028-NLR-NLR-V-34-POLICE-SERGEANT-WALASMULLA-v.-RAJAPAKSE.pdf
J A YEW ARDENE AJ.—Police Sergeant Walasmulla v. Rajapakse. 101
1932Present: Jayewardene A.J.
POLICE SERGEANT WALASMULLA u. RAJAPAKSE.
P. C. Tang alia, 29,037.
Public servant—Peon employed under S. P. C. A.—Offering obstruction—Penal Code, s. 19.
A peon employed by the Society for the Prevention of Cruelty toAnimals is not a public servant within the meaning of section 19 of thePenal Code.
^ PPEAL from a conviction by the Police Magistrate of Tangalla.
A. Rajapakse (with him J. R. Jayewardene), for accused, appellant.
H. L. Wendt, C.C., for Attorney-General.
June 22, 1932. Jayewardene A. J.—
-The appellant has been convicted under sections 183 and 323 of thePenal Code for obstructing a public servant and voluntarily causing hurtto him in the discharge of his public duty. He has been sentenced topay a fine of Rs. 50, in default two weeks’ rigorous imprisonment. Thepublic servant concerned is a peon employed by the Society for thePrevention of Cruelty to Animals. It has been contended that a peonof this Society is not a public servant within the meaning of section 19of the Penal Code. Ordinance No. 13 of 1907 makes provision for theprevention of cruelty to animals, and section 10 of that Ordinanceempowers the Governor to direct that any fine recovered in respect ofoffences under the Ordinance, which shall have been prosecuted by anyofficer of any society established for the prevention of cruelty to animals,be paid to such society. The Ordinance does not provide that suchofficer is to.be deemed a public servant.
102 JAYEWARDENE A.J.—Police Sergeant Walasmulla v. Rajapakse.
Section 19 of our Code corresponds to section 21 of the Indian PenalCode. The section makes no attempt to define public servants. Itmerely described them by enumeration. The wording of the section isexhaustive. A public servant is one falling under any of the elevenclasses given. The section uses the word “ denote ” and not “ include ”.so that no one is a public servant who is not in any of these classes.Clause 10 of section 19 is the general and miscellaneous provision andincludes within its comprehensive grasp a large mixed class of nondescriptofficers who could not be specially provided for. Clause 11 compendiouslystates what is more elaborately stated in the preceding clause in respectof officers of Government, and deals mutatis mutandis with similar officersin the service of Municipalities, Local Boards. District Councils, SanitaryBoards or other similar bodies. (1 Gour 246, 4th ed.). Though this sectionwith its clauses is professedly exhaustive of the persons described aspublic servants special provisions appear in various enactments of theIndian Legislature declaring certain persons as public servants for thepurposes of the Penal Code, e.g., under the Cattle Trespass Act, MuseumAct, Emigration Act, Factories’ Act, Telegraph Act, Railway Acts andmany others. So, in Ceylon, under the Forest Ordinance, No. 16 of 1907,section 58, all forest officers shall be deemed to be public servants withinthe meaning of the Penal Code, but no such provision has been made asregards any officer of the Society for the Prevention of Cruelty to Animals.It cannot be said that a peon of the Society is concerned with any propertyor interests, pecuniary or otherwise, of Government or Municipality orother Local Board or body, or that he falls within these eleven classes.In India it has been held that a peon employed by the manager of anestate under charge of the Court of wards is not a public servant, Rex v.Arayi and that labourers and menial servants employed to do work orlabour on account of Government are not officers and do not fall withinthe purview of this section, Rex v. Natchi Muttu It was held in Palani-appa v. Fernando * that a tidewaiter is not a public servant as he holds nofixed appointment under Government but is a person who does job workfor which he is paid a daily wage on such days as he chooses to work.A licensed cattle seizer, it has been held, does not become a public servantby the mere fact of his being a Municipal Inspector. Zilwa v. Girigoris following Jayawardene v. Ismails and P. C. Anuradhapura, 19,719 8.
Where an accused, who was Secretary of the Local Board, Matale, wasentrusted during the food control period by the Chairman of the Board,who was also Deputy Food Controller, with the duty of issuing permitsto retail dealers to enable them to purchase rice from wholesale dealersand to perform other duties connected with food control, for which hewas not paid anything extra, and the criminal charge was in connectionwith these duties, it was held that apart from his official status asSecretary, the accused was not a public servant, and that he held no office,any more than any member of the Social Service League or other volun-tary helper, and that clause 10 of section 19 of the Penal Code referredsolely to officers connected with Government. (Rex v. Selliah.7)
* 7 Madras 17.* 3 Bal.245. »
2 7 Madras 13.* 2 Bal.186.
» .1 .4. C. H. 27.s Koch'sEep.6H.
* 24 N. L. R. 18.
103
In India officers of the Society for the Prevention of Cruelty to Animalsappointed under the Bengal Police Act, 5 of 1861, are public servants.(Rex v. Upendra Kumar Ghose 1 and Rex v. Nataraja2. (Ratanlal, Law ofCrimes, p. 28, 4th ed.). It is to be noted that they hold certificates signedby the Inspector-General of Police appointing them Police Officers underAct 5 of 1861. I issued a notice on the Attorney-General and he wasrepresented at the second argument but learned Crown Counsel wasunable to support the position that a peon of the Society for the Preven-tion of Cruelty to Animals was a public servant. I would hold that apeon of the Society does not come within section 19 of the Penal Codeand is not a public servant. There is no express authority on the pointbut in analagous decisions it has been held that such an officer is not apublic servant. The charges under sections 183 and 323 of the PenalCode cannot be sustained and I set aside the conviction and acquitthe accused.
Set aside.
*