037-NLR-NLR-V-42-PAKIR-SAIBO-v.-NAYAR.pdf
WUEYEWARDENE J.—Pakir Sat bo v. Nayar.
151
1940Present: Wijeyewardene J.
PAKIR SAIBO v. NAYAR.
334—M. C. Badulla, 2,741.'
Master and servant—Charge of breaking or tampering with electricalapparatus—Charge defective and bad for duplicity—Liability ofemployer for act of servant.
The accused was charged with, being a consumer of electrical energysupplied by an Urban Council, he did break or tamper with orpermit a person other than an employee of the Council to break ortamper with any seal or any part of the Council’s apparatus in breach)of a by-law framed under the Local Government Ordinance.
The evidence was to the effect that a servant boy employed by theaccused had tampered with the electric meter by inserting a wire. TheMagistrate held that there was no evidence that the accused tamperedwith the meter. He, however, found that the accused was aware of whatthe boy was doing and permitted it,; basing his conclusion on the factthat the accused benefited by the act of the servant in inserting the wireand thereby preventing the meter from registering the current used by 'the accused.
Held, that the charge was defective in that it failed to give particularsof the manner in which the alleged offence was committed and that itwas open to objection on the ground of duplicity.
Held, further, that before a person could be convicted of permittingan offence it must be shown that either the accused himself or someoneto whom he had delegated control either knew or ought to have knownor had reasonable ground for suspecting that an offence was being orwould be committed.
^^PPEAL from a conviction by the Magistrate of Badulla.
E. A. P. Wijeyeratne, for the accused, appellant.
E. F. N. Gratiaen (with him Hugh Mack), for complainant, respondent.
Cur. adv. vult.
November 27, 1940. Wueyewardene J.—
The charge on which the accused-appellant was convicted in the
Magistrate’s Court, Badulla, reads as follows: —
“ You on 15th July, 1940, being a. consumer of electrical energysupplied by the U. D. C. of Badulla, break or tamper with or permit aperson other than an employee of the Council, to break or tamper withany seal or any part of the. Council’s apparatus or wires in breach ofby-law 4 (3) of the by-laws framed under sections 164 and 168 (14) ofof Local Government Ordinance and published in Gazette No. 8,553 of1st December, 1939; ”
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WUEYEWABDENE J.—Pakir Saibo v. Nayar.
The prosecution was well aware of the facts they were going to lead inproof of the charge. The evidence was to the effect that a Sinhalese-servant boy employed by the accused, a Malayali boutique-keeper,had tampered with the electric meter by inserting a wire.
In these circumstances I think the charge should have been framed soas to give some “ particulars of the manner in which the alleged offencewas committed ” (vide section 169 of the Criminal Procedure Code).Moreover the charge appears to have been framed on the supposition thatit would be quite in order, if all the provisions of the by-law in questionwere embodied in the charge without regard to the particular facts of thecase. The charge is in my opinion open to the objection of dupilicity, asI do not think that the provisions of section 181 of the Criminal ProcedureCode are applicable to it (vide Rex v. Stewartl, and Rex v. Perera *). InMolloy’s case ‘ the accused was indicted and convicted on the count thathe either stole certain things or, with intention to steel, he ripped andsevered them. Avory J. quashed the conviction and said—
“ This indictment charges, the appellant with two felonies in thealternative—the felony of stealing the pictures or the felony of rippingthem with intent to steal. The cases cited …. make it clearthat where two offences are charged in the same count the indictmentis bad for duplicity. The section (under which the appellant wascharged) deals with two different acts—not with one act in alternativeways ”.
The evidence for the prosecution was given by two witnesses, S. T.Wambeek and Ocherz. According to Wambeek he got some informationon the day in question from Ocherz that there “ was some tamperinggoing on in some boutiques” and thereupon decided to go and inspectthe meters. He says that Ocherz “ did not tell (him) in this particularcase that the current consumption was fluctuating and that he wassuspecting”. It is difficult to reconcile that evidence with the evidenceof Ocherz that before he went with Wambeek that evening he had seen“ several times that day ” the wire inserted in the meter in the accused’sboutique. When they went to the boutique of the accused, they peepedthrough a window facing Bailley street and saw a piece of wire so insertedas to prevent the current being registered correctly by the meter.Wambeek stood by the window and sent Ocherz to enter the boutique bythe front door which opens on Lower street. Wambeek says that, withina few seconds, he “ saw one of the employees in the shop rush up andremove the wire ”. He says he is unable to identify the person, but thatthe person “ appeared to be a Sinhalese boy ”. Ocherz, on the otherhand, says in examination-in-chief that Wambeek “ asked him to goround by the front entrance and to remove the piece of wire ”. It isdifficult to understand why Wambeek chose to stand by the window andwait until Ocherz came to remove the wire. Ocherz says he met theaccused at the front entrance and told him that he Jaad come in inspectthe meter. He delayed talking to the accused for about five minutes andthen went to a room at the back of the premises but did not take the
1 25 N. L. R. 166.
(1921) 2 K. B. 364
* 27 N. L. R. 511.
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WIJEYEWARDENE J.—Pakir Sea bo v. Nay at.
,Aaccused with him. When he went in, he saw a servant boy standing nearthe. meter. Wambeek who was still standing on the road, near 'thewindow, told him then that the boy removed the wire from the meter.No piece of wire was found with the boy. It is not suggested that, afterWambeek saw the boy removing the wire, the boy went outside, hid thewire and came back again in time to be identified by Ocherz. No attempthas been made by Wambeek or Ocherz to question the boy. Ocherz wentback to the front entrance where the accused was and found Wambeekalso had come there ; Wambeek then questioned the accused about theinsertion of the wire. The accused said he knew nothing about it and,in answer to further questions, suggested that the wire might have beenplaced by the servant boy. It is admitted by the prosecution that theaccused was at the entrance to the boutique during the whole period ofinspection, and that the meter was in a room at the back where theaccused’s customers took their meals. The accused himself gave evidencethat he was in the garden that evening and entered the premises about twominutes before the arrival of Ocherz.
The evidence for the prosecution is not quite satisfactory, and there aremany parts of it which appear to need a deal of explanation. The Magis-trate has, however, found on this evidence that a Sinhalese servant boyof the accused removed a piece of wire which had been improperly insertedby him in the meter. I shall proceed to consider this case on the footingthat that finding is correct though the evidence does not exclude thepossibility of the wire having been introduced by a customer or someother person.
The Magistrate holds that there is no evidence that the accused tamperedwith the meter but concludes that “the accused was aware of what the.boy was doing and permitted it”. He bases his conclusion, solely, onthe fact that the accused was benefited by the act of the servant ininserting the wire and thereby preventing the meter from registering thecurrent used by the accused. I am unable to draw the same inference asthe learned Magistrate especially in view of the denial of the accusedthat he was aware of any tampering with the meter. There could havebeen some other reason for the boy’s action. If the servant had beenfound fault with, for excessive consumption of electricity, he might havetried to meet the situation by having recourse to an artifice to get themeter to register less than the amount consumed.
The guilt of the accused depends on the question whether the accusedcould be said to have permitted the tampering with the meter because a•servant boy of his had, as found by the Magistrate, tampered with themeter.
It is a general principle of Criminal Law that a man is not criminallyliable for an offence committed by his servants without his knowledge.But the Legislature may create exceptions to this rule by prohibiting anact or enforcing a duty in such terms as to make the prohibition orenforcement absolute. This doctrine of vicarious liability in criminalmatters has been considered by the English Court-in a number of cases.The earlier cases were often under the Licensing Acts while, in recenttimes, they have been more often under the Road Traffic Acts.
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WIJEYEWARDENE J.—Palcir Saibo v. Nayar.
In Somerset v. Hart1 the-accused (Hart) was charged under section 17of the Licensing Act, 1872, With having suffered gaming on his licensedpremises. It was admitted that gaming took place, that Smith, a potmanin the service of Hart, who served the gamblers with food and drink, wasaware of the gaming, but that he did not report the matter to Hart. Inthe course of his judgment Lord Coleridge C.J., said: —
It is nowhere held that (a licensed victualler) can be said to suffergaming where what takes place is not within his knowledge, but merelywithin that of one of his servants, and there is no connivance on hispart. I quite agree that the provisions of an Act which is passed inthe interests of public morality and order should receive a reasonablyliberal construction. I do not say that proof of actual knowledge onthe part of the landlord is necessary. Slight evidence might be suffi-cient to satisfy the Magistrates that the landlord might have knownwhat was taking place if he had pleased, but where no actual knowledgeis shewn there must, as it seems to me, be something to shew either thatthe gaming took place with the knowledge of some person clothed withthe landlord’s authority, or that there was something like connivanceon his part, that he might have known but purposely abstained fromknowing.”
In Somerset v. Wade1, Wade was charged under section 13 of theLicensing Act, 1872, with having permitted drunkenness on his premises.The evidence showed that a constable found a woman drinking beer onthe premises in question, the beer having been served by the accused.The constable had previously ordered the woman out of some, other -licensed premises on the ground that she was drunk. The Court acceptedthe constable’s evidence that the woman was in fact drunk but alsobelieved the accused’s evidence that he was ignorant of her state when heserved her with beer. The Judges expressed the view that there was nodifference in meaning between the words “ suffering ” and “ permitting ”and one of the Judges, Collin J., said : —
“ Without knowledge, or- connivance, or privity between the landlordand the agent, who might have known of the offence being committed
there could be no “ permitting ”Bond v. Evans * is not
in conflict with the decision in Somerset v. Hart (supra) at all. TheCourt in Bond v. Evans simply says that, given no delegation of autho-rity to the person who commits or assists in the commission of theoffences, they agree that there can be no “ suffering ” such an offenceto be committed without knowledge of its commission, and thereforeit is equally an authority with Somerset v. Hart that a person cannot“ permit ” or “ suffer ” the commission of any of these licensingoffences in section 13 without * knowing ’ of their commission.”
In the Commissioners of Police v. Cartman *, which was a case undersection 13 of the Licensing Act, 1872, Lord Russel C.J. discussed theliability of licensees who delegate the actual direct control to otherpersons and said : —
“ Are the licensees in these cases to be liable under this section forthe acts of others? In my opinion they are, subject to this
*K 1884) 12 Q. B. D. 360.‘ 21 Q. B. D. 249.
-* (1894) 1 Q. B. 574.* (1896) L. R. 1 Q. B. D. 655.
WUEYEWARDENE J.—Polar Saibo v. Nayar.
155
qualification that the acts of the servant must be within the scope of hisemployment. The manager’s authority, in my view receives its limitationfrom the scope of his employment; authority is given him to do all actswithin the scope of his employment. It makes no difference for thepurposes of this section that the licensee has given private orders tohis manager not to sell to drunken persons. ”
The case of Coilman v. Mills1 illustrates the legal principles workedout in the previous cases, though, at first sight, it may appear to be inconflict with them. The accused in that case was convicted for thebreach of a by-law which provided that “ an occupier of a slaughter-house
shall not slaughter or permit to be slaughtered any animal in anypound, pen …. or any part of the premises'except the slaughter-house ; (c) shall not slaughter or permit to be slaughtered any animalwithin public view or within the view of any other animal ”. Theaccused was the occupier of a licensed slaughter-house. Brigdon, theforeman and slaughter man in the employ of the accused, slaughtered asheep in the pound and in view of some live sheep. The accused wasabsent from the premises at the time and had forbidden his servants to dothe acts complained of. In convicting the accused Wills J. said: —
“ In businesses of this kind, which often are carried on upon anextensive scale and necessitate the employment of numerous servants-'legislation would be useless if the master were not to be liable topenalties for his servants’ acts as well as the servant himself. Thebusiness of a slaughter-house may be carried on on a very extensivescale: the proprietor may employ a dozen or more servants and theslaughtering may be done by any of the servants or by himself. ”
In Mousell Brothers, Limited v. London and North-Western RailwayCompany’, the manager of Mousell Brothers, whose duty it was to fill upor direct the filling up of the consignment notes from his principals to theRailway Company, wrongfully described the goods with intent to avdidthe payment of the rates payable upon a right classification of the goods.Mousell Brothers were charged under sections 98 and 99 of the RailwayClaims Consolidation Act, 1845, and convicted. Section 98 of the Actimposes upon every person being the owner or having the care of goodsthe obligation to give an exact account in writing of the number orquantity of goods to each of the tolls. Section 99 provides that “ if anysuch owner or any such person fail to give such account …. or ifhe gives a false account …. with intent to avoid the paymentof any tolls .. .. ” he shall be liable to a penalty. The Judges
expressed the view that the words “ person having the care or carriage ofgoods ” in section 98 were used to refer to a bailee entrusted with thegoods for carriage and would not include a person who occupied theposition of manager. The Court then considered the criminal liabilityof the owner and held he was liable. Lord Reading C.J. said : —
“The legislature must be taken to have known that the forbiddenacts were of a kind which, even in the year 1845 would in most cases bedone by servants …. I think looking at the language and
(1897) I Q. B. 396.
* (1917) 2 K. B. D. 836.
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WIJEYEWARDENE J.—Pakir Saibo v. Nayar.
the purpose of this Act; that the legislature intended to fix responsibilityfor this quasi-criminal act upon the principal if the forbidden acts weredone by his servant within the scope of his employment. ”
In Goldsmith v. Deakin1, the accused owned a motor coach licensed touse as a contract carriage and not as a stage carriage. A club which wasorganizing a dance open to the public hired it to convey persons betweenthe dance hall and the club’s headquarters. The accused received a lumpsum for the use of the coach which was driven by his servant. It wasarranged that the driver should collect tickets from passengers in order toexclude unauthorized persons. Tickets were in fact sold by the clubofficials entitling the holders to travel in the coach which on the returnjourney set them down, if desired, at intermediate points. The tickets,which gave no indication of price, were collected by the driver but nomoney was paid by the passengers either to him or the accused. Theaccused was convicted on a charge of permitting his vehicle to be used asa stage carriage in breach of section 67 of the Road Traffic Act, 1930,The Court held that though the accused was in fact unaware of the factthat the motor coach was used as a stage coach, he ought to have knownthat it would probably be so used, since he agreed that his servant thedriver should collect the tickets from the passengers and knew that eitherthe price was included in that of the dance ticket or that a separatecharge would be made for the coach tickets.
In the later case of Evans v. Dell *, the owner of a motor coach wasacquitted on a somewhat similar charge in circumstances which wereslightly different from those in the earlier case. The accused was chargedwith permitting his motor coach to be used without a road service licencein breach of section 72 of the Road Traffic Act, 1930. An organizer of adance hired the coach for a lump sum. The accused supplied the driverbut gave no order to the driver and placed him at the disposal of thehirer. The organizers of the dance informed the public that after thedance there would be an omnibus to take them home. At the dance thedancers were informed that they could buy the tickets for the use of thebus at the door of the hall. There was no fixed charge for a ticket andthe tickets were issued by the dance committee. The tickets werecollected by a member of the committee at the door , of the coach, whostood in such a position that the driver could not see what he was doing.Neither the accused nor the driver knew about the sale of the tickets.Goddard J; rejected the idea that in cases of this kind the prohibition isabsolute and proof of mens rea need not be tendered.
The legal position resulting from the decisions I have mentioned is,that before a person could be convicted of “permitting” an offence itmust be shown that either the accused himself or some one to whom hehad delegated control either knew or ought to have known or had reason-able ground for suspecting that an offence was being or would becommitted'.
In the case under consideration, there was no evidence of actualknowledge on the part of the accused. Nor are there any circumstancesfrom which it may be inferred that the accused had reasonable groundsfor any suspicion. Even if one considered the fluctuations in the readings* (1933) 50 Times Lave Reports 73.* 1561L. T.Rep. 240.
In re Part Cargo ex m.v. "Mow Y”.
157
of the meter over a long period, these fluctuations were not so marked asto give room for suspicion. Moreover there is the admission by thewitnesses for the prosecution that some months before the day in question,it was found necessary to remove another meter as owing to some defectit did not register the current correctly. The Sinhalese servant boymentioned by the prosecution is not a person to whom the accused haddelegated the control over the premises. Nor could it be said that it waswithin his scope of employment as such servant to attend to the electricapparatus. I think the word “ permit ” has been used in the by-law tomake a consumer liable for the act of a contractor or some workmanwhom he employs for the purpose of attending to the Council’s apparatusor wires.
I allow the appeal and acquit the accused.
Set aside.