MOSELEY SPJT.—Mediwake v. de Silva.
1940Present: Moseley S.P.J.
MEDIWAKE v. DE SILVA.
646-8—M. C. Matara, 31,531.
Criminal trespass—Failure to specify intent—Fatal irregularity—Right of
In a charge of criminal trespass failure to specify the offence whichwas intended to be committed is a material omission which cannot becured under section 425 of the Criminal Procedure Code unless suchoffence was obvious from the evidence.
An act, which is justified as being within the limits of the right ofprivate defence, cannot give rise to a right of private defence in turn.
Mendis v. Silva (1 C. W. R. 124) followed.
Wijeysinghe v. Carolis (1 C. W. R. 207) ; and Karthelis Hamy v. Francis(7 C. W. R. 184) distinguished.
^^PPEAL from a conviction by the Magistrate of Matara.
J. E. M. Oheyesekere, for accused, appellants.
Nihal Gunasekera, for complainant-respondent.
Cur. adv. vult.
October 24, 1940. Moseley S.P.J.—
The appellants were charged with two others on seventeen counts,the first seven of which were based on the allegation that the accusedwere members of an unlawful assembly. The learned Magistrate wasnot satisfied that the allegation was proved and acquitted the accusedon all counts dependent thereon. He proceeded to convict all theaccused on counts 13 and 14 and the 3rd accused on count 15. Thefirst three accused have appealed. Counts 13, 14 and 15 are as follows: —
“ 13. You are hereby charged, that you did within the jurisdictionof this Court at Fort, Matara, commit criminal trespass by enteringthe excise station with intent to commit an offence and therebycommitted an offence punishable under section 433, Chap. 15.
At the same time and place aforesaid you, being the 1st, 2nd,3rd and 4th accused did use criminal force on Excise Inspectors Swanand Redlich of Matara Excise Station on grave and sudden provocationand thereby committed an offence punishable under section 343,Chap. 15.
At the same time and place aforesaid you, being the 3rdaccused, did voluntarily caused hurt to Excise Inspector Swan witha closed fist and thereby committed an offence punishable undersection 314, Chap. 15. ”
The facts briefly are as follows: —A crowd had collected outside ahouse some thirty yards from the Excise Station. Excise InspectorSwan happened to pass on the way to the Station. Actuated no doubtby some creditable motive, although it would not appear to be his concern,he told the crowd to move on. The crowd appears to have resented theinterference and followed him to the Station, where he was joined byExcise Inspector Redlich. Stones were thrown by the crowd generally,
MOSELEY SJPJ.—Mediwake v. de Silva.
some of which hit and caused some damage to the Station premises. TheExcise party then drew their batons and tried without success to dispersethe crowd. Inspector Swan, at the suggestion of Inspector Redlich,brought out the Station revolver and was proceeding to load it, when thethree appellants and others grappled with him in an apparent attempt todisposses him of the revolver. Inspector Swan then threatened toshoot if the crowd did not disperse, whereupon after a little hesitationthey dispersed.
The appeal of the 3rd accused against his conviction on count 15 wasnot pressed.
Count 13 charged the accused with committing criminal trespass“ by entering the excise station with intent to commit an offence Theoffence which it is alleged that the accused intended to commit is notspecified. In Mendis v. Silva1 Shaw J. observed that the offence whichthe accused intended to commit was “ not stated in either the convictionor the charge as it should be. Indeed it does not even appear from theMagistrate’s judgment what the offence was that he thought the accusedintended to commit ….” Those observations would appear to
apply with equal force to the case before me.
Crown Counsel cited a case, S. C. No. 332—P. C. Tangalla,No. 13,461’ in which it was held that an omission to specifythe common object of an unlawful assembly is not material unless theaccused was thereby misled. This view was followed in Wijesinghe v.Carolis *, in which it appeared to Wood Renton C. J., that it was “ obviousthat the common object of the unlawful assembly relied on by theprosecution was to commit an assault, and that the accused was himselfaware of the fact. No other common object is capable of being deducedfrom the evidence …. ” Again, in Karathelis Hami v. Francis4
de Sampayo J. observed that it was clear that the accused intended tointimidate or annoy the complainant, and he added “ the Magistrate inhis judgment finds it so. ”.
These three last mentioned cases seem to me to be clearly distinguish-able from the present case. Crown Counsel has submitted that theobvious intention of the appellants in entering the premises was tocommit mischief or cause hurt. There is no evidence, from whichintention might be inferred, that they did either. Indeed the principalwitnesses for the prosecution seem to have thought that their intentionwas to disposses Inspector Swan of the revolver. In any case it doesnot seem to me that the intention was obvious, and the learned Magistratehas made no finding on the point. In my opinion, therefore, the omissionto specify in the charge the offence intended to be committed is a materialomission and one which cannot be cured under the provisions of section425 of the Criminal Procedure Code. .
The other ground of appeal is that the attempt to wrest the revolverfrom Inspector Swan does not amount to an act of criminal force. Tocome within the meaning of section 341 of the Penal Code the act must be“ in order to the committing of any offence, or intending illegally by the
R. 124.m Koch’s Rep. 40.
* 1C. W. R. 207.•rc.r r. 184.
MOSELEY S.P.J.—Medivoake v. de Silva.
use of such force to cause, or knowing it to be likely that by the use ofsuch force he will illegally cause injury, fear or annoyance to the personto whom the force is used
Counsel for the appellants contended that the appellants, in attemptingto. wrest the revolver from Inspector Swan, were acting in the exercise ofthe right of private defence. It is clear from the evidence of Swan andRedlich that the actual threat by the former to shoot was not made untilafter the appellants had tried to dispossess him of the revolver. Neverthe-less there may have been reason on the part of the appellants to believethat the mere bringing out of the revolver was tantamount to a threatto use it. The question is, had the appellants any right of privatedefence?
It appears from the evidence that, while the incident had its originin the well-meaning but interfering action of Inspector Swan, the actualaggressors were the crowd, of whom the appellants formed a part. Whenthe Excise Station was attacked by the crowd throwing stones, the rightof private defence on the part of Inspector Swan commenced. CrownCounsel referred me to a. passage in Gout’s Penal Law of India (5thedition), where at page 362, paragraph 849, it is observed that “whenan act is justified as being within the limits of the right of privatedefence, it could give rise to no right of private defence in return. ” Itwould be difficult to argue that an attack, such as was described by theInspectors and was accepted by the Magistrate, would not reasonablycause apprehension that grievous hurt would be the consequence. Theaction of Inspector Swan in producing the revolver, although at thatmoment he may have had no intention of using it, seems to me, as it didto the Magistrate, to be justified and within the limits of the right ofprivate defence, and could give rise to no right of private defence in;return. The appellants must have known that their action was likely tocause fear, injury or annoyance to the Inspector. The convictions oncount 14 are therefore affirmed, as is the conviction of the 3rd appellanton count 15.
The convictions of all three appellants on count 13 and the sentencesimposed in respect thereof are set aside. The fines, if paid, will berefunded to the appellants.
MEDIWAKE v. DE SILVA