065-NLR-NLR-V-66-SIMON-APPUHAMY-et-al.-Appellant-and-THE-QUEEN-Respondent.pdf
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SAJSTSONT, J.—Simon Appuhamy v. The Queen
Present: Sansoni, J., and T. S. Fernando, J.SIMON APPUHAMY et al., Appellant, andTHE QUEEN, Respondent
S. C. 59-60—D. C. (Grim.) KegalleJ 2820
Explosives Act—Section 25—Inspector of explosives—Power to search a house forexplosives—Legal position of constables who accompany the inspector—PenalCode, ss. 32, 92 (2), 323, 324—Police Ordinance, s. 68—Criminal ProcedureCode, s. 32.
Although a Sub-Inspector of Police, in his capacity as an inspector of explo-sives, is entitled under section 25 of the Explosives Act to enter and search abouse for explosives, neither that Act nor section 68 of the Police Ordinanceauthorises him to take police constables to assist him in his entry and search.The constables who so assist him would not be acting in-the discharge of theirduty as public servants within the meaning of section -323 or section 324 of thePenal Code. However, if the Sub-Inspector is attacked by cccupants of thehouse, the constables are entitled to arrest them under the powers arising fromsection 32 of the Criminal Procedure Code.
Ar
PEAL from a judgment of the District Court, Kegalle.
Colvin It. de Silva, with K. Sivasiibratnaniam, for the Accused-Appellants.
Shiva Pasupati, Crown Counsel, for the Crown.
Cur. adv. vult.
November 2, 1961. Sansoni, J.—
The two accused in this case have been convicted of voluntarilycausing grievous hurt to Sub-Inspector Fernando, a public servant,-while in the discharge of his duty, an offence punishable under section324 read with section 32 of the Penal Code. They have also been■convicted of voluntarily causing hint to the Sub-Inspector and to police■constables Gajanayake, Rajapakse and Peter while in the discharge oftheir duty as public servants, offences punishable under section 323read with section 32 of the Penal Code.
The case for the prosecution was that at 9.25 a.m. on the day in question■one Noris Singho informed S. I. Fernando that he had a short whilepreviously been to the boutique of the 1st accused, where he heard the1st accused asking another man to take away some hand bombs. Theinformation, which was recorded by S. I. Fernando, was also to the effectthat if the Police were to go there immediately the bombs could be
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detected. Accordingly S. I. Fernando went to the 1st accused’s boutiquealong with police constables Gajanayake, Rajapakse and Peter in ajeep, reaching the boutique at 9.45 a.m. The 1st accused was said tobe sitting at a counter when Fernando went inside and explained thepurpose of his visit and the information he had received. According toFernando, the 1st accused consented to his searching the boutique,and he accordingly ordered the three constables to search it, whileFernando stood near the counter.
Fernando said that the 1st accused then stretched his arm and triedto take a cardboard box which was on the counter ; he held the 1staccused’s hand to'prevent him touching the box. At that stage he washit on his head by the 2nd accused, who is a son of the 1st accused, witha club. The medical evidence showed that this blow caused a fracture.Fernando lost his grip on the 1st accused as a result of the blow. Gaja-nayake and Rajapkse came up to the 2nd accused and tried to disarm him.The 1st accused then hit Gajanayake on his head, and when Fernandoseized the 1st accused the latter bit him on his forearms. Peterthen struck the 1st accused who bit Peter and hit him with a club, whilethe 2nd accused hit Rajapakse with a club. The accused are said tohave run away at this stage and the Police party returned to AlawwaPolice Station, with the cardboard box. It had four hand-made bombsan it. The medical evidence shows that the three constables and bothaccused had also received injuries.
The 1st accused in giving evidence said that he was standing outsidethe entrance to the boutique when the Sub-Inspector came with somepolice constables and tried to enter the boutique ; when the Sub-Inspectorinformed him that he wanted to search the boutique, he asked himwhether he had a search warrant. The Sub-Inspector then seized him,and the constables assaulted him. While they were assaulting him hecried out, and his son, the 2nd accused, came up with a club and hit the•constables. He denied that he had any explosives in his boutique,or that the police party entered his boutique, or took anything awayfrom it. He attributed the visit of the police party that day to an earliercomplaint that he had made against Peter, that he had taken bribes.He said that he had given evidence before the A. S. P. at an inquiryheld into that petition.
Mr. de Silva urged that the prosecution story was unsatisfactory,and that the evidence of certain prosecution witnesses should not havebeen accepted. In particular he referred to the evidence of Rajapaksewho contradicted the other witnesses when giving a description of thecardboard box. He also pointed out that Peter had contradicted theevidence he gave at the magisterial inquiry in regard to the petition sentagainst him by the accused. The learned Magistrate has considered
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SANSONI, J.—Simon Appuhamy v. The Queen
tbese and other matters, which seem to have been pointed out to him atthe trial, and he has chosen to believe the prosecution version as to whathappened on that morning. I do not think we should upset the findingsof the learned Magistrate who was impressed, in particular, by thoevidence of Sub-Inspector Fernando.
It is clear that Fernando was entitled 1o enter, inspect, and searchthis boutique under the provisions of section 25 of the Explosives Act,No. 21 of 1956. He is deemed to be an Inspector of explosives for thepurposes of the Act and he had the right to do what be did, as he hadreason to believe explosives were to be found there. The accused there-fore had no right to obstruct or attack him when he entered the boutique.The 2nd accused who struck him on his head and caused the grievousinjury is therefore guilty under count (1), while the 1st accused is guiltyunder count (2). It is not possible to find both accused guilty on eachof these counts because the evidence does not show that they were actingwith a common ii-tentior, but rather that each was acting independentlywhen he attacked the Sub-Inspector.
The difficult question arises as to whether Fernando was entitled totake the three constables with him into the boutique, and whether theywere entitled to search the boutique. No doubt they wore acting inorder to assist Fernando, and the indictment alleges that they werepublic servants acting in the discharge of thou duty as public servantsin assisting Sub-Inspector Fernando in the entry, inspection and searchof the boutique. But the Explosives Act docs not authorise an Inspectorof explosives to take others to assist him in his entry and search. Wewere not referred to any other Act or any decided case according towhich Fernando could have lawfully called upon these constables toenter the boutique and search it with him. Section 68 of the PoliceOrdinance Cap. 53 authorises any police officer without a warrant to enterand inspect “ all premises of persons suspected of receiving stolen property,and any locality, vessel, boat or conveyance in any part whereofhe shall have just cause to believe that crime has been or is about to becommitted The significant change of wording, which draws a dis-tinction between “ locality ” and “ premises ”, seems to me to deny apolice officer the right to enter and inspect houses where a crime, outsidethe categories earlier specified, is to be investigated. It would seem,therefore, that the constables were not acting in the discharge of theirduty as public servants.
The question remains, however, whether the accused were entitledto cause hurt to the three constables who were obviously assistingFernando and acting under his directions. I have no doubt that theyknew that the constables were acting under Fernando. Had they the
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right of private defence against the acts of the constables which werebeing done by the direction of S. I. Fernando ? Under section 92 (2)of the Penal Code, there is no right of private defence against an act"which does not reasonably cause the apprehension of death or of grievoushurt, if done or attempted to be done by the direction of a public servantacting in good faith under cover of his office, though that direction maynot be strictly justifiable by law. The accused obviously knew that the•constables were acting by the direction of Fernando, within the meaning•of explanation (2) to section 92.
Even if some doubt arises as to whether the accused did or did notreasonably apprehend grievous hurt to themselves at the hands of theconstables who were armed with batons, any question of apprehending-any kind of hurt at the hands of the constables could have arisen onlyafter the 2nd accused had unlawfully hit S. I. Fernando on the head witha club. At that stage the constables were lawfully entitled to come, asthey did, to the rescue of their Inspector and to protect him from further-attack. When the 1st accused attacked P. C. Gajanayake at that stage,"the constables were entitled to arrest both accused under the powersarising from section 32 of the Criminal Procedure Code. The constableswere at that stage acting in the exercise of the right of private defence,mid it is not open to either accused to claim that he was entitled by lawto attack or resist persons lawfully exercising such a right.
I am therefore of opinion that the convictions on the charges of causinghurt to the constables were justified. As I have held already that the-accused were acting independently of each other and not in furtheranceof a common intention, only the 1st accused can be dealt with for thehurt caused to Gajanayake and Peter, and only the 2nd accused can be•dealt with for the hurt caused to Rajapakse. The convictions on the-3rd, 4th and 5th counts of the indictments must be altered to convictionsof the offence of voluntarily causing hurt punishable under section 314•of the Penal Code.
Accordingly, the 1st accused will stand convicted on count (2) of theindictment, and on counts (3) and (5), with the charge in each of thelatter counts altered to one of voluntarily causing hurt. The 2ndaccused will stand convicted on count (1) of the indictment and on count
, with the charge on the latter count altered also to one of voluntarilycausing hurt. The sentences imposed by the trial Judge on the severalcounts will, however, stand.
T. S. Fernando, J.—I agree.
Charges on certain counts altered.