020-NLR-NLR-V-02-MACLEAN-v.-APPAN-KANGANY.pdf
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1896.June 3.
MACLEAN v. APPAN KANGANY.
P. C., Nuwara Eliya, 9,960.
Master and servant.—Insolence -Servant in custody of the law—Wilfuldisobedience of orders-r-Charges in Police Court cases—Postpone*ments—Release of accused pending trial—Ordinance No. 11 of1865, s. 11.
When a servant is in the custody of the law his service issuspended and he cannot bg said to be then in the service of hisemployer. That being so, he cannot be found guilty of insolenceunder section 11 of Ordinance No. 11 1865, for the use by him,when in such custody, of abusive language towards his master.
A tea estate kangany who refuses to obey an order to perform' manual labour in the reasonable belief, founded on the previouscourse of business on the estate, that it is no part of his duty toperform such labour, is not guilty of wilful disobedience undersection 11.
Observationsby Bonser, C.J.; on the neoessity of charges inPolice Court cases being free from looseness and vagueness, and onthe impropriety of long postponements in such cases, and ofkeeping the accused in custody pending trial when he mightreasonably be discharged on his own recognizance,
f j iHE facts of the case sufficiently appear in the judgment.
Van Langenberg, for appellant.
3rd June, 1896. Bonser, C.J.—
This is an appeal from a conviction by Mr. Lushington, Acting PoliceMagistrate of Nuwara Eliya. Much difficulty has been occasionedby the way in which the Acting Police Magistrate has treated the case.It is to be regretted that so much of the time of this Court shouldoe taken up by pointing out and correcting the errors of gentlemenwho are either unable or unwilling to make themselves acquaintedwith the law which they have to administer. The appellant is a manwith whom one cannot have much sympathy. He is a man who
oses coarse, abusive, and offensive language, but at the sametime he* is as much entitled to justice as the most estimablecitizen in this community. He was the sub-kangany on theKabaragalla estate, of which Mr. Maclean is the superintendent.Thewhole story is very clearlyset out by Mr. Maclean in his evidence,and Mr. Maclean has, in my opinion, told the story, from beginningto end, in the fairest manner, without exaggerating in any way theconduct otHhe appellant, or without seeking to minimize any pointswhich would tell in his favour ; and I must say, in addition, that.Mr. Maclean, under all the circumstances, behaved with verycreditable self-control. I believe every word of what Mr. Macleansaid, and I see no ground whatever for the discredit which the ActingPolice Magistrate has thrown upon his testimony. Now, the storyis this. On the 7th April Mr. Maclean sent for a police officer anddirected him to bring the accused to his bungalow. The policeofficer went and brought the accused, whereupon Mr. Macleancharged him with absenting himself from his work, and orderedhim to be taken to the Nuwara Eliya Police Court, a distance, it isproved, of nearly twenty miles from the estate. On this theappellant broke out into a storm of abuse, and applied indecentterms, not only to the superintendent, but even to the estate. Hewas thereupon marched off by the pcflice officer to the Nuwara EliyaPolice Court, where he was charged by the police officer and releasedon bail. He returned to the estate on the 9th. This abusivelanguage is one of the offences of which the appellant has beenconvicted. The appellant denied that he had used any abusive orindecent language, but J. do not believe him. I give full credit towhat Mr. Maclean said. Therefore, the only question is, Was theuse of this abusive language at this time and place, and under thecircumstances of the case, an offence punishable under section 11 ofOrdinance No. 11 of 1865 ? One of the circumstances of this caseis that at the time the abusive language was used the appellant wasin the custody of the police officer, and that that custody was illegal.The offence for which he had been arrested by the police officer wasthe offence of absenting himself from work on a previous day, andthere is no pretence for saying that that is an offence for which a policeofficer can arrest without a warrant.' Now, in saying that this manwas under arrest, I am differing from the finding of the Acting PoliceMagistrate. The Acting Police Magistrate says on that point: ‘ ‘ The“ complainant sent for the village headman, and by the headman sent“for the accused,” the village headman being apolice officer. I mayhere make the remark that it seems to me an unusual method for a
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June 3.Bonseb, C,
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18M. superintendent to adopt of communicating with his own servantsJune g. jjya .police officer for them. However, the Acting Police
Bovssa, C.J Magistrate appears to think that to be the ordinary course ofproceeding between master and servant. He goes on to say:
“ I examined the headman very closely as to his action on that“ occasion. Anything approaching an arrest could have been“ illegal, and if there had been an arrest it is possible that the“ subsequent misconduct of theaccused might have „been justi.
“ liable. But there was nothing'bf, the kind. The headman, called“ the accused, and he followed%im^to the bungalow. The accused,
“ still free from arrest, accompaniedstHe headman to Court.” It isto me incredible how any man reading the evidence could havecome to such an extraordinary conclusion. What Mr. Macleansays is this : “ When the accused was brought to my bungalow he“ was brought under arrest by the Arachchi,” and as to his goingwillingly to Court—a walk of nearly twenty miles—here is what oneof the witnesses called for the prosecution says: “My master“ ordered the arachchi to remove the accused. Accused asked if he“ was to be taken away without any fault,”—a very naturalquestion. “ I told him he had better go quietly; ” and then itwas that the appellant lost his temper and used filthy and abusivelanguage towards the estate and its superintendent. The accountgiven by the arachchi is “ that the superintendent sent for him and“ made a complaint; that in consequence of that complaint he went“ to fetch the accused ; that he used no force or compulsion ; that he“ merely called, the accused, and he came of his own free will; that“ he did not arrest him or even touch him—fie merely called him,“ and he accompanied him to the bungalow.?’ From this I gatherthat this police officer is of opinion that arresting a man means tyingup his hands behind his back, or something of that kind ; for hesays “ I did not arrest him or even touch him ” and I can only•account for the Police Magistrate having come to the conclusionthat there was no arrest of the appellant on the ground that hehas taken his law from the arachchi. To touch the body of aperson is not necessary to constitute an arrest, if the personarrested submits to being taken into custody. That is clear fromsection 25 of the Criminal Procedure Code. The arachchi incross-examination admitted that it was " after the complainant“ had asked him to bring the accused in custody to Nuwara“ Eliya ” that the filthy language was used. It being establishedthat the appellant was in custody, the question arises whetherthe use of this improper language was an offence under the.Ordinance. Now, to constitute the offence it is essential that
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it should be committed in the service of the employer. I am ofopinion ijhat when a man is in the custody of the law his serviceis suspended: he cannot during that time be said to be in theservice of his employer. Rightly or wrongly—in this casewrongly—the man was in the custody of the law; and one mightillustrate it by the case of a servant, while in a court of justicebeing tried for an offence, pouring forth a volume of abuse againsthis master. That would be an undoubted contempt of Court,but no one tvould imagine that it was an offence committed in themaster’s service, even although he and all the coolies, of the estatewere in Court; and therefore I hold that the charge of insolence onthe 7th of April cannot be sustained.
Then the next charge appears to be—I say appears, because it isalmost impossible to disentangle from the confused language ofthe so-called charge what the offences are of which the appellanthas been found guilty—that the appellant on his return to the estate,on the 9th, disobeyed an order of the superintendent. Now, it wasproved that there had been some quarrelling between two factionsof coolies on this estate, to one of which factions the appellantbelonged. The superintendent, in the interests of good order,thought fit to direct the appellant to, vacate the quarters which hehad previously occupied, and to remove himself to other lines at somelittle distance in the same estate. >It was pressed upon me byMr. Van Langenberg that it was not proved that this was an orderwhich the appellant was bound to obey, for that it was not provedthat he was bound to reside on the estate at all, and to a certainextent I agree with him. If the order had been that the appellantwas to take up his quarters in particular lines, I do not think thatthat would have been an order which the appellant was bound toobey, but the order was to vacate certain lines, and that is an orderwhich, I think, the appellant was bound to obey. He could notreasonably believe that he was entitled to insist upon occupying anyparticular rooms which he fancied, and therefore I think he wasguilty of wilful disobedience of that order.
The third offence of which he was convicted was apparentlythat of refusing to weed. The Acting Magistrate himself appearsto have had some misgivings as to the reasonableness of this order,for he says “ that it was perhaps not so reasonable.” Mr. Macleansays : “ I told the accused that he was not to go to the plucking on“ the following day (10th of April), but to take a cooty sack and to“ weed a certain contract.” He goes on to say : “ I took this step“ because the accused had disobeyed every order I had given him,“ and was defying me, so I had to assert my authority.” Now, it is
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June 3.
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1896. dear from this testimony that the order in question was not onegiven in the ordinary course of estate management, butewas anBqhseh, C.J. exceptional order given to assert the authority of the superinten-dent. The explanation of the accused, which was given on oath,as to this was : “ I was ordered to weed; I refused to do so. I was“ a kangany supervising work, and I refused to do manual work.
“ The head kangany also had asked me to superintend the work of“ his coolies, and I did so for the last three months. I also had“ charge of the tool room.” Now, that defence amounts to this :the appellant says that to do manual work was not what he under-stood to he any part of his duty ; that he was a sub-kangany withcoolies under him ; that in addition he was acting for the headkangany ; and that he had other duties which required his personalattendance. This statement was not contradicted. Indeed, Mr.Smethurst, the assistant superintendent, stated “ that as long ashe had been on the estate the accused “ never did any manuallabour.” Now, I do not wish to say anything which wouldencourage agricultural labourers to disobey the orders of theirsuperintendents ; but, at the same time, when a man is prosecutedfor a criminal offence, it must be shown that he had a criminalinteat^-in this case that the disobedience was wilful, and was notdue to an erroneous idea of his rights and duties. I cannot helpthinking that the appellant ^ras justified in believing from theprevious course of business on this estate, that it was no part of hisduty to perform manual labour. It is not clearly proved that it washis duty, but even assuming that it was his duty, I am of opinionthat he might reasonably have thought otherwise ; and when that iscoupled with the statement of the superintendent, that the orderwas given to assert /his authority, I think that the appellant mightnot unreasonably have thought that he was not bound to obey.The conviction will therefore be amended, and the appellant foundguilty of the one offence only, of wilful disobedience of orders, inthat he disobeyed an order of his employer to remove from the lineswhich he had been occupying on the estate.
With regard to the punishment, he was sentenced to three months’rigorous imprisonment. He has been in prison since the 18th ofApril, a period of upwards of six weeks. Under these circumstancesit seems to me that he has been sufficiently punished for the offencewhich has been proved against him, and he will therefore bedischarged.
With respect to the charge, I hope I shall never see anotherlike it. The appellant was charged with “ wilful disobedience of“ orders, of insolence, and general misconduct (constituting one
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‘‘continuous series of offences).” The Aoting Police Magistrateseems to have forgotten when he framed this document that fromthe 7th to the 9th of April was spent by the appellant away fromthe estate, going to and returning from the Nuwara Eliya Court.That I should have thought to be a substantial breach of conti-nuity. There are no provisions of the Code which ought to bemore carefully observed than those requiring definiteness in thestatement of the offence charged, for looseness in the charge iBalmost invariably accompanied by looseness and vagueness in theproof of the offence and in the general conduct of the case.
Again, I have to observe that a remand from the '18th April tothe 4th May, during which time the appellant was locked up inprison, was wholly unjustifiable.. There was no reason for thislong postponement. It is no light punishment for a man, who ispresumed by the law to be innocent, to be locked up in a dark cellfor sixteen days. I trust I shall not have occasion again to callattention to such a case as this. Why, if it was found necessary topostpone the trial, the man should not have been let out on his ownrecognizance, I cannot conceive. He had shown no symptom ofwishing to desert the estate; on the contrary, after he had beendragged away by the police officer to the Nuwara Eliya PoliceCourt on the 7th April, he returned voluntarily to work on the 9th,and he stated that he had advanced due to him from the cooliesunder him. There was no reason to suppose that, had he beenreleased on his personal recognizance, he would not have appearedto stand his trial. These proceedings bear the appearance ofoppression: I do not say wilful or intentional oppression, but theappellant might well be excused for thinking that he had beepharshly treated.
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1896.
June 3.
Bonsbb,O.J