006-NLR-NLR-V-38-S.-I.,-POLICE-v.-WIJESEKERE.pdf
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S. I., Police v. Wijesekere.
Present : Koch J.
S. I., POLICE v. WIJESEKERE.
701—P. C. Badulla, 19,524.
Insult—Abuse intended to be provocative—Elements of offence—Penal Code,s. 484.
Abuse is not punishable under section 484 of the Penal Code unless theperson abusing gives provocation, intending or knowing it to be likelythat such provocation will cause the person provoked to break the peaceor to commit any other offence.
^^PPEAL from a conviction by the Police Magistrate of Badulla.
S. Nicholas, for accused, appellant.
Cur. adv. vult.
KOCH J.—S. I., Police v. Wijesekere.
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November 13. 1935. Koch J.—
I have not had any assistance from the respondent in this appeaLThe appeal is from a conviction under section 484 of the Penal Code forintentionally insulting and giving provocation to a Sub-Inspector ofPolice. The appellant was fined Rs. 25. The appeal is based on a pointof law.
Now, the law requires that the insult must be provocative and intendedby the accused, and further that it must be established that the accusedintended or knew it to be likely that such provocation will cause the partyprovoked to break the public peace or commit any other offence.
The language used by the accused does appear to be abusive andinsulting, but the question arises as to whether fhis is sufficient to warranta conviction under the section. It is true that the Sub-Inspector in hisevidence has stated that he was humiliated, and that had he not left theplace, he might have been compelled to commit a breach of the peace.This may correctly represent the feelings of the party insulted, but thelaw requires that the Court should be satisfied as to the intention of theaggressor.
The learned Police Magistrate has held that the Inspector had made anunwarranted entry into the accused’s pharmacy and proceeded to insiston his right to hold an inquiry in respect of the illegal dispensing ofmedicines.. He therefore acquitted the accused on the other chargeframed under section 183 ; briefly, that charge was to the effect that theaccused had obstructed a public servant in the discharge of his publicfunctions.
Now, this being the position, it would not be unreasonable to expectthat the accused, who was a registered medical practitioner and waspreviously in Government service for a period of 15 years, would haveresented the intrusion. In fact the accused does say in his evidencethat he “ could have asked the Inspector ”, to use his own words, “ toclear out and that both exchanged words ”.
It is argued that where a person.without legal warrant therefor forceshimself into premises in occupation of another and insists on holding aninquiry, he unjustifiably provokes that other, and if the other turnsabusive and insulting—as is only to be expected—it cannot be presumedthat the other intended by his retaliatory conduct to provoke the formerto commit a breach of the peace, particularly where the party abused isa minion of the law and is expected to keep himself under restraint and toexercise prudence.
Lord Ellenborough, in Rex v. Southerton required the threat or abuseto be of such a nature as to overcome a firm and prudent man.
Jayewardene A.J., in Herath v. Rajqpak.se", where he dealt with thecase of a Police Officer similar to the present case, in setting aside theconviction, was of opinion that firmness and prudence are expected of aPolice Officer and that an ebullition of temper on the part of an accusedwhich results in the use of abusive language is not sufficient in law toconstitute the offence.
In Mataragawara v. Unnanse5, Pereira J. held that although thelanguage complained of was indecent and abusive no offence was made
1 6 East 126.11 C. L. W. 326.3 2 Crim. Appeal Reps.~49.
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KOCH J.—S. I., Police v. Wijesekere.
out unless it can be said that the accused intended by the use thereof toprovoke the complainant to commit a breach of the peace or knew thathe, by the words used by him, was likely to cause the complainant tocommit a breach of the peace.
In Rahaman v. Per era Lyall Grant J., upholding the principle set outabove, held that in his opinion it could not be said that the accused hadthe intention or the knowledge of the likelihood previously referred to.
In Batcha v. Dunns, Hutchinson C.J., in agreeing that the languageused was foul, inexcusable, and reprehensible in the highest degree, stillwas of opinion that no offence was committed unless it appeared fromthe circumstances and, having regard to the person to whom it wasaddressed, that the person who used it intended or knew that it was likelyto cause the person to whom it was addressed to break the peace or commitsome other offence.
The Inspector in the case before me ought to have known that anunlawful entry on his part was calculated to result in repercussions, andhe should have been prepared to steel himself against any method ofresentment the party aggrieved would in every probability adopt, whileon the other hand it would be reasonable to expect that the party annoyedwould give full vent to his feelings as a retaliatory measure withoutintending or knowing it likely that a Police Officer from whom isexpected firmness and prudence would lose his head to such a degree asto cause a breach of the peace.
The conviction cannot be sustained and must be set aside. Theaccused is acquitted.
Set aside.
(1929) 10 C. L. B. 160.
1 3 S. C. D. 80.