014-NLR-NLR-V-23-WEERAKOON-(for-the-crown-)-v.-RANHAMY.pdf
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(,FOTI.JJHIfOHi]
Present: Bertnm C.J., Ennis and Do 'SMopayo JJ., andSchneider A. J.
JVEHRAKOON {for the Crown) «. RANHAMY.
628—P. O. Regatta, 30,327.
/
Ohena-^Forest Ordinance, ss.4 and 21—Clearing land at the disposal ofthe Crown—Bona fide claim of tide—-Land in the KandyanProvinces-^No grant or sannas—Mens rea—Mistake of fact—
. Penal Code, ss. 38 and 72—When Magistrate should refer the caseto a Civil Court.
By totc Full Com—The jurisdiction of a Police Court .in aprosecution under the Forest Ordinance to determine a questionof title, in pursuance of section 4 of that Ordinance, is not oustedmerely by the circumstance that the claim of title set up is a bonafide claim.
Per Bertram C.J., Db Sampayo J., and Sohnktdeb A.J.—Where, however, the prosecution appears to be in abuse of the
of the Court, and in particular in the following classes of
Where the claim does not arise incidentally, but has alreadybeen the subject of dispute between the claimant and theCrown, and it appears to the Magistrate that the reahobject ofthe proceeding is not to protect Crown lands,* but to obtainan expeditious decision of the claim;
Where the questions involved appear to him to be. of suchintricacy and magnitude that he cannot effectually adjudicateupon them in ordinary summary proceedings; and
Where tfie circumstances are such that it would be essentiallyunfair that the rights of the parties interested hhould bedetermined by such proceedings ;
the Magistrate ought to refer the prosecution to a Civil Court.
Held, further (Ennis J. dissentients), that in the circumstances. of the present case the accused, who was charged with clearingCrown land without a petmit, was . acting under a mistake of law,namely, a mistaken belief that it was possible for him to acquire agood title to chena lands in the Kandyan Provinces merely bynotarial deeds and possession, and that consequently he was notentitled to the benefit of section 72 of the Pep&l Code.* *
Per Ennis J.—The mistake of the accused was a mistake of fac&On various grounds he entertained the mistaken belief that thftland he cleared was private land, and he was consequently entitle^to the benefit of this section.
. Per Bertram C.J., De Sampayo J., and Schneider A. J.—Thedoctrine of the English criminaf law, known as the doctrine ofmens reo, oniy exists in Ceylon in so far as it is embodied in theexpress terxitfs of sections 69 and 72 of the Penal Code.
Per Bertram C. J.—In one respect the doctrine of the Ceylonsection is. wider than the English doctrine in that it extends to allpenal enactments alike, including enactments which under theEnglish law are outside itV, enactments* which
3 [rm-,14-22/453'
^fnrocess
prohibit a thing absolutely, anc which, but for this section, wouldbe construed an imposing an obligation which every man, whateverhis knowledge, violates at his peui On the other hand, unlike thedoctriao, it extends to mistake onlyt and does not extendto mere ignorance.
Per SoHNTsroKB A. J.—The word " mistake ” in section *72 mustbe taken to include “ ignorance.” Sections 69 and 72 are a para-phrase of the English common law maxim in its application tocriminal law—“ ignoramtia faeti excusat; ignorantia juris nonexcusat”
facts appear from the judgment.
J. S. Jayawardene, for the appellant.—The accused cleared theland in the bona fide belief that he was the owner of it. He boughtit in 1902 and 1906 from those who claimed to have inherited theland. He planted it about sixteen or seventeen years ago, and hasplanted again two and a half years ago. It was held by Lascelles
J. in Ckena Mukandiram v. Bawapper1 that in such circumstancesthe Police Court has no jurisdiction. Counsel also cited Silva v.Banda ; 3 Ghena Mukandiram v. Banda; 3 PakaJagankaya v. Andris;4
G. A. v. Pereru.6
The ruling that no title can be set up against the Crown to chenalands in the Kandyan Provinces, save a title by saunas or by grant,orbyproof of customary taxes, dues, or services within the prescribedperiod. The Attorney-General v. Punchirdla 6 does not in any wayaffect file principle laid down by Lascelles C.J. See A. G. A,yKegaUa, v. Siyadoris Mudalali;7 Ghena Mukandiram v. Julius ; 8Soysa v. Podi Sinno ®
The decision of Shaw J. in Obeyesehera v. Banda10 is not really adecision to the contrary. Shaw J. tries to distinguish that case fromthe judgment of EUnis J. in Obeyesehera v. Naide11 on the groundthat in the latter case the accused claimed under a talipot. Thatdoes not appear to be so.
[Bertram C.J.—The jurisdiction of a Criminal Court is notousted by a claim of title impossible in law.] This principle hasbeen considerably modified. See 1 Qour Penal Code 227. Evenaccepting the principle,- the title set up by the accused is a possibleone. Section 6 of Ordinance No. 12 of- 1840 is not to declare thetitle set up by the accused impossible in law, but it merely precludesthe accused from proving it. ^.
The accused had a bona fide belief that he had a good title.There was no mens rea which* is Essential for a conviction. Theaccused can plead section 72 of the Penal Code in defence. The
(1914) 17 N. LJ R. 226.
(1914) 17 N. L. B. 227.
(1914) 17 N.L.B. 228.
{1914) 3 Bed. N.C. 62.
{1916)10. W. B. 24.
• (1919) 21 N. L. B. 51.
1 (1916) 3 C. W. B. 53.
» S. C. Min., Dec. 23, 1920.•(1919) 21N. L. R. 262.
“ (1918) 20 AT. L. R. 447.
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%ik
question as to a private right of ownership Is a mistake of fact.'Cooper v. Phtbbs;1,Begun v. HaiU;a Cumberland v. DewarakkUdUnnanse.3
A mistake where there is 'mixed question of fact and law is amistake oi fact—door Penal Code.
The land was not a ohena land at thetime of the alleged offence;It was at one time a ohena land, but has ceased to be so as it wascleared and planted by the aoonsed with coconuts and aiecanntssixteen years ago and not cultivated in ohena.
Akbar, S.-Q. (with hirnDAw, C.C.), for theQrown, respondent.—Theprinciples of English criminal law are not in force in Ceylon.Kachcheri Mudaliyar v. MohamaduTherefore, the principle of the
English criminal law, that the jurisdiction of a Magistrate is oustedby a bona fide claim of title, has no place in our criminal law. Theprinciples enunciated by Lascelles C.J. in Ghena Mvhandmm v.Rawapper* oannot be applied to our law.
Under the English criminal law a Magistrate has no jurisdictionto try a civil olaim, and that was the reason why the Magistrate’sjurisdiction ms ousted by a bona fide claim of title. Hudson v.McRea* Section 4 of the Forest Ordinance gives the Magistratethe right to try question-of title in respect of offences under theForest Ordinance.
, The doctrine of mens rea as understood in the EngKah criminallaw is not in force in Ceylon; Where a particular intention is anecessary ingredient of an offence, our Statute law expressly providesfor it; and where it is not provided by the Statute, no mens reaneed be proved. See Caste Chetty v. Ahamadu.7. The accused oan only avail himself of the exceptions provided bysections 69 and 72 of the Renal Code,' which embody so much of theEnglish doctrine of mens rea as is applicable to us. But, as far asoffences under the Forest Ordinance are concerned, section 4 ofthe Ordinance excludes the application of section 72 of the PenalCode ; for under the Forest Ordinance the guilt of the accusedWould depend on whether or not he had title, and the Magistrateis given power to investigate questions of title,j Even if section 72 of the Penal Code is available to the accusedin prosecutions under the Forest Ordinance (section 22), the accusedin this case cannot avail himBelf of it, as he relies on a mistake oflaw and not of fact, in view of the decision in The Attorney-Generalv. Punchircila.8 For the accused in this case relies upon a title.'Which cannot be maintained in law.*?
A mistake in respect of a mixed questhm of fact and law is not amistake of fact only, and section 72 of the Penal Code oannot be.
1 (1867) L: R. 2 H. L. 149.» (1914) 17 N. L. R. 225.
itW) 3 0. SeP. 409.• (1803) 33 L. J: Magistrate’s
8{X916)3O.W.R.102.eases OS4 B # 8691.
(!D*0) 21 N. L. R. 309.7 (1916) 18 N. L. R. 184.
* (1919)21N.L.R. 61.
1921.
Weerabten
Va
Banhamy
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1921. pleaded in respect of such, mistakes. Mistake is not the same thing
Weeraboon aS *8aorailoe*
v.The fact that this land was cleared and planted with coconuts.
Ranhamy and areoanuts seventeen years back does not make it anything' other than chena.
Our. adv. vuU.
September 1,1921. Bertram C.J.—
This ease was referred to the Bull Court with a view to the firm!. determination of a question on which there had been a .conflict ofjudicial opinion. The question is % question of 'the interpretationof section 4 of the Forest Ordinance, No. 16 of 1907, and its historyis as follows :—
In February, 1914, in the case of Chena MuhaniHram v. Rawwpp&jtLascelles C.J. took occasion to review the principles on which thissection should be applied. The case before hi™ was one in whichthe accused “ failed to indicate any title at all,” and lus appealWas accordingly dismissed, but Lascelles C.J., speaking aMter,indicated certain classes of cases which were not appropriate c&sosfor the application of the section. A few weeks later Be Sampayo j.in a case reported in connection with Chena Muhandiram v. Rtmcvppcr(supra), namely, Silva v. Banda* expressed himself as being “inentire agreement with the broad principles enunciated by LascellesC.J.” He was precluded by technical consideration from applyingthose principles to the case before him.' In June of the same year.,in a third case reported in the same volume, Chena Muhandimm, v.Banda?, Lascelles C. J. applied those principles to a case actuallybefore him, and set aside the conviction. In October of the sameyear in Pahalaganhaya v. Andris 4 Be Sampayo J. also applied oneof the principles which Lascelles C.J had enunciated, and again, afew months later, in A. G.A. v. Pereray* the appeals in both casesbeing allowed. The decisions of this Court had thus imposed certainrestrictions on the exercise of the jurisdiction conferred uponMagisterial Courts by section 4 of the Forest Ordinance. I ventureto think, however, that the extent of these restrictions has at timesbeen misunderstood. I believe theft 1 am right in stating that animpression has prevailed at the Bar (which in some cases has beencommunicated to the Bench) that the effect of those decisions wasthat a Magistrate ought not under the section to try a bona fide claimof title..
The situation created by the above decisions was affected by asubsequent development. In 1916 Wood Benton C.J. sitting alonein The Attorney-General v. Punchirala 6 decided that no prescriptionrah against the Crown in respect of chena lands in the SfcmjyanProvinces. In 1918 this decision in a case of the same name*
1 (1014) 17 N. L. R. 225.* (1914) $ Bat. N. C.
8 (101*0 P? #•227.5 (1915) lO.W.B. UJ
• (19U) 17 N. L. R. 22S.« (1916) IS N. Z. B. 15ft
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•The. Attorney-General v. Punchirala,1 was confirmed by a decision ofthe Foil Court. This decision hasa most important effect on the titleto ohena lands in the Kandyan Provinces. Up to this point .it hadindeed been recognized that the occupier of a chena, who couldshow no Crown giant or sannas, bnt oould only rely upon a series ofnotarial deeds, could not on these deeds alone support his claim to*• &tle. But as long as it was uncertain whether the plea of prescription*was open to him, these deeds had a possible value as the foundation ofa title byprescription. Nowthat it is clear that suohapersonoannot,jas against the Crown, plead prescription at all, it is apparent thatall such deeds are valueless. Under these oircumstances, it becameopen to the Crown to oontend that where a title based upon suchdeeds alone is set up in a ohena prosecution, it would be futile for aCriminal Court (most particularly where it is vested with a specialjurisdiction to adjudicate upon title) to refer such a plea for thedetermination of a Civil Court. The question therefore arises: Towhat extent have the decisions in The Attorney-General v. Punchirala{supra) affected the principles enunciated by Lascelles C.J. ?
I We have been referred to six cases (five reported, one unreported)which have been decided since the decision of Wood Renton C.J. inThe Attomey-Genertol v. Punchirala (supra), in addition to the previousdecision of Schneider A. J. in this very case. All of them relate to ■Ohena lands in the Kandyan Provinces. In two of these, namely,A. G. A., Kegatta, v. Siyadoris Mvdalaii2 and Ohena Muhandiram v.Julius* Shaw J., and in another, Soysa v. Podi Sinno* De Sam-payo J., notwithstanding the two Punchirala decisions (supra),applied the principles which Lascelles C.J. had enunciated. Intwo others, namely, Cumberland v. DewarakMta Unnanae6 andObeyesekem v. Naide * my brother Ennis approached the questionfrom an entirely hew point of view, namely, that of the interpretationof section 72 of the Penal Code, a question which we now realize tobe the Vital question. He held that the persons prosecuted actedunder a bona fide mistake as to their legal rights, and that this was a“mistake of fact ” within the meaning of the section. Finally, inObeyesekem v. Banda,7 Shaw J., where the accused, who held chenaland only under a notarial deed, pleaded that he was acting under abona fide claim of right, held that the plea was insufficient, inasmuchas .the right claimed was not one which could exist in law. This .decision was followed by Schneider A. J. in the present case, whichwas accordingly sent back for trial. The learned Magistrate havingnow taken further evidence has felt himself bound to follow thedecision of Schneider A.J., and, no materialfresh facts being disclosed,convicted the accused and imposed a fine.' It is the appeal from this
*(2919) 21 y. L. E. 51.
(1916) 8 O. W. 2. 53.
■« P. O: KegaOa, No. 29,7?$ (S, G.Min., December 23, 1920). .
(1919) 21 N. L. R. 252.
(1916) 3G. W.R. m.* (1918) 20 N. L, S. 348.■ (1918) 20 N. L. R. 447.
1921.
Bekbbam
C.J.
Weerohoonv. ..Ranhorm
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108|.
Weerahoon
Banhamy
conviction "which has been zeferzed to $& Full Court, vift aViewto the legal position being fully elucidated.
/ In the argument, Mr. J. 8. Jayawardene^or the appellant, laid‘ before ns all the eases above cited. With regard to the point that; the title pleaded' was one impossible in law, he contended that the' jefieot of Ordinance No. 12 of 1840 was not to declare suoh a title, as%hat pleaded, impossible in law, but merely to preclude the acousddfrom proving it. On the further question, as to the interpretationof section 72 of the Penal Code, he cited a dictum of Lord Westburyin Cooper v. Phibbs1 to the effect that “ private right of ownershipis a matter of fact,” and also the case of Begina v. Hall* whereignorance of the effect of a particular Statute was held a sufficientdefence to a charge of robbery as negativing the animus fvrandi.
On the other side, the Solicitor-General, in a very interesting and. ingenious argument, laidbefore us the following propositions: Firstly,he contended, the principle of the English criminal law, that the.jurisdiction of a Magistrate is ousted by a bona fide claim of title,has no longer any place in our legal system, having itself been oustedby the deoisioh of this Court in Kachcheri Mudaliyar v. Mohamadu,8which declared that the general principles of the English criminallaw are not in force in Ceylon. The judgments of Lascelles C.J.,therefore, which, as he conceives them, proceeded upon that principle,are no longer of authority. In any case, he contended that thosejudgments were erroneous. The judgment of Blackburn J., inHudson v. McRea4 explains that the basis of that-principle isthat the Justices have no jurisdiction to try a civil claim. Heresection 4 expressly gives such a jurisdiction to the Magistrate.Having thus disposed of the English doctrine of the ouster ofmagisterial jurisdiction and of the principles laid down by Lascelles
C.J., the Solicitor-General next proceeded to disembarrass our legalsystem of the English doctrine of mens rea. The case of KachcheriMudaliyar v. Mohamadu (supra) 'Was fatal to this also. Only somuch of this doctrine survives in Ceylon as is expressly embodiedin sections 69 and 72 of our Penal Code. All our criminal law isthus statutory. The question, whether a particular intention or aparticular knowledge is a necessa$ ingredient of any criminaloffence, must be determined by the actual words of the enactment* which creates it; Where no such intention or knowledge is essential,the only escape, for the offender is by section 69 or section 72, towhich all criminal enactments are subject.. With regard to theForest Ordinance, however, section 4 excludes the application ofsection 72. In empowering the Magistrate to try and determinethe question of title, the Ordinance intended that the Magistrateshould give judgment in accordance with his determination. Theliability, therefore, of a person who unlawfully clears land at the
1 (1367) L. B. 2 H. L. 149 at p. 170.* 11828) 3 O.&P. 409.
* (1920) 21 N. L; B. 369.
4 (1863) 4B. dt 8. on p. 691.
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disposal of the Crown, is absolute. In any ease, even if this is not so,a person who clears a* Kandyan ohena tinder thejbelief that notarialdeeds can famish a valid title to saoh land is acting, not under amistake of faot, hut a mistake of law, and is consequently not withinsection 72. .
From the first part of this argument I wholly dissent. Theprinciple that the jurisdiction of a Magisterial Court is ousted by'a1 bona fide claim of title is not a principle of substantive criminal law.
' It is a principle of criminal procedure, and may be legitimately.“ received ” into our system under section 6 of the CriminalProcedure Code. It has been so received, and, together with itsnecessary corollary—that the title must not be a title impossible inlaw—has obtained the imprimatur ot the Full Court in Sourjah .e.Ifaleda.1 It was because of this principle, and to empower aMagisterial Court in the case of forest offences to try and determineclaims of title, that section 4 ot the Forest Ordinance, 1907, was
1921.
Bebxbam, C.J.
We&rakoonr
V*
Rarihamy,
Further, with regard to the salutary principles enunciated byLascelles C.J., I do not agree with the view that they are inconsistentwith the terms of section 4, or that they are affected by the judgmentof Lord Blackburn, which the Solicitor-General quotes. Properlyunderstood, these principles are not open to criticism, and will, Itrust, always be observed. But it is important to note what those* principles actually are. Neither Lascelles C.J. nor any reportedjudgment of this Court has ever declared that a Magisterial Courtunder this section ought not to try a bona fide claim of title. Nor,if the matter was fully considered, could it have been so declared.£s for claims to title which arc not bona fide, every Magisterial Courtin all matters is competent to dispose of them without any specialsection; It is only a bona fide claim of title which ousts the juris-diction..
What, then, are the principles in question ? Lascelles O.J. declaredthat, notwithstanding the terms of section 4, there were certainclaims which ought not to be determined in criminal proceedings.He had in mind certain specific classes of eases Which he carefullydefined. Thus, in Chena Mbkandiram v. Bawapper (supra) he saidthat the questions contemplated by the section were “ such as~mayoccur incidentally in the course of prosecutions,” and that “ thesection was not intended to” authorize the Grown to proceedcriminally in cases, where “ there is from the' beginning ” (thafcis,from the inception of the prosecution) a bona fide question of titlebetween the “ Crown and the accused.’7 This was the first class ofcases he referred to, namely, cases in which the Crown was alreadyat issue with the subject cm a question of title, and had institutedcriminal proceedings, by way of a short cut, to get that questiondetermined. The other classes of cases he mentioned are : Firstly,
1 (2923) 16 N. Ii. R. 249.
oases on which a Police Magistrate cannot “ effectually adjudicate **by reason of the difficulty or intricacy of the issues involved ; and.secondly, cases in which a criminal prosecution is “ not a fair courseof procedure,” or, as he puts it in Ghena Muhandiram v. Banda ,(supra), oases of “essential unfairness,” as, for example, if the Grown .sought to eject members of a village community, bona fide claimingunder an ancient grant by means of a series of individual prosecu-tions. He develops and applies the same views in Ghena Muhandiramv. Banda (supra). No doubt the last two classes of cases referred towould generally be combined with the first mentioned, as it isdifficult to imagine the claims in such cases coming up incidentallyand by way of surprise to the Crown. But the cases which LascellesC.J. is referring to may be briefly summarized as (1) cases whoseobject is to determine a question of title which has already arisen ;(2) oases whioh must be ^ile ; ” and (3) cases of “ essential un-fairness.”
With regard to the first of these classes, his observations werebased upon an interpretation of the words of the section. Thequestion must “ arise ” in -io prosecution. He took this to mean“ incidentally arise.” If thft matter is already the subject of dispute,.it is not so much a case of a question arising in the course of theprosecution, as of a prosecution arising in the course of the question.
I may add that, as I understand it, a claim would arise “ rnciden-.tally,” if on the defence opening its case it produced a deed and setup a claim to title based on that deed. It would, I think, be nonethe less incidental if this title proved to be the only point in the case.
With regard to the other two classes of cases, in referring theseto a Civil Court, a''Magisterial Court would only be exercising the *same power whioh it exercises every day in cases of cheating, breachof trust, and criminal trespass, namely, its inherent power to restrainthe abuse of its jurisdiction by proceedings, which, though strictlywithin its jurisdiction, are contrary to the spirit of the enactmentby which that jurisdiction is conferred.
If the subsequent cases are examined, it will be found that withone, or possibly two, exceptions 1… they all proceed
upon the same principles. Thus, in Ghena Muhandiram v. Banda(supra) the question really at issue was the effect of a documentknown as “the Kiralawa sannas,” which had already been thesubject of. dispute- and litigation between the ' Crown andpeople claiming thereunder. It cannot justly be described as aquestion of title arising incidentally in the criminal proceedings.PaJwdaganhaya v. • Andris (supra) dealt with' certain swampystretches of land along the banks of a river, parts of whioh wouldappear for a series of years to have been cultivated by the villagers.In this case my brother De Sampayo expressed the opinion that,“ when the point is purely a question of title of the possessors ofland, it to undesirable that the conviction should turn upon the
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finding of a Police Magistrate with regard to title.” There is only avery brief note available in this case, but I take it that the title inthis case must have been already the subject of dispute; In A.Q.A.v. Perera (supra) the dispute was an old one, and there was primdfacie evidence that the claim was allowed by the Forest SettlementOfficer twelve years previously. De Sampayo J. said: “ Althoughthe Ordinance vests jurisdiction in the Police Court, the inquiryinto title so far as the determination of title is necessary lor thepurpose of the prosecution, it has been pointed out by this Courtthat the provision was not intended to apply to cases where fromthe beginning there is a bona fide question of title between theCrown and the accused, or to dispose of disputes which are essentiallyof a civil nature, by means of a criminal prosecution.” In A. 0. A.,Regatta, v. Siyadoris Muddkili (supra) the claim of right was onewhich had been “ made and persisted in for many years,” and was“ only properly to be tried in a Civil Court after pleadings andissues.” In Soysa v. Podi Sinno (swpra) the dispute was reallybetween the Crown and the proprietor of an estate who was beforethe Court. The title in dispute went back to 1837, and the case wasobviously one of considerable complication. De Sampayo J. saidat page 264 : “ In these circumstances, I think,. Mohamadu TJsoofhad good grounds for believing that he was entitled to .lot No. 4,and Ins claim of right must be considered as quite bona fide. Acriminal prosecution such-as this is wholly unsuitable for determin-ing the question of title. This will appear'obvious from onecircumstance alone. Mohamadu TJsoof is not an accused in thiscase, nor in any sense a party to the proceedings. He was only awitness, and as such could not be expected to go fully into his claimas though he were a party. All this shows that that the questionbetween the Crown and Mohamadu Usoof, proprietor of Kotalandaestate, should properly be fought out in a civil action.” I take mybrother to mean, not that it is necessarily fatal to a prosecution thatthe accused sets up a bona fide claim of title, but that the particularclaim in question was not one which could effectually be disposedin a criminal proseoution.
There is one case, however, in which the supposed principles ofthe previous decisions of this Court have been expressed in verymuch wider terms, namely, the unxeported decision of Shaw J. inChena Muhandiram v. Julius (supra). He there observed : “ Ithas been held in a series of decisions that the provisions of theforest. Ordinance are not meant to give Police Magistrates juris-diction to decide bona fide questions of title to lands.” Hisdecision in that case might conceivably be justified on the principlesabove explained, because it appears that in a Crown plan, datedsome fourteen years before the case, the land in question had keendescribed asc c land claimed by natives.” It might be said, therefore,that thedispute was ah old on shut I do not think that his judgment
2*
1921.
Bbtbtbam, CLJ.
Weerakoan
v.
Ranhamy
< ■ 42 " )
AUtfiiMtMfi
Vi ‘
vf$fc, based upon thi&. circumstance.’ The subject cannot havebeen very lolly placed before him. Hts judgment is inconsistentwith hjp piStvipasly reported judgment in Obeyesekera v. Banda(supra). In both cases the lands were in the Kandyan Provinces,andin neither case did tha alleged title comprise either a Crowngrant or a sennas. There is no note ol that decision having beenbrought to his notice. In both the reported and in the unreportedjudgments, Shaw J. seems to ha under the impression that , thisCourt had determined that a bona fide claim of right ousted thejurisdiction of the Magistrate under section 4. I myself at onetime shared that impression, but a careful examination of theprevious decisions shows it to be erroneous. I dp not think thatthe decisions of Shaw J. in Chena Muhandiram v. Julius (supra)ought to be regarded as representing his considered opinion, or to' be treated as authoritative.
^;^This then appears to me to be the ©Sect of the previous cases{with the exception of the one last discussed). They do not saythat a Magisterial Court ought not to try a case under this Ordinance.where the accused, sets up a bom fide claim of title. They cannot,indeed, have meant this, as such claims are the only claims whichBeotion 4 could h^ve had in contemplation. The effect of the' decisions of the Supremo Court iA the Punckircda cases oh theprinoiplesthus developed, I will consider after I have dealt with thesecond part of the Solicitor-General’s argument, namely, thatdealing with the doctrine of mens rea.
With that part.,of the argument, except as to one point, which Iwill discuss below,' I find myself in agreement. I think he is correctin stating that for the doctrine of mens rec^as it exists in our law, wemust look exclusively to sections 69 and 72 of our own Penal Code.
* Our own doctrine is undoubtedly based upon the English doctrine,and tor the purpose of understanding the extent to which the English,doctrine has been embodied in section 72 of our Code, it is. necessaryto give & brief account of that doctrine. It has been the subject ofmuch judicial discussion and of certain expressions of judicialdissatisfaction. The best exposition of it will, I think, be found to bethe judgment of Lord Esher (then Brett J.) in Regina,v. prince? andof Stephen J. in Regina v. Tolacn ; 8 and the passage from Mayne’sCriminal Law Of India (3rd ed.) pp. 242, d seq.9 cited by Enh»« J. inThe Aitorney-Oenerid v. Itodriguesz? It really consists of two parts:the first positive, ahd the second negative. As to the first, it appearsto .be simply that where a particular state of mind is a necessaryingredient of any offence .either at common law or by Statute, the'Crown miist prove that that state of mind exists. With, ibisaspect of the de^rine we need not concern ourselves. * The second'part renting ' to phse's in which no such special state of mind is l
l:(187S) LBi154.■ (1889) 23 Q. B. D. at p. 184.
? t/»M) 19 N. Lf R, ai p.
. ( « )
' defined as being a' necessary ingredient for the offence, but in
i
which, nevertheless, the absence of mens tea is held to be an excuse.As Is said in, Bankrof New South Wales Piper:1 “ The questionwhether a particular intention is made an element of the statutoryerhpe, and when that is not the case, whether there was an absence
of mens tea in the accused, are questions entirely different, andjiepend upon different considerations.” It is with this latter}. sspeot of the doctrine that we are concerned.
*! The absence of mens tea is really a plea in justification. It iseased upon a principle of construction applicable to criminalenactments. That principle is that in every criminal enactmentcreating an offepce it is implied (even though it is not stated) thatjfche person charged has a “guilty knowledge " of the existence of thefhots whiol^ constitute the offence. Thus, in Regina v. Cohen 2 (which'flros concerned with the possession of Government stores) it was3$. is true that the Statute says nothing about knowledge,Itat thisWust he imported into the Statute.” This principle is not
absolute, it is a presumption only. Certain exceptional enactmentscontain prohibitions wfaioh are interpreted as unqualified. Theprincipal examples of such enactments are classified by Wright J.
in Jus judgment in Sherras v. De Ruizen.B In such cases every man,whatever his knowledge, does the prohibited acts at his peril.
Whether any particular enactment is of this character is to.bedetermined by an examination, not only cf the words of the enact-ment, but of its purpose and of its subject-matter. (See thejudgment of Wills J. in Regina v. Tolson (supra).). The presumptionwith regard to every criminal enactment is that a " guilty know-ledge ” in the offender is implied. The presumption is liable to bedisplaced if it can be shown that the enactment belongs to prohi-bitions of this special nature. Brett J. in Regina v. Prince (supra)prefers to put it in another way. He says (at page 133): “'Theenactments do dot constitute the prohibited acts into crime orofferees against the Grown, but only prohibit them for the purposeof protesting the individual interests of individual persons or of therevenue.”
This principle can only be made available by way of defence..When the definition or statement of the offence contains the word“knowingly,” or some corresponding expression, it is for theprosecution to establish the guilty knowledge. Where it does not,it is for the accused to prove the absence of mens rea. As it isoften put, the absence of the word “ knowingly ” merely shifts theonus. (See the judgmentdf Stephen J. in Regina v. Tolson (supra).)
What, thpn, is it that must be proved in order to establish the
t This cannot, I think, be better put than by a quotation from
th$ judgment of the Privy Council in Bank of New South Wales v.
(1897) A. a dip. 389.
•I Q. B. 918t
1921.
Bertram
C.J,
Weerahoon
v,
Banhamy
* 8 Cox. C- C. 41.
( 44 )
mi.
Mbtbam
CUT."
WtsruHcoon
v.
Ranhamy
Piper {supra, at p. 389): V The absence of mens rea really consistsin a … reasonable belief entertained by the accused
of the existence of facts, which, if true, would make the actcharged against him innocent.”
Now, in English law the justification is co-extensive with theprinciple to which it refers.. That is to say, it extends only toenactments to which that principle applies; it does not extend tothe absolute and unqualified prohibitions above referred to—prohibitions whioh every man must observe at his peril. In suchcases proof of the absence of mens rea is not an answer. But inour own Cod© the principle above discussed appears only in theform of a justification or “ general exception.” There is no directstatement that criminality necessarily implies guilty knowledge.The whole of our law on the subject (leaving out for the momentsections 69 and 73) is contained for our present purpose in thesentence “ Nothing is an offence which is done by any person…. who by reason of a mistake of fact, and not byreason of a mistake of law, in good faith believes himself to bejustified by law in doing it.” Our Code is intended to be anexhaustive Code. (See Kachcheri Muddliyar v. Mohamadu {supra).)We cannot, therefore, import into this chapter any principle ofEnglish law, except in so far as it is expressed or implied in thesewords, in other words, the formula can neither be extended norlimited by reference to the principles of the English law. It mustbe taken as complete in itself.
Our own formula is^at once more extensive and less extensivethan the corresponding principles of the English criminal law. Itis more extensive, in that it applies to all enactments alike, includingthose which are above referred to, as imposing an absolute obligation.Thus, in Regina v. Tolson {supra at page 173) Wills J., speaking ofMunicipal by-laws regulating the width of thoroughfares, theheight of buildings, the thickness of walls, &c., says: “ In suchcases it would, generally speaking, be no answer to proceedings forinfringement of the by-law that the person committing it hadbona fide made an accidental miscalculation or an erroneousmeasurement.” This is English law, but it would appear not tobe the law of Ceylon.
On the other hand, in another respect, our formula is less extensivethan the English principle. What that principle is may be bestexpressed in the words of Blackstone’s commentaries quoted in thejudgment of Brett J. in Regina v. Prince {supra). Having said that“to constitute a crime against human laws, there must be first avicious will; and secondly, an unlawful act consequent upon suchvicious will,” Blackstone proceeded to except “three cases inwhich the will does not join with the act.” The third of these is asfollows : “ Ignorance or mistake is another defect of will when aman, intending to do a lawful act,does that which is unlawful; ‘for
(■«). here the deed and the will aofcing separately, there is not thatconjunction between- them which is necessary to form a jmpfminalact. But this most be an ignorance or mistake in fact, and not anerror in point of law. As if a man intending to* kill a thief or.house-breaker in his own house by mistake hills one of his family,this is no criminal action ; but if a man thinks he has a right to killa person excommunicated or outlawed wherever he meets him, anddoes so, this is wilful murder.”
Now, in the view. I take of the effect of seotion 712, ignorance isnot the same as mistake. Mistake, to my mind, implies a. positiveand conscious conception which is, in fact, a misconception. Thus,to take the case of the man who was convicted of selling a medicinecontaining a u trace of ganja,” dealt with by the judgment of mybrother De Sampayo in Oasie Chetty v. Ahamadu,1 it does not seemto me that this man made a bona fide mistake about this trace ofganja. He did not know that it was there. He simply did notthink about it, and cannot be said to have made a mistake on thesubject. As I understand the matter, therefore, the Englishdoctrine covers both ignorance and mistake, our own formula, onlyincludes mistake. It may also be noted that our definition of“ good faith ” (section 51) is perhaps rather more strict than themeaning generally imputed to that expression.in the Engliab law.
The materiality of the above disoussion in its application to thepresent case is this, that though section 21 of the Forest Ordinancewas undoubtedly, in my opinion, an enactment belonging to thespecial and unqualified class of prohibitions above referred to, andalthough the Legislature intended that every person, whatever hisstate of mind, must observe this prohibition at his peril, it isnevertheless subject to the provisions of section 72 of the Penal Code,and if a man who would otherwise have been an offender proves thathe acted under a bona fide mistake of fact, this is a sufficient defence.
At this point I must refer to one of the propositions of theSolicitor-General. It is that the effect of the special enactment ofsection 4 of the Forest Ordinance was to exclude the applicationof section 72 of the Penal Code, He seems to think that theLegislature in authorizing the Court to try and determine questionsof title intended that it should give judgment simply in accordancewith its determination. It was possibly this contention which wasreferred to by my brother De Sampayo in his judgment in Silva v.Banda {supra): “ The Ordinance>gives jurisdiction to the Magistrateto inquire into and decide the claim of title for the purposes of thecriminal prosecution ; and that being so, it may be suggested thatthe question of offence or no offence turns upon the fact of title,and not upon the accused person’s state of mind.” – I am not ableto agree with this contention. It seems to me that section 4 ofthe Forest Ordinance and seotion 72 of the Penal Code are not
1 (2915) 1C N. L. R. 284+
1921.
Bwnaaum
C.J.
Weerabnm
Ranhamy
1921.
BasraAM
C.J.
WWofcoon
v.
Ranhamy
( 46 )
inconsistent, and maybe perfectly well applied together. The Courtmay have to determine, first, whether the aooused had title; andsecondly, whether, if he had not, he acted upon a mistake of fact. *
This brings me to the decisive question in the case, namely,whether a persofi who has inherited or acquired ehena land in theKandyan Provinces, and has cleared the growth upon it in thebelief that it is private land and that he. is the proprietor of it, butis not able to show any Crown grant or sannas, h^s acted undera mistake of fact or under a mistake of law. ? The question is aquestion* of some difficulty. Mr. Jayawardenc cited a dictum ofLord Westbury in Cooper v. Phitybs,1 repeated and adopted byHall V. C. in Jones v> Clifford,2 which is as follows : M It is Baid:Ignoraniia juris baud excusat, hut in that maxim the word * jus9 isused in-the sense of denoting general law, the ordinary law of thecountry. But when the word * jus9 is u&ed in the sense of denotinga private right, that maxim has no application. Private right ofownership is a matter of fact; it may be the result also of matterof law; but if parties contraet under a mutual mistake andmisapprehension as to their relative and respective rights, , theresult is that the agreement is liable to be set aside as having pro-ceeded upon a common mistake.”
In the first place, 1 would observe that, even if this dictum beaccepted as authoritative for the present purpose, it does not carryMr. Jayawardene home. Lord Westbury says : “ Private right ofownership is a matter of fact; it may be the result also of a matterof law,” but to come within section 72 a .person must show that) heacted “ by reason of a mistake of fact, and not by reason of amistake of law/9 A person, therefore, who acts by reason of amistake of foot, which is “the result of a matter of law,” does notseem to me necessarily to come within the. section; I cannotfollow the reasoning of Dr. Gour in paragraph 548 (The Penal Lawof India, 2nd ed.), that a mistake of mixed fact and law is, for the',purpose of this section, to be treated as a mistake of fact. Thexpassage which he cites as his authority is concemedywith the law oflarceny and the meaning of animus furandi, which is governed bywholly different considerations.
The observations of Lord Westbury, however, are not concernedwith criminal responsibility, but with the equitable doctrine ofrelief against common mistakes. The question , of the extent towhich equity could give relief in such circumstances does not seemto me to be necessarily governed by the same principles as thosewhich relate, to criminal responsibility. A Court of Equity maywell give relief in a.contraot where the parties act under a commonmistake as to their rights, though the plea of sucha mistake by oneof the parties might not be .an answer to a criminal charge where hehad committed an offence by reason of that mistake:
1 < 1867) L.R. 2 H. L. 149 at p. 170>* (1876) L* R. 3 C& Vi 779at p. 792.
( 47 )
. My brother Em^appears to bold that a mistaken b^Kef ihat10^
the land invqilestion tos private land is, in all cases, a miauto of-
I very respectfully differ from that bonilusioii. It eeemstoroe that it cannot be affirmed in all eases that a mistakeas to one’#titte to property iB a mistake of fact. The question requires further . Wot9^bionanalysis. In some oases the mistake may be a mistake of fact, in Banhamyothers itmay be a mistake of law. Thus, to take the oase deroded.by my brbth&r Ennis, Cumberland v. Dewomkhita Unnanse (supra),in that oase, it seems to me, the mistake-wasa mistake of fact. Inthat oase ihe a^cu$ed out timber from Crown land, beoause hebelieved that the land from which he out t£e timber was within hisboundaries. Sis belief was based upon a survey and a path outalong what was believed to be the western boundary ^ it was provedthat the survey and the boundary out in accordance therewith waserroneous. Beoause of this mistake the defendant believed thatthe place where the trees were out was not Grown property, butwas private land. In this case, it seems to me, the mistake 'Was a ;mistake of fact. Other-instances of such a mistake, in the olass ofeases we are now considering, might be a mistake as to theboundary line of the Kandyan Provinces; a mistake as to thegenuineness of a saunas which was in fact forged, or9 in other eases,a mistake as to the fact of a marriage which, w&s a necessary elementin the title ; a mistake as to a death or a birth or as to the date ofthe length of possession where prescription is in issue.
* On the other hand, where the. mistake as to a man’s private *rights is based upon a misconception of some general principle oflaw or the ignorance of some statutory enactment, then, it seemsto me, his mistake is a mistake of law. Thus, to take an extreme^case, supposing that a man in the maritime provinces knew thathis brother-in-law had chenaed a land three times in succession inthe course of ten years without interference by the Crown or any*body else, and supposing that he had the mistaken idea that aprescriptive title against the Crown should be acquired by tenyears? possession and thereupon bought the land and chenaed it'himself, such a man, in terms of section 72, by reason of a mistake, ■
' would in good faith believe himself to be justified by law in so doing,but surely t^ere can be no doubt that his mistake would be a mistakenot of foot but of law. So in the class of cases which we are nowconsidering, for what reason do men, like the accused in the presentcase? who many years* ago bought chena land on the basis of 'possession and notarial deeds, prooeed to treaty as their own andelear it for cultivation ? It is beoause they mistakenly imagine thatownership of such lands can be acquired by such atitle. They do,it because they have not realized that the decisions of this Court,taken in conjunction with section 6 of Ordinance No. 12 of 1840,have converted their deeds into waste paper. Had Ihey knownthe law, they ^roiild neither have paid.money for the transfer nor
( « )
1921.
Bbrt^ah
dJ.
Weerakoon
e.
Ranhomy
ohenaed the land. Owing to a mistake of law,opinion that .title to such lands can be based on deeds ai^f^Ml^fe 1alone, they in good faith believe themselves to be justimfW^^.in clearing it,-,**■’;/ ?■
With regard to the case of Regina v. Sail (supra) cited*
warden©, thb state of mind there in issue was not merely mistc&p,but animus fwandi. Animus fwrandi imports an intention to takefrom a person property which the taker knows or believes not tobelong to him. It does not matter for this prrpose whether themistake of the taker is a mistake of fact or of law. If he takes themoney under a claim of right, whetfe that claim is erroneous inlaw or not, he has not the ne<B*£ary guilty intention. Nor oan 1think that there is any mibstance in Mr. Jayawardene’s subtle pleathat the title set up in this case is not an impossible title, but onlya t?±3r*.'Meh it is impossible to prove. De non existentibus et nonapparentibvs eadem eat ratio.
I will now recur to the question as to what action should be takenby a Magisterial Court in cases under this Ordinance when a pleaof title is set up; I leave out of acoount claims which appear to bedishonest. Such claims any Magisterial Court is entitled to ignore.If the claim arises incidentally, and it is necessary to: decide theolaim in order to give judgment' on a criminal charge, then bysection 4 the Magistrate is authorized to try it, and in ordinary casesshould do so. He should certainly not refuse to try it simplybecause the claim appears to him to be made in good faith. *
As Lascelles C.J. said in Chena Muhandbram v. Banda (supra):“ There are many cases where this power may be exercised properlyand without injustice to those concerned,” and in making thisobservation, he was certainly not confining himself to claims notmade in good faith. In the following classes of eases, however,that is to say :—
Where the claim does not arise incidentally, but has already
been the subject of dispute between the claimant and theGrown, and it appears to the Magistrate that the realobject of the proceeding is not to protect Crown land, butto obtain an expeditious decision of the claim ;
Where^the questions involved appear to him to be of such
intricacy and magnitude that, he cannot effectuallyadjudicate upon them in ordinary summary proceedings;and
Where the circumstances are such that it would be essentially
unfair that' the rights of the parties interested should bedetermined by such proceedings;
in ail these cases he ought to refer the prosecution to a Civil Court.
I do not say that these cases aro exhaustive. Others maypresent themselves in which the prosecution may seem to the’ Magistrate to be an abuse of criminal process.
( *9 )
With regard to the oases we are now considering, namely, claimsto Kandyan ohena lands based upon notarial deed and possessionalone, if these are of an ordinary character, it seems plain that theMagistrate should dispose of them. If he may justifiably disposeof claims which are arguable, still more justifiably may he disposeof claims: which are not. But it seems to me that the principles Ihave above indicated apply to these claims as suoh as to any otherolaim, subject to this observation, that if the claim is a claim toohena lands based solely upon notarial deeds and possession, itis difficult to see how it could be put forward otherwise than inci-dentally. Such a olaim would hardly now be the subject of seriousdispute. Further, if this point is the only point in the case, it isdifficult to see how it can be said that a Magisterial Court cannoteffectually try it.
Speaking generally, I can see no harm in a Police Magistrate, inmost of the chena cases that come before him, giving a decision onthe question of title. The value of the lands in such cases isgenerally less than Rs. 300, and it cannot matter whether a Magis-trate tries these claims as Police Magistrate or as Commissioner ofRequests, and I do not see that it is of any assistance to the villagerthat as the result of a point taken for the first time in this Cpurt heshould be for a second time assailed in the Court of Requests. Butit may very well come to the notice of a Magistrate that the state ofthe law as now disclosed is causing hardship and injustice. Thelaw was for some time uncertain, and villagers may have spentmoney in acquiring chenas which they would reasonably believeto be private lands. It may even appear that a man is chargedwith chenaing land which had been in the possession of his familytime out of mind. I would note this circumstance also. WhenOrdinance No. 12 of 1840 was*passed, it appears from the words ofsection 6 that there must have been in existence a certain numberof holders of chena lands who had no saunas, but who had never-theless paid customary taxes. There are now no customary taxes,and consequently successors in title of such holders, if any suchsuccessors exist, could not produce receipts for the payment ofcustomary taxes within twenty years, and so would be liable toejectment. It is possible that there are no successors of thesepeople in existence. Their lands may have been absorbed byestates, or Crown grants must have been obtained, but the existenceof such persons is physically and legally possible.
If any such case of hardship, as I have suggested, come to thenotice of a Magistrate, I do not think that he should decline juris-diction, unless there were some other special circumstances in thecase which made it“ essentially unfair ” that he
should exercise it. But I think that it is very desirable that heshould bring the facts to the notice of the Government Agent witha view to that equitable aotion which we are given to understand the
1921.
Bersram
C.J.
Weerakoon
c.
Ranhamy
9
1921.
Bbbtbam
C.J.
Weerahoon
v.
Bonhamy
( >6 )
officers of the Crown in such cases are always anxious to take. Hemay do this either by adjourning the case with a view thecircumstances of the case being considered by the GovernmentAgent, or by imposing a nominal penalty and forwarding th e recordto the Government Agent.
Following the course adopted at the argument, 1 have res erved forthe conclusion of this judgment the consideration of the> facts ofthe case. These are simple, but not altogether usual. Th^accusedbought the lands several years ago from his brother-in-law Hetu-hamy. The accused produces two deeds, one of 1902 from Hetu-hamy,the consideration of which was Rs. 100; and the other of 1906from one Kirihamy, the consideration of which was only Rs. 10.An examination of the extent and boundaries produces the im-pression that this land is not the land he bought from Hetuhamy,but that it is Kirihamy’s land, and Kirihamy’s land alone. Butthe accused ought- to have the benefit of any doubt in the matter.At a time fixed variously as from twelve to sixteen years ago, theaccused cleared the land and planted it with plantains, coconut,arecanut, and other fruit trees; he built a hut on the land andlived there lor about eighteen months, after which he apparentlyabandoned his plantations and let the jungle grow up again. TheGan-Arachchi knew of this plantation,, but never reported it. In1918 the accused cleared the land again and planted it in rubber.Still no action was taken, and it is only when the rubber had hadnearly two years* growth that he was prosecuted.
For the first time, in this Court, it has been suggested that it has.not been clearly proved that the land was actually chena. If the..land was chena at the time, of the first plantation, I dp not thinkit ceased'to be chena merely because after clearing it the accusedplanted it, not with dry crops, but With coconut and other trees ;nor did it cease to be chena when, after the jungle had grown again,it Was cleared and planted with rubber. At. the time when it wasso last cleared, there was nothing to distinguish it from other chenalands in the neighbourhood, except that these had been regularlyplanted, say, with kurakkari, whereas this on one occasion bad atransient plantation of another character. I have not myself anyreasonable doubt that the fact of this land being chena had beensatisfactorily proved. The Chena Muhandiram in his evidencespoke throughout of the land being chena ; so did the Gan-Arachchi.The case was twice before the Police Court, and the accused wasdefended by an experienced proctor, and it never appears to havebeen' suggested that the land was otherwise than chena. I seenothing, therefore, in the facts to call- for interference with theconviction, but the case seems to me eminently one for equitabletreatment. The accused is an old man of siffcy ; he has known the -land all his life ; it appears to have been regularly ohenaed. Therewas no interference by the Crown either'with the accused or his
( 51 )
predecessors in title, and relying upon the security he thus enjoyedhe hsTs^ermanently improved it. It is only after the lapse of twoyears that he is now brought into Court. I would, therefore, reducethe fine to a nominal one of Be. 1, and would recommend the caseto the favourable consideration of the Crown.
Ennis J.—
In this case the accused appeals from a conviction for clearingland at the disposal of the Crown in breach of the prohibitioncontained in section 21 of the Forest Ordinance, No. 16 of 1907.
The Chena Muhandiram, giving evidence for .the prosecution,described the land as chena land, and as the land is in the KandyanProvinces, the fact, if proved, would raise a presumption that itwas the property of the Crown, a presumption that could be rebuttedonly by the production of a sannas or grant or proof that customarytaxes, dues, or services have been rendered for such land, or forsimilar land in the same district (section 6 of Ordinance No. 12 of1840).
For the defence the accused said he had purchased the land in1902 and 1906, and he produced the conveyances. Hetuhamy,his vendor in one of the deeds, purported to sell the land and planta-tions. Both deeds recited that the land had been inherited by thevendors. Grown land is mentioned as a boundary on one side onlyin one of the deeds. The evidence shows that the accused plantedthe land sixteen or seventeen years ago in coconuts, of which onlya few survive. He then planted rubber, which is now two and ahalf years old. It is in respect of the clearing, preparatory toplanting the rubber, that the charge has been preferred.
The accused has been convicted upon the argument that a claimof right which is untenable at law is not such a bona fide claim aswould oust the jurisdiction of the Court (c/. Sourjah v, Faleela1).In my opinion this doctrine has no application in the present case,because by section 4 of the Forest Ordinance the Police Court isspecially given jurisdiction to try any question of title arising inthe case, and no question of ouster of jurisdiction can arise. Thereal defence in the case is that the accused under a mistake of fact,and not of law, acted in a bona fide belief that the land was his bypurchase. This defence is a general exception to all offences(sections 72 and 38 of the Penal Code). It is not the same thing asmistake, and the case of Casie Ghetiy v, Ahwmadu2 appears to havebeen decided on that basis. The distinction between ignoranceand mistake is very fine. To say “ I did not know that the landwas land at the disposal of the Crown ” is an admission of ignorance.To say “ I thought this land was not land at the disposal of theCrown ” is a plea of mistake, but it involves the corollary, “ thereforeI did not know it was land at the disposal of the Crown.” Mistake
1921.
Bertram
C.J.
Weerahoon
v,
Banhamy
1(1918) 16 N. L. 249.
*{1915) 18 N. L. R. 184.
1921.Ennis J.
Weerakoon
v.
Ranhdmy
( 62 )
therefore, incidentally implies ignorance. In practice neitherposition is definitely taken np by an accused tfho narrates the factsand circumstances at the time and leave it to the Court to decideWhether a reasonable person might, in the circumstances, have cometo a mistaken conclusion^ So a defence of a “ bona fide claimof right ” merely means that at the time of committing the actcomplained of the faots were such that any reasonable man wouldcome to the conclusion that the act Was right.
In this case the defence is, in effect, that the accused had noreason to believe that the land was land at the disposal of the Crown,beoause it has been in private possession for over (approximately)forty years, beoause it was surrounded on three sides by landsimilarly situated and privately owned, because the land boughtfrom Hetuhamy had a plantation on it (i.e., a permanent cropinconsistent with chena), and because everybody, including theChena Muhandiram himself, thought it was private land. Thequestion is purely one of fact, as to whether the accused bona fidebelieved the land to be private land. If mistaken in that belief, itwould be a mistake of fact, which would fall under the generalexception set out in section 72 of the Penal Code. The question ofbona fides is really at the bottom of most criminal prosecutionsfor clearing forest, and if there is no 6ona fide belief, there is nomistake of fact. In my opinion the facts of the present case aresuch that the accused should be acquitted. The civil remedy willstill be open.
De Sampayo J.—
. There is a series of cases in which it has been held that wherethere is a bona fide dispute of title between the Crown and a personcharged with an offence under the Forest Ordinance, the PoliceMagistrate should not convict as the result of a finding as to title,the provision of section 4 of the Ordinance not being intended toapply to such a case. It is unnecessary for me to refer to thesecases in detail, as the Chief Justice, whose judgment I have hadthe advantage of perusing, has collected them and stated theireffect. I need only say that in the -cases which I myself had todeal with, I did not intend to hold that the jurisdiction of the PoliceCourt was ousted, but only that in the presence of such circumstancesas were indicated the Police Magistrate should not allow criminalprocess to serve an indirect purpose, and should leave the matter tobe decided by a Civil Court, leBt “ a law calculated for wise purposesmight be made a handmaid to oppression,” as Willes J. put it inReginav. Tolson} I think still that the princiole of the previous casesabove referred to is right. In the present (Me we have to considera different question, namely, whether, even in a case where the 1
1 (1889) 23 Qt B,D. atp. 178.
( 53 )
Police Magistrate may properly exercise his jurisdiction tindersection 4 of the Ordinance, the accused may not plead Want ofguilty knowledge.
Mr. J. S. Jayawarden©, for the accused, has, in the first place,submitted that an offence under the Forest Ordinance, like anyother offence, cannot be committed without mens rea, and that aperson who bom fide believes he has good title to a land as againstthe Crown has no mens rea. I agree with the argument of theSolicitor-General on the other side that the English doctrine ofmens rea is not applicable to us, and that we must look to the PenalCodefor any exception to criminal liability. Mr. Jayawardenenextrelied on the provision of section 72 of the Penal Code, which declares :“Nothing is an offence which is done by a person …. whoby reason of a mistake of feet, and not by reason of a mistake oflaw, in good faith believes himself to be justified by law in doing it.”
By virtue of section 38 of the Penal Code this general exceptionis extended even to offences under any law other than the PenalCode. The Solicitor-General has contended that, inasmuch assection 4 of the Forest Ordinance gave 'jurisdiction to the PoliceCourt to investigate the claim of title made by the accused, whetherbona fide or not, the exception created by section 72 of the Code isrendered inapplicable to this class of cases. I am unable to agreewith this contention. There is nothing in the two enactmentswhich renders the one inconsistent with the other, and both arequite capable of having operation at the same time. I think theeffect of section 72 of the Penal Code on offences of the ForestOrdinance must be considered.
Ordinarily there is no difficulty about the expression “ mistakeof fact.” It is a misconception as to the existence of somethingwhich in reality does not exist. What, then, is a “ fact ” in thisconnection ? I should say that it was something external to oneself.It cannot I think include a state of mind. It is, indeed, the supposedfact which produces the state of mind. The difference between“objective ” and “subjective” well known in mental science isnot an inappropriate distinction for the present purpose. Mr.Jayawardene’s argument, as I understand it, is that the accused’sbelief on the strength of his deeds and possession that he had goodtitle is “ the fact,” about which he was mistaken. I cannot accedeto this argument. The mistaken belief is the result of a process ofreasoning, whereby he gives legal effect to his deeds and acts ofpossession. This sorely is a mistake of law and not of fact. Itherefore think that the accused has not brought himself within theexception provided by section 72 so as to be exempt from criminalliability.
If I were .to revie9*the evidence, I should find it difficult toconclude that the land, in question was “ chena ” at the time of thealleged offence. But as the argument centred on the question of
1921.
Da Sampayo
X
Weerakoon
e.
Ranhonvy
( 54 )
1921.
De Samfayo
j.
Weerakoon
v.
Ranhamy
law arising in the case, I shall say no more on the question whetherthe presumption of title in favour of the Crown under the OrdinanceNo. 12 of 1840 can be upheld. In the circumstances, while I thinkthat the conviction should be affirmed, I agree that the sentenceshould be reduced as ordered by the Chief Justice, and also I would,if I might, support the Chief Justice’s further recommendation forgenerous treatment of the accused by the Crown.
Schneider A.J.—
Under section 21 (1) read with section 3 and under section 22 clthe Forest Ordinance, 1907, it is an offence to clear a chena notincluded in a reserved or village forest. This is an appeal from aconviction of having cleared such a chena. For the prosecution ithas been proved that the land was cleared two and a half yearsbefore the date of the prosecution and planted with rubber; thatit is chena land which had been cultivated with the usual chenaproducts at intervals of eleven or twelve years; that it bad beencleared about eleven or twelve years before the last clearing, and atthe date of the clearing, which resulted in the prosecution, therewas a jungle growth about eight years old. It was also proved thatthe chena was not included in a village or reserved forest. Theappellant admitted the clearing. He pleaded that he had purchasedthe land by a deed dated 1906; that he cleared and planted theland about twelve or sixteen years before the date of the prosecution,and that no action had been taken by the Grown as regards thatact. His vendor’s title is set out as by inheritance. It is notdisputed that the land is within the Kandyan Provinces, and thatthe appellant’s title is not founded on a sannas or grant. It wasnot disputed in the lower Court that the land is chena. As arisingout of the defence, four questions of law were discussed. I wouldsummarize them as follows :—
Whether the doctrine of mens rea of the law of England
was applicable to the offence of which the appellant has
been convicted ?
Whether the appellant could plead the exception contained
in section 72 of the Penal Code so as to avoid a conviction ?
Whether the defence being a bona fide claim of right ousted the
jurisdiction of the Magistrate ?
What is the effect and scope of section 4 of the Forest Ordi-
nance ?
The first question involves two distinct propositions : (1) Doesthe English law doctrine form a part of our criminal law; and(2) is mens rea as understood in the English law required for a con-viction of an offence under section 22 of the Forest Ordinance ?
It is necessary to inquire what the English law is on the subjectpf mens rea,
( 55 )
In the case of The Attorney-General v. Rodriguesz* Ennis J. hasembodied in his judgment a very instructive and useful passagefrom Mayne9 s Criminal Law of India. In this passage‘Maynepoints out that the origin of the doctrine of mens rea is to be tracedto the fact that the Common law of England attached names* tocertain crimes, such as treason, murder, &c., without definingwhat each crime consisted of. The meaning of the terms had inconsequence to be gathered from text writers and from Case law.From these sources it was to be ascertained that a crime consisted,not only in the doing of a particular act, suchas the killing of a man,but doing it with a particular knowledge or purpose. This super-added mental state was generally called mens rea. According to thehistory of the' term, Mayne reduces the doctrine into this: “thatnothing amounted to a crime which did not include all its necessaryingredients.” As Mayne points out, the maxim is wholly out ofplace in a system of law such as ours, where under a Penal Code orother Statute law every offence is defined, not only with regard to.the act, but with reference to the state of mind. But Mayne proceedsy say that there is a large and growing class of statutory offencesWnere acts previously innocent are forbidden, or previously optionalare commanded, from pure considerations of the interests of theState or of a particular class of the community. In regard to thisclass of offences, he points out that questions have frequently arisenwhether a person is punishable when he has violated the provisionsof the Statute in ignorance of the fact on which the violation depends.In such cases he states that it is now settled that the test is “ to lookat the object of each act that is under consideration to see how farknowledge is of the essence of the offence created.” For arrivingat a decision upon that question, he states that it has been heldto be material to inquire (1) whether the object of the Statute wouldbe frustrated if proof of such knowledge was necessary; (2) whetherthere is anything in the wording of the < particular section whichimplies knowledge; (3) whether there is anything in other sectionsshowing that knowledge is an element in the offence referred to in thesection under consideration. He supports his statement by referenceto Regina v. Prince;2 Regina v. Tolson;3 Cundy v. le Cocq,>4In The Bank of New South Wales v. Piperf the respondent’s stockwhich was under a lien to the appellant bank was sold by the re-spondent without the written consent of the bank. Under section7 of the New South Wales Act, such an alienation was declaredto be an offence. Sir Bichard Couch, in delivering the judgmentof the House of Lords, expressed himself thus : “ It Was urged in
order to the constitution of a crime whether Commonlaw or statutory
v «/
’ there must be metis rea on the part of the accused, and that he ma; 1
1 (1916) 19 N. L. R. fa at p. 68.
* L. R. 2 C. C. 161.
5 (1897) L. &. A. Q* 384,
•j
1921.
Schneider
A.J.
Weerahoon
v.
Ranhamy
8 (1$89) 23 Q. B. D. 168.* (1884) 13 Q. B, J>. 807*
( 56 )
1921, avoid oonvicfcion by showing that such mens did not exist. That isSgtoitobb a proposition their Lordships did not desire to dispute, but theA.J. question whether a particular intent is made an element of theWeeraiko a 8*atu^ory ©hd1®* and, when that is not the case, whether there wasv absence of mem tea in the accused are questions entirely different,Ranhamy and depend upon different considerations. In cases where theStatute requires a motive to be proved as an essential element of thecrime 1 the prosecution must fail if it is not proved. On the otherhand, the absence of mens rea really consists in an honest and reason-able belief entertained by the accused of the existence of facts, which,if true, would make the act charged against him innocent. Thecircumstances of the present case are far from indicating that therewas no mens rea on the part of the respondent. He must be presumedto have known thh provisions of section 7, whether he was actuallyacquainted with its terms or not. Then he knows that he had notthe written consent of the mortgagee, and that knowledge was suffi- .cient to make him aware that he was offending against the provisions,of the Act, or, in other words, was sufficient to constitute what isknown as mens rea”
It would appear, therefore, that there is nothing to support theproposition that the English law of mens rea has been imported intoor forms a part of our criminal law. Nor is there anything in theorigin of our criminal law to render such an importation necessary,because our law;, unlike the English Common law, defines theingredients requisite for each offence.
A Full Bench of this Court held, in Kachcheri Mudaliyar v. Moha-madu,1 that the Penal Code had abolished such portions of thecriminal law of England as had been imported into this Island. Thatis yet another reason for rejecting the proposition. The offence ofwhich the appellant has been convicted comes within that class'ofoffences which Mayne describes as Statute created out of pure con-siderations for the interests of the State. If the tests which heprescribes, and to which I have already referred, be applied to as-certain whether the appellant is punishable because he has violatedthe provisions of the Ordinance in ignorance of the fact on whichthe violation depends, it would become-apparent that the object ofthe Ordinance would be frustrated if the onus lay on the prosecutionin every case of an offence under section 21 to prove that the accusedhad knowledge that land was of a particular nature and was landat the disposal of the Crown. There is nothing in the wording of thesection which implies such onus, nor is there anything in the othersections showing that such onus is upon the prosecution.
It is evident, therefore, that in this case all that the prosecutionneed have proved was that the appellant cleared-a chena which island at the disposal of the Crown, and not included in a reserved orvillage forest. To this charge any defence which is permissible
1 (2920) 21 N. L. & 369.
1921,
l.fiT )
under ohapter IV. of the Penal Code was open to the appellant forthe reasons which I will state later. Even if our law permitted theappellant to plead the absence of mens rea on his part, the fact thatthe title he relied upon Was one whioh was impossible in our law, aswill be shown presently,and that this knowledge must be imputedto him, would constitute mens rea. There is still another reasonwhy the English law dootrine of mens rea has no place in our law,and that is the existence of express provisions in our Penal Codeof exceptions which may be pleaded in the nature of the absence ofmens rea as understood in the English law. I would, therefore, holdthat the doctrine of mens rea has no application to the offence ofwhich the accused has been convicted.
Under the second question, whioh raises the applicability ofsection 72 of the Penal Code, the learned Solicitor-General arguedthat the effect of section 4 of the Forest Ordinance in vesting Magis-trates with jurisdiction to adjudicate upon title to land being later indate than the Penal Code was to exclude the provisions of section 72in regard to offences under the Forest Ordinance, I understood himto argue that as the Magistrate, was empowered to try a questionof title for the purposes of the prosecution, there Was no room for theexceptions in section 72. The learned Solicitor-General appeared tohave studied his brief carefully, and argued the whole of his case withmuch ability, but I find I am unable to agree with his argument onthis point. I do not see that the provisions of section 4 necessarilyexclude those of section 72. Even after the Magistrate had adjudi-cated upon the question of title, it is possible that there would stillremain for adjudication the further question under section 72, •whether the accused acted under a bona fide mistake of fact.
The effect of the definition of offence in section 38 (6) of thePenal Code is to render the general exceptions in ohapter IV.of that Code pleadable even in respect of offences created byany law other than the Code. For the appellant it was arguedthat he was exculpated by the provision in section 72, whioh is asfollows : “ Nothing is an offence whioh is done by any person whoby reason of a mistake of fact, and not reason of a mistake of law,in good faith believes himself to be justified by law in doing it.”The appellant had acquired title by a deed dated 1906, he had clearedthe land some sixteen years before the. date of the offence, no chargehad been made against him in respect of that act, he had thereforebona fide believed that the land belonged to him, and that he waslegally justified in clearing it. It is true that his title was not onewhich could exist in the law,' but the mistake was one of fact, notof law, viz., believing that to be his property, w)iich in fact was not.
,The Solicitor-General conceded that the appellant had acted under•a bona fide belief, but he contended that the appellant’s mistake was
l
•not one of fact bnt of law, and the exception would not therefore savefche appellant. I think the Solicitor-General’s contention is right.
SCHMXIBBB
A.J.
WeeraJboontf.
Ranhamy
( 58 )
1921.
A.J.
Weerakoon
v.
Ranhamy
It is now settled;law that no person can establish title to chena landsin the Kandyan Provinces as against the Crown, except by proof of asannas or grant for such lands, or of payment of the customary taxes,as indicated in section 6 of the Ordinance No. 12 of 1840. Thetitle relied upon by the appellant does not come within the abovedescription, and is one therefore which the law would not recognize.The only mistake he made was in being ignorant-that this was thelaw. He was riot ignorant as to the facts relating to his title, noras to the fact that the land was a chena within the Kandyan Pro-vinces. He must be presumed to have known the law whether hewas actually acquainted with it or not. It seems to me thereforethat the mistake which the appellant would plead is a mistake of lawand not of fact, and that section 72 therefore does not exculpatehim. The word “ mistake ” in section 72 must be taken to includeignorance. Sections 69 and 72 are a paraphrase of the EnglishCommon law maxim in its application to criminal law. Ignorantiafacti excusat; ig-noraniia juris non excusat”
I now come to the third question which was argued, whether thejurisdiction of the Magistrate was ousted by the claim of titlepleaded by the appellant. His counsel contended that a bona fideclaim of right ousted the jurisdiction of the Justices according to awell-recognized principle of the English law which had been adoptedin our Courts. There could .be no doubt as to the bona fides of theappellant’s claim of title to the chena. The Solicitor-General metthis contention with three arguments. His first argument was thatthe principle had no place now in our system, as the effect of thedecision of the Full Bench in the case of the Kachcheri Mudaliyar v.Mohamadu1 already mentioned was to repeal all those portions ofthe English law which had been imported into our law. I do notagree with him. The principle in question js not substantivelaw, but procedure. The Full Bench decision repealed only thesubstantive English law which had been adopted, not procedure.That7 decision therefore does not help his argument. The principlehad been recognized and followed in our Criminal Courts for a verylong series of years, and I am unaware that the question has beenraised at any time of its not being a part of our procedure. Itsexistence as a part of our procedure was recognized by a Full Benchof this Court in the case of Sourjah v. Faleela.2 I do not, therefore,consider this argument sound. His second argument was that theprinciple in question had no application in the case of prosecutionsunder the provisions of the Forest Ordinance, because by virtue ofsection. 4 of that Ordinance. Magistrates are expressly vested withjurisdiction to adjudicate upon questions of title for the purposesof any prosecution; This argument is sound. The reason for thatrule of the English law is thus expressed in Hudson v. McEea?
1 (1920) 21 N. L. R. 369.* (1913) 16 N. L. R. 249.
* (1864) L, J. R. (M.C.) 65.
r 59 )
“ When the question is one of fact, whether>such a right as may existin law does exist in point of fact, then title to property comes inquestion, and inasmuch as Justices cannot try that question, being*an incompetent tribunal for the purpose, they should hold theirhands on being convinced that the claim is bona fide” The reasonfor that rule of law, the absence of jurisdiction, therefore ceased toexist so far as offences under the Forest Ordinance are concerned.The maxim Cessante ratione cessat lex applies. The third argu-ment was that as the result of the exposition of the law in regardto title to chena lands in the Kandyan Provinces in the cases ofThe Attomey-Qensral v. Punchirala,1 already referred to by me, theappellant’s title is one which cannot exist in law:, and therefore hisclaim of right does not operate to oust the jurisdiction of the Magis-trate. The rule of law as to a claim of right ousting jurisdiction iswell put in Arnold v. Morgan,2 thus : “ Where a claim of right isset up to do the act complained of, then, if upon the consideration ofadmitted facts it is clear that the law will not admit of the claimraised, the jurisdiction of the Magistrate is not ousted; but, if inorder to decide whether a legal claim exists, it is necessary to deter-mine some disputed question of fact, or if it is not clear that the rightclaimed is impossible in law, then the jurisdiction of the Magistrate isousted.” The proposition that an impossible claim of right doesnot oust the jurisdiction of the Magistrates is supported by a numberof oases decided by English Courts, and also by a case decidedby a Full Bench of this Court. I would mention Hudson v. McBea ; 3Hargraves v, Diddama;4 Cole v. Miles;* Arnold v, Morgan;2 andSoutyah v. Faleela.6 I would therefore hold that the claim of rightpleaded on behalf of the appellant did not oust the jurisdiction ofthe Magistrate.
As regards the fourth question, as to the effect and scope of section4, since writing my judgment on this part of the appeal, I had theadvantage of reading the judgment of His Lordship the Chief Justice.In view of his observations on this part of the appeal, I think I needsay no more than that I entirely agree with them all. 1 also agreewith the order he proposes should be made as regards the convictionand sentence of the appellant.
Conviction affirmed; sentence varied.
♦
*(292$) 18 N. L. B. 152.
a (1911) L. R. 2 K. B. 314.
(1864) L. J. R. (M. G.) 6$.
*(1875) 10 L. R. Q.B. 582s 57 L. J. (M. 0.) 132.*(1913) 16 N.L.R.249.
1921.
SCHHBIDSB
' A.J.
Weerahoon
v.
Ranhamy