023-NLR-NLR-V-37-MARRIOT-v.-RATNAPALA.pdf
MAARTENSZ J.—Marriot v Ratnapala.
Ill
1935Present: Maartensz J.
MARRIOT v. RATNAPALA.
115—M. C. Colombo, 14,093.
Motor car—Charge of using indecent language against driver—Person travellingin bus—Ordinance No. 20 of 1927, Schedule IV., rule 26.
The driver of an omnibus is a “ person travelling in the omnibus.”within the meaning of rule 26 in Schedule IV of the Motor Car Ordinance.He may be convicted of using indecent and offensive language whiletravelling in the omnibus.
PPEAL from a conviction by the Municipal Magistrate of Colombo.
Peter de Silva, for the accused, appellant.
April 8, 1935. Maartensz J.—
Two questions of law have been raised by counsel for the appellant.The first is that the accused, being the driver of an omnibus, shouldnot have been convicted of a breach of rule 26 in the 4th Schedule to theMotor Car Ordinance, No. 20 of 1927, for using obscene, indecent, andoffensive language while travelling 'in the omnibus. In support of thiscontention it is submitted that the rule only applies to passengers as it isprovided by sub-section (3) of the rule that any person travelling in a buswho obstructs or impedes the driver in the exercise of his duty is guilty ofan offence. I am unable to accede to this contention. I do not seewhy the driver of an omnibus should not be considered to be travellingin the omnibus as much as any passenger in it.
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MAARTENSZ J.—Marriot v Ratnapala.
The second objection was that no charge was framed against theaccused until after the two witnesses for the prosecution had givenevidence. It appears from the record that after these two witnesseshad been examined and cross-examined, the Magistrate discovered that acharge had not. been framed against the accused and he at once frameda charge and called upon the accused to plead to it. The accused'sproctor in reply to the Magistrate’s question said he did not wish thewitnesses recalled. I do not think I can sustain the objection as theaccused has not been prejudiced. It is true that the Magistrate com-menced the proceedings without framing a charge but when he discoveredthe omission he framed a charge and was prepared to go through the trialafresh if the accused desired it. The only reason why he did not do sowas because the accused’s proctor did not wish to have the witnessesrecalled. That the accused was in no way prejudiced is obvious fromthe fact that the objection is one not taken in the petition of appeal.
As regards the facts, I think the evidence amply justifies the finding ofthe Magistrate. I see no reason to interfere with the sentence passedby the Magistrate and I dismiss the appeal.
Affirmed.