095-NLR-NLR-V-07-KARUNARATNA-v.-RAPIEL.pdf
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KARUNARATNA v. RAPIEL.
P.C., Colombo, No. 79.3S8.
Beating of tom-tom without license—Ordinance No. 16 of 1865, ss. 6, 8, 10, and90—Evidence of disturbance of repose of inhabitants^-Setting out limits of“ town. ’’
It is not necessary for a prosecution under section 90 of the PoliceOrdinance, 1665,' to prove that the beating of tom-tom within a " town ”without a license disturbed the repose of the inhabitants of the locality.
Where a Proclamation set out the limits of a “ town ” under section 8of that Ordinance as ' follows: " Limits of Welikada,—Salpiti koraleand Hewagam korale,’’—•
Held that that was a sufficient setting out of the limits under section .6.
I
N a garden situated in Kittampahuwa beyond the limits of theColombo Municipality the dfecused was carrying on a comedy,
beating sthe drums called dola or demala-bera with the fingers,between 9 p.u. and.4 a.m. on 3rd January, 1903.
A Proclamation date$ 3rd April, 1897, ^published in the Govern-ment Gazette of 30th April, 1897, was produced showing thatseveral sections of the Police Ordinance, 1865, including section 90,shall from and after 1st May, 1897, “come into operation,within
1903.
February 23.
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the limits specified in the schedule hereto;” and the schedule 1903.contained the following words:" Limits of Welikada,—Salpiti February 23.
korale and Hapitigam korale.”
It was admitted that the place where the drum was beaten, viz.,Kittampahuwa, was within the limits of Welikada, but no proofwas offered to show that the repose of the inhabitants had beendisturbed by the drum beaten in the night.
The Police Magistrate, Mr. E. B. Hellings, sentenced the accusedto a fine of ten rupees.if
He appealed.
Walter Pereira, for the appellant.—There- is no proof that thedrum was beaten within a town or limits to which the OrdinanceHo. 16 of 1865 applies. The word “ town,” section 6 enacts, shallinclude any village or limits set out for the purposes of thisOrdinance; but the village Kittampahuwa is not set out in theProclamation produced. The Proclamation only states that thelimits of Welikada are Salpiti korale and Hewagam > korale. TheProclamation ought to have been fuller, as also the evidence. It is■not proved that the repose of the inhabitants was disturbed duringthat night. The words of the enactment requiring the taking outof a license do not refer to tom-tom beating, but to the dischargeof firearms, &c.„ previously mentioned. Phear, C.J., held thatthe words “ beat drums or tom-toms ” are not connected withthe words “ unless they should have obtained a license from thePolice Magistrate.” Holland v. Kapugama, 1 S. C. G. 90. It isnot enough that one man only should be disturbed, but theinhabitants generally of the locality. Holland v. Batnapala, 2 S.
C. G. 165; Amat v. Odrie Appu, 3 S. G. C. 167. Bonser, C.J.,pointed out that the Full Court in over-ruling the decision ofPhear, C.J., above cited by its decision reported in 9 S. C. G. 204,fell into the absurdity of holding that a Magistrate is authorizedto license persons to make a noise in the night so as to disturb therepose of the inhabitants, but he felt himself bound by it. Mar-shall v. Gunaratne, .1 N. L. B. 179. Consequently, Lawrie, J.,held in van Houten v. Soota, 2 S. C. B. 160, that it was notnecessary to allege and prove that beating a tom-tom was calcu-lated to frighten horses or disturb the repose of the inhabitants.
If this construction were correct, there would have been a different^
arrangement of the words in section 90. J’
>
jGut. adv. vult.
23rd February, 1903. Middleton, J.—0
The accused was convicted of ^beating tom-toms on the 20th and31it December, 1902, and the 3rd January, 1903, without
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1903. obtaining a license from the Police Magistrate of Colombo or theFebruary 23. Superintendent of Police or Provincial Inspector entitled to grantMiDDitiTON, the same, under section 90 of the Police Ordinance, No. 16 of 1865,
J‘ and fined Es. .10 for each offence.
On appeal it was objected by the learned counsel for theappellant that the alleged tom-tom beating did not take placewithin a town or limits to which the Ordinance was applicable.
It is admitted, however, that the place where the beating occurredviz., Kittampahuwa, is within the limits of Welikada, and .that, byProclamation under section 8 published in the Gazette of 30thMay, 1897, it was proclaimed that section 90 of the Ordinanceshould come into operation within the limits specified in theschedule thereto, i.e., the limits of Welikada. In my opinion thisamounts to a setting out of limits for the purposes of the Ordinanceas marked in section 6 interpreting the word “ town
The next point taken by Mr. Pereira was that, in order to convictthe^ accused legally under the section, it must be proved that thetom-tomming was a noise made in the night so as to disturb therepose of the inhabitants, and that this was an essential ingredient<sf the offence. T have looked at the cases cited by Mr. Pereira,i.e., 1 8. C. G., p. 90; 2 S. G. C., p. 165; 3 8. G. G., p. 167; 9 S. C. C.,p. 90; 1 N. L. B., p. 179; 2 8. G. B., p. 160, and I feel that the FullCourt case reported in 9 S. C. C., p. 90, not only binds me, but is inaccordance with my own views as to the proper construction toput on section 90. I would hold with Mr. Justice Clarence thateach of the proceedings mentioned in the first six lines of thesection, separated by comas and the disjunctive “or,” cons-titute offences, unless they are licensed, as the section goes onto say.
As regards the absurdity of licensing a noise at night whichdisturbs .the repose of the inhabitants, such noises may often ariseduring the performance of religious duties by some classes of thecommunity, and may well be the subject of police, restriction.
Mr. Pereira suggests that, if this construction were correct, theword “ other ” should precede the word “ noise ” in the thirdproceeding. Otherwise it would be useless to mention tom-tomsand other music, as they would be covered by the word “ noise ”.
In my opinion, however, the. words “ other music ” in the secondproceeding convey the idea that beating a drum or tom-tom issupposed to bef music* and not noise. Hence the word “other”would be. superfluous in the third proceeding.
I think it is not therefore necessary to allege or prove that thebeating of tom-toms was to the disturbance of the repose of theinhabitants, and would dismiss the appeal.