117-NLR-NLR-V-39-WEERASINGHE-v.-PETER.pdf
426
Weerasinghe v. Peter.
1937
Present: Abrahams C.J.
WEERASINGHE v. PETER.
563—P. C. Matale, 20,381.
Bind over to keep the peace— Mature of information insupport of charge
Breach of peace imminenU-r-Breach of peace on the part of person otherthan accused—Criminal Prqcedure Code, ss. 81 and 84.
The information on which: a person is bound over to keep the peacetmder section 81 of the Criminal Procedure Code must be direct and nothearsay. A breach, of the peace in respect of which a person is calledupon to give security must be shown to be' imminent or in contemplationat the time the information is given or the order asked for.
Where a summons makes an' allegation upon which is based a chargethat a person is likely to commit a breach of the peace, the charge cannothe established by facts leading to the conclusion that the breach ofpeace will be committed by some other person owing to the wrongfulacts of the person charged. Jamal v. Aponsu (2 Times of Ceylon L.R. 215)followed; Pietersz v. de Silva (3 C. W. Rep. 361 > distinguished.
ABRAHAMS C.J.—Weerasinghe v. Peter.427
A
PPEAL from an order made by the Police Magistrate against theappellant under section 81 of the Criminal Procedure Code to enter
into a bond to keep the peace.
Hayley, K.C. (with R. C. Fonseka), for appellant and petitioner inapplication.
H. V. Perera, K.C., (with B. H. Aluimhare), for respondent to appealand application.
October 14, 1937. Abrahams C.J.—
The appellant was ordered by the Police Magistrate, Matale, undersection 81 of the Criminal Procedure Code, to enter into a bond for thesum of Rs. 100 to keep the peace for six months. Against this order heappeals.
The proceedings were instituted by a Mr. C. S. Peter, superintendentof an estate, who swore an information which is sufficiently instructive, inview of the nature of the proceedings, to be reproduced verbatim. Thisis what he said : —
“ A portion of the Bambaragala estate is planted, in cardamoms for• the last thirty or forty years. I have been in charge of the estate forfive years. For the five years I have been taking the produce. Onthe 15th instant evening I heard from my Assistant that Weerasingheand some Singhalese men had entered the cardamom field and hadcleared the land. I went there on Sunday the 16th and 1 foundnobody at work. I again went on the 17th Monday, and the watchergave me information that Weerasinghe and some five Singhaleselab' ,-ers had been picking cardamoms. I reported the matter to theRattota Police. On the 17th there was no reserve constable. Theysent a P. C. on the 18th. I accompanied him. Three of the coolieswere there watching on the road in the cardamom area. They weretaken by the Police and my watcher identified these three as the menwho were picking cardamoms on the previous day. The constablewarned them not to come back. The following day they came backagain. I again sent for the Police and on the 20th I received infor-mation that Weerasinghe had stopped my firewood contractors fromremoving my firewood. I received information that Weerasingheinsisted on occupying the land even if it came to the matter of usingfirearms. I anticipate breach of the peace between my own labourersand Weerasinghe. I do not want to take the law into my own hands. ”
In view of the fact that none pf the allegations in this information were .direct but the facts alleged had reached the informant by hearsay, I donot think that the learned Magistrate was justified in issuing process.However, a summons was issued under section 84 of the Criminal Proce-dure Code, the material portion of which runs as follows : —
“ Whereas it has been made to appear to me by credible informationthat you stopped the firewood contractor of Bambaragala estate fromremoving firewood and insisted on occupying a portion of Bambaragalaestate and that you are likely to commit a breach of the peace"
428
ABRAHAMS C.J.—Weerasinghe v. Peter.
By section 85 of the Code this summons should have contained a briefstatement of the substance of the information on which the summons wasissued, in order of course that the person summoned should have noticeof the facts upon which it is alleged that he is likely to commit a breachof the peace. On- the face of it the appellant must have assumed eitherthat the breach of the peace which he was likely to commit was in stoppingthe firewood contractor, or on his insistence of his occupying a portion ofBambaragala estate which, of course, in itself is not a breach of the peace,unless insistence means the exercise of violence, or that in addition tothese two allegations of aggressiveness he was in some vague general waybelieved to be likely to commit a breach of the peace.
On his appearance in the Police Court, the informant, Peter, gave nodirect evidence of the appellant’s conduct. He said that he had heardthat the appellant and his men had been picking cardamoms on a portionof the estate which he claimed to be his, and he gave evidence of title.He said he apprehended a clash between his coolies and the appellant’scoolies as the appellant had wrongly put out a site for building. He hadnot himself spoken to the appellant but his assistant, Bolling, had actuallydone so, and his attitude appears to have been that of a man – who hadrestrained himself from committing some act of violence under greatprovocation, and his evidence appears to give the impression that he wasprepared to assert his rights as owner with some act of violence unless hisapplication against the appellant was successful.
The firewood contractor, interference with whom was made so importanta part of the summons, was not called to give evidence and Peter informedthe Court that the contractor did not tell him how he was prevented fromcarrying out his contract.
Bolling, the assistant superintendent, gave direct evidence of thepicking of these cardamoms, and the claim on the part of the appellantthat he. was acting for a certain Dr. Hunt who bought the place. Bollingadded that the appellant told him that none of the estate coolies shouldenter the cardamom portion till he and Mr. Peter had had a fight -for theland. Bolling appeared to think that this indicated an intention on thepart of the appellant to challenge Peter to a trial of physical strength. Ido not agree. I think that this statement about a fight was used figura-tively, and that is supported by a letter which Bolling sent to his principalin which he said that the appellant had stated his intention of filing anaction against Peter for cutting the jungle trees in his cardamom plot,and that the appellant had added that none of the estate coolies shouldenter the field till “ he and you fights for the place ”.
The appellant did not give evidence nor did he call any witnesses. Ithink that the learned Magistrate was entitled to draw from his silence aninference of his inability to justify his entry, upon the estate, but that isfar from saying that he was justified in holding that there was proof thata breach of the peace was likely to occur. The Magistrate said : “Thepetitioner seeks to have the respondent bound over as the continuedunlawful acts on the part of the respondent would probably occasion abreach of the peace”. The learned Magistrate has also said that in view
ABRAHAMS C.J.—Weenmsinghe v. Peter.
429
of the state of the feelings between the parties, judging by the letter ofBolling written to Peter, any more wrongful acts would probably resultin a clash. He thought that if the firewood contractor was preventedfrom removing firewood there was a reasonable likelihood of a clashtaking place. In view of the fact that the firewood contractor was notcalled, how was it possible to say what was the prevention which theappellant planned ? Moreover, there was no evidence whatever that theappellant was threatening to use any violence against anybody since, asI have said, the expression “ fight ” he is said to have used to Bolling, inmy opinion was used in a figurative sense only. That being so, if anyviolence was likely to be exercised against the appellant it would proceedfrom Peter or his men. The learned Magistrate seenxed to think that theappellant once having established himself on the estate would proceed tofurther acts implying ownership by putting up a building, picking carda-moms, clearing the jungle, and preventing the coolies on the estate and thefirewood contractor from performing their lawful duties. This is vague,speculative, and distant. In Jamal v. Rebecca Aponsu Jayewardene J.said that, “ A breach of the peace in respect of which a person is calledupon to give security must be shown to be imminent or in contemplationat the time' the information is given and an order asked for ”. It d'oesnot seem to me that a breach of the peace was imminent at the time theorder was asked for nor can I see who was contemplating it. An antici-pation of a breach of the peace that would take place at some distantdate cannot be regarded as contemplation.
There is also this further point. The summons alleged that it was theappellant who was likely to commit a breach of the peace. The Magis-trate found that it was likely that the wrongful acts of the appellantwould cause a conflict, and justified his finding on the authority ofde Sampayo J. who said in the case of Pietersz v. de Silva*, that “Theintention to commit a breach of the peace need not necessa'rily be on thepart of the person charged …. it is sufficient if the persondharged does any wrongful act that may probably occasion a breach orthe peace on the part of another person”. I have carefully examinedthat case but I do not find in it any ground for holding that where asummons makes an allegation upon which is founded a charge that aperson is likely to commit a breach of the peace, at the hearing anotherset of facts can be put forward leading to the conclusion that it is somebodyelse who will commit a breach of the peace owing to the wrongful acts ofthe person charged. I think that the absence from the summons of allthose necessary facts from which the learned Magistrate .came to hisfinding would justify me in quashing his order, but, as I have said above,the vagueness and speculativeness of the evidence are insufficient tomaintain this order. Every case in which a party, who says his land isbeing invaded, comes to Court and says that unless the trespasser is boundover to keep the peace he himself may break the peace does not necessarilycall for an order under section 81 of the Code.
3 2 Times of Ceylon Law Rep. 215.
3 C. W. Rep, 361.