045-NLR-NLR-V-54-PREMADASA-Appellant-and-JANSEN-Respondent.pdf
PXJLLE J.—Jayasinghe v. Dayaratne
191
1952Present: Swan 3.
PREMAD ASA, Appellant, and JANSEN, Respondent
8. G. 828—M.O. Garrvpola, 3,704
Railway Ordinance (Gap- 153)—-Offence of interference with, the comfort of otherpassengers—Ingredients—Sections 12 and 43.
Where one passenger by assaulting another passenger causes interferencewith the comfort of the other passengers both may be charged under section 12of the Railway Ordinance, but to charge one of them with having interferedwith the comfort of the other is a situation not contemplated by the Ordinance.
192
SWAN J.—Premadasa v. Jansen
.^^.PPEAIi from a judgment of the Magistrate’s Court, Gampola.H. W. Jayewardene, for the accused appellant.
A. Mahendrarajah, Crown Counsel, for the complainant respondent.
O
Cur. adv. wit.
October 7, 1952. Swan J.—
I do not think that this conviction can be allowed to stand. Theappellant was charged under section 12 of the Railway Ordinance(Cap. 153) with having on the 9th June, 1952, at the Gampola RailwayStation, wilfully interfered with the comfort of the other passengers onthe Railway by assaulting one W. D. Dharmadasa. None of the otherpassengers were called as witnesses for the prosecution to say that theywere in any way disturbed by the incident. The learned Magistrate,however, seemed to take the view that other passengers includedDharmadasa. If that had been the case for the prosecution the chargeshould have been differently worded. Mr. Jayewardene for the appellanttakes the further objection that there should have been strict proof thatDharmadasa was a “ passenger ”. The term “ passenger ” is defined insection 43 as “ any person in or upon the railway being in possession ofa ticket duly issued according to the conditions provided therefor ”.
In the case of Namtial v. Perera 1 it was held that before a personcan be punished for interfering with the comfort of a passenger it must beproved that the person so interfered with was a passenger, i.e., a personwith a ticket or a free pass. The conviction was under section 14 ofthe Railway Ordinance 26 of 1885. It will be observed that the termpassenger is not defined in that Ordinance. In the present caseDharmadasa did say that he was a passenger travelling in the samecompartment as the accused. He was not cross-examined on the point,and in the circumstances, I think the learned Magistrate was right inholding that he was a “ passenger ” as defined in section 43. But on thematter of interference with the comfort of the other passengers I do notthink Dharmadasa’s alleged discomfort should have been taken intoconsideration. Where two passengers are involved in an incident whichmay cause interference with the comfort of the other passengers both maybe charged under section 12, but to' charge one with having interferedwith the comfort of the other is, in my view, a situation notcontemplated by the Ordinance.
I set aside the conviction and acquit and discharge the accused.
Appeal allowed.
1 Tambyah 55.