062-NLR-NLR-V-12-RATWATTE-v.-KADORIS.pdf
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Present: Mr. Justice Middleton.1909.
August 6.
RAT WATTE v. KADORIS.
P. G., Colombo (Addl.), 8,743.
Ordinance No. 17 of 1889, s. 5—Keeping a common gaming place —
Acquittal by Village Tribunal of gaming — Plea of autrefoisacquit — Jurisdiction of Village Tribunal — Village CommitteeBuies — Evidence necessary to support a charge of keeping acommon gaming place—Search warrant.
An acquittal of a person by a Village Tribunal of the offence ofunlawful gaming cannot be pleaded in bar to a prosecution forkeeping a common gaming place under section 6 (a) of OrdinanceNo. 17 of 1889 before the Police Court, the two offences being quitedistinct.
Rule 43 of the rules1 made under section 7 of the Village Com-munities’ Ordinance, No. 24 of 1889, which enacts as follows:—
“ Sub-section 12.—Prevention of Gambling and Cock-fighting.
“ 43. Gambling.—No person shall engage in gambling or cock-fighting, or abet these offences by his presence or by allowing theuse of his house or land for such purposes. (Any person whoorganizes or takes part in a lottery shall be deemed to have engagedin gambling within the meaning of this rule.) ”—does not include the offence of keeping a common gaming place,and such an offence is not triable by a Village Tribunal.
In order to support a charge under section 5 (a) of OrdinanceNo. 17 of 1889, it is not sufficient to prove that the accused collectedthon (commission) and settled disputes among the gamblers.
There must be some evidence that the accused exercised some kindof control over the place or'jthe persons frequenting the place.
rTHE accused was charged under section 5 (a) of Ordinance_L No. 17 of 1889, in that “ he on January 20,1909, at Pitipane,having the use of a shed at Indigahawelakamatha, kept it as acommon gaming place.”
The evidence in support of the charge was that the accusedcollected than at the gaming place, and settled disputes that aroseamong those who took part in the gaming.
The Additional Police Magistrate (M. S. Pinto, Esq.) convictedthe accused of the charge, and sentenced him to pay a fine of Rs. 200.
The Magistrate held as follows (June 29, 1909):—,
“ There is no evidence that the accused is one of the co-ownersor occupiers of the shed in question. But he collected thon on thisoccasion and settled disputes which arose. That he, therefore, hadthe use of the shed, and that he kept it as a common gaming place
1 Published in the Ceylon Government Gazette of September 29, 1906.
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1909. is clear. On similar evidence the accused in the Sedawatta gamingAugust 6. case (Abeykoon v. Philip et at.1) recently tried in this Court wasconvicted of keeping a common gaming place.”
The accused appealed.
H. A. Jayewardene (G. K. W. Perera with him), for the accused,appellant.
There was no appearance for the respondent.
The arguments and cases cited sufficiently appear in the judgment.
Cur. adv. vult.
August 6, 1909. Middleton J.—
The accused was convicted on June 29, 1909, under section 5 ofOrdinance No. 17 of 1889, of keeping a common gaming place atPitipane on January 20,1909, and sentenced to pay a fine of Rs. 200.
On January 23,1909, the accused and several others were chargedbefore the Village Tribunal of Athurugiriya with gambling at Pitipaneon January 20, 1909, in breach of the Village Committee Rule 43dated September 29, 1908, and acquitted.
It is contended before me (I) that the offence of which theaccused has been convicted in the Police Court is within theexclusive jurisdiction of the .Village Tribunal by virtue of ajudgment delivered by Layard C.J. and reported at page 74 of9 N. L. R., which was followed by Lascelles A.C.J. in 219-223,P. C., Chilaw, 24,699, on June 6, 1906, and by Wood Renton J. in3 Balasingham 113, and supported to some extent by a judgment ofmy own in'559, P. C. (Ity.), Colombo, 19,334, dated October 19,1906; (2) that although the accused did not plead in the PoliceCourt that he had been previously acquitted, he was now entitledto raise that plea, which stood proved on the face of the record ;
that the evidence did not justify the conviction.
In the first place, I see no reason to question the ruling of LayardC.J., that where a breach has. been committed by a native withinthe jurisdiction of a Village Tribunal of the rules made by a VillageCommittee, that such Tribunal has exclusive jurisdiction to dealwith such breach of rules. I can find no direction on the record bythe Attorney-General, Government Agent, or Assistant GovernmentAgent under section 3 (28 b) of Ordinance No. 3 of 1908 excludingthe jurisdiction of the Village Tribunal.
On looking at the petition of appeal, I find that these two points,which were points of law, were not set out in it, and there is nocertificate in it by an advocate or proctor that there are any mattersof law fit for adjudication by the Supreme Court. I think, therefore,that I can only consider these points in revision.. As regards thefirst point, the offence of which the accused had been convicted inthe Police Court, is, I think, not one against Rule 43.
1 (1909) 12 N. L. R. 143
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The conviction is for keeping a common gaming place, and the 1909.rule is as follows :—August 6.
“ 43. Gambling.—No person shall engage in gambling or cook- MroD“EroNfighting, or abet these offences by his presence or by allowing theuse of his house or land for such purposes. (Any person who' organizes or takes part in a lottery shall be deemed to have engagedin gambling within the meaning of this rule.) ”
If a man allows the use of his house or land for gambling, he isto a certain extent keeping a common gaming place, but not to theextent contemplated by section 5 (a) of the Ordinance. It does notmatter in either case if the house or land is not actually his own,but only occupied temporarily by him. This is clear from thedefinitions in sections 3 and 5 of the Gaming Ordinance of 1889.
The rule, however, in my opinion, refers rather to an abetment ofgambling by suffering a house to be used as a common gamingplace, and would not include the case of a person keeping his housein an active sense to be used as a common gaming place. The oneis a passive infraction, the other an active infraction, of the law,punishable equally, it is true, under section 5 of the Ordinance,when they involve the using of a place as a common gaming place.
The rule, however, seems to me to apply to the more trivial case ofallowing a party of men to gamble or cock-fight in a house or gardenwithout the place being used as a common gaming place to thefull meaning of these words. It is true a place may be a commongaming place if proved to bo so used only on one occasion. I think,therefore, the offence of which he has been convicted by the PoliceCourt is not within the words and meaning of Rule 43, but a distinctoffence, which is not within the jurisdiction of a Village Tribunal.
As regards the (2) point, it" turns on section 330 of the CriminalProcedure Code, which enacts as follows :—“ A person who hasonce been tried by a Court of competent jurisdiction for an offenceand convicted or acquitted of such an offence shall, while suchconviction or acquittal remains in force, not be liable to be triedagain for the same offence nor on the same facts for any otheroffence for which a diffetent charge from the one made against himmight have been made under section 181, or for which he mighthave been convicted under section 182.” That is to say, if a manhad been tried for theft and might have been charged and tried forreceiving stolen property on the same facts, he could not have beentried on the same facts for receiving stolen property if acquitted oftheft, or if he had been charged with theft, and it appeared hisoffence was receiving stolen property, and he was convicted on thelatter charge, he cannot be tried again for theft.
Section 330, sub-section (2), further goes on to say: “ A personacquitted or convicted of any offence may be afterwards tried for anydistinct offence for which a separate charge might have been made
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1909. against him on the former trial under sub-section (1) of sectionAugust 6.180.” So that if a man has been tried and acquitted for voluntarily
causing hurt by wrongfully striking another with a cane underJ. section 314 of the Penal Code, he may be subsequently tried andconvicted on the same facts for criminal force or assault undersection 343 (Example (</), sub-section (2), section 180).
Here he was acquitted of gaming, and has been tried a secondtime for the distinct offence of keeping a common gaming place. Ithink, therefore, he is not entitled to plead or succeed on the plea ofautrefois acquit. 1 therefore must hear the case on its merits.
Having heard the case on the merits, His Lordship delivered thefollowing judgment:—
I have now heard the evidence in the case read to me andcommented on by counsel for the appellant. It would seem thatthe charge was originally one of keeping a common gamingplace in a shed at Indigahawelakamatha, property belonging toMedapathige Kadoris, the accused, but on June 10, without anyserious objection on the part of the learned advocate w)io appearedfor the accused, this was amended to a charge “ that he having theuse of a shed at Indigahawelakamatha kept it as a common gamingplace.” The charge as amended would still be within section 5 ofOrdinance No. 17 of 1889. It was contended before me that the.evidence did not disclose any of the offences under that section, andit was pointed out that the Magistrate has stated in his judgmentthat there was no evidence that the accused is one of the co-ownersor occupiers of the shed in question, but the Magistrate held that ashe collected than on this occasion and on several previous occasions,and settled disputes which arose, that he therefore had the use ofthe shed, and thus kept it as a common gaming place. Upon thispoint the decision of Chief Justice Bonser, reported at page 21 of,Vol. 1 of Weerakoon’s Reports, was relied on for the appellant. Inthat case the evidence was that the accused took commission andsettled disputes by paying money, and the learned Chief Justice heldthat his acts were not sufficient to bring the accused within thewords of the Ordinance on a charge of having the care or manage-ment of, or in any way helping in the management of, a place keptor used as a common gaming place.
The learned Judge went on to say that if there had been evidencethat he refused access or refused to allow persons to stake or turnedpersons out or did any acts of that kind, then there would have beenevidence from which the Court might have inferred that he hadthe care or management of the place. That case was followed byMr. Justice Withers in the case reported in 3 Tambiah 71. Theauthority of those decisions is, I think, sufficient for me to say herethat the accused, on the evidence on the record, can neither beconvicted of the original charge or the amended or any charge undersub-section (c) of section 5 of Ordinance No. 17 of 1889.
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There is, however, another feature in the case, on the facts of 1909.which, I think, I ought to take notice as ground for holding that this Aiqjwt e.man ought not to be convicted.Middleton
[Bis Lordship then dealt with the facts, and set aside the J'conviotion and acquitted the accused on the ground that theevidence was unreliable.]
Appeal allowed.