079-NLR-NLR-V-18-SUB–INSPECTOR-OF-POLICE-v.-JAMES-SINNO.pdf
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Present: Wood Benton C.J.
SUB-INSPECTOR OF POLICE v. JAMES S1NNO.
576-586—P. C. Balapitiya, 40,908.
Martial law—Order promulgated by Officer Commandtuj the Troops—Punishment under the Penal Code, s. 1SH.
In consequence of disturbances,martial lawwas proclaimed
over several Provinces cf Ceylon, add the General Officer Com-manding the Troops was placed in charge of the. maintenance oforder, .and was authorized to take all steps, of whatever naturethat he might deem necessary, for those purposes. The GeneralOfficer Commanding theTroops by an order provided thatno
persons except soldiers, &c., . should be permitted to be in publicstreets and roads between 7 p.m. and 5 4.U. without special passes. .
Held, that a breach cf this order was punishable under section185 of the Penal Code.
There is nothing in clause 111 of the Order in Council of October'iS, 1888,' which requires an offence created by martial law to betried by court martial only.
^IHE facts are set out in the judgment.
A. St. V. Jayewardene, for the appellants.
Bawa, K.C.,8.-G.t for the respondent.
June 22, 1915. Wood Benton C.J.—
This is one of a group of appeals from the Police Court of Balapitiyawhich raise practically the same point of law. 'As far as possible Iwill deal with that point in the present case, and merely refer tothis judgment in disposing of the other appeals. The appellants
1 (1880) Wheeler's P. C. Utc 686.a (I860) Ch. 864.
1815.
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1915. are charged with having on June 9, 1915, disobeyed ” an orderWoon lawfully promulgated by the General Officer Commanding theRb.vton cur. Troops in Ceylon, by being found on the road between 7 p.m. andSub lnspec- 5 a.m., the Province being under martial law,” an offence allegedPUB^kable UQder section 185 of the Penal Code. The appel-tS%nno8 lants severally pleaded guilty, and the learned Police Magistratesentenced each of them to one month’s simple imprisonment, andto a fine of Bs. 25, or, in default of payment, to one week’s simpleimprisonment. In view of the pleas of guilty there would ordinarilybe no right of appeal. But counsel for the appellants has taken*a point of law in their favour, and I shall, therefore, deal with thecase on the basis that an appeal .is competent. Even if- the fact hadbeen otherwise, I should not have hesitated to treat the appealsas ii they had been applications in revision. The material factsare that on August 5 last year, on the outbreak of war betweenGreat Britain and Germany, a Proclamation was issued by -HisExcellency the Governor bringing into operation an Imperial Order,in Council dated October 26, 1896. The effect of that Order inCouncil was to make all persons for the time being within the limitsof the Colony subject to military law, as if they had been personsactually accompanying His Majesty’s troops. In consequence ofrecent disturbances in .this* Colony, martial law was proclaimed onthe 3rd instant, and the General Officer Commanding the Troopswas placed in charge of the maintenance of order and the defence oflife in the Provinces to which the Proclamation applied, sad whichincluded, Balapitiya, and was authorized to take all steps .of whatevernature that he might deem necessary for those purposes. TheGeneral Officer Commanding the Troops, by an order dated the 9tbinstant, provided that no persons' except officers, soldiers, police,postmen and telegraph messengers in uniform, and special constables,should be permitted to be^in the public streets or, roads between thehours of 7 p.m. and 5 a*m» without special passes. This was notthe first order dealing with the subject, for I find that on the 3rdinstant a similar order .was issued, in which, however, the prohibitedperiod was between 6 p.m. and 6 a.m. Section 185 of the PenalCode makes punishable with fine and imprisonment disobedience toan order promulgated by a public servant, lawfully empowered inthat behalf,, to abstain from doing certain acts. The charge against. the appellants is that, after the order with which we are here con-cerned came into operation, they were found on the road between7 p.m^ and 5 a.m., the whole Southern Province being subject at-the time to martial law. Now, if there were nothing more in thecase, it is clear that this conduct would fall within the mischiefstruck at by section 185 of the Penal Code. The order had beenpromulgated at the time when the act complained of was committed;the General Officer Commanding the Troops was lawfully authorizedat the time' to make it, and the appellants disobeyed it. But; their
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counsel relied on a proviso toclause .111 of the Order in CounoilIMG.
of October 28, 1898. That dauBe is in these terms:'* Providedwood
that a person who is by virtue of this Order subject to martial law Renton CJ.shall, tmlftgft Ae Governor directs otherwise, be tried by a competent svb-Inopce-civil court, and not by a courtmartial, for any offence with which torof PoUce
he would be triable if he werenot subject to martial law. /* The
argument put before me was, that wherever > an offence is createdby martial law it is by virtue of this proviso triable^by court martialalone. I am unable to construe the proviso in that sense. Itsmanning seems to tne to be this. Where the condition which it .contemplates has been brought into operation, a person subject tothe application of the Order in Council, who is alleged to havecommitted an offence under martial law, shall be tried by acompetent civil court, unless the Governor gives direction to thecontrary. But it does not follow—the proviso certainly does notsay—that where an offence amounting to a breach of military lawis also an offence under the Penal Code, he must be tried by courtmartial alone. It would certainly in many cases not be in theinterest of the subject that the proviso should be . construed in thissense. For, as we are all aware, the procedure before courts martialis far more summary than that which the Municipal law recognises;and it may be added that the sentences fpr which martial lawprovides are frequently more severe than , those embodied in thePenal Code. For the reasons that I have stated, these appeals—for I have treated them as such, in view- of the point of law that hasbeen urged—must be dismissed. It is impossible for me to interferewith tiie sentences in cases of this kind. The appellants havepleaded guilty, and there has consequently been no investigation ofthe facts.
Affirmed.