147-NLR-NLR-V-40-POLICE-SERGEANT-,-HAMBANTOTA-v.-SIMON-SILVA.pdf
534
Police Sergeant, Hambantota v. Simon Silva.
1939Present: Soertsz A.C.J.
POLICE SERGEANT, HAMBANTOTA v. SIMON SILVA.
356—M. C. Hambantota 5,587.
Obstructing public servant—What constitutes voluntary obstruction—Physicalforce unnecessary—Penal Code, s. 183 (Cop. 15).
A threat used to prevent an officer from performing his duty wouldamount to voluntary obstruction within the meaning of section 183 ofthe Penal Code.
Whether force is used or not, there is voluntary obstruction whenthat is done which' can reasonably be regarded as hindering or beinglikely to deter an officer from discharging his duty.
Fernando v. Alim Marikar (1 C. A. C. 173) and Hendrick v. Kirihamy(It N. L. R. 28) referred to.
^^PPEAL from a conviction by the Magistrate of Hambantota.
M.M. K. Subramaniam (with him C. J. Seneviratne), for the'accused,appellant.
D. Jansze, C.C., for the plaintiff, respondent.
– ~Cur. adv. vult.
(1897) 1 Q. B. in.
SOERTSZ A.C.J.—Police Sergeant, Hambantota v. Simon Silva. 535
July 24, 1939. Soertsz A.C.J.—
The charge preferred against the accused-appellant was that he “did. . . on April 11, 1939, voluntarily obstruct a public servant, towit …. examiner of weights and measures, in the discharge ofhis duties and thereby committed an offence punishable under section 183of Chapter 15, Volume I. ” of the Legislative Enactments. This chargewas laid in the terms of the section referred to which reads as follows:Whoever voluntarily obstructs any public servant or any personacting under the lawful orders of such public servant in the – discharge ofhis public functions shall be punished . . . .”
The facts on which this charge was based are these: B. T. Jamion,an examiner Of weights and measures, whom, it is clear, the accusedknew as such, visited the Green Market in -Hambantota on April 11, 1939,and detected some false measures in the provision stall of one D. C.Jayaweera. The accused came up and claimed one of those measuressaying he had lent it to Jayaweera. The examiner took charge of itand scaled it in the presence of the Vidane Arachchi. Later in the day,the examiner went to the boutique of the accused and intimated to himthat he “ wanted to search for the weights and measures ”, obviouslymeaning the weights and measures the accused kept' in his boutique.The accused “ said he has no weights and measures in his boutique ”.The examiner said he “ did not believe him ” and “ must search ”.The Vidane Arachchi was with the examiner at the time. The accusedthreatened the examiner and the Vidane Arachchi saying “he wouldknow what to do if he searched the boutique ”, – The examiner says,we could not search as the man was obstructive and boisterous. 1anticipated trouble if I used force ”, That is the evidence of the examiner.The Vidane Arachchi’s evidence is to the same effect. “ The accusedsaid if the premises are searched, you know what will happen. ” TheVidane Arachchi also says that the accused wanted to see “ the authority ”and would not allow a search until he saw it and that the accused said“ if you want to search the house please bring the police ”. Anotherwitness Nikulas corroborates the' evidence of Jamion and the VidaneArachchi. The accused gave no evidence' himself. He called a witness,who was, by no means, impressive. The learned Magistrate accepted the.version given by the witnesses for the prosecution, and convicted the.accused and sentenced him to pay a fine-of Rs. 15,, in default two weeks’simple imprisonment.
In view of the punishment imposed, the accused had no right of appealon the facts, and the appeal is preferred on a question of law. The questionsubmitted is whether assuming the facts to be.as stated for the prosecution,there was “ voluntary obstruction ” in the meaning of those words insection 183. It was contended that there was no more than a “ verbalrefusal to allow the public servant to perform his duty ”, and that thatdoes not constitute voluntary obstruction within the meaning of thesection under which this charge was laid”. The words I have quotedoccur in the judgment of Lascelles C.J. in Fernando v: Alim Marikar In that- case the facts were as follows: A sanitary Inspector in thecourse of his perambulations encountered the accused who “ had onions
* 1 c. a. a. m.
536
SOEHTSZ A.CJ.—Police Sergeant, Hambantota v. Simon Silva.
in a box on the drain”. He told “the accused to remove them. Theaccused refused ”. The Inspector “ bent to take the box ”. Theaccused “prevented him from taking the box. The accused abusedhim in indecent language Lascelles C.J. commenting upon theevidence said, “ the evidence is that the accused did no more than refuseto allow the complainant to remove the box, and that there was analtercation between the two. A mere verbal refusal to allow a publicservant to perform his duty does not constitute voluntarily obstructingwithin the meaning–of section 183. There must be some overt act doneor physical means used”. Now, in my opinion, a proposition like thatmust not be taken at large, but with reference to the facts of the case,
I agree with the conclusion to which Lascelles C.J. came when heacquitted the accused. There was no evidence to show what right theSanitary Inspector had to demand the removal of the box from whereit was. If he had-no such right, he was acting beyond the scope of hispublic functions when “ he bent to take the box ”, and the accused wasjustified in defending his property against an invasion of his right to it.In the circumstances he could not be said to have been resisting a publicofficer but defending his own property. I should have preferred to basethe order for acquittal in that case on that view of the matter. Perhaps,Lascelles C.J., was saying the same thing in a different way. But if hewas not, and if he meant to say that “ a mere verbal refusal to allow apublic servant to perform his duty does not constitute * voluntarilyobstructing ’ ” and that “ there must be some overt act done orphysical means used ”, is. a legal proposition that applies universally,I must say, with great respect, that I cannot agree. Lascelles C.J.relied on the decision in Hendrick v. Kirihamy'1 in which Hutchinson C.J.held that where a constable went with a 'search warrant to search theaccused’s house for fermented toddy, and the accused refused toallow such a search,, and went inside the house and picked up a potof toddy and spilt it over the hearth, the conduct of the accused■- did not amount to obstruction within the meaning of section 183 of thePenal Code. There are two aspects of obstruction in that case, (1) theaccused saying he will not allow a search without the village headmanbeing present and (2) his spilling the contents of the pot over the hearth.Hutchinson C.J. said, “ the mere saying that he would not allow him tosearch without doing anything more is not an obstruction ; and the spillingof the toddy was certainly not an obstruction”. I am not concerned inthis case with what Hutchinson C.J. said in regard to the second aspectof the obstruction alleged in that case. But, if I may say so withrespect, the acquittal of the accused in respect of the first aspect ofobstruction in that case, was right, on the facts as established, becausethe accused merely said he would not allow a search and did nothing morethan go inside the house. He did nothing to prevent a search. He onlytook steps to see that the search would prove abortive. That is a differentmatter and does not concern us in this case. When- the accused said,he would not allow the police constable to search without the villageheadman being present, and went inside the house and spilt the toddy,he was doing nothing to deter the police constable from entering the■ 1 r. A. c. 10;, also IS N L. II. S8.
SOERTSZ A.C.J.—Police Sergeant, Hambantota v. Simon Silva. .537
house, but was really resorting to an expedient for going inside thehouse and removing traces of guilty possession, by spilling the toddy.So far as the spilling of the toddy is concerned, whether that amountsto an obstruction or not is another question. But I am not concernedwith it in this case. On that point Hutchinson C.J. and Wood Renton
J. have taken opposite views. The only question here is whether “ averbal refusal ” to allow a search can never amount to an obstruction.In Hendrick v. Kirihamy (supra) Hutchinson C.J., as I have pointed ''out,took the view that it did not in the circumstances of that case, and asI have said, on the facts of that case the verbal refusal did not, in myopinion too, amount to an obstruction.
In Lourenz v. Jayasinghe1 Wood Renton C.J.' said he agreed withthat view of Hutchinson C.J. as expressed in that case and acquittedthe accused in the case before him because “ the obstruction offered bythe accused to the Sanitary Inspector was purely verbal ”. The factsas stated in the report of Lourenz v. Jayasinghe are too meagre to enableme to say in what circumstances Wood Renton C.J. made the observationI have quoted, but I repeat again that I do not agree with that propositionif it is meant as a general statement of the law. • In the very cases citedby Wood Renton C.J. in Lourenz v. Jayasinghe, namely, Bastahle v.Little ‘ and Betts v. Stevens % when Ridley J. stated in the former case“ I think that in order to constitute an offence under this section (i.e.,wilful obstruction), there must be some interference by physical force orthreats ”, Darling J. said “ I should desire to reserve my opinion whetherthe respondent had committed an offence under the section, althoughno physical obstruction of the police constables in the execution of theirduty had taken place”, and Alverstone L.G.J. added as a note to hisjudgment “ I also would wish to guard myself from saying that the onlyobstruction contemplated by this section is a physical obstruction ”.In the later case Lord Alverstone, Lord Darling, and Bucknill JJ. actedon the footing that physical obstruction was not necessary.
In the case before me, the facts bring it even within Ridley J.’s viewthat threats used to prevent an officer performing his duty would amount tovoluntary obstruction. There is ample proof that the accused in thiscase used threats. He was clearly threatening when he said “ you knowwhat will happen.if you search” and “that he knew what to do if theexaminer searched the boutique The evidence also establishes thatthe accused was “ boisterous ” at the time and that the examiner fearedthat force might be used and refrained from the proposed search. But,as I have pointed out, the other Judges who took part in the two casestook the view that a verbal refusal to allow a person to perform his dutywould suffice apart from threats provided it was a refusal conveyed interms that indicate that the officer would have to use force if he proceededto put his intention to search into execution. That surely must be soif one regards the plain meaning of the word obstruct. In the OxfordDictionary “ obstruct ” is stated to mean inter alia “ to stand in theway of or persistently oppose the progress of or course of (proceedings
1 S. C. Min. July 20, 1906.■ = (1907) 1 K. B. 59.
355 P. C. Ralnapura, 3,948.s (1910) 1 K. B. 1.
538 SOERTSZ A.C.J.—Police Sergeant, Hambantota v. Simon Silva.
or a person or thing in a purpose or action), to hinder, impede, retard,delay, withstand, stop ”, and by way of illustration there is this quotationfrom Froude “ he had obstructed good subjects, who would have donetheir duty, had he allowed them On the day in question, those wereexactly the relations and reactions between the accused and the examinerof weights and measures. In Borrow v-. Ho aland1 a householder whorefused to let the scavenger enter into his house to remove refuse—thescavenger acting under the orders of the County-Council—was held“ wilfully to obstruct ” the scavenger. This is the view Wood RentonC.J. himself took in Rasavasagram v. Siwandi=, and I cannot at all followthe distinction he sought to draw in the course of his comment in Lourenzv. Jayasinghe (supra) by pointing out that in the earlier case the wordshe was interpreting were “ obstruct and impede ” and in the case beforehim, there was only the word “ obstruct It seems to me. that if the.accused in Rasavasagram v. Siwandi was guilty of “ obstructing and-impeding ” by doing what she did, she certainly would have been guiltyof “ obstructing ” if that was the charge against her, for the greaterincludes the less. But in truth, there seems to be no difference so faras language is concerned between “ obstruct ” and “ obstruct and impede ”except perhaps that there is greater rhetorical quality in the tautologyof the latter. In the quotation I have made from the Oxford Dictionary,vol. VII., “ Obstruct ” is stated to mean “ impede ” inter alia.
I Will refer to one more case, Davidson v. Rahiman Lebbe*. In that ■case Moncreiff J. said “ Mr. Bawa argued that something like force wasnecessary to meet the words of the section . . . . and that it wasnecessary to show something more than passive resistance. The case in4 N.L.R. 151 is sufficient to show that force was not necessary . . . .For my part, I think that it is not possible to lay down any hard andfast rule upon the subject …. It seems to me that the questionis one of circumstances and that there is voluntary obstruction, whetherforce is or is not used, when that is done which can reasonably be regardedas hindering or being likely to deter an officer from “ discharging hisduty ”.'
If I may respectfully say so, that is my own view of the law ; and on thefacts of this case, it is abundantly clear that the accused was rightlyconvicted.
In my opinion, the accused acted very defiantly and the sentenceimposed is, I think, out of proportion to his offence. At one stage, Icontemplated a sentence of imprisonment, but as there is nothing againstthe accused, I refrain from sending him to prison. I alter the fine toone of Rs. 30 in default one month’s rigorous imprisonment.
Affirmed.- 9 N. L. R. 88.
74 L. T. 787.
2 Br. 281.