036-NLR-NLR-V-19-RAHIM-v.-NONAHAMY-et-al.pdf
( !©» )
Present: De Sampayo J.
RAHIM v. NONAHAMY et al.
747 and 748—P. C. Kalutara 40,366.
Conviction under s. 287 of the Penal Code—Obscene words—Order undere. 80 (1) of the Criminal Procedure Code to enter into bond to be ofgood behaviour.
The conviction of a person under section 287 of the Penal Codefor having used obscene words on the public road to the annoyanceof the public does not justify an order under section 80 (1) of theCriminal Procedure Code to enter into a bond to be of goodbehaviour.*
rp HE facts are set out in the judgment.
De Jong, tor accused, appellant.
A. St. V. Jayewardene, for complainant, respondent.
Cur. adv. vult.
August 28, 1916. De Sampayo J.—
The accused, Nonohamy and Jane Nona, have been chargedunder section 287 of the Penal Code with having used obscenewords on the public road to the annoyance of the public. Itappears that the accused live in the neighbourhood of the houseof Mr. Edirisinghe, Proctor, of Kalutara, and a dog belonging toMr. Edirisinghe having bitten a child of one of the accused,these women made remarks aimed at Mr. Edirisinghe while hewas inside his house. Some of the words used were offensive andfilthy, and this prosecution has been instituted by the Police at theinstance of Mr. Edirisinghe.
The first point taken on this appeal is that there is no evidence.whatever against the 1st accused. I think that this ground ofappeal is entitled to succeed. Mr. Edirisinghe speaks generallyof the abusive language used by the women, but admits that he isnot certain which accused it was that abused. The Police Sergeant,who came to the place at the time, says that the 2nd accused usedabusive words towards Mr. Edirisinghe, but that the 1st saidnothing in his hearing. There are no other witnesses for theprosecution, while the 1st accused who gave evidence on her ownbehalf denies that she abused Mr. Edirisinghe or any one else. Inthese circumstances, it is impossible to sustain the conviction of the1st accused.
1918.
C 1*70 )
1916.
De SampavoJ.
Rahim v.Nonahamy
An objection is also taken to the legality of the sentence. TheMagistrate, in addition to a fine, ordered the accused to enter intoa bond to be of good behaviour for three months. This order mustbe presumed to have been made under section BO (1) of the CriminalProcedure Code, which provides for the making of such an order” whenever any person is convicted of any offence which involvesa breach of the peace, or committing criminal intimidation bythreatening injury to person or property, or being a member, ofan unlawful assembly ”. The present order can only be justifiedon the footing that the offence of which the accused have beenconvicted “ involves a breach of the peace In my opinion thenature of the offence itself should involve a breach of the peace.An offence under section 287 of the Penal Code is not an offenceinvolving a breach of the peace within the contemplation of section80 (1) of the Criminal Procedure Code. This was also the view-taken by Wendt J. in 385 P. G. Hatton, 6,384,1 which has been citedby Mr. de Jong for the accused. I may also refer to Graham v.Alagie,2 in which Wood Renton J. observed that section 80 (1) of theCriminal Procedure Code was applicable only to cases in which theoffence involved, as one of its ingredients, a breach of the peace.Counsel for the complainant, to the contmry, cited Silva v. James'and Alwis v. Kumarasinghe.‘ But these are cases of mischief andcriminal trespass, and may well come under the other classes ofoffences specified in section 80 (I) of the Criminal Procedure Code.Moreover, it appears that in those, cases the circumstances weresuch as to indicate an intention to commit a breach of the peace.On the other hand, in Fernando v. Mathes Pvile,5 which was a caseof mischief, Wendt J. set aside the order for security as beingwithout jurisdiction. I may add that in this case the facts do notat all disclose an intention on the part of the accused to commit abreach of the peace, nor is that the case of the prosecution either.For these reasons, I think the order of the Magistrate as to securityis unauthorized and irregular.
Before parting with this record I should like to refer to a pointin the proceedings. At the bottom of the report of the complaintto Court by the Police Sergeant there appear these words:‘ * Accused
absent, move for warrant.” Tb.e absence of the accused is pre-sumably the ground for the application for the warrant. Butsince the accused had not been previously arrested, and this reportwas the initiation, of the prosecution, the accused must necessarilyhave been absent, and I cannot understand how their absencecould be considered any reason for the application. The Magistrateallowed the warrant, without any material before him, and merelystating, evidently as his reason, that the Police moved for it. The
J S. G. Min., July 22, 1908.3 (1910) 3 S. C. C. SO.
2 (1908) 1 S. C. D. 86.4 (1912) 16 N. L. RS 45.
* (1909) 12 N. L. R. 159.
(371)
1916.
Police Sergeant was not examined, not even for the purpose of
formally verifying the complaint, and there was nothing before the de Sampayo
Court to show that an ordinary summons would not have beensufficient to bring the accused before the Court. Sections 149, 150,and 151 of the Criminal Procedure Code require such examinationbefore the issue even of a summons, and the form of warrantitself shows that the matter of the complaint should be substantiatedby oath. In this case a warrant was not only issued on July 28without any foundation being laid for it, but the accused werearrested and kept in custody at the Police Station until the nextday, when they were brought before the Court. It seems to methat the issue of the warrant was not justified, arid amounted to amisuse of the process of Court.
J.
JiaMm v.Nona ham y
The conviction of the 1st accused is set aside. The conviction ofthe 2nd accused, as well as the sentence of fine, is affirmed, but theorder requiring her to enter into a security bond is set aside.
Varied.