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WIJEYSEKERE v. SEMEBA LEBBE.
P. C., Panadure, 17,762.
Ordinance No. 84 of 1884—Chairman of Village Committee—Hit summonsand ex facie had warrant—Failure to record reasons for warrant—Arrestunder it and custody—Custody unlawful—Escape therefrom not punish-able—Penal Code, ss. 810 and 820.
Where a villager, though served with summons, had failed to attendthe Village Tribunal to be tried for breaches of rules under OrdinanceNo. 84 of 1684, and where, in consequence, 5 warrant ex facie bad wasissued by the Chairman, who had also failed to record his reasons there-for; and where under such warrant the villager was arrested and placedin custody, but had escaped therefrom:
Held, that such escape was not an escape from lawful custody, and wastherefore not punishable under section 219 of the Penal Code, nor hisaiders and abettors under section 220 of the Penal Code.
NE Medi Lebbe Assan Bawa bad a complaint lodged againsthim for failing to perform labour on a certain road or to
commute such labour by money payment. At first an ordinarysummons was served on him at the instance of the Chairmanof the Village Committee to appear and answer the charge ofviolating one of the rules of the Village Committee for “ 1904,”which, however, was a clerical error for “ 1903.” The accusedmade no appearance, and thereupon a warrant was issued underrule 9 of the rules to be observed by Village Committees forbreaches of rules under Ordinance No. 34 of 1884. Under thiswarrant he was arrested and placed in custody, but with the helpof a few of his friends he managed to escape from it.
Thereupon he was charged before the Police Court undersections 219 and 220 of the Penal Code, and his aiders and abettorsunder section 219. They were convicted, and four of them,including the principal, appealed against the conviction.
The case came up for argument before Middleton, J.,. on the 16thNovember, 1903, but stood over for information from the PoliceMagistrate as to the authority under which warrant was issued.It came up again for argument on the 26th January, 1905.
Bawa (with him.E. W. Jayawardene), for appellant.
Ramanathan, S.-G., for respondent.
[The following cases were cited by counsel:—Daviot v. Rodrigos,•5 8. C. C. 68; Ismail Waipody v. Pannikipody, 5 S. C. C. 152;Alliar' Levvai v. Ismail, 3 N. L. R. 224; Abdul Gafur v. QueenEmpress, I. L. R. 23, Cal. 896; In re Insolvency of TillekeratnarTambyah, 30; Queen Empress v. Tulsiram, 1. L. R. 13, Botnb, 168;Wijetunge v. Podi Sinno, 3 Br. 57.]
Cur adv. vult.
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2nd February, 1905. Middleton, J.—1905.
Three of the four appellants were convicted under section 220 February 9.of the Ceylon Penal Code of offering resistance or illegal obstruc-tion (sic) to the lawful apprehension of one Medi Lebbe AssanBawa, the fourth appellant, who was also convicted under section219 of escaping from lawful custody under a warrant issued by theChairman of the Village Committee of Adikari pattu dated 3rdOctober, 1904.
This warrant purported on the face of it to issue on .the groundthat the attendance of the fourth appellant before, the Committeecould not be secured by means of an ordinary summons to answera complaint for failing to perform, labour on a certain road or tocommute such labour by money payment in accordance with therules of Village Committees for 4t 1904/'
It is admitted by the Solicitor-General that no such rules exist,but he submits that this is a mere clerical error for “ 1903/* whichcan be easily cured, and does not invalidate the warrant.
Strictly speaking, the warrant is ill-founded and bad ex facie,and my opinion is confirmed by the ruling of Bonser, C.J., andWithers, in D. C., Colombo, 1,866, reported in Tambyah'sReports, p. SO.
I think also that a warrant under rule 9 of the rules to beobserved by Village Committees for the trial of breaches of rulesunder, Ordinance No. 34 of 1884 in the Western Province, publishedin Gazette No. 4,850 of March 23, 1888, would not be a lawful one,unless there was some evidence recorded by the Chairman show-ing that the defendant contumaciously refused to attend.
The fact that he has been served with a summons and does notattend is not sufficient.
I cannot see any reason why a Chairman of a Village Committeeshould have greater powers than a Magistrate has under section 62of the Criminal Procedure Code, who is bound to have reasons forissuing a warrant and to record them in writing.
I think therefore that the 4th appellant was not in lawful custodywhen he escaped, and he is not responsible under section 219, northe other appellants under section 220, of the Penal Code, and they “must be acquitted on the charges in the conviction.
I have not, however, the slightest sympathy with any of theseappellants, and think they should be punished if .the law can reachthem. It seems to me that the complainant, being a police vidhan,was acting as a public servant in good faith under colour of his»office, though his act was not strictly justifiable by law, and thefirst, second, and third appellants would have no ttght of privatedefence»against him under section 92 of the Criminal ProcedureCode. The evidence is that the police vidhan had the warrant
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with him and explained it, and it must have been well known to theappellants who he was. The evidence also clearly shows that thesecond accused and appellant held the police vidhan by the neck;that the first accused and appellant pulled the seventh accused andfourth accused out of the custody of the complainant, while thethird appellant and accused had a stick with him and was insult-ing the complainant. And the accused who has been convicted, andwisely not appealed, threw mud over the complainant. Strictlyspeaking, there was an assault on the complainant by secondaccused and appellant, and the first and third accused appellantswere present aiding and abetting that assault, and would beresponsible as principals under sections 33 and 107 of the PenalCode of the offence of assault defined under section 342.
I do not think the Chairman's action in granting the warrantwas so entirely ultra vires as the Court held the Collector's orderto be in the case reported at p. 168 of L L. E. 13 Bombay, and Ithink these accused have no reason to complain that I treat themias strictly and technically as their counsel desired 1 should in thematter of the warrant. Acting then within the powers conferredon this Court under section 347 of the Crimnial Procedure Code, Ifind the first, second, and third accused, appellants, guilty ofassault under section 348 of the Criminal Procedure Code, and Imaintain the fine of Bs. 20 and imprisonment in default inflictedby the Magistrate upon each of them.
flhe convictions under sections 219 and 220 will be set aside, andthe fourth appellant will be discharged.
WIJEYSEKERE v. SEMERA LEBBE