137-NLR-NLR-V-44-YOOSOOF-Appellant-and-FERNANDO-et-al.-Respondents.pdf
JAYETILEKE J.—Yoosoof and Fernando.
525
1943Present: Jayetileke J.
YOOSOOF, Appellant and FERNANDO, et al., Respondents.
M. C. Nuwara Eliya, 5,903.
Village Tribunal—Rules of Criminal Procedure—Powers of arrest—Rule 6.
The expression “ in the presence of ” in rule 6 of the Rules of CriminalProcedure for Village Tribunals and Village Committees means that thePolice Officer must be in such a position as to be able to see.
Whether or not the offender noticed the presence of the Police Officeris immaterial.
^^PPEAL from an acquittal by the Magistrate of Nuwara Eliya.
E. L. W. Zoysa, C.C., for the complainant, appellant.
L. A. Rajapakse for the 3rd accused, respondent.
Cur. adv. vult.
May 25, 1943. Jayetileke J.—
This appeal raises a short point on the construction of the expression“ in the presence of ” in rule 6 of the Rules of Criminal Procedure forVillage Tribunals and Village Committees.
The rule reads as follows : —
“Any Police Officer or Headman appointed by a Government Agent
to perform police duties may without an order from a Presidentof a V. T. or Chairman of a V. C. and without a warrant arrestany person who in his presence commits any offence mentionedin schedule II hereto' or against whom a reasonable complainthas been made or credible information has been received or a
reasonable suspicion exists of his having been so concerned.”
1 6 Bal. Notes 46.* 2 Matara Cases 112,
* {1937) 39 N. L. R. 73.
. 526
Ranesinghe v. Mack.
The facts are that on receipt of information that there was gamblingin the first accused’s house four police officers went there to raid it.They reached the house at about midnight and found the doors closedand a light burning inside. They peeped through the plank shuttersin front of the house and found the first and second and third accusedand several others seated on a mat and playing the game of cards called“Baby” for stakes. On hearing the sound of the back door beingopened they went to the back of the house and rushed inside to arrestthe gamblers. They were thereupon obstructed and assaulted by theaccused.
In the plaint that was filed against the accused there are six chargesunder sections 183, 220, 323, 315, and 380 of the Penal Code.
The Magistrate was of opinion that the charge under sections 315 and380 were not proved and that the charges under the other sections couldnot be maintained as there was no evidence that the 1st, 2nd, and 3rd accusedgambled knowing that the police officers were watching.
The appeal is with the sanction of the Attorney-General from theacquittal on the first three charges. There can be no doubt that theMagistrate has taken a mistaken view of the meaning of the ^expression“ in the presence of ”. That expression means no more than that thepolice officer must be bodily in such a position as to be able to see. If apolice officer sees a person committing an offence mentioned in schedule IIhe would have the right to arrest him under rule 6. Whether or not theoffender noticed the presence of the police officer seems to me to beimmaterial.
I would set aside the order of acquittal and direct the Magistrate toconvict all the accused under section 183 and the second, third and fifthaccused under section 323 of the Penal Code and pass such sentences onthem as he thinks fit.
Set aside.