DIAS J.—Seenithamby v. Janet (A. G. A.) .
1948Present: Dias J.SEENITHAMBY el al., Appellants, and JANSZ (A. G. A.),Respondent.
616-621—M. C., Kalmunai, 1,754.
Charge of obstructing public servant—Food Control Guard, alleged publicservant—Proof is necessary of his appointment and status as publicservant—Penal Code, s. 183—Defence (Purchase of Foodstuffs) Regula-tions, 1942, Regulation 6.
Appeal Court—Request for new trial—Circumstances when it will not be granted.
Judicial notice -will not be taken that a “ Food Control Guard ” is apublic servant within the meaning of section 183 of the Penal Code orthat he was duly appointed under Regulation 6 of the Defence (Purchaseof Foodstuffs) Regulations, 1942.
The Court of Appeal will not order a new trial where the proceedingsare so irregular that the Court by acceding to a request for a new trialwill merely encourage slackness, negligence and inexactitude on thepart of prosecutors.
Per Dias J.—“ Magistrates …. should themselves inde-pendently consider the matter and see that the charges, whether insummary or non -summary proceedings, are in due form and adequatelyset out the offence or offences "
PPEALS against certain convictions from the Magistrate’s Court,Kalmunai.
G. E. Chitty (with him G. T. Samarawickreme), for the accused,appellants.
A. C. M. Ameer, C.C., for the eomplainant, respondent.
Cur. adv. wit.
October 23, 1946. Dias J.—
The six accused appellants and the seventh accused were jointlycharged with committing three offences alleged to have been committedon December 27, 1945, at a place called Periyakallar. In the first countthe first and second accused alone were charged with transporting twobags of rice without a permit in breach of the appropriate DefenceRegulations. In view of the arguments advanced at the hearing of thisappeal, it is necessary that count two should be set out at length. Itruns as follows :—
“ At the time and place aforesaid and in the course of the sametransaction, the above-mentioned seven accused did voluntarilyobstruct Food Control Guards (1) S. Saravanai, (2) A. K. Rajadurai,
S. Seenithamby, and (4) V. Sanmugampillai acting under under thelawful orders of such public servants, and thereby committed anoffence punishable under section 183, Chap. 15 N. L. E. of Ceylon.”
This charge has been copied by the Magistrate verbatim from the Policeplaint filed in the case.
In the third count the seven accused were jointly charged with volun-tarily causing hurt “ to the said Food Control Guards ” under section314 of the Penal Code.
DIAS J.—Seenithamby v. Jansz (A. O. A.).
The Magistrate found the first to the sixth accused guilty of the firsttwo charges and the first accused alone guilty under the third charge.It is not clear how the Magistrate could have convicted any one otherthan the first and second accused under the first count, because thatcharge was preferred against them alone. He fined the first and secondaccused Rs. 300 each on the first charge. The second, third, fifth andsixth accused were fined Rs. 50 each on the second count while the firstand fourth accused he sentenced to undergo four months’ imprisonmenton count two. On the third count he sentenced the first accused toone month’s rigorous imprisonment.
The following submissions were made on behalf of the appellants :—
(а)Count 2 in the charge is defective in that it does not in terms of
section 169 of the Criminal Procedure Code give sufficientnotice of the matters with which the accused are charged, andin particular because the charge is unintelligible, the mannerof the alleged obstruction is not specified, and the status ofPood Control Guards to be considered “ public servants ”within the meaning of section 183 of the Penal Code has neitherbeen alleged in the charge nor proved by the evidence.
(б)The third count has not been established, because if the persons
to whom hurt is alleged to have been caused have not beenproved to be Food Control Guards or “ public servants ” nooffence would be committed by resisting them when thesepersons tried to stop the first and second accused.
The charges disclose a misjoinder of charges and accused, becausethe three offences were not committed in the same transactionwithin the meaning of sections 180 (1) and 184 of the CriminalProcedure Code.
In a charge under section 183 of the Penal Code the prosecution has toestablish (i.) that the persons obstructed were public servants, or personsacting under the lawful orders of a public servant, and (ii.) that theaccused voluntarily obstructed such persons. I have carefully readthrough the record after hearing counsel, but fail to find any sufficientevidence which establishes the first ingredient necessary to constitutethis offence.
The copy of the Defence (Purchase of Foodstuffs) Regulations, 1942,handed to me by Crown Counsel contains no definition of “ Food ControlGuards ”. Regulation 6 (1) empowers a person authorised thereto inwriting by a Government Agent to stop vehicles or vessels used incontravention of the Regulations. The accused were not alleged to betransporting rice in a vehicle or vessel, and there is no evidence thatthese Food Control Guards had any authority in writing SimilarlyRule 6 (2) empowers a person authorised in writing by the GovernmentAgent to enter, inspect and search places or premises. There is no proofthat these Guards had any such authorisation, and they were notendeavouring to make any search or inspection. Crown Counsel hasreferred me to Regulation 2 (2) of the Defence (Miscellaneous) Regula-tions where it is provided that “ any person entrusted or vested by orunder any defence regulation with any duty, power or authority shallbe deemed to be a public servant ” within the meaning of the Penal
DIAS J.—Seenilhamby v. Jansz (A. O. A.).
Code.” The point, however, is that there is no evidence at all that anyof these Guards have, in fact, been entrusted or vested with any duty,power or authority under the Defence (Purchase of Foodstuffs) Regula-tions under which they purported to act. The only evidence is that thewitnesses Saravanai, Rajadurai and Sanmugampillai have stated thatthey are Food Control Guards and that they were out on patrol whenthe incidents occurred. In my view such assertions do not prove theywere in fact public servants. This was a prosecution undertaken by thePolice. The plaint has been signed by a person styling himself “ A. G. A.(E), Kalmunai ” and countersigned by one K. Kandi ah who is the Inspectorof Police, Kalmunai, and a Police Sergeant conducted the prosecution.It is therefore greatly to be regretted that by reason of the negligenceof these publig servants a matter which should have been capable ofeasy proof has been omitted.
Crown Counsel has cited the case of R.v. Dingiri Menika1 which decidesthat where in a charge of obtructing a public servant under section 183the public servant states that he holds the appointment in question,and that statement is not contradicted, it is not necessary to producehis act of appointment. It is to be noted that in that case there wasno appearance for the accused respondent. A person stated that hewas an “ arachchi ” and no question was raised as to his status until thetrial Judge took it up in his judgment. Everybody knows what an“ arachchi ” is, but who and what is a “ Food Control Guard ” ? InPerera v. Alims 2, this Court refused to take judicial notice of a “ PriceControl Inspector ”. I am unable to judicially notice a “ Food ControlGuard ”. It was the duty of the prosecution to establish that thepersons obstructed were “ Food Control Guards ” and that such Guardswere “ public servants ", There has been a failure of proof of aningredient of the offence and for that reason alone charge 2 fails.
A further serious defect in this charge is that it does not specify themanner in which the alleged obstruction was caused. R. v. Paraman-palam 3. I cannot leave this part of the case without expressing surpriseas to how an “ A. G. A. (E) ” and an Inspector of Police came to passsuch a defectively worded plaint, and how the Magistrate came to adoptand copy this gibberish into the charge he framed. I can only surmisethat this was done by some clerk, and the Magistrate adopted it withoutstudying it and satisfying himself that it was a good and proper charge.The sooner such negligent practices cease, the better it will be for theadministration of justice.
Magistrates must not slavishly adopt as charges the plaints tenderedby the police, either in summary or non-summary cases, but shouldthemselves independently consider the matter and see that the charges,whether in summary or non-summary proceedings are in due formand adequately set out the offence or offences.
In my opinion the second charge fails because a requisite ingredienthas not been established.
With regard to the third charge, the Magistrate has held that thecase has been exaggerated by the prosecution witnesses. The doctorfound that Rajadurai had a superficial abrasion on the root of his ring
» (1929) 31 N. L. R. 301.* (1944) 45 N. L. R. 136.
3 (1935) 37 N. C. R. 335.
The King v. GUrigoris Appnhamy.
finger. The doctor said that, in his opinion, he would expect to find adeeper injury if it was caused by Rajadurai snatching a knife fromanother. Saravanai had a contusion on his forehead. Assuming thatthe first and second accused were transporting rice, and that Saravanaiand his companions stopped them and wanted to take them forciblyto the Food Control Station, it is but natural that the accused wouldresist, and that their friends would come to their aid. There is noproof that these men were public servants or that the accused knewor had reason to believe that they were public servants. There is noproof that the Guards disclosed their status or authority. I do notthink that the accused exceeded their rights of private defence in thecircumstances, and this charge fails.
In regard to the first charge, the first and second accused gave noevidence. There is direct evidence that they were seen transportingtwo bags of rice. When questioned they stated they had no permits.In the melie which followed, the bags of rice disappeared. Some ofthe split rice was produced at the trial. The evidence which theMagistrate has accepted establishes the charge under section 4 of theDefence Regulations. The fact that the Guards have not been provedto be public servants does not affect the guilt of the first and secondaccused on count 1.
I have been asked to send back the case as against the first to thesixth accused on count 2 for a new trial. I do not think I shall bejustified in so doing. To accede to such a request will merely encourageslackness, negligence and inexactitude on the part of prosecutors.
(Mendis v. Kaithan Appu1; Rosema lecocq v. Kaluwa 2).
In view of these findings, it is unnecessary to consider whether therehas been a misjoinder of charges and accused.
I affirm the conviction and sentences of the first and second accusedunder count 1. I set aside the convictions and sentences under count 2and discharge the accused under that count. I acquit the first accusedunder count 3 and the third, fourth and fifth accused under count 1.
Appeals of first and second accused partly allowed.
Appeals of the other accused allowed.
SEENITHAMBY et al , Appellants , and JANSZ (A. G. A. ), Respondent