029-NLR-NLR-V-43-SIRIWARDENE-v.-SINNETAMBY-et-al.pdf
HOWARD C.J.—Siriwardene v. Sinnetamby.
119
1941Present: Howard C.J.
SIRIWARDENE v. SINNETAMBY et al.
526-28—M. C. Jaffna, 16,449.
Obscene representation—Writing of obscene expressions on walls—Meaning ofrepresentation—Penal Code, s. 285.
The writing of obscene expressions on the wall or other parts of abuilding does not amount to an obscene representation within themeaning of section 285 of the Penal Code.
PPEAL from a conviction by the Magistrate of Jaffna.
S. Nadesan, for accused, appellants.
W. R. Weerasooriya, C.C., for complainant, respondent.
H. W. Thambiah (with him G. G. Hoover) as amicus curiae.
November 24, 1941. Howard C.J.—
In this case the first and second appellants appeal from their con-viction by the Magistrate of Jaffna of having wilfully exhibited to publicview certain obscene publications in contravention of section 285 of thePenal Code. The third appellant was charged with aiding and abettingthe first and second appellants in the commission of this offence andthereby committing an offence under section 102 of the Penal Code.Crown Counsel has not supported the conviction of the third appellant.In fact there is no evidence on which he could have been convicted ofthis charge.
Mr. Nadesan has raised several points with regard to the convictionof the first and second appellants. For the purposes of this appeal itis only necessary to consider ope of them. The case for the Crown wasbased on the evidence of a man called Sabaratnam. This witnessstated that on the day in question he accompanied the three appellantsto an Ambalam where they had toddy. The third appellant was sent
120HOWARD C.J.—Sirivoardene v. Sinnetamby.
by^the first and second appellants to fetch some charcoal from a crema-torium. The second appellant on the return of the third appellantthen started writing in Tamil on the wall, pillars and beam of the Ambalamcertain obscene words. The witness testified as to certain of thesewords which are specified as particular items on a list referred to in thecharge. The writing of two of the items is attributed by the witness tothe first appellant and one of them to the second appellant. Theobscenity of the words is not contested by Mr. Nadesan. The latter,however, contends that the acts of the first and second appellants inwriting these obscene expressions on the walls, pillars and beam of theAmbalam do not constitute offences under section 285 of the Penal Code.With this contention I agree. Mr. Weerasooriya maintains that thewritings made by the first and second appellants were “ obscenerepresentations ” which they were exhibiting to public view. I amunable to accept the view that these writings were representations.Pornographic expressions made in this manner are not, in my opinion,covered by the term “ representation ”. I am fortified in this opinionby the marginal note to the section and the phraseology of the nextsucceeding section 286. The marginal notes to both sections and thesections themselves contemplate the prevention of the mischief thatwould arise from the business of trading in obscene books and pamphlets.It cannot be said that what the first and second appellants did was forthe purpose of a public exhibition.
I think it is possible that a charge laid under section 283 or 287 of thePenal Code might have succeeded.
In this connection I have considered whether section 347 (b) (ii) of theCriminal Procedure Code empowers me to substitute for the verdict ofguilty under section 285 one of guilty under section 283 or 287. Thisprovision allows me in the exercise of my discretion to do anythingwhich the lower Court could have done at the time of its judgment andnothing more. The exercise of such a discretionary power must beregulated largely by what was the nature of the offence in respect of thecharge upon which the appellants were convicted under section 285, andwhether that evidence reasonably supports a charge under section 283or 287 and whether the appellants will be in any way prejudiced orinjured by the alteration of the charge. This is not one of those casesthat comes within the ambit of either section 182 or 183 of the CriminalProcedure Code. On the other hand this fact in itself does not precludeme from exercising my powers under section 347. I am, however, ofopinion that the alteration of the verdict in the manner suggested wouldin the circumstances of this case cause injustice to the appellants.
For the reasons I have given the appeals must be allowed and theconviction of the three appellants set aside.
Set aside.