012-NLR-NLR-V-08-THE-KING-v.-THURIAPPA-et-al.pdf
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..T^E KING. v. THUBIAPPA et ql,.
:B. C.,. Jaffna, l.dlfo :
Assessors—-Their use to the Judge—Calling accused as a witness against hiswish—Evidence Ordinance,, s. 120, subs. . 4—Criminal Procedure .Code,si. SOS, 096, 300—Riot—Unlawful assembly—Bonsl fide' assertion of legal'' right!
The' Appointment of assessors for the trial of a criminal case is' amatter in the discretion of the Judge. Their appointment may; in aenieoases, be of considerable use to the Judge even where he differs from..themin opinion..
. While section 120., sub-section 4, of the. Evidence Ordinance declaresthat it is competent to an accused party to call himself as a witness onhis own behalf, it gives no right to other people to call him as a witness.A Judge, therefore, cannot under this section force an accused into thewitness bos, nor is he given power to do so by sections 295 , 296, or 302 ofthe ' Criminal Procedure Code.
Certain people of Jaffna of the Potter caste, in their attempt to take aprocession through the court-yard of a Hindu temple, were – repelled byforce (which resulted, in injury to some of them), by people of theVellala caste. The Potters asserted a right to take the processionthrough the court-yard, but it appeared that it' was a right' that theyknew would be disputed by the Vellalas,; and it 'was not clear from, theevidence that the Potters had been in the habit of doing, of right, whatthey attempted to do in this instance, down to a. recent period.
Held, that the Potters could not be said to have acted in the bond .fide.. assertion of a legal right, and that the Vellalas were therefore not. guiltyof riot or unlawful assembly.
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HE facts of this case are as follows.. Sixteen men of the Vellalacaste were charged with having been members of an unlaw-
ful .assembly and with having committed riot on or about the27th October, 1903, at Tunnalai North, in the division of. PointPedro. There were also two other counts, viz., (1) voluntarilycausing grievous hurt, ‘ and (2) voluntarily causing hurt. Theoffences were alleged to have been committed during a kavadiprocession, of men belonging to the Potter caste through the court-yard of a Hindu temple, headed by four headmen, who had heenspecially delegated by the Magistrate, on the petition of the Potters,to go and preserve the peace.
Before the trial file counsel for the accused moved that assessorsshould be appointed to assist the Judge. This application was,however, refused in the following terms:.—:
.“I refuse the application on the ground that sub-section 2 ofsection 213 of the Criminal Procedure Code says the DistrictJudge shall not be bound to conform to the opinion of theassessors. This seems to make trial before assessors somewhatof a farce for it introduces an element of uncertainty and Seesawwhich is demoralizing.”
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At the trial three of the accused were unwilling to go into thebox; the Judge, however, forced them to do so, notwithstandingthe remonstrance on the part of their counsel. All the accusedwere convicted on the ground that the causua belli was given- bythem: the first six on all four counts.
The first six accused appealed.
The case came on for argument before Moncreiff, A.C.J., on 26thJuly, 1904.
Van Langenberg—Under sections 200 arid 207 -of the CriminalProcedure Code the application to try the case before assessors shouldhaveT been allowed. In a trial the accused could not be asked togo into the witness box against his will. Under section 295 itis only in an inquiry that power is given to the Police Magistrateto examine the accused. ..Sub-section 4, section 120, of the EvidenceOrdinance makes an accused only competent to give evidence" on his own behalf,” but he is not compellable to do so. Norcould sections 295, 296, and 302 of the Criminal Procedure Codehave helped the District Judge to assume this power of compul-sion. Again, judging the case on its merits, the Po.tters seem tohave-been the aggressors.
R&mandihan, S.-G., bontra.
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The. following cases were cited by counsel:—P. -C., Chilaw,21,612, decided April 22, 1904; D. C., Jafina, 1,919,. June.4, 1904;
P. C., Nuwara Eliya, 17,058, July 1, 19Q4.
Cur. adv. vult.
28th July, 1904. Moncreiff, A.C.J.—■
' This case arose out of a collision at Jafina between a body . ofPotters and a body of Vellalas. The six appellants belong to theVeUala section, and have been found guilty under four counts,into all of which enters the element of unlawful assembly.
The Potters proposed to carry a havadi procession to theKahdasami temple, which appears to belong to them. Theyproposed also on the way to pass through the courtyard of theA mm am temple, against the wishes of the Vellalas.
For the appellants it is . first urged that the District Judgequestioned the utility of assessors. I think the Judge heed nothavd said so much, for although it is possible to exaggerate thevalue cjf assessors, their presence may, in some cases, be of con-siderable use to the Judge, even where he differs' from them inopinion. The matter, however, is one for his discretion.
1904.July SIS.
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MM. In the next place, objection was taken that the Judge had putJuly 18,^ the accused in the witness box against the consent of some of
Manmunw, them. Three of the accused were unwilling to go into the box.
A.OJ. The Judge said he would call them all, and he called them all. Someremonstrance was made by the counsel who appeared for theaccused, whereupon the Judge said that he relied upon a DistrictCourt, Chilaw, criminal case in appeal. We have since obtainedthe number of that case, 2,506; I have not seen the case, but theJudge has sent an extract from the judgment, which, however,does not appear to me to have any bearing on the subject, andleads me to suspect .that he has mistaken the subject of thatdecision. I think he is wrong in claiming the right hec ha3asserted; neither section 295 nor 296 nor 302 of the CriminalProcedure Code gives him the right. Section 120 of the EvidenceOrdinance, sub-section 4, provides that an accused is a competentwitness on his own behalf.. The words “ on his own behalf,'’ Iimagine to mean that he may call himself, but that other peoplecannot do so against his will. The matter has been dealt with bySir Charles Layard in case No. 21,6i2 of the Police Court ofChilaw on the 22nd April, 1904; by my brother Sampayo incase No. 17,058 of the Police Court of Nuwara Eliya on the 1stJuly, 1904; and also touched upon by my brother Wendt inDistrict Court criminal case No. 1,919, Jaffna, on the 8th June,
Beference to these cases will, I think, show that accordingto the opinion of this Court the Judge was mistaken. I do notthink, however, that the irregularity in this case was sufficient toprejudice the accused in their defence.
The Potters, in order to clear the way, had petitioned the PoliceMagistrate for protection, and the Magistrate issued an order to theUdaiyar to take a number of headmen to see that there was nobreach of the peace. The petition, however, was only withreference to a procession with music, and there is no reference init to the fact that the Potters intended to force their way throughthe northern court-yard of the Ammam temple.. The Udaiyarhimself admits this, and, so far as I can judge, did not inform theMagistrate of whsfi was contemplated. The Magistrate’s ordertherefore had no reference to what the Potters actually did, andgave them no sanction for it. The accused were ready to givewpy if the Udaiyar gave them a writing. The Magistrate hadgiven no such writing, although the District Judge says he had.The Potters went, about seventy persons, -to the northern court ofthe Ammam temple with music and drums, and there were betweenfifteen and twenty Vellalas there unarmed, with their cloths nottucked up for fighting. Stones began to be thrown, and a scuffle took
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place; some persons were injured, and the Udaiyar and the Police 1904-Vidane separated the parties. The Judge admits that the Potterswent to the temple for the purpose of asserting a right; it was a MoN^sfcrrr,right which they knew would be disputed; in other words, they A.C.J.went there for the purpose of having their own way, or if necessaryattacking the other party.
The one point in the case which the Judge has not sufficientlyconsidered is whether the Potters were acting in the exercise of alegal right. I would grant that if they had been in the habit ofdoing what they attempted in this instance to do, of right, downto a recent period, the fact that a dispute had been raised on thepart.of the Vellalas with regard to it is hardly sufficient to deprivethem of the exercise of an apparent right. The accounts given,however, upon this point are somewhat conflicting and verymeagre.' At one time both parties had been in the habit of havingprocessions to the Ammam temple, but the pusari says that theyfell out some time ago—some of the witnesses put it at three yearsago—and the evidence is in favour of that period—that the Pottershad never taken part in any procession of that kind since then,and never at any time except by permission of the Vellalas. Onthe other hand, the Udaiyar, who had no personal knowledge ofthe facts, and I fear is a partisan, declares that when the disputebegan at the temple he questioned the Vellalas who asserted theirright; and that then he turned to the pusari and elicited fromhim a statement to the effect that the Potters were accustomed toexercise the right they churned. That is denied by the pus&ri,and one or two witnesses say one thing and some another. Onsuch evidence it is impossible to hold that these persons wereacting in pursuance of a legal right, and as that element is notestablished the prosecution has, I think, failed to make out thecharges.
The Judge remarked that it was the duty of the Vellalas whenthey were attacked, or rather when the procession entered thenorthern court, to restrain themselves and to remember that theyhad their remedy under the Civil and Criminal Law. He doesnot, however, apply the same observation to the Potters, and Ithink that he forgot for the moment that the Potters were thepersons who went to the spot for the purpose of enforcing whatthey claimed as a right, without informing the Magistrate of theirintention, and well knowing that if the headmen did not interferethere would be a serious breaeh of the peace.
I think that the conviction of these appellants should be setaside.