093-NLR-NLR-V-50-ISMAIL-et-al.-Appellants-and-THANGIAH-Respondent.pdf
GRATIAEN J.—Ismail v. Thangiah
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1049
Present: Gratfaen J.
ISMAIL et al., Appellants, and THANGIAH, Respondent
S. C. 1,314-1,315—M. C. Kalmunai, 4,556
Criminal Procedure Code—Document in Tamil—Translation—-Foreignlanguage—Section 301.
The word “ document ” in section 301 (2) of the Criminal ProcedureCode is wide enough to include a written report initiating criminalproceedings before a Magistrate under section 148 (6) and an Englishtranslation of any words in it in a “ foreign language ” should be filed.The word “ foreign ” in that section means any language other thanthe official language of the Courts which is English.
Athamlebbe v. Inspector of Police (1948) 49 N. L.M. 234 dissented from.
./^.PPEAL from a judgment of the Magistrate, Kalmunai.
O.E. Chitty, for the accused appellant.
S. S. Wijesinha, Croum Counsel, for the Attorney-General.
Cur. cuLv. vult.
April 7, 1949. Gkatiaen J.—
There are two appellants in this ease.. They were jointly charged withthe commission of offences punishable under section 484 of the Penal
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GrB-ATIAEN J.—Ismail v. Tkangiah
Code in that each had used insulting words to a Police Constable on anoccasion the details of which I shall refer to in due course. Both werefound guilty. The first accused-appellant was also convicted undersection 344 with having used criminal force on the constable whilstthe latter was engaged in the execution of his official duties.
I shall deal first with the charges of insult. It is not necessary toconsider whether this is one of those rare cases when two persons mayproperly be tried together on charges of insult, because the convictionsmust be quashed fox a more fundamental reason. In section 484 theactual words complained of must be set out in the charge and must beproved at the trial to have been uttered by the accused, because theJudge must be in a position to satisfy himself that the provocationcaused by the alleged insulting language was capable of leading to oneor the other of the consequences contemplated by the section.In this case, however, this has not been done. The words specified inthe charge appear to be of Tamil origin transliterated into English.But neither in the charge nor in the evidence led at the trialis there any indication as to the meaning of these words. This omissionhas proved to be more than a technical irregularity in the present case,because both Mr. Chitty, who appeared for the appellants, and Mr.Wijesinha, who appeared for the Crown, shared my ignorance as to whatthe words complained of actually mean. In our desire for enlightenmentwe invited another Crown Counsel, a Muslim gentleman who was in-Court,to help us, but he too failed as we had done. Finally, a Tamil advocatein Court claimed to recognize some of the words, but with how muchconfidence I really do not know. I feel that as an appellate Judge Ihave already persisted too far in my search for information on thispuzzling matter.
So long as English remains the official language of our Courts it isnecessary to insist upon strict compliance with the provisions of section298 (1) of the Criminal Procedure Code (which requires the evidenceof each witness to be recorded in English and not merely transliteratedinto English) and of section 301 (2) which requires that an Englishtranslation of every material portion of a document which is “ in a foreignlanguage ” should be filed in Court. The word “ document ” in section301 (2) is wide enough to include a written report initiating criminalproceedings before a Magistrate under section 148 (6). With the greatestrespect, I cannot agree with my brother Basnayake’s interpretation ofsection 301 (2) in Athamlebbe v. Inspector of Police 1. In the contextin which it appears in the section, the word “ foreign ” must surely beconstrued as referring to any language other than the official languageof the Courts. Section 301 (2) merely lays down a rule ofconvenience.
In the present case the absence of any evidence on the record as h.the true meaning of the cryptic words set out in the charge makesit impossible for me to satisfy myself that the ingredients of an offenceunder section 484 of the Penal Code have been established. The convic-tions in respect of these offences must therefore be quashed.
1 {1948) 49 N. L. B, 234,
GR ATXAEN J.—Ismail v. Thangiah
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The first accused has also appealed against his conviction undersection 344 of the Penal Code. Here too I think that he is entitled tosucceed. The case for the prosecution is that he obstructed a Policeconstable in the execution of his official duty, viz., to prevent a breachof the peace when an Irrigation officer was “engaged in releasing waterwhich had been unlawfully blocked for the use of certain paddy fields ”.Up to a certain point the facts are common ground. The accused isone of many paddy cultivators in a district much affected by seasonaldrought, and during certain periods of the year it is the concern of theGovernment to secure as best it can an equitable distribution of suchwater as is available. On August 18, 1948, the Cultivation Officer ofthe Pattipola Aru Scheme decided that a particular bund (within thejurisdiction of a “ Vata Vidana ” named Yassim Lebbe) should be cutso that neighbouring fields would be benefited by the water which wouldbe released by this operation. A letter was accordingly given by theCultivation Officer to be delivered to Yassim Lebbe by Ismail, who wasthe “ Vata Vidana ” of an adjoining area. A letter was also sent tothe Police requesting that some form of assistance (the precise natureof which has not been proved) be given to the authorities during theproposed operation which was expected to prove unpopular with somecultivators who would have much preferred the bund to remain as itwas. Police Constable No. 3634 Asaithurai accordingly accompaniedIsmail to the spot with the letter containing orders for Yassim Lebbe.But Yassim Lebbe—perhaps, as the learned Magistrate suspects, to suithis own purposes—was conveniently absent. Ismail thereupon proceeded,in the teeth of opposition from the accused and other cultivators, totry and cut the bund himself. The constable claims that he himselfwas there solely “ to prevent a breach of the peace ”, but it is clearthat, in accordance with what he conceived to be his duty, be identifiedhimself much more actively with Ismail’s plan to cut the bund. It isequally clear that Ismail’s actions, though well-intentioned, left muchscope for misunderstanding and suspicion on the part of the accusedand others as to his motives. It is not immaterial, in considering theaccused’s state of mind at the time, that shortly before this incidentsome persons disguised as policemen are alleged to have cut the samebund. At any rate, on the present occasion the 1st accused did pushthe constable during a heated argument as to his rights, with the resultthat the constable fell down from the bund. His uniform was soiled,and I can very well imagine that his dignity was also greatlywounded.
The question is whether an offence under section 344 of the PenalCode has been established beyond reasonable doubt against the 1staccused. His defence, in effect, was that he acted bona fide in defenceof his proprietary rights against what he honestly believed to be anunauthorised act on the part of Ismail in attempting to cut the bundwith the constable’s assistance. To rebut this defence -the prosecutionsought to prove that the accused knew or had the means of knowingthat Ismail was vested with official authority to cut the bund. Onthis part of the case, however, the prosecution introduced a great dealof inadmissible evidence. Such orders as the Cultivation Officer gave
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his subordinates were admittedly reduced to writing, and are allegedto have been read out to the accused on the spot by the constable. Thedocument or documents were, however, not produced, and the prose-cution was permitted instead (without objection from the defence butnevertheless illegally) to lead oral evidence of the contents of the docu-ments. I think that this circumstance vitiates the conviction whichwaslargely based oninadmissible evidence. The accused must accordinglybe acquitted. He would do well to realise that his good fortune isnot likely to continue if he persists in obstructing the authorities.
Appeal allowed.