SOERTSZ A.J.—The King v. Simon Appu.
1936Present: Soertsz A.J.
THE KING v. SIMON APPU et al.
2-22 D. C. (Crirn.) Trincomalee, 273.
Right of private defence—Seizure of fishing boats—Failure to produce coast-wise clearances—Unlawful seizure of boats—Charge of being members ofunlawful assembly and causing hurt—Customs Ordinance, No. 17 of1869, ss. 25 and 108—Penal Code, s. 92.
The Assistant Collector of Customs, Trincomalee, imposed fines on theaccused for not producing coastwise clearances. The accused werefishermen, who had set out from ports, at which it was not usual to.grant clearances. On their failure to pay the fines, the Collector orderedthe seizure of their boats. The accused resisted the seizure and werecharged with being members of an unlawful assembly and with causinghurt.
Held, that the Assistant Collector of Customs had. no authority toimpose the fines and that the seizure was unlawful,—
Held, further, that the accused were entitled to claim the right of privatedefence of property under section 92 of the Penal Code as the seizurewas not at all justifiable in law and not merely “ not strictly justifiablein law ” within the meaning of the section.
PPEAL from a conviction by the District Judge of Trincomalee.
H. V. Perera (with him Sri Nissanka), for accused, appellants.
D. S. Jayawickrema C.C., for Crown, respondent.
June 2, 1936. Soertsz A.J.—
The accused-appellants are twenty-one of the twenty-eight personswho were put upon their trial in the District Court of Trincomalee on anindictment containing eleven charges. On counts 1 to 6 they werecharged with being members of an unlawful assembly armed with deadlyweapons and with having caused grievous hurt and simple hurt tocertain persons. Counts 7 to 11 were alternative charges against thoseof the accused who caused the grievous hurt and simple hurt complainedof. The other accused were not involved in those charges as the chargeswere not framed on the basis of an unlawful assembly.
SOERTSZ AJ.—The King v. SimonAppu.
The trial Judge found the appellants guilty on counts 1, 2, 4, 5, and €and he sentenced the first accused-appellant to various terms ofimprisonment on those counts aggregating to a period of eighteen months.The other appellants were sentenced to terms aggregating nine months’rigorous imprisonment.
On appeal, the facts were hardly contested but Counsel for theappellants contended that the appellants were entitled to be acquittedon the ground that the acts which constituted the offences alleged againstthem, were acts done in the exercise of the right of private defence.
In order to consider their defence, it is necessary to examine the factsthat led up to the occurrences of this day. The accused men werefishermen who put into Trincomalee having set out from Kottegodaand Gandara fishing villages on the Matara-Tangalla coast. They hadcome to Trincomalee to fish. When they reached Trincomalee, theSub-Collector of Customs confronted them with a demand for theircoastwise clearances. They had none to show, for although in theyears 1933 and 1934, these fishermen came to Trincomalee with paperspurporting to be “ clearances ” which they had obtained from the portof Galle to which they had repaired for the sole purpose of obtainingpapers to show when they reached Trincomalee, this year “ some villageHampden” had advised them that they were under no obligation toshow clearances at Trincomalee. The Assistant Government Agent whois also Assistant Collector of Customs held several inquiries and orderedthe seizure of the boats as a means of recovering the fines he had imposed.The accused men had taken time to pay their fines and as they failed topay them, on this day, June 26, the Sub-Collector and some of hissubordinates went down to the beach where the boats were lying, escortedby the Police. The Sub-Collector went up to the first accused’s boat“ to push it into the sea to bring it into the Back Bay Customs ”. Whenthey “ were about to push the boat, the first accused rushed to a boattook out a stick, and called out to the people “ Why are you looking on,why don’t you thrash these men ? ” Then the trouble began.
The learned Judge has accepted this account of the events on theday in question and, in my opinion, the charge in the first count of theindictment alleging an unlawful assembly is made out, for the menbegan to act in response to the first accused’s summons to them “ tothrash these men ”, and they were, therefore, acting together. But thedefence carries the matter further. They say that even if it is assumedthat these men were members of an assembly, their common objectwas not to do any of the things mentioned in section 138 of the PenalCode, but to protect their property in terms of section 90 (2) of thePenal Code. They say that the Assistant Collector of Customs had nopower under the section under which he purported to act, namely,section 25 of Ordinance No. 17 of 1869, to impose the fines he did, becausesection 25 had no application to these boats. These boats had comeadmittedly, from Kottegoda and Gandara where, admittedly, it is notusual to grant “ clearances ”. The defence, therefore, contends thatthe fines were imposed without jurisdiction, that the consequent seizurewas illegal, and the attempted removal of the boats amounted to theft,or at least, mischief, and that acting as the accused men did. to defendtheir property, they are exculpated.
SOERTSZ A.J.—The King v. Simon Appu.
I will state at once that, in my opinion, the Assistant Collector hadno authority under section 25 to impose the fines he did, once it is concededthat Gandara and Kottegoda are not ports and not places where it isusual to grant “ clearances It is true that for a year or two, thesefishermen went to Galle, their nearest port, in order to put themselvesin a position to comply with the demand for “ clearances ” which hadrecently begun to be made at Trincomalee. But they were under noobligation to do all they did.
The fines, then, were illegal and consequently the seizure made undersection 17 a of the Ordinance was also illegal, and what was beingattempted on this day under section 108 of the Ordinance was no lessillegal. If section 90 of the Penal Code stood unqualified, the defenceof the accused is entitled to succeed. But section 90 expressly enactsthat the right of private defence is “ subject to restrictions containedin section 92 ”. Among these restrictions are the following : —
First.—There is no right of private defence against an act whichdoes not reasonably cause the apprehension of death or grievous hurt, ifdone or attempted to be done by a public servant, acting in good faith,under colour of his office, though the act may not be strictly justifiableby law ;
Second.—There is no right of private defence against an act which doesnot reasonably cause the apprehension of death or grievous hurt, if doneor attempted to be done by the direction of a public servant, acting ingood faith, under colour of his office, though the direction may not bestrictly justifiable by law ;
Fourth.—The right of private defence in no case extends to the inflictingof more harm than is necessary to inflict for the purpose of defence.
In this case, on the facts, it is impossible for the defence to contendthat there was a reasonable apprehension of death or grievous hurt tothese men as a result of what was being done or being attempted to bedone by the Sub-Collector.
The only question left, then, under restrictions 1 and 2 is whetherthe accused are exculpated, on the ground that what the Sub-Collectorwas doing that day was something that was altogether illegal and thattherefore, his case does not fall to be described as an act that was only' not strictly justifiable by law ’. The plea for the defence was thatthe act was not at all justifiable by law, and that these men were, therefore,entitled to defend their property, although there was no reasonableapprehension of death or grievous hurt.
This question is a very controversial one. My brother Maartensz J.in Goonesekere v. Appuhamy' cites a passage from Gour’s commentaryon sections 332, 353, and 99 of the Indian Penal Code. Section, 99 ofthe Indian Code is identical with section 92 of our Code. The passagerims as follows :—“But the present trend of the case law on the subjectis anything but harmonious. For …. there are precedentswhich justify an assault to prevent an illegal act merely because it isillegal, there are others in which the illegality is held to be no justification.
‘ 37 N. L. B. 11.
SOERTSZ A.J.—The King v. Simon Appu.
and there are others in which the absence of good faith is inferred fromthe want of legality, while- there are those in which the most outrageousillegal acts are held to justify no assault
In that case, my brother adopted as a good working rule the propositionlaid down by Gour that an accused is entitled to claim exemption undersection 92 if—
—He had reasonable apprehension of death or grievous hurt; or
—If the act of the public servant was wholly illegal; or
—If his act was done otherwise than in good faith.
I respectfully agree that is the correct view of section 92 ; that exemptionis available where the act is wholly illegal, that it is not available wherethe act is not strictly justifiable.
In my opinion, in this case, although the Assistant Collector actedall along in good faith, the act of seizure was ' illegal not merely “ notstrictly justifiable ”. In other words, it was altogether unjustifiable.Section 25 justifies a fine only when vessels arrive without a ‘ clearance ’which it is usual to grant at the place or places from which the vesselshave come.
therefore, hold that the accused were exempted by section 92 andare entitled to be acquitted if the matter stood there. But, it does not.
There is the further restriction which says : that “ the right of privatedefence in no case extends to the inflicting of more harm than it isnecessary for the purposes of self defence ”.
I am clearly of opinion that it was not at all necessary for the accusedto use a knife and clubs as they are proved to have done. Theirconvictions are, therefore, right and I affirm them.
But, in the circumstances of this case, I think the sentences imposedare much too severe. Some allowance must be made for ignorant folklike these men who had been rightly although, I must say, very indis-creetly, advised by a person in authority in their village that they werenot liable to be asked for “ clearances ” and that they should resist thedemand. Section 25 is quite explicit that “ clearances ” are due to beproduced by vessels coming only from places where it is usual to grant“ clearances ”. The Assistant Collector admits that these vessels camefrom Kottegoda and Gandara where it is not usual to grant “ clearances ”but he appears to have been under the erroneous impression that insuch a case, these men were bound to go to their next nearest port inorder to obtain “ clearance ” to show at Trincomalee.
The fines imposed were, therefore, illegal and the attempted seizurewas also illegal and must have given provocation to the accused. I,therefore, am of opinion that some concession should be made to themin the matter of sentence. They have been on remand at one stageof the case for about one month. They have had to face a long inquiryin the Police Court, and a long trial in the District Court. Their boatshave been under seizure and they have suffered financially by not beingable to ply their business for months. There is nothing against thembefore these incidents. I think the ends of justice will be served if thefirst accused is sentenced to two months’ rigorous imprisonment on each
In re de Zoysa.
of the counts on which he has been convicted by the District Judge,,the sentences to run concurrently, the twenty-third and twenty-fourthaccused who caused the grievous hurt to Pachchimuttu Samy, also,to two months’ rigorous imprisonment on each of those counts, sentencesto run concurrently, and the other accused-appellants to one month’srigorous imprisonment on each of those counts, the sentences to runconcurrently.
THE KING v. SIMON APPU et al