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Present: Mr. Justice Wood Renton.
N A WAN A v■ FERNANDO.
P. C. Colombo, 23,663.
Penal Code,s. 219—Arreston suspicion—Escape/ruincustody—Criminal
Procedure Code, s. 32, snb.-sec. (I)(e).
WoodRenton —Aperson who. havingbeenarresjed by a
policeofficeronsuspicionof having beenconcerned inthe commis-sion ofthe offence oftheft, escapes fromthecustody of such
policeofficer,isnot liable to convictionunder section219 of the
PenalCode.Itis onlywhere an accused person hasbeen either
charged with,orconvictedof, an offencethat he comeswithin the
purview of section 219 of the Penal Code.
PPEAL by the accused from a conviction under section 219of the Penal Code. The facts appear in the Judgment-
Allan Drleberg, for the accused, appellant.
August 28, 1908- Wood Renton 3.—
The accused appellant has been convicted under section 219 of theCeylon Penal Code of escape from custody, in which he was lawfullydetained, and has been sentenced to six months’ rigorous imprison-ment and to pay a fine of Rs. 25, or in default to undergo a furtherperiod of six weeks’ rigorous imprisonment. The accused wasarrested by a police constable on suspicion of being concerned intheft, and there is no question, in view of section 32, sub-section(1) (e), of the Criminal Procedure Code, that under such circumstanceshe was in the lawful custody of the police constable who arrestedhim, but one of the witnesses for the prosecution, Sergeant-MajorBorang, said that .the police constable who brought the accused-appellant before him told him that he had done so on a charge oftheft. The police constable himself does not make .the statement,and the learned Magistrate has found as a fact that the arrest waseffected only on suspicion. The question, therefore, arises whetherin view of the language of section 219 of the Penal Code, whichdeals first with resistance or illegal obstruction to the apprehensionof an accused person w for any offence with which he is charged, orfor which he has been convicted.” and which then proceeds toattach a punishment to escape “ from any custody in which heis lawful detained for any such offence,” the present accused-appellant can be convicted under that section. It has been foundnecessary in India, for the purpose of meeting difficulties of this kindarising under .the analogous section (224) of the Indian Penal Code,to enact a special section (2256) for the purpose of penalizing theescape of an accused person from any custody in which he may belawfully detained. There are no direct decisions, so far as I amaware, either of the Courts of this Colony or of the Indian Courts on
the point in question in this case. But the cases of Deo Sahay Lai »>Queen Empress,1 and the opinion expressed in » Weekly Reporter,Criminal Letters, p. 9, point strongly to the conclusion that itis only where an accused person has been either charged with, orconvicted of, an offence that he comes within the purview of thelaw embodied in section 219 of the Ceylon Penal Code. I set asidethe conviction and the sentence.
NAWANA v. FERNANDO