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Present: Garvin J.
WEEBASINGHE t>. WIJEYESINGHE.
172—P. C. Panadure, 9,596.
Autrefois acquit—Fiscal*$ officer— Unlawful removal—Execution of writof poeeeeeion—Penal Code, s. 162, Criminal Procedure Code, as. 181,162, 191, 880.
Where a Fiscal's officer in execution of a writ issued inpursuance of a decree for the possession of immovable property, re-moved a person who set up a claim of title to the property—
Held,, that he was not guilty of disobeying an express direction ofthe law within the meaning of section 162 of the Penal Code.
Where the Fiscal's officer in question was charged with criminaltresspass and mischief and acquitted, and was subsequently chargedon the same facts under section 162 of the Penal Code,—
Held, that under the circumstances the plea of autrefois acquitcannot be sustained.
H. V. Perera (with Banawake), for 1st accused, appellant.
Weeraeooria, for 2nd accused, appellant.
T% P. QunetiUeke, for 3rd and 5th accused, appellants.
A. Bajapakse, for 4th accused, appellant.
J. 8. Jayewardene (with Abeyewardene), for respondent.
July 14, 1927. Garvin J.—
This is one of a series of criminal cases which arose out ofan attempt to deliver possession of immovable property in pursuanceof a writ of execution issued to the Fiscal in case No. 9,627 of theDistrict Court of Kalutara.
The 1st appellant is the Fiscal’s officer to whom the executionof the writ was issued. The 3rd accused is the writ holder. liesued the complainant’s husband and others in the case referred toand obtained a decree. The 1st accused, with the 3rd accused andothers, proceeded to the land for the purpose of executing this writ.They were obstructed by the present complainant. A prosecutionwas entered against her by the 1st accused under section 183 of thePenal Code. She was convicted by the Police Magistrate, but onappeal the conviction was reversed on the ground that in attempt-ing to remove her from the land the Fiscal's officer was doing anact which he was not authorized to do in his capacity of Fiscal'sofficer, and that consequently any resistance offered to him was notresistance in respect of which a prosecution under section 183would lie. A second attempt was then made to execute the writ.
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The complainant was once again on the premises, and the evidence MOT*tends to show that the Fiscal’s officer took her by the hand and
drew her away from the house and removed her from the land. ;
Thereupon the 3rd accused and the others charged in this case eer^*n9Aeentered the house, removed the furniture and other property of Wijtyeiingft*the complainant from the building, and demolished it. The com*plainant then preferred charges against the five accused in thePolice Court of Panadure. That case bears No. 8,175. Chargesof criminal trespass and mischief were framed against the accused.
To these charges they pleaded not guilty, and the Police Magistrateultimately made order “ acquitting and discharging them ”.
Thereafter the complainant prosecuted them in this case, chargingthe 1st accused with an offence punishable under section 162 ofthe Penal Code, in that he did on the August 18, 1926, “ pulidown the house and remove Dona Rosaline Weerasinghe (com-.plainant) from her house, such conduct being contrary to theprovisions of section 723 of the Civil Procedure Code and knownby him to be prejudicial to the said Dona Rosaline WeerasingheThe other accused were charged with having aided and abetted thethe 1st accused in the commission of this offence. The accusedwere convicted, and the present appeal is taken from that conviction.
For the purposes of the appeal it must, I think, be taken to beestablished that the Fiscal's officer did on the day in question takethe complainant by the hand and remove her from these premises.
Whether he did give any direction that the building was to be demo-lished, or whether this was the independent act of the decree holderassisted by some or all of the remaining accused, may be open toquestion. It is, however, not necessary for the purpose of thedisposal of this appeal that I should express any opinion upon thatquestion of fact. The two points urged upon me by Counsel for theappellants are these: (a) That the Police Magistrate should haveupheld the plea of autrefois acquit; (6) that the facts as found bythe learned Police Magistrate did not disclose the offence of dis-obedience of an express direction of law made punishable undersection 162 of the Penal Code. The Police Magistrate disallowedthe plea of auterfois acquit upon the ground that in his view theorder made by his predecessor in case No. 8,175 was in. effect anorder of discharge under section 191 and was not therefore a bar toa fresh prosecution. The proceedings of that case show that acomplaint was made, that process issued, that charges were framed,and that the accused were called upon to plead to those charges.
Thereafter the complainant was examined at length and cross-examined and gave evidence of the very facts to which she has spokenin this prosecution. The Police Magistrate then made the followingorder: “I acquit and discharge the accused at this stage ”. Hethen proceeded to set out at some length his reasons for the
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'1927* conclusion, that upon the facts disclosed in the evidence the accusedGabvin J. were n0* guilty of either of the offences (criminal trespass and
mischief) with which they had been charged.
The word “ acquittal ” is sometimes used through inadvertence
Wijeyesinghe when it is evident from the proceedings that it was only intended todischarge the accused; even as the word “ discharged M is sometimesinadvertently used when 11 acquitted " is what was intended. Thisis not such a case. When the Magistrate said “ I acquit anddischarge the accused ” it cannot be doubted that he said what heintended.
It is by no means certain that the words “ at this stage " neces-sarily imply that the acquittals were entered before the case for theprosecution was fully placed before the Magistrate in consequenceof his refusal to hear further evidence. Even so, I am not preparedto assent to the contention that an order of acquittal made in suchcircumstances may be ignored and a fresh prosecution entered uponthe same facts in any case in which the Magistrate can be shownto have refused or omitted to take the evidence of one or more wit-nesses on the list of witnesses for the prosecution.
If the (complainant was dissatisfied with this judgment ofacquittal, he should have taken steps to procure its reversal bythe Supreme Court. So long as it remained unreversed it must,
I think, be accorded the force of an acquittal.
This, however, is not conclusive of the question whether or nothe plea of autrefois acquit should be admitted. The plea can onlysucceed when the accused is charged with the same offence or uponthe same facts for an offence for which a different charge from theone made against him might have been made under section 181 orfor which he might have been convicted. The offence in respect ofwhich the accused are now being charged is clearly not the sameoffence with which they were charged in the earlier proceeding. Itappears to have been assumed in the Court below that the offenceswith which the accused are now charged are offences for which theymight have been charged under section 181 or convicted under .section 182, and hardly any argument was addressed to this aspectof the question in appeal. The cases contemplated by sections 181and 182 are those in which a single act or series of acts is of such anature that it is doubtful which of several offences the facts whichcan be proved will constitute. The charges upon which the accusedwere brought to trial in the earlier proceedings were those of criminaltrespass and mischief by destroying the building which stood on theland. They were not brought to trial upon any charge alleged tohave been constituted by the illegal removal of the complainantfrom the land, nor did any question arise as to whether the facts bywhich such removal was to be established constituted one or theother of several offences. If the allegations made against the
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accused be true, this is an instance of more than one offence com*initted in the course of one and the same transaction within themeaning of section 180 (i) of the Criminal Procedure Code. It is acase in which a separate and distinct charge of an offence constitutedby the illegal removal of the complainant might have been preferredunder section 180 (i.). Section 830 (ii.) of the Code expresslycontemplates a subsequent trial for a distinct offence in such a case..The plea of autrefois acquit cannot be admitted.
There remains the question whether an offence under section 162is disclosed by the evidence. The offence made punishable by thatsection consists in wilful disobedience by a public .officer of an expressdirection of law with intent to cause or knowing that by such dis-obedience he will cause injury to any person. It is open to questionwhether any other intention can fairly be imputed to this Fiscal'sofficer than a desire to give effective possession in accordance withthe writ entrusted to him for execution. But the principal groundon which the conviction was impeached is that it has not beenshown that in removing the complainant from the land the accusedcommitted a breach of any express direction of law as to the wayin which he was to conduct himself.
It is urged per contra that such an express direction of law existsin section 824 of the Civil Procedure Code. This provision requiresa Fiscal or his officer upon receiving a writ issued in pursuance ofa decree for possession of immovable property “ as soon as reason-ably may be to repair to the ground and deliver over possessionto the judgment creditor or some person appointed by him toreceive delivery on his behalf". It empowers him, if need be, toremove any person bound by the decree who refuses to vacate theproperty, and it instructs him how to proceed to give delivery of“ so much of the property, if any, as is in the occupancy of a tenantor other person entitled to occupy the same as against the judgmentdebtor and not bound by the decree to relinquish such oecupancy
It is claimed that this provision is in substance a direction of lawwhich forbids.the Fiscal or his officer to remove any person who maychoose to claim a right to the land, even when it is evident that suchclaim is utterly baseless and is made collusively and solely for thepurpose of keeping a judgment creditor out of the fruits of the decreein his favour.
The section contains no such prohibition. It expressly authorizesthe removal of an obstructive judgment debtor. It deals speciallywith the case of the occupancy by a tenant or 4 4 other person entitledjto occupy the same as against the judgment debtor ’* as opposed toa person who claims a right to the land, in regard to whom it givesno direction.
In the absence of any provision of law which can fairly be treatedas an express direction forbidding the removal of any person under
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any circumstances whatever so long as he sets up a claim of rightto the premises, a Fiscal's officer when he removes such a person isin no better position than any other person, but his position is noworse. He cannot claim the protection which the law gives to publicservants when acting within the limits of the authority conferredupon* them. But there is no provision of law which exposes a publicservant to prosecution for every act which is not specially authorized.When he acts outside the limits of his authority, so long as those actsare not a breach of any express direction of law as to how he shouldconduct himself, he may like any other member of the public becomeamenable under the criminal law or incur a civil liability. But thoseare matters outside the scope of the present inquiry, which is todetermine whether this public servant has wilfully disobeyed anexpress direction of law as to the way in which he is to conducthimself. I have given my reasons for holding that he has infringedno such direction.
The appeals are allowed and all the accused acquitted.
WEERASINGHE v. WIJEYESINGHE