025-NLR-NLR-V-28-RAJAPAKSE-v.-WARUSA-et-al.pdf
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[In Revision.]
Present: Dalton J.
BAJAPAKSE v. WARUSA et ahP. C. Avissawella, 11,184.
Obstruction to a commissioner appointed under section 5 of PartitionOrdinance—Statutory public servant—Penal Code, s. 183.
A Commissioner appointed under the Partition Ordinance is apublic servant within the meaning of section 183 of the Penal
Code.
A
PPLICATION to revise an Older made by the PoliceMagistrate of Avissawella, discharging the accused.
F. de Silva, for appellant.
G. P. Jayatilleke, for respondent.
July 9, 1926. Dalton J.—
This is an application by the complainant, a licensed surveyor,to revise an order of the Police Magistrate discharging the accusedin the case. The complaint made was that the two accused hadvoluntarily obstructed the surveyor in the discharge of his duties ona commission issued to him, the surveyor, on February 9, 1926. inD. C. Colombo, case No. 9,371, thereby committing an offence undersection 183 of the Penal Code. That section deals with the obstruc-tion of a public servant in the discharge of his public functions.
1926-
(180 )i
1926.
pALTOX J.
Rajapakee
v.
Warusa
Without taking evidence, purporting to follow the decision in Silvav. Wijesinghe,1 the Magistrate held that section 183 did not applyto any order made in a civil suit between party and party, andaccordingly on May 11, 1926, discharged the accused. On May 21complainant filed a petition to revise that order. The order madewas clearly an order of discharge under section 191 of the CriminalProcedure Code, and not an acquittal. In Suppiah v. Loku Banda 2De Sampayo J. held that a complainant has a right of appeal againstan order of discharge. It is urged for the respondents, ljowever» thatwhichever it be, the complainant had a right of appeal, which he hasnot exercised. The right of appeal against an acquittal is of coursesubject to the obtaining of leave under section 336. Here, however,no such leave is required. The petition in revision is also filedwithin the time limited for lodging an appeal, and hence, even itcomplainant should have appealed and not have brought the matterup in revision, I think this Court is, under the * circumstances,quite justified in dealing with the matter under its powers ofrevision.
For the complainant it is urged first of all that, inasmuch as he wasappointed a Commissioner in D. C. 9,371 under the Partition Ordi-nance, he was in fact himself a public servant within the meaning ofsect:on 183 of the Penal Code. If that is not so, at any rate it isurged he comes within the second class of persons mentioned in thesection, “ persons acting under the lawful orders of a* public servant,’’inasmuch as he was acting under the lawful orders of the DistrictJudge, who is a public servant. In this latter connection I am referredto the decision in Bowes v. Meera Tamby 3 It is enacted, however,by section 147 (1) (a) of the Criminal Procedure Code that no Courtshall take cognizance of any offence punishable under section 183,amongst others, except with the previous sanction of the AttorneyGeneral, or on the complaint of the public servant concerned, or ofsome public servant to whom he is subordinate. Here the com-plainant is the surveyor or commissioner himself. It is clear fromthe record that there is no previous sanction of the Attorney-General,and inasmuch as there is no complaint by the District Judge or ofany public servant to whom he is subordinate, it is not necessary toconsider the question whether the complainant was a person actingunder the lawful orders of a publ:e servant. It only remains to beconsidered whether he was in fact a public servant himself in hiscapacity as a commissioner of the Court.
The decision of the Court in Bcwes v. Meera Tamby (supra) doesnot help on this point. The facts there show that the Court dealtwith the person obstructed, not as being a public servant himself,but as acting in pursuance of the lawful order of the District Judge.
'{1886) 7 S. G. C. 203.* 3. C. W. R. 127.
a (1905) 8 N. L. R. 311.
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Hence, although the point is not referred to, it must be presumedthat the provisions of section 147 (1) (a), to which I have referred,were duly complied with.
In Brodhurst r. Hendrick Sinno 1 Bonser C.-J. held that a surveyorappointed by the Fiscal to survey a land sold in execution is not apublic servant. He further went on to hold also that he was not aperson acting under lawful orders of a public servant within themeaning of section 183. This further finding was dissented from inHowes v. Meera Tamby (supra) on the ground that the constructionplaced upon the section by Bonser C.J. made the words “ or anyperson acting under the lawful orders of such public servant "inoperative. The Court, however, did not question his conclusionthat the surveyor so appointed was not himself a public servant.
The complainant is a commissioner appointed by the Court undersection 5 of the Partition Ordinance. He may be actually selectedby the parties to the action, and he is paid by them; he is appointedfor that case only, and he surveys and partitions the land for theparties in terms of the decree of partition. Whilst he may well beacting under the orders of a public servant or functionary, it isdifficult to see how by virtue of that commission he himself becomes■a public servant within the ordinarily accepted meaning of thatterm. But the term is defined in section 19 of the Penal Code. Ishe a statutory public servant? Of the various classes of persons setout there, for .the purposes of this ease it is only necessary to considerthe seventh class, viz., “ every arbitrator or other person to whojmany cause or matter has been referred for decision or report by anyCourt of justice or by any other competent public authority.” Thecommissioner is clearly not an arbitrator, although he is a person towhom a matter has been referred for report by a Court of justice.Is he one of the “ other persons ” falling within this second class?His duties, as set out in section 5 of the Partition Ordinance, are•after giving thirty days’ notice, both by writing and by beating of” tom-tom ” in the village and on the land of the proposed partition,thereafter in- the presence of all the parties concerned, if they wishto be present, to make the partition, having regard to the ascertainedproportions of the several owners; in addition he takes into accountthe value of any improvements made on the land, and the party bywhom they may have been made, and doubtless after holding' aninquiry on the spot and collecting information from those presentto enable him to perform his various duties, he thereupon draws upa schedule setting out the general mode of his proposed partitionwhich he returns to the Court, with his survey. The Court maythereafter confirm or modify the proposal of the commissioner inentering final judgment. It will be seen, therefore, that the com-missioner has to go far beyond merely making a survey; he has inter 1
1928
Dalton J.
Rajapakse
v.
IVartua
1 (1S99) 4 N. L. B. 213.
1926.
Daltox J.
Rajapaksev.
IVarusa
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alio, to consider the question of value generally, as well as withregard to improvements. As pointed out in the Law of Partition■(Jayewardene), the Courts expect from commissioners the samehigh standard of impartiality and integrity as the public expectfrom the Courts.
Section 19, class 7, of the Ceylon Penal Code is the same as section21, class 6, of the Indian Penal Code. In his notes on this section inthe Commentary on the Penal Law of India, Gour adds the word“ commissioners ” to the word “ arbitrator M and states that“ arbitrators and commissioners and other assistants of Court arepublic servants " (Vol. 1, p. 228). He adds that the persons typifiedin this six.th class are really persons who take mote or less a judicialcharacter, and for the limited purpose for which they are appointedthey become as it were the alter ego of the person appointing them.
It seems to me that the case of Brodhurst v. Hendrick Sinno*(supra) cannot be brought within section 19, class 7, of the CeylonPenal Code, and therefore it affords no assistance here. Havingregard to the duties of the commissioner, to which I have referred,and also to; the opinion expressed by Gour, I have come to the con-clusion that a commissioner appointed under the Partition Ordinancecomes within the seventh class of persons mentioned in section 19 ofthe Penal Code, and as such is a statutory public servant. I haveconsidered the case of Bajoo Singh v. Queen Empress,l cited in thecourse of the argument, but that appears to me to be a case whichdeals with an officer, a surveyor, who comes within the tenth class ofpersons dealt with in section 19, inasmuch as he was surveying whatwas held to be Government property. That case, therefore, has noapplication here.
For the reasons I have given I would set aside the order of the-Magistrate discharging the accused and refer the matter back to himto hear evidence on the complaint filed and to proceed to a finaldetermination thereon.
Set aside.
1 2$ Cal. 159.