073-NLR-NLR-V-19-MUDALIHAMY–v.-ISMA-et-al.pdf
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1816.
Present: D© Sampayo J.MUDALIHAMY v. ISMA et al.
909 to 917—P. C. Anuradhapura. 44,179.
Penal Code, s.183—Voluntarilyobstructing, person acting under the
orders of a public servant—Orders not authorized by law.
In the case ofa non- cogniza bleoffence(suchas thatunderthe
G-ame ProtectionOrdinance), theperson whosearchesforand
seized anything necessary for an investigation must act under theorders of a Police Magistrate.
When an Arachchi, acting under the orders of a Batemahatmaya,seized(for purposes of inquiry) a wild buffalo captured by the
accused, and the accused rescued the animal by force,—
Held, that the accused could not be convicted under section 183 of thePenal Code.
“ The complainant cannotbe said to have been obstructedin
the discharge of anypublic function. The publicfunction must
for this purpose be legally authorized; it is not enough that thepublic servant, when he acts under any order, believes that the orderis lawful. The order must in fact be lawful.
rpHE facts appear from the judgment.
.4. St. V. J aye war dene., for accused-appellant.
October 0, 1916. De Sampayo J.—
. The facts relating to the points of law argued on this apj>eal aresimple. The complainant is an Arachchi, and on the orders of theBatemahatmaya he went to seize and produce for the purpose ofinquiry a wild buffalo which was said to have been ‘captured by thefirst' accused and to have been then in his custody. The complainantfound the animal paired with another buffalo. He seized both, andwas removing them, when all the accused came and forcibly rescuedthe animals. In these circumstances, the accused were charged,under section 188 of the Penal Code, with having voluntarilyobstructed the complainant while acting under the lawful orders ofthe Batemahatmaya in the discharge of his public functions. Thequestion is whether the Batemahatmaya’s order was a lawful orderwithin the meaning of this section of the Penal Code. Section 124of the Criminal Procedure Code provides for an inquirer into crimescausing a headman to search for and produce anything consideredto be necessary' for the purpose of an investigation in a cognisable'Case. The offence which the first accused may be said to havecommitted is one under section 12 (4) of the Game Protection-Ordinance of 1909, which makes it an offence to capture a buffalowithout a licence. But that is not a “ cognizable ” offence as defined
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in the Criminal Procedure Code. In the case of a non-cogni-zabie 1916.offence, such as that under the Game Protection Ordinance, the Dk Sampayoperson who searches for and seizes anything necessary for an J-investigation must act under the orders of a Police Magistrate. udedihamyThe Ratemahatmaya, therefore, had no authority to issue the t'.order in question to the complainant. In these circumstances, thecomplainant cannot be said to have been obstructed in the dischargeof any public function. See Baron Soysa v. Aron Singho.1 Thepublic function must for this purpose be one legally authorized(B. v. Lillah Singh2), and it is not enough that the public servant,when he acts under any order, believes that the order is lawful;the order must in fact be lawful (BroadhurstHendrick Singho2).
I regret that in this particular case the prosecution should fail,because, I think, the accused acted in a manner which deservedpunishment, but I am obliged to decide the point of law in favourof the accused.
The convictions are set aside.
Set aside.