038-NLR-NLR-V-25-THE-KING-v.-DON-MARTIN.pdf
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Present: Jayewardene A.J.
THE KING v. DON MARTIN.
62—D. C. (Crim.) Colombo, 6,871.
Penal Code, a. 450—Being found in an enclosure belonging to anotherperson—Failure to give a satisfactory account of himself—Failureto account for his presence there—Appeal filed—Accused entitled tobe released on bail—Criminal Procedure Code, s. 34
Accused was charged under section 450 of the Penal Code withbeing found in an enclosure of another person, and failing to givea satisfactory account of himself. The District Judge found thataccused had failed to account for his presence in the enclosure, andconvicted him.
Heldy that the conviction was bad.
“ The words of the section are not ‘ fails to give a satisfactory orlawful excuse for his presence,’ but * fails to give a satisfactoryaccount of himself.’ What the accused has to prove on a chargeof this kind is who he is, and what he is, where he resides, and suchother facts personal to himself. These words 1 giving a satisfac-tory account of himself * would apply appropriately to personswandering about the country without any visible means of subsist-ence and unknown in the places where they are found. Suchpersons should, if the facts justify it, be charged under the firstpart of the section of being found in a building or enclosure foran unlawful purpose.”
To constitute an offence under section 450 actual apprehensionon the premises is not necessary. It is sufficient if a person isdiscovered on the premises but is apprehended after he has quittedthe premises.
'J'HE facts appear from the judgment.
J.S. Jayawardene (with him J. E. M. Obeyesekera), for theappellant.
Dias, C.C.y for the respondent.
August 22, 1923. Jayewardene A.J.—
In this case the accused appellant has been convicted of an offenceunder section 450 of the Ceylon Penal Code, and sentenced to under-go eighteen months* rigorous imprisonment and to two years’ policesupervision, being an habitual criminal. The charge against himwas that he was found in an enclosure, to wit, the premises of one
S.Abeydeera, and failed to give a satisfactory account of himself..The learned District Judge accepted the evidence for the prosecution,
1923.
( no )1928*
JmwAX*DEHA A«Ji
The Kmj v.Don Mar it n
and found that the accused had been seen in Abeydeera’s garden,which was enclosed by a barbed wire fence, on the night of April 29last, and that he had failed to account for his presence on Mr. Abey-deera’s land. In my opinion this conviction cannot be sustained.Section 450, which has been amended by Ordinance No. 16 of .1898,section 16, by the addition of the words “ of cither description ” afterthe word ** imprisonment,” is a reproduction of section 4, clause 6, ofthe Vagrants Ordinance, No. 4 of 1841. The Ordinance of 1841 waBbased on the English Vagrancy Act of 1824 (5 Geo. IV., c. 38), andsections 3 and 4 of the English Act have been taken over with certainalterations and form sections 3 and 4 of the local Vagrants Ordinanceof 1841, The English Act (section 4) declared inter alia—
“ Every person wandering abroad and lodging in any bam
or outhouse, or in any deserted or unoccupied building, orin the open air, or under a tent, or in any cart or wagonnot having any visible means of subsistence and notgiving a good account of himself ; and
" Every person being found in or upon any dwelling house,
warehouse, coach house, stable or outhouse, or in anyenclosed yard, garden, or area for any unlawful purpose” ;
shall be deemed a rogue and a vagabond, within the true intent andmeaning of the Act. (A), with certain variations to suit localconditions, forms section 3 (4) of our Ordinance, and (B), also withsimilar variations, formed the repealed section 4 (6), but the localLegislature had added the words “ or not giving a satisfactoryaccount of himself.” (B), so altered and with some verbal modifi-cations, now forms the subject-matter of section 450 of the PenalCode. This section contains two offences : (1) being found in orupon any building or enclosure for any unlawful purpose ; and (2)being so found, fails to give a satisfactory account'of himself. Itis of the latter offence that the accused has been convicted. Asalleged in the indictment, the prosecution has to prove two things :First, that the accused was found in a building or enclosure ; andsecond, -that he failed to give a satisfactory account of himself.Accepting for the moment the learned Judge’s findings on thefacts, the prosecution has proved that the accused was discoveredin an enclosure, that is, Abeydeera’s enclosed garden. The questionarises, Has the prosecution also proved that the accused failed togive a satisfactory account of himself ? The learned Judge says thatthe accused has failed to account for his presence on Abeydeera’sland. Is that sufficient ? It must be noted that the words of thesection are not “ fails to give a satisfactory or lawful excuse for hispresence,” but “ fails to give a satisfactory account of himself,”In my opinion what the accused has to prove on a charge of thiskind is who he is, and what he is, where he resides, and such other
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foots personal to himself. These words “ giving a satisfactoryaccount of himself “would apply appropriately to persons wanderingabout the country without any visible means of subsistence andunknown in the places wiiere they are found. It can have noapplication to persons having a fixed abode, visible means ofsubsistence, and well known to the persons on whose premises theywere found. Such persons should, if the facts justify it, be chargedunder the first part of the section of being found in a building orenclosure for an unlawful purpose. In fact, I find on reference tothe police report, that the accused was charged with being foundin an enclosed garden with intent to commit an offence, viz., theft,that is, for an unlawful purpose. But the indictment is based ona charge he was never called upon to answer in the lower Court.
The English Act uses the words “ not giving any good account ofhimself ” only in connection with persons wandering abroad, andlodging in bams, deserted buildings, &c., and not having any visiblemeans of subsistence. There a man may be properly called upon* to explain: Who he is ? and What he is ? Such an explanationwould be very appropriate in cases of that kind. Our law has,however, gone further and created a new offence, but I hold thatsuch an offence cannot be said to have been committed byn personwho is not a wanderer, has visible means of subsistence, and has aknown place of residence.
The learned Judge has convicted the accused of failing to satis-factorily account for his presence in Abeydeera’s enclosure, but thatis not an offence under section 450. ■ The accused is not called uponto account for his presence, he has only to give an account of himself.The evidence for the prosecution shows who he is, and where heresides—about one hundred yards from Abeydeera’s house. He waswell known to Abeydeera, and one of his servants has given evidenceagainst the accused in another case. Even the police did not thinkthat the accused could not give a satisfactory account of himself, astheir charge against him was that he was found in the enclosurefor an unlawful purpose. I think that the evidence for the prose-cution itself affords a satisfactory account of the accused.
It was also contended for the accused that to bring him under thesection he should have been arrested in the building or enclosurewhere he was found, and there and then called upon to give an accountof himself. In the present case the accused went away after he hadbeen seen or “ found ” and was not arrested till seven days after.
I do not think this contention is sound. It has been held in theconstruction of the clause of the English Act which I have marked(B) above, and from which the local section has been borrowed, thatthe accused must be discovered upon the premises, but that actualapprehension upon the premises is not necessary (Moran v. Jones1),
25/16
1928.
Jayewab-DENE A. J.
The King v.Don Martin
1 (1911) 104 L. T. 921.
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1928.
Jayewar*
DENE A. J.
The King v.Don Marlin
Lord Alverstone C.J. there said—
“ In my opinion the words ‘ found in or upon any dwelling house,warehouse, coach house, stable or outhouse, or in anyenclosed yard, garden, or area for any unlawful purpose 9ought not to be construed too strictly, and if a chargehad been made against the defendants under that sectionon the night of the 11th (that is, the day on which theywere alleged to have been found in the house), or on thenext day, the fact that they were not arrested until latethe following afternoon would not in my judgmentprevent the Magistrates from convicting him.”
Bray and Bankes JJ. said—
“ In order to be found upon the premises a person must be uponthose premises, and the offence therefore consists in beingupon premises for an unlawful purpose and being foundthere. It is not, in my opinion, sufficient for a person to beupon the premises for an unlawful purpose, unless he wasalso found there. What constitutes a finding within themeaning of the section ? The simplest case would be acase of apprehension upon the premises. Actual appre-hension upon the premises is, however, in my opinion, notnecessary to constitute the offence. I think that theremay be many cases in which a person is found upon thepremises within the meaning of the section, although he isnot apprehended until he has quitted the premises. Toconstitute the offence, a person must, in my opinion, bediscovered upon the premises doing the acts or thingswhich of themselves constitute the unlawful purpose.”
Even on the merits, I am inclined to suspect the truth of the charge.Abeydeera himself did not see the accused. His servants say theysaw him. There has been some unpleasantness between the servantsof Abeydeera and the accused. It appears that the patrol constablescame to the spot soon afterwards, and the servants reported thefacts to them, but they have not been called. They ought to havebeen called to corroborate the servants and to state what steps,if any, they took on the receipt of the information. This is the sortof case which requires prompt and expeditious action. Abeydeeradid not give any information to the police till the following morningwhen he;wrote a letter, P 1, giving the name of the accused, but hedid not there state that his servants had seen the accused. Itwould be unsafe to act upon the evidence called for the prosecution.
I set aside the conviction and direct the acquittal of the'accused.
There is one other matter I wish tp refer to. I find that afterthe petition of appeal was filed the proctor for the accused made anapplication for bail. This application was refused by the DistrictJudge on the ground that the accused was an habitual criminal.
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In making this order the learned District Judge has evidently over-looked the provisions of section 341 of the Criminal Procedure Codeby which a Court is bound to make an order for the release on bailof every convicted person who prefers an appeal. Habitual crimi-nals arc not excluded from the privilege granted by this section-
[Noth.—>ee Kt/rup > J anda, e •i.el ater.]
1023.
JAYEWAB-DENS A.J.
2 he King r.D< n Martin
Set aside.