065-NLR-NLR-V-25-THE-INSPECTOR-OF-POLICE-v.-LEBBE.pdf
( 281 )
Present: Ennis A.C.J., Porter J., and Jayewardene A.J.THE INSPECTOR OF POLICE v. LEBBE.
376—P. C. Motile, 19,674.
Public servant—Person appointed inspector of weights and measuresby Assistant Government Agent—Is he a public servant ?—PenalCode, 88.19 {explanation II.), 183, and 344.
Where a person was appointed examiner of weights andmeasures, and the authority;was issued in the name of and signedby the Assistant Government Agent and not the GovernmentAgent, and accused was charged with obstructing him (a publicservant) in the discharge of his public functions, under section183 of the Penal-Code,—
Held, that he was a public servant, and that the defect in hisappointment was cured by explanation II. of section 19 of thePenal Code.
T
HE complainant was appointed by letter an inspector of weightsand measures by the Assistant Government Agent, Matale.
He went to the boutique of one Lebbe to inspect weights andmeasures. The accused, who was a salesman, threatened to strikethe complainant. The accused was convicted under sections 344and 183 of the Penal Code and sentenced to one month’s inprison-ment. The accused appealed.
E. W. Jayewardene (with him Arulanandan), for the appellant.—The complainant was not duly appointed. Section 7 of OrdinanceNo. 8 of 1876 makes it clear that the Government Agent only canappoint a person examiner of weights and measures. – The appoint-ment produced by the complainant shows that he was appointed"by the^Assistant Government Agent.
[Ennis J.—The Ordinance nowhere requires the appointment tobe made in writing.]
Nobut when a written appointment is produced we must basethe complainant’s authority to act as a public servant on thatappointment.
Explanation II. of section 19 of the Penal Code does not cover acase of this kind. This explanation applies to the case of a publicservant charged of an offence committed in the discharge of his duties.He should not be allowed to take shelter under a legal defect inhis appointment. 8 All. 201. 1
1 Explanation II. was as follows:—Whenever the words “public servant ”occur, they shall be understood of every person who is in actual possessionof the. situation of a public servant whatever legal defect there may be in hisright to hold that situation.
m
1928*
TheInspectorqf Policev. Lebbe
( 282.)
Dias, C.C., for the Crown.—Explanation II. of section 19 of thePenal Code cures whatever technical defect there might have beenin the appointment.
October 23, 1923. Ennis A.C.J.—
This case has been referred to a Full Court. It is an appeal froma conviction, under section 344 of the Penal Code, for using criminalforce to a public servant, and under section 183, for obstructing apublic servant in the discharge of his public functions. The accusedhas been sentenced to one month’s rigorous imprisonment. Itappears that the complainant asserted that he was an inspectorunder the Weights and Measures Ordinance, and in pursuance of hisduties went into the boutique of Uduma Lebbe to inspect the weightsand measures. Uduma Lebbe appears to have complied with hisrequest for water for the purpose of testing the measures, and tohave gone away to get it, when the accused, who is a salesman inthe boutique, seized some weights which the complainant was hand-ling, and either threatened to strike him with them, or threatened tostrike him with his hands. This is the act complained of. At/thetrial it was necessary to prove that the complainant was a publicservant. For that purpose he stated on oath that he was aninspector of weights and measures for the Matale District. Laterhe was re-called, apparently for the purpose of allowing the accusedto cross-examine him, when he produced a letter, which he describedas “ a letter of authority of my appointment as inspector of weightsand measures.” He appears to have been cross-examined withregard to his status, and it transpired that Mr. Vaughan wasGovernment Agent in 1917. Now, the letter produced is a letterwhich runs
“ I, Humphrey William Codrington, Assistant Government Agent,Matale, do hereby appoint George E. Wanigesekere aninspector of weights and measures outside the Local Boardlimits of Matale in conformity with section 7 of the Ordi-nance No. 8 of 1876,” and it is signed “ H. W. Codrington,Assistant Government Agent, and Chairman, SanitaryBoard.”
It is dated, the Kachcheri, Matale, January 8, 1917. Section 7of Ordinance No. 8 of 1876 provides for the appointment ofexaminers of weights and measures, and, so much as is necessaryto refer to for the purpose of the present case, says, “thatexaminers …. shall be appointed by the Government Agent. . . . ” The document produced by the complainantclearly is not signed by the Government Agent, and does not purportto be signed by the Government Agent. But, on the other hand,section 7 of Ordinance No. 8 of 1876 does not require the appoint-ment to be in writing. The document, therefore, does not negative
( 283 )
the possibility that the complainant was duly appointed undersection 7, or that he was in fact examiner of weights and measures,an office of which he had performed the functions since 1917. Itseems almost impossible to believe that the Government Agent hadnot in fact made the appointment, particularly as examiners haveto take their oaths of office, and possibly must even do so twice ayear, as indicated by the Ordinance No. 4 of 1878. The complainanthas stated on oath that he has in fact taken the oath of office andperformed the duties of that office ; and it further appears that theproprietor of the boutique accepted the complainant as an examinerof weights and measures when he came to the boutique in pursuanceof his duties. In these circumstances the explanation II. of section19 of the Penal Code would seem to cover the present case, and Iwould uphold the conviction.
With regard to the question of sentence, my brothers are agreed,and I am with them, that for a quasi-statutory offence, and for afirst offence where in fact no harm has been done, that a fine wouldbe ample to establish the authority of the public servant who com-plains. I would accordingly allow the accused the option of a fine,and amend the sentence, by making it a fine of Rs. 50, or, in defaultof payment, one month’s rigorous imprisonment.
1928,
Eznrur
A.O.J.
The
Inspectoro/PcUce•. Lebbe
Porter J.—I agree.
Jayewardene A.J.—
I agree, although not for the same reasons. I think in this casewe must consider the position of the complainant as an inspectorwho claims to base his authority to act on the authority which heproduced from the Assistant Government Agent. He gave evidenceand called himself an inspector of weights and measures, and he hasalso produced the authority. It was incumbent on him as the chiefwitness for the prosecution to establish that he was a public servantunder section 183 of the Ceylon Penal Code. The authority whichhe produced rebutted his statement that he was an inspector ofweights and measures,because itclearly showedthatthe appointmenthas been made by a person who had no authority to make suchappointments under Ordinance No. 8 of 1876. I do not think it ispossible to take into consideration the possibility that there mightbe an appointment by the Government Agent. If, however, thatcan be done, there is also the possibility to be taken into considera-tion that there might not be an appointment by the GovernmentAgent. But the complainant was given every opportunity by theCourt to state what his authority was, and to produce a sounderauthority than the one which he produced. 'But he failed to do so.It is oil that basis alone that the case has been decided by the Magis-trate, and on that basis I must consider the case here. But takingthe appointment of the complainant to be without authority, in
( 284 )
1928.
Jaxbwab*
smAJ.
The
o/JpoWcIv. Lebbe
my opinion, his position is covered by the explanation II. to section19 of the Penal Code. I think the nse of the words “ whatever legaldefect ” covers the legal defect in the authority of the complainantand the fact that he has acted in the office of inspector for fouryears, and that at the time of the obstruction by the accused he wasin actual possession of the situation of a public officer is sufficientto entitle him to maintain a prosecution under section 183.“Whatever,” I suppose, means the same thing as “whatsoever,”and according to a dictum of Pry L.J. in Duck v. Bates1 it is saidthat “ whatsoever, as a rule, excludes any limitation of qualifica-tion, and implies that the genus to which it relates is to beunderstood in its utmost generality.” In the circumstances, I findthat the explanation II. of section 19 cures the defect in theappointment of the complainant, and I think that the conclusionarrived at by the Police Magistrate is right, and the conviction mustbe affirmed.
Conviction affirmed.
Sentence varied.
♦