025-NLR-NLR-V-10-WEERESOORIYA-v.-MARIANU-BAAS.pdf
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Present: Mr. Justice Wendt.WEERESOORIYA v. MARIANU BAAS.
1906-
November 7.
P. C., Qalle, 84,687.
Disturbing the repose of inhabitants—Abetment—Noise made by the ser-vants of the accused—Ordinance No. 16 of 1865, s. 90—Ceylon PenalCode, *. 107.
A person who, although aware of the fact that his servants arcdisturbing the repose of the inhabitants of the neighbourhood bypacking and coopering plumbago barrels for his benefit, does notforbid or prevent it, is guilty of abetment of an offence undersection 90 of Ordinance No. 16 of 1865.
Bell e. Senmayaha (1) distinguished.
A
PPEAL by the Attorney-General from an acquittal. Thefacts sufficiently appear in the judgment.
t
J. C. Pereira, for complainant, appellant.
Van Langenberg, for accused, respondent.
Cur. adv. vult.
7th November, 1906. Wendt J.—
The appellant was charged with (1) making a noise in the nightso as to disturb the repose of the inhabitants (Ordinance No. 16 of1865, section 90), and (2) abetting the commission of that offence.The Magistrate, at the close of the case for the prosecution, dis-charged the accused without calling upon him for a defence, and thecomplainant appeals with the sanction of the Attorney-General.The evidence laid before the Police Court proved that the accusedcarried on, at a house in Kumbalwella in the town of Galle, thebusiness of curing and packing plumbago. This plumbago waspacked in barrels made and coopered on the premises, and thepacking and coopering was attended with considerable noise.Recently it had become the practice to carry on this work at night,and the noise seriously disturbed the repose of the inhabitants ofthe neighbourhood, which is thickly populated. The accused livesou the premises, and there is good reason for concluding that he wascognizant *’of the noise made by his agents and workmen. Thecomplainant deposes that he has heard the noise of the accuseddirecting the workmen, while the noise was going on at ni^ht.
Under these circumstances, the Magistrate held, following thedecision Jn the case of Bell v. Senanayaha (1), that the accused could
(1) (1904) 7 N. L. R. 126.
12-
1006.
November 7.Wundt J.
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not be convicted of a breach of section 90 of M The Police Ordinance,.1865, " because he had not himself made the noise complained of.The case referred to supports the Magistrate in so holding. “ I canfind nothing in that section, ” said Layard C.J., "which renders aperson liable to prosecution for causing other persons to make sucha noise as to disturb the repose of the inhabitants of the locality."The accused in that case was not charged, as the present accusedis, with abetting the offence of those who did make the noise. Hehad not been present at the commission of their offence, and couldnot therefore have been convicted as a principal under section 107of the Penal Code. The attention of the learned Chief Justice there-fore was not directed to the provisions of the Penal Code as to abet-ment. The Magistrate has overlooked the existence in the presentcase of the charge of abetment (c/. Cadirevelu v. Suppaiya) (1).
1 am of opinion that the prosecution has made out a prima faciecase of abetment against the accused. The offence aimed at bysection 90 of the Ordinance is habitually committed by the servantsof the accused, over whom the accused personally has the controlusually possessed by a master or employer, and the accused hascountenanced their acts and taken the advantage accruing there-from. So far as appears, he, though fully cognizant of theirbreach of the law, has never forbidden it or sought to prevent it.His conduct amounts to abetment. The Magistrate was wrong innot proceeding with the trial and not calling upon the accused forhis defence.
1 therefore set aside the order of discharge and send the case backto be proceeded with in due course. It. is unnecessary to considerthe large class of cases canvassed at the Bar, in which the questionwas whether a master could, in the absence of mens reat beconvicted of doing an act forbidden by a statute, when that acthad been done by a servant and was an isolated act, with no sugges-tion of such complicity on the master’s part as would be indicatedby his approval of a course of business which included the habitualdoing of similar acts.<
Appeal allowed; case remitted.
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(1) f«04) N. L. R. 74.