( 150 )
1896.According to this witness he and his brother constables were
^wtdTj/7 somewhat roughly used by the people in the crowd, and amongst—-'others Mano Sinno, the appellant, struck him on the nose with a
Withers, J. sman axe. Alter Simeon had escaped this witness went to thehelp of the other constable, and the two took Juan with them asfar as the office of the Registrar of Lands. Thereabout Juan, withthe aid of people in the crowd, including Mano Sinno, the appellant,got away from the custody of the witness. Wirakoon’s testimonywas confirmed in a general way by that of his brother officer Ossensa.The chief point made in appeal was that the police constables hadnot the power to arrest either Juan or Simeon, whether they wereengaged in committing an offence or whether they were drunk anddisorderly in a public thoroughfare.
I was at the time somewhat surprised by the argument, for Ihad in my mind, what I could not precisely recall at the time, thejudgment of Mr. Justice Clarence, which I have since found reportedin Wendt’s Reports, page 283.
The case is Keith v. Fernando, and these are the words used bythe learned Justice :—
“ Now, it is proved that the man Juse was brawling in a public“ street, and refused to desist when required to do so by the con-“ stable.” [Wirakoon, the constable, says he told Juan and Simeonto report and go away. It does not appear whether he gavethese men an opportunity to comply with his req est.]
“ And in my opinion a constable under these circumstances, irrespec-• “ tive of a special statutory permission, has a right to arrest a party“ so disturbing the public peace.”
Mr. Clarence’s judgment was pronounced in June, 1883, and theCriminal Procedure Code No. 3 of 1883 came into operation thefollowing October.
It seems to me that the general provisions of chapter IV. andchapter V. of this Code, regarding the powers of arrest by the policeand private persons, must be regarded as comprising the whole of -tbe present law on the subject. Mr. Solicitor-General, as amicuscuriae,, called my attention* to the 51st section of the Police Ordi-nance of 1865, which enacts, inter alia, that every police officer shallapprehend disorderly and suspicious characters.
* This was in regard to a partic-ular argument urged by thecounsel for the appellant. See,however, section 23 of the Licens-ing Ordinance, enacted eight yearsafter the Code, viz., No. 12 of 1891,which runs as follows :—“ Everyperson found drunk and incapableof taking care of himself in anythoroughfare or public place,
whether a building or not’’ or onany licensed premises or tavern,and any person who shall be guiltyof violent, quarrelsome, noisy, dis-orderly, or riotous conduct in orabout such premises or tavern,shall be liable to a fine not ex-ceeding Rs. 5, and on second con-viction within a period of twelve

( 151 )
According to section 2 of the Vagrant Ordinance, No. 4 of 1841,every person behaving in a disorderly manner in a public street isliable to a fine hot exceeding ten shillings; and by section 488 ofthe Penal Code, whoever in a state of intoxication appears in anypublic place and there conducts himself in such a manner as tocause annoyance to any person, shall be punished with simpleimprisonment for a term which may extend to one month. ThePolice Ordinance notwithstanding, my present inclination is tohold that the provisions of the Criminal Procedure Code containthe whole law as to arrest. The offences of affray and'the otheroffences above referred to are non-cognizable offences, and do notcome within the scope of section 33 of the Criminal Procedure. Code,which indicates in what cases a police officer may, without an orderfrom the Magistrate, and withouta warrant, arrest a person. Section34 enacts in what circumstances a police officer may arrest a personcommitting a non-cognizable offence in his presence. When suchperson refuses on the demand of a police officer to give his name andresidence, or give the name or residence which such officer hasreason to believe to be false, he may be arrested by a police officer‘who sees him commit a non-cognizable offence, or receives anaccusation of such an offence having been committed by a particularperson, in order that his name or residence may be ascertained.Only for this purpose may he be arrestfed in such circumstances.No doubt it is the duty of a police officer to use all reasonableendeavours to suppress an affray, and this would justify his layinghands on a person engaged in an affray in order to stop it, but totake a man into custody is a different matter.
My opinion is fortified by my brother Lawrie s judgment in thecase of Jayan v. Allesinno (2 S. C. R. 78).
August 2.S.and 19.
Withers, J
I therefore feel bound to set aside the conviction of Simeon forescaping from the constable’s custody and of Mano Sinno for aidingthe man Jnan to escape from the other constable’s custody.
The sentence of fine imposed on Mano Sinno for voluntarilycausing hint to Wirakoon will stand.
months shall be liable to a fine notexceeding *Rs. 10, and on a thirdor subsequent conviction withinsuch period of twelve months beliable to a fine not exceedingIts. 20. Every person who in anythoroughfare or other publicplace, whether a building or not, isguilty while drunk of riotous ordisorderly behaviour, or who isdrunk while in charge, on any
thoroughfare or other public place,of any carriage, horse, or cattle, orwho is drunk when in possessionof any loaded firearms, may be.apprehended without a warrant,and kept in custody until he getssober, and shall be liable in addi-tion, tb a fine not exceeding Rs. 20,or to simple or rigorous imprison-ment for any term net exceedingone month.”—Ed.