092-NLR-NLR-V-20-OBEYESEKERA-v.-NAIDE.pdf
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OBEYESEKERA v. NAIDE.
572—P. G. Matale, 5,111.
Arulanandan, for appellant.
July 13,. 1918. Ennis J.—
In this case the accused has been convicted for breach of' the Forest Ordi-nance and the rules thereunder of clearing chenas without permission. Aseries of cases showing that where tbs' act is done under a bona fide claim ofright criminal proceedings should not be taken against the accused were citedto the learned Magistrate. Those cases are found in volume XVH.' of theNew Law Reports, pages 225, 227 and 228, and that principle has beenconsistently followed since. The Magistrate, however, held that since thedecision in the case of The Attorney-General v. Punchirala (18 N, L. R. 152)an accused cannot set up the defence that he had prescriptive right to theproperty. That may be so in civil cases. But it does not follow that itcannot be a good defence to a criminal action. In my opinion the questionis one as to whether the offence comes within the general exception set out insection 72 of the Penal Code. I. referred to that section in the case of TheAttorney-General v. Rodriguesz (19 N. L. R. 65), In my opinion, where there isa bona fide mistake of fact, there is a good defence to a criminal action. Hereit is apparent that the accused were acting ‘ under a bona fide impression thatthey were entitled to the land in question. They rested their claim on aregistered talipot as well as on prescription.
I allow the appeal.