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Present: Shaw J.
WUESUBIYA v. ABEYESEKERA.
47—P.C. Kalutara, 49,209.
Circus — Public place — Person drunk — Misconduct in public place —Penal Code, s. 488 — Order to give security to keep the peace —Criminal Procedure Code, s. 80— “ Involving a breach of the peace. ”
Accused, who paid tor his admission to a circus, was drank, andconducted himself in- such a manner as to cause annoyance tocertain persons, and was convicted under section 488 of the PenalCode, and ordered to be bound over to keep the peace.
Held, that, as a circus was not a public place the conviction waswrong.
As an offence under section 488 does not involve a breach of thepeace, the order to give security to keep the peace was irregular.
^HE facts appear from the judgment.
Bawa, K.C. (with him Zoysa), for appellant.
Amarasekera, for respondent.
February 19, 1919. Shaw J.—
In this case the accused has been convicted, under section 488 oftile Penal Code, with having been drunk in a public place, and con-ducting himself in such a manner as to cause annoyance to certain
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persons. He was fined Bb. 100, and bound over to keep the peacefor six months. It appears from the evidence that the accusedattended a performance at a circus, and upon the entrance of anothermember of the audience, who was the Police Magistrate for Kalutara,the accused, who was the worse for liquor, cried out “ Three cheersfor the almighty Wickramasinghe, ” and commenced to clap hishands. This is the offence in respect of which he has been convicted.There are two grounds of appeal. The first is, that the Magistratehas no jurisdiction to order the accused to be bound over to keepthe peace. This appears to be a good, point. The power of a PoliceMagistrate, which the Magistrate here purported to exercise, iscontained in section 80 of the Criminal Procedure Code. That givesthe Magistrate the power, whenever any person is. convicted of anyoffence which involves a breach of the peace or of committingcriminal intimidation, to bind the accused over to keep the peace, inaddition to other punishment. The offence under section 488 ofthe Penal Code does not involve a. breach of the peace, nor do thefacts of the present case show that any breach of the peace wascommitted by the appellant. It has already been held by thisCourt in Arlinahamy v. Johannes 1 that the offence of insult is not onewhich involves a breach of the peace, so as to give the Magistratejurisdiction to order security to keep the peace. The other objectionto the conviction is an even more fatal one. It is, that the evidencedoes not show that the place where the accused misconducted him-self was a public place. Section 488 provides that the misconductshall be in a public place, or in any place which it is a trespass forthe accused to enter. There is no definition of a “ public place ” inthe Penal Code or in any general Interpretation Ordinance. It isusual to provide in similar legislation that a “ public place ” shallinclude any place where the public are admitted on payment. Butthat provision is omitted in our Code. A circus is not a public place.It is within the power of the proprietor to prevent any one enteringwithout payment, and, indeed, to prevent any one entering whomhe deems undesirable as a member of the audience. Therefore, acircus is not, in my opinion, a“ public place ” within the meaningof the section of the Penal Code. Neither is it shown to be a placewhich it was a trespass for the accused to enter, because the accusedhad apparently paid for admission to the performance. It hasalready been decided in Peitersz v. Wiggin 2 that a police station isnot a public place, within the meaning of this section of the PenalCode, and Withers J. in that case expressed an' opinion as to themeaning of a public place, ” which certainly excludes such placesas a circus which people may enter on payment.
The conviction is set aside, and the accused acquitted.
ti W. Rep. 118.
* (1892) 2. C. L. R 111.
WIJESURIYA v. ABEYESEKERA