120-NLR-NLR-V-14-WIRATUNGA-v.-GABO-SINNO-et-al.pdf
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Sept. 15,1911
Present: Grenier J.
WIRATUNGA v. GABO SINNO etal576—P. C. Kurunegala, 270.
'• Rabana ”—1* it a drum ?—Beating of “ rabana ” in a manner calculatedto disturb the repose of the inhabitants—Ordinance No. 16 of 1865,*. 90.
A “ rabana ” comes under the description of a drum, and thebeating of a “ rabana ” at night in such a way as to disturb therepose of the inhabitants is an offence under section 90 of OrdinanceNo. 16 of 1866.
A
PPEAL from an acquittal, with the sanction of the Attorney-General.
The facts appear sufficiently from the following judgmentdelivered by the learned Police Magistrate (W. A. Weerakoon,Esq.):—
Accused in this case played a “ rabana ” in their house at night ontheir New Year Day, Mr. Wiratunga, a neighbour, appears to havegot annoyed at this and set the police in motion, and the result is thepresent prosecution.
Mr. Modder, for complainant, urges that the “ rabana ” is a drum,and the playing of it, if done without a license, is an offence punish-able under section 90 of the Police Ordinance.
Mr. Tennekoon, for accused, contends that the “ rabana ” is not adrum within the meaning of the Ordinance in question.
After hearing argument on both sides, I have come to the conclusionthat the contention of the defence is a sound one, and must be upheld'The section of the Ordinance referred to runs : “ All persons who
shallbeat drums or tom-toms, or have or use any other music
calculated to frighten horses unless they shall have obtained a
license shall be guilty of an offence.” The words “ calculated
to frighten horses ” are significant. They go to show that the objectof the prohibition as to the beating of drums and tom-toms is to preventnative processions with music from becoming a danger by frighteninghorses on the road. Now, the only musical instruments that are usedin native processions, whether in connection with religious rites orcustomary ceremonies, arc the “ bere ” and the “ tam-raattama.”The ;t rabana ” is not used at all on such occasions, for it is essentiallyan instrument of indoor music, as distinguished from the “ bere ” andthe tam-mattama,” which are instruments of outdoor music. I holdthen, that the drum contemplated in the Ordinance is the “ bere andnot the “ rabana.”
What, then, is a “ rabana ” ? The “ rabana ” is an instrument whichproduces music other than the music of drums and tom-toms. Thequestion then arises as to whether the music produced by the “ rabana ”
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is music such as is calculated to frighteu horses. There is no proof that Sept. 16,1911it is, and I do not t-liink that any one who has listened to " raban n playing wiratltnga vwill be prepared to assert that it is. 1 hold that the music produced by q^0 sinnothe “ rabana ” is not music calculated to frighten horses.
There remains one more point to be considered, and that is a pointwhich was raised by Mr. Modder as a sort of dernier ressort at the argu-ment. He urged that, whether the “ rabana ” was a drum or not, theplaying of it in the night amounted to making a “ noise so as to disturbthe repose of the inhabitants.,, I am afraid I cannot yield to thisargument. The word “ noise ” as the context itself shows excludesmusic, and the sound produced by the *' rabana ” is music equally withthe sound produced by drums or tom-toms, or even more so, it is nota noise at all.
The conclusion I arrive at then is that the playing of a “ rabana "does not require a license under section 90 of the Police Ordinance.
Accused are accordingly acquitted.
Gladwin Koch, for the complainant, appellant.
No appearance for the respondents.
Cur. adv. vult.
September 15,1911. Grenier J.—
The .v?pondents were charged with an offence punishable undersection 90 of Ordinance No. 16 of 1865, in that they beat a M rabana”by a roadside at 11 p.m. in a manner calculated to frighten horses,and that they made a noise in the night by the beating of the“ rabana ” calculated to disturb the repose of the inhabitants.1 have taken the charge from the printed form on page 7. Theoffence is one which falls under the section of the Ordinance I havementioned. Two of the accused pleaded guilty, and were eachfined Rs. 10. The case proceeded to trial against the fourth, fifth,and sixth accused, and the Magistrate has acquitted them on certaingrounds which do not appear to me to be tenable. I think it hasnever been disputed that a " rabana ” comes under the descriptionof drum, and that the beating of a ” rabana ” at night in such a wayas to disturb the repose of the inhabitants was an offence under theOrdinance. Numerous cases have been decided upon the footingthat a ” rabana ” is a drum, and I must confess, therefore, that1 cannot follow the learned Police Magistrate in the rather finedistinctions he has drawn in regard to the so-called musical instru-ments which he has mentioned in his judgment. The case againstthe respondents presents some features of aggravation, and X thinkthey should be dealt with in such a manner as to deter themfrom disturbing the repose of their neighbours, especially whenthere is illness in the house. I would set aside the acquittal andfine each of the accused Rs. 20 ; in default of payment of fine eachof them will undergo two weeks’ rigorous imprisonment.
Appeal allowed. '