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Present: Jayewardene A.-J.
PERKINS v. DON SAMEL.59—P. C. Matara, 37,454.
Resthome—Public place—Right of access—Penal Code, s. 488..
A resthouse is a public place within the meaning of section 488of the Penal Code.
PPEAL from a conviction by the Police Magistrate of Matara.The facts appear from the judgment.
Soertsz, for accused, appellant.
Cur. adv. vuU.
February 19, 1926. Jayewahdexe A.J.—
The accused appeals against his conviction under sections 488,433, and 409 of the Penal Code. He has been sentenced to undergoone month’s rigorous imprisonment on each count, sentences to runconcurrently. The accused, who is said to he an ex Vidane Arachchi,went to the resthouse at Hakmana and created a disturbance there.The accused was drunk. He sat on a chair and put his legs againsta table, which knocked against a chair, which was upset and broken.The accused then dashed a chair on the-ground, and a piece of this-chair, which broke, struck against the crockery and damaged some
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Jatbwaa-DENE A. J.
Perkins v.Don Samel
glassware. The accused asked for liquor, but the resthouse-keeperrefused to serve him as he was drunk. He was also abusive. Theresthouse-keeper informed the Police, and a constable came andremoved the accused to the police station. These facts have beenaccepted by the learned Police Magistrate. The accused appeals onseveral points of law, one of which alone has been certified, that is,that a resthouse is not a public place within the meaning of section488. I may here point out that imprisonment under section 488must be simple, and the sentence passed on the accused under thatsection cannot be sustained. I agree with the Magistrate that aresthouse is a public place. As he says, the term “ resthouse ” asdefined by Ordinance No. 10 of 1861 includes any ambalam, maddam,or other public buildings for the shelter of travellers, and any memberof the public, so long as he conforms to the rules framed under section19 of that Ordinance, where they are called public resthouses, isentitled to seek shelter in a resthouse. In Pieteraz v. Wiggin 1 itwas held that a police station was not a “ public place. ” and in thecourse of his judgment Withers J. said: —
“ In my opinion a public place in the said section is a place towhich and from which the public have ingress and egressand regress as of right and without reference to any parti-cular purpose, as a public thoroughfare, square, &c. ”
In Wijeauriya v. Abeyesekera 2 this definition was accepted, andit was held that a “ circus ” to which people paid for- admission wasnot a public pla.ce within the meaning of section 488. This seems tobe at variance with the view taken of a “ public place ’ * in an Englishcase, The Queen v. Willard.3 There Grave J. said: —
44 A public place is one where the public go, no matter whetherthey have a right to go or not. The right is not the ques-tion. Many shows are exhibited to the public on privateproperty, yet they are frequented by the public—the publicgo there/*
As Lord Coleridge C.J. said in that case: “It is difficult to define
affirmatively what is a public place.’* It would depend on the
facts proved in each case. But a “ resthouse,” in my opinion, is a%
As regards the conviction under section 433 for criminal trespass,although it is urged in the petition of appeal that the intent allegedhas not been proved, this point has not been certified. I shall dealwith it by way of revision. I do not think there is any evidence toprove or to justify the inference that the accused went to the rest-house with the intention of committing mischief or causing annoy-ance to the resthouse-keeper. He went there to obtain liquor.
1 (1892) 2 Cr L. R. Ill.8 (1919) 21 N« L. R.1S9…
win■ 'Ai”( i'•4-1 ft t'1
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When his request was refused he began to commit misdhief to theannoyance of the resthouse-keeper. I do not think the convictionunder section 483 can be sustained. The offence of mischief undersection 409 has been clearly brought home to the accused. Theconviction under section 433 will therefore be struck out. As regardsthe sentence, as the imprisonment under section 488 c&l only besimple, I would vary the sentence of imprisonment imposed by theMagistrate and direct the accused to pay a fine of Bs. 100 on eachcount (sections 488 and 409). Further, the accused will enter into abond to keep the peace and to be of good behaviour for a period ofsix months in a sum of Bs. 1,000 with two sureties. In defaultof payment of fine (Bs. 200) the accused will undergo one month'ssimple imprisonment on the first count and one month's rigorousimprisonment on the second count on which he has been convicted,the sentences to run concurrently.
Conviction affirmed ; sentence varied.
Perkins v.Don Samel
PERKINS v. DON SAMEL