061-NLR-NLR-V-70-R.-SELLIAH-Appellant-and-A.-I.-E.-DE-KRESTER-Respondent.pdf
SAMERAWICKRAME, J.—Selliah v. De Kretser
263
1967Present: Samerawickrame, J.R.SELLIAH, Appellant, and A. I. E. DE KRETSER, Respondent
S.C. 241/67—M. C. Avissawella, 76,168
Criminal trespass—Intention to annoy—Proof—Penal Code, s. 433.
Where an estate labourer, after his services have been terminated, remainson the ostato unlawfully, contumaciously and in defiance of the Superintendent,an intention to annoy must bo inferred and he is guilty of criminaltrespass. The fact that he has made an application to the Labour Tribunalfor re-instatement docs not justify his remaining on the ostato ponding theproceedings.
.A.PPEAL from a judgment of the Magistrate’s Court, Avissawella,Bala Nada rajah, for the accused-appellant.
II. V. Perera, Q.G., with L. Kadirgamar, for the complainant-respondent .
Cur. adv. vidt.
September 4, 1967. Samerawickrame, J.—
This is an appeal against a conviction in the Magistrate’s Court ofAvissawella on a charge of criminal trespass punishable under (Section433 of the Penal Code.
The facts on which the charge was based are set out in the evidence ofMr. A. I. E. de Kretser, Superintendent, Kiriporuwa Group, Yatiyantota.The appellant was a labourer on the estate. On or about 18th July,1963 it was found that he was erecting without permission a cattle shed20 feet away from the line rooms. The rule designed to safeguard thehealth of the occupants of the line rooms was that sheds should be atleast 75 yards away. The Superintendent went to the spot and foundthat the appellant was erecting the shed and told him that he was doingsomething unlawful and directed him to demolish the shed. Theappellant refused to do so and said that he would not carry out his orders.The Superintendent suspended the appellant and gave him one month’stime to demolish the shed. The appellant failed to demolish the shedand the Superintendent terminated his services and gave him a month’stime to leave the estate. The appellant refused to accept the noticewhich the Superintende nt wanted to hand over to him and in an arrogantmanner asked him to do what he wanted. A copy of the notice wasfixed on the door of the line room and another copy was sent by registeredpost. The appellant did not leave the line room and this prosecutionwas therefore made.
264
SAMERAWICKRAME, J.—Selliah v. De ICrelser
The appellant has made an application to the Labour Tribunal andproceedings upon his application are pending. In evidence the appellantadmitted that when he was suspended he was told that work would begiven to him if he demolished the shed. He also stated that he waswilling to leave the estate in the event of his application to the LabourTribunal being refused ; till the proceedings were over he would stay.
It was suggested in the course of cross-examination of the complainantthat the shed had been built as far back as the year 1954. When theappellant gave evidence, however, he said it was put up in 1962.
Upon the facts stated it appears to me that the appellant has remainedon the estate unlawfully, contumaciously and in defiance of the com-plainant and fin intention to annoy is to be inferred. In 51 New LawReports at page 475, the Privy Council said: " The case of Forbes v.Rengasamy on which the courts in Ceylon relied is distinguishablebecauso in that case the accused did not give evidence as to his realintention and the court thought that his conduct had been defiant.”Where the accused has given evidence and, after an examination of hisevidence, the Court finds that his conduct was contumacious anddefiant, the result must be the same.
It is true that upon his application to the Labour Tribunal that bodyhas the power to order his reinstatement and in the event of the Tribunalmaking such an order ho may be provided with a line room for his occu-pation. This fact does not, however, justify his remaining on the estatepending the proceedings. Indeed, the appellant did not say that hebelieved that he was entitled to remain till the termination of thoseproceedings. In the light of the facts and circumstances of this case, thestatement by the appellant that he was prepared to leave the estate ifhis application to the Labour Tribunal failed is no more than a speciousexcuse for his continued defiance of the complainant by a trespass whichhas already lasted for nearly four years. The finding of the learnedMagistrate that the intention on the part of the appellant to annoy thecomplainant has been established is justified. The conviction of theappellant is correct and I accordingly dismiss the appeal.
Appeal dismissed.