140-NLR-NLR-V-47-SINNALEBBE-et-al-Appellants-and-THE-POLICE-Respondent.pdf
JAYETTLiEKE J.—Sinnalebbe v. The Police.
405
1946Present: Jayetileke J.
SINNALEBBE et al., Appellants, and THE POLICE, Respondent.633-634—M. C. KaXm,unai, 1,581.
Private defence—Wrongful arrest by public servant—Arrest wholly illegal—Arrested person’s right of private defence—Penal Code, s. 92 (1).
Section 92 (1) of the Penal Code does not deprive a person of the rightof private defence against an act done by a public servant if the act of thepublic servant is wholly illegal.
Goonesekere v. Appuhamy (1935) 37 N. L. R. 11 and The King v.Simon Appu (1936) 38 N. L. R. 240, followed.
A
PPEAL against two convictions from the Magistrate’s Court,B&tticaloa.
R.L. Pereira, K.C. {with him C. T. Olegasegarem), for the accused,appellants.
V. T. Thamotheram, C.C., for the Attorney-General.
Cur. adv. vult.
July 9, 1946. Jayetileke J.—
On the night of September 30, 1945, the accused were transportingsome timber in six carts when they were stopped by two Forest Guardsand questioned whether they had a permit. The 1st accused producedthe permit PI which is written in Sinhalese. The Forest Guards couldnot read the permit, and in order to get it read by the headman, theyrequested the accused to turn the carts and go with them to the head-man’s house. After going some distance the accused refused to gofurther. The Forest Guards insisted on their going, and this led to aquarrel in the course of which the 2nd accused struck one of them on thehead with a club which caused a lacerated scalp deep wound. Themedical evidence shows that the injury was non-grievous. Throughfear, one of the Forest Guards fired a gun, which he had with him, intothe air, whereupon, the 1st accused snatched the gun out of his hands andran away. The 1st accused was convicted of robbery of the gun andsentenced to six months’ rigorous imprisonment, and of voluntarilycausing hurt and sentenced to three months-’ rigorous imprisonment,the sentences to run concurrently. The second accused was convictedof voluntarily causing hurt and sentenced to six months’ rigorousimprisonment. On appeal it was urged that the refusal of the ForestGuards to allow the accused to proceed on their journey amounted to anarrest and that, in the absence of a warrant, the arrest was wholly illegal.At the trial the validity of the permit PI was not questioned by theprosecution. Section 27 of the Forest Ordinance (Chapter 311) empowersa Forest Officer to stop and examine any timber during transit and todetain it if it is, in his opinion, being removed contrary to the provisionof the Ordinance, and to deal with it as provided in Chapter VTI. Sections
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JAYETTLEKE J.—Sinnalebbe v. The Police.
37 and 38, which are in Chapter VTL, provide that a Pore at Officer mayseize any timber when he has reason to believe that a forest offence hasbeen committed, and that, when he seizes any timber, he should placea mark on it indicating that it has been seized, and make a report of thecircumstances to the Government Agent. The evidence in this casedoes not show that the Porest Guards exercised the powers conferredon them by sections 27, 37 and 38. On the contrary, it shows that theywanted to take the accused and the timber to .the Village Headman’shouse in order to decide whether they should exercise these powers.There is nothing in the Ordinance which empowers a Porest Guard tostop a person who is transporting timber on a permit and take himseveral miles out of his way in order to get the permit read. Section 48
gives a Porest Officer the right to arrest without a warrant any personreasonably suspected of having been concerned in any forest offencepunishable with imprisonment for one month or upwards, only if suchperson refuses to give his name and residence or gives a name and residencewhich there is reason to believe to be false or if there is reason to believethat he will abscond. The Porest Guards had no warrant to arrest theaccused and there is no evidence that they asked the accused for theirnames and residences or that they had reason to believe that they wouldabscond. In my opinion the detention of the timber and the arrest of theaccused were illegal. Learned Grown Counsel sought to support theconvictions under section 92 (1) of the Penal Code which reads :
There is no right of private defence against an act which does notreasonably cause the apprehension of death or grievous hurt, if done,or attempted to be done, by a public servant acting in good faith undercolour of his office, though that act is not strictly justifiable in law.
In Goonesekere v. Appuhamy1 and The King v. Simon Appu 2 it washeld that the exception was available unless the act was wholly illegal.
I think that the accused were exempted by section 92 and that theyare entitled to be acquitted on count 2. So far as the conviction of the1st accused on count 1 is concerned I see no reason to interfere with it.But in the circumstances of this case, I think that the sentence imposedon the first accused is too severe. Mr. Pereira suggested that the 1staccused snatched the gun from the hands of the guard and ran awaythrough fear that he would be shot. There seems to h® some force inthat suggestion but there is no evidence to support it. If that is reallywhat happened the 1st accused should have gone into the witness boxand said so and should also have returned the gun. I think the ends ofjustice will be served if the 1st accused is sentenced to one month’srigorous imprisonment and to pay a fine of Rs. 100 on count 1. If thefine is not paid he will suffer rigorous imprisonment for a further periodof one month. The conviction and sentence on count 2 are set aside.
Appeal of 1st accused partly allowed.
Appeal of 2nd accused allowed.
5 (I»35) 37 m. L. R. 11.
(1936) 38 N. L. R. 240.