021-NLR-NLR-V-73-R.-A.-B.-PERERA-Appellant-and-INSPECTOR-OF-POLICE-BALANGODA-Respondent.pdf
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Pcrera v. Inspector of Police, Bolangoda
1968Present: Pandita-Gunawardene, J.R. A. B. PERERA, Appellant, and INSPECTOR OF POLICE,BALANGODA, Respondent1151168—M. C. Balangoda, 35650Offence of loitering by reputed thief—Ingredients of offence—Burden of proof—PenalCode, s. 4SJ.
In a prosecution, under section 451 of the Penal Code, for loitering by areputed thief, it must be proved (a) that the accused is a reputed thief, (b) thathe was loitering or lurking about a public place, and (e) that his intention wasto commit theft or some other unlawful act. ' Proof that the accused is a reputedthief may be established on his being identified subsequent to his arrest onsuspicion and at the trial.
PANDITA-GTJNAWAKDENE, J.—ParerQ v. Inspector oj Police, Balangoda 95
A.PPEAL from a judgment of the Magistrate’s Court, Balangoda.Accused-appellant in person.
S. IP. B. Wadugodapitiya, Crown Counsel, for the Attorney-General.
December 16, 1968. Paitdita-Gunawaiiden'E, J.—
On 16th December 196S, at about 2.15 a.m. the appellant was seenby Sergeant Alwis of the Balangoda Police, who was on patrol duty,in the verandah of a building called Koya Stores, Main Street, Balangoda,peeping through a space in the planks and at the same time, meddlingwith a padlock which was apparently on the plank door. On suspicion,Sergeant Alwis arrested him. The appellant was thereafter finger-printed.An examination of the finger-prints disclosed that he was a reputedthief—he had a record of 19 previous convictions for theft. On thesefacts, the appellant was charged on two counts. On the first count,he was charged as follows:You were found in a building, to wit,
Koya Stores, Main Street, Balangoda and failed to give a satisfactoryaccount of yourself and thereby committed an offence punishable underSection 450 of the Penal Code, Cap. 19, L. E. C. On the second count,he was charged as follows: at the same time and place aforesaid, theabove-named accused being a reputed thief did loiter about a publicplace, to wit, Main Street, Balangoda, with intent to commit theft andthereby committed an oifence punishable under Section 451 of thePenal Code, Cap. 19, L. E. C.
The learned Magistrate has accepted the evidence for the prosecutionand rejected the appellant’s defence that he was apprehended by thePolice at about 8 p.m. on 'loth December 196S, when he was about toboard a bus. On tfcse facts as found by the learned’Magistrate, I amsatisfied that the appellant has been rightly convicted on Count 1 ofbeing found in a building and failing to give a satisfactory account ofhimself.
To establish guilt on the second count, it must be proved that (a)the appellant was a reputed thief, (b) that he was loitering or lurkingabout a public place and (c) that his intention was to commit theft orsome other unlawful act. It has been held by Dias, J. in the case ofMansoor v. Jayalilleke1 that condition [a) “is not satisfied by firstarresting the accused on suspicion and then ex post facto establishingthat he was a thief, a fact which was unknown at the time the allegedoffence was committed ”. De Silva, J. in the case of Perera v. Polices,had earlier expressed the same view. Speaking for myself, I would, withrespect, disagree with the views expressed in these judgments : that atthe time an accused is arrested for committing the offence of loitering,
{1917) 48 iV. L. R. 308.
{1946) 32 O. L. W. 108-
06 PAXDITAGTjXAWARDEXE, J.—Pcrcra v. Inspector of Police, Ealangoda
the officer arresting him should be aware that ho (the accused) was areputed thief. A reading of Section 451 does not warrant such a view. Ifthat were to be a condition precedent, the Section would have been castin a manner to give effect to that pre-requisite. Looking at the matterfrom a realistic angle, it cannot be expected that all Police Officers wouldknow at sight, each and every reputed thief in the island. The dictaof Dias, J. and de Silva, J. do not, in my view, accord with common6ense. It would only result in placing an impossible burden on theprosecution and render Section 451 of the Penal Code, inoperative.
It is my opinion that proof that an accused charged under Section451 is a reputed thief may be established on his being identified subsequentto his arrest on suspicion and at the trial. I therefore find that (a)has been proved.,
In regard to (b), the evidence is that the appellant was in the verandahof the building, meddling with a padlock and peeping through the planks.The question is whether the conduct of the appellant amounts to loiteringor lurking about a public place. Of the meanings attributed to theword loiter in the Concise Oxford Dictionary, “ hang about ” is one.On the facts as found, I am satisfied that the appellant did hang abouta public place. As for (c), it is manifest., having regard to thecircumstances, that it can be rightly presumed that the intention of theappellant was to commit theft. In the result, the prosecution hasproved the necessary ingredients of the offence under Section 451 of thePenal Code. The appeal is dismissed.
Appeal dismissed.