SOERTSZ J.—Veerastngham v. Meenatchy.
1941Present: Soertsz J.
VEERASINGHAM v. MEENATCHY.
462—M. C. Jaffna, 15J64.
Public Servant—Surveyor employed by Fiscal—Obstruction to survey—Motivefor obstruction—Penal Code, s. 183.
A surveyor employed by the Fiscal to prepare a plan for the purposeo£ executing a Fiscal’s conveyance in terms of section 286 of the CivilProcedure Code is a Public Servant within the meaning of section 183of the Penal Code.
For the purpose of a conviction under the section the motive of theperson obstructing is immaterial.
^ PPEAL from a conviction by the Magistrate of Jaffna.
P.Navaratnarajah, for the complainant, appellant.
M.Balasunderam, for the accused, respondent.
Cur. adv. vult.
November 13, 1941. Soertsz J.—
This is an appeal, sanctioned by the Attorney-General, from an ordermade by the Magistrate of the Jaffna Court acquitting a person chargedunder section 183 of the Penal Code with obstruction to a public servantin the discharge of his public functions. The person obstructed was a1 8 S.C. C. 135.* 11 N. li. B. 225.
SOERTSZ J.—Veerasingham v. Meenatchy.
licensed surveyor. The occasion on which the obstruction took placewas when on December 9, 1940, this officer went to survey a land whichhad been sold against the husband of the accused in execution of a decreeof Court. The order confirming the sale is an exhibit in this case and ismarked PI.
The two questions that arise for decision are : —
was this surveyor a public servant acting in the-discharge of his
public functions ?
was he voluntarily obstructed ?
In regard to question (a), the uncontradicted evidence of the complain-ant is that he “ went to the land in question on the orders of the Fiscalto make a survey and to prepare a plan for the purpose of executing aFiscal’s conveyance ”. He also testified to the fact that he has been* registered ’ to carry out Fiscal’s surveys and that he was given theorder, confirming the sale, by the plaintiff’s agent, who also paid himhis fees for making the survey and the plan. Section 286 of the CivilProcedure Code provides for a conveyance by the Fiscal or DeputyFiscal to the purchaser, and enacts that “ in the event of there beingno diagram or map of the premises which are the subject of the con-veyance already appended to a title deed …. thereof ….there shall be annexed a sufficient map …. and the purchaser shallpay in advance the expense of preparing it ”. Finally, the sectionprovides that “ such diagram or map shall be prepared by a competentsurveyor licensed by the Fiscal or Deputy Fiscal for that purpose andsuch surveyor shall be an officer of the Fiscal within the meaning of section325, and shall for the purposes of the Penal Code be deemed to be a publicservant ”. It is quite clear, therefore, that the complainant was in theposition of a public servant discharging public functions on this occasion.
The next question is whether the accused voluntarily obstructed him.On the evidence, it is quite clear that she did. She says she “ asked thesurveyor not to survey the land ”, but the surveyor’s evidence is thatshe went further and held the chain and obstructed him from surveyingthe land and pushed out the plaintiff’s agent who was with him. Thisis the more probable version and the Magistrate has impliedly accepted it.But he took the view that the accused was entitled to an acquital becauseshe was exercising rights on behalf of her minor son to whom the landin question had been conveyed prior to the decree entered in this case.This view of the Magistrate is erroneous. The motive of the personobstructing is immaterial. Section 183 of the Penal Code makes anyvoluntary obstruction an offence. The position of a person like theaccused’s minor son is safeguarded by the law. Section 328 of the CivilProcedure Code enables such a person to have his claim investigated.He has no right to prevent section 236 of the Civil Procedure Code takingits full course. Nor has any other person a right to do that in his behalf.
For these reasons, I set aside the order of acquittal and send the casefor the Magistrate to enter conviction and to pass sentence. I wouldsay that the case does not call for severe punishment.
VEERASINGHAM v. MEENATCHY