127-NLR-NLR-V-19-ROGERSON-v.-BODIYA.pdf

130—P. C. Panwila, 1,366.
t
Criminal trespass—Orderthatcomplainant berestored topossessionof
landr—Criminal Procedure Code, s. 418—Accused re-enteringland soon after restoration of possession—Disobeying lawful ordersof public servant—Penal Code, s. 186.
The accused was convicted of criminal trespass, and at the sametime the Magistrate made an , order, under section 418 of theCriminal Procedure Code, directing' that the complainant be restoredto the possession ofthe land.The orderwas duly carried outby
a headman, but soon after the accused re-entered the land.
Held, that .accused was guilty of disobeying a lawful order of apublic servant (under section 186 of the Penal Code).
The order of the Magistrate was not one directing generally thatthe complainant beplacedinpossession,or an orderaddressedto
some official of theCourttoplace himin possession,but wasan
order upon the accused personally.
r| 1 HE foots appear from the judgment.
Q.Koch, for appellant.—The order in question is ultra vires;section 418 of the Criminal Procedure Code, under which the orderwas made, justifies such order only where the offence of which the-accused is convicted is “ attended by criminal force.” Criminaltrespass is not an offence necessarily attended by criminal force,and there is nothing to show the nature of the offence in this case.Section 185 of the Penal Code, under which the charge is laid, contem-plates an order directed, to the accused. The order which is the sub-ject of the charge was not directed to the accused. There is no proofthat disobedience of the order “ caused or tended to cause obstruction,annoyance, or injury, or risk of obstruction, &c., to any personlawfully employed.” The korala carried out the order without anyobstruction, &c., on the part of the accused. At the time of theexecution of the order the same was under suspension, an appealhaving been filed, and the Police Magistrate had therefore nojurisdiction to enforce such order till the appeal was decided.Ratnalal 236; Starling 246; 12 N. L. R. 155.
V. M. Fernando, C.C., for respondent, cited I. L. R. 6 Calcutta88 and /. L..R. 13 Calcutta 175.
Cur. adv. vult.
March 5, 191?. Ennis J.—
In this case the accused has been convicted, under section 185 ofthe Penal Code, of disobeying a lawful order of a public servantwhich had been duly promulgated. The terms of the order allegedto have been disobeyed differ in the plaint, the summons, and -theformal conviction sheet. The evidence of the order is the document
( AH )
A, which recites that in an action for criminal trespass against theaccused “ it was ordered that' the complain ant be restored to thepossession of the said land.” This order was presumably made undersection 418 of the Criminal Procedure Code. The evidence shows thatit was duly carried out, but half an hour later the accused re-entered theland, and the conviction is based on an implied order to the accusednot to do anything to disturb the possession given by the Court.
There can be no doubt that the only object of an order undersection 418 of the Criminal Procedure Code is to prevent a breach ofthe peace by the occupation being disturbed, as suoh an order confersno title on the person ordered to be restored to possession. It is usual,however, in such orders, to specifically forbid the accused and all-others to disturb the possession, until such disturbance be effected bydue course of law.1 This does not appear to have been done in thepresent case. The point as to how far, if at all, an order can be impliedin connection with a prosecution under section 185 is of some im-portance, and I accordingly refer the case to a Bench of two Judges.
Ennis J.—
I have come to the conclusion, on a further consideration of thiscase, that the Magistrate's order directing the complainant to berestored to the possession of the land was the only order he oouldmake under section 418 of the Criminal Procedure Code. In theIndian cases to which I previously referred, the order prohibitingany one from disturbing the possession was made under the sectionof the Indian Code which corresponds with the Ceylon section 418.The Magistrate’s order as it stood was directed to the accused, whowas the person to *' restore ” the possession. To give possessionand take it back shortly after is not a compliance with the spirit ofthe order, and the accused must have been well aware of it.
The order having been made in a case of criminal trespass, andhaving been prima facie in order and lawful, cannot be challengedwithout proof that the circumstances of the case were suoh as torender such an order unlawful. I would dismiss the appeal.
Shaw J.—
The appellant has been convicted, under section' 185 of the PenalCode, for disobedience to an order duly promulgated by a publicservant, and has been sentenced to' one month’s simple imprisonmentand to a fine of Bs. 20.
On November 17, 1916, the appellant was convicted before thePolice Magistrate of Panwila on a charge of criminal trespass uponland in the occupation of one Hemapala, and was convicted andfined Bs. 50.
The Magistrate at the time of the conviction further made anorder, under section 418 of the Criminal Procedure Code, directingthat the complainant be restored to the possession of the land,
1 In re Surjanarain, 6 Cal. 88; Golusd Chandra, Pal, 13 Cal. 175.
1917.
Emns J.
Rogeretm r.Bodiya
( 512 )
1917.
Shaw J.
Rogeraon v.Bodiya. .
The order was made in the presence of the Moused, and – w»>»interpreted to him by the interpreter of the Court.
On November 22 the Korala of Wagampaha, Fata Dumbara,acting under a written order issued to him by the Magistrate, wentto the land and ejected the accused, and placed Hemapala inpossession. No sooner, however, was the headman’s back turnedthan the accused forcibly re-entered the land and ejected Hemapalaand resumed possession.
The question has been reserved for a Court of two Judges whetherthe accused' can be convicted under section 185 of the Penal Code,the accused not having been directed personally to abstain fromdoing an act, and the order being merely that Hemapala should be“ restored to the possession.” In my opinion he can.
The order was in the form authorized by section 418 of theCriminal Procedure Code, and was the only order that could havebeen properly made under the section. It was made in the presence^of the accused and interpreted to him, and it directed him to putHemapala in possession. It was not, in my view, an order directinggenerally that the complainant be placed in possession, or an orderaddressed to some official of the Court to place him in possession,but was an order upon the accused personally. It is true that anorder was issued subsequently by the Magistrate to the Korala tosee that the order made in Court was carried out, but that order tothe Korala is not the order that the accused is, charged with havingdisobeyed.
The order directing the accused to restore the possession toHemapala necessarily includes an order to leave him in possession,for it does not seem to me that it can reasonably be called restoringpossession of property to a person to put him in and immediatelyturn him out again.
The Indian authorities cited, reported in 1. L. R. 6 Calcutta 88and I. L, R. 13 Calcutta 175, where persons have been convictedunder the section of the Indian Pehal Code corresponding to oursection 185, for disobeying the order of a Magistrate that a personshould be placed and left in possession of property, do not seem to-me to have much bearing on this case, as the iorm of the ordersmade was quite different to that in the present case, and was madeunder section 145 of the Indian Criminal Procedure Code, which isquite different from, and authorizes a different order to, section 418of our Procedure Code.
I would answer the question reserved for a Bench of two Judgesin the affirmative. The other points – arising in the case are dealtwithin the judgment of my brother Ennis.
Appeal dismissed.
H. C. Cottle, Government Pbinter, Colombo, Ceylon.