prosecution had not proved that fact and not givenevidence at all for the defence. As the charge stood he could not takenp the position that his saloon set np 12 years ago to cater for Vellalasonly would not come in under the description of a public hair-dressingsaloon which connoted a saloon set up for service to the public as a whole.
574
The Queen v. Jayaeinghe
The word being used as it is used when one speaks of a public cemetery,a publio latrine, a public eating-house or a public library. There was noneed for him as the charge stood to submit that in catering for a sectionof the public he committed no offence which a saloon catering for womenwho also are not the public but a section of it does not commit. Ido not wish to be understood as saying anything on the merits of such adefence. I am only pointing out that the accused by reason of not havingthe proper charge framed against him could have been prejudiced.Again if the Magistrate had paused to consider when he said the factswhich give rise to the offence are for the most part set out, that the chargeomitted the most vital particular that it was a public hair-dressingsaloon he might have realised the difficulties that beset the path he waspursuing in going on without amending the charge. I need hardly pointout that mention of the correct sections in the wrong context does notjustify the course he took. The fact remains that there has been a trialon a charge not known to the law and a conviction on that charge. Thatis an illegality. I do not think I should encourage careless prosecutionson slip-shod charges, by ordering a re-trial. The appeal of the accusedis allowed and his conviction and sentence set aside.
Appeal allowed.