B ASNAYAKE, O.J.—Doray v. Inspector of 'Police, Dehiioela
1959Present: Basnayake, C. J.M.T. DORAY, Appellant, and INSPECTOR OP POLICE, DEH1WELA,
8. C. 47—M. C. Colombo Sottth, 90,255
Motor Traffic Act, No. 14 of 1951—Prosecution for failure to take such action as was
necessary to avoid an accident—Particulars which charge must contain
Sections 151 (1), 216 (I) (a), 226.
A charge under section 151 (1) of the Motor Traffic Act for failure to take suchaction as was necessary to avoid an accident should state what necessary actionthe accused failed to take. The charge should contain such particulars as arenecessary to give the accused notice of the allegation or allegations of theprosecution. To state that the accused failed to take necessary action to avoidan accident is not sufficient.
iYpPEAL from a judgment of the Magistrate’s Court, Colombo South.
Q. F. Sethukavaler, with 8. Sivarasa, fox Accused-Appellant.
Daya Per era, Crown Counsel, for Attorney-General.
April 24, 1959. Basjtayaxb, C.J.—
The appellant was convicted of committing an offence punishableunder section 226 of the Motor Traffic Act, No 14 of 1951, in breach ofthe duly imposed on him under section 151 (1) read with section 216 (1) (a) *
* (1945) 46 N. I– B. 81.
3 (1948) 50 N. L. R. 52.
1 6 O. W. B. 227.
BASNAYAKE, G. J.—Doray v. Inspector of Police, Dehiwela
of that Act. The statement of the particulars of the offence contained inthe summons which was read to the appellant is as follows :—
“that you did on the 10th day of Aug. 1958 at Dehiwela
within the jurisdiction aforesaid ride motor cycle No, CY 7892 and tofail to take necessary actions to avoid an accident to wit knockingagainst a pedestrian A. Weerasinghe causing him grievous injury inbreach of section 151 (1) and that you thereby committed an offencepunishable under section 226 M. T. A. of the Penal Code
Shortly the facts are that on 10th of August 1958, which is a Sunday,the appellant was riding his motor bicycle along Hill Street, Dehiwela,towards Bellanwila at about eleven in the morning. The length of roadhe was travelling on at the material time was sloping and he was travellingdown the slope. The injured person was proceeding on foot on his wayback from the market opposite the Dehiwela Police Station whither hehad gone to make a purchase. One side of the road had been dug up forthe purpose of laying a water main and the trench had been newly filledup leaving an uneven surface. The injured person was knocked down bythe appellant’s motor bicycle. He sustained a fracture of the rightfibula in its middle, an injury on the back of the left side of the head, anda contusion on the inner half of the right hand. In consequence of theseinjuries he was incapacitated for over nine weeks.
The charge which was read out to the appellant from the summons isinelegantly drafted and does not specify the action that he failed to take,although the report sent under section 148 (1) (6) of the CriminalProcedure Code did so. The injured person asserts that he was knockeddown from behind without any warning by the appellant who wastravelling very fast. The appellant’s version is that the injured personsuddenly stepped off a mound of earth on the side of the road and cameon to his path. It is admitted by the injured person that he must havefallen “ more or less on the centre of the road ”. The evidence isinconclusive and does not establish what action which was necessary toavoid the accident the appellant failed to take. The prosecution cannotsucceed without doing so. The investigations made by the Police aremost unhelpful.
Learned counsel relied on the case of Perera v. Perera1 and theunreported judgment of this Court in S. C. No. 1.039/M. C. ColomboNo. 75,967, S. C. Minutes of 30th January 1957, in which my brotherSinnetamby has held that a charge under section 151(1) of the MotorTraffic Act should state what necessary action the accused failed to take.I agree that the charge should contain such particulars as are necessary togive the accused notice of the allegation or. allegations of the prosecution.To state, as has been done in the instant case, that tue accusedfailed to take necessary action to avoid an accident is not sufficient.Section 151 (1) is not designed to penalise the driver of a motor vehiclemerely because he meets with an accident. It must be pro? ed that theaccident took place because he intentionally failed in breach of his dutyto take such action as was necessary to avoid the accident in respect of
1 (1957) 59 N. L. 3. 64.
Alohideen v. Suppiah
which he is charged. It must also be proved that the action was such,as was reasonably possible under the circumstances. For the law doesnot compel the performance of the impossible. The action contemplatedis not necessarily the action that need be taken at the time of the accident.For instance it is necessary that a driver should proceed slowly in acrowded street in order to avoid an accident, or when approaching ablind comer or bend give warning of his presence to other traffic. Forthe above reasons I allow the appeal and quash the conviction.
Counsel for the appellant states that the particulars of the convictionthat has been quashed have, under section 138 (5), been endorsed uponhis driving licence. I direct the Magistrate to cancel the endorsementmade on the licence of the appellant after directing him to produce itbefore him.