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MACLEAN v. APPAN KANGANY
NLR2V54
MACLEAN v. APPAN KANGANY.
P. C, Nuwara Eliya, 9,960.
Master and servant.-Insolence -Servant in custody of the law-Wilful disobedience of orders-Charges in Police Court cases-Postponements-Release of accused pending trial-Ordinance No. 11 of 1865, s. 11.
When a servant is in the custody of the law his service is suspended and he cannot be said to be then in the service of his employer. That being so, he cannot be found guilty of insolence under section 11 of Ordinance No. 11 1865, for the use by him, when in such custody, of abusive language towards his master.
A tea estate kangany who refuse3 to obey an order to perform manual labour in the reasonable belief, founded on the previous course of business on the estate, that it is no part of his duty to perform such labour, is not guilty of wilful disobedience under section 11.
Observations by Bonser, C.J., on the necessity of charges in Police Court cases being free from looseness and vagueness, and on the impropriety of long postponements in such oases, and of keeping the accused in custody pending trial when he might reasonably be discharged on his own recognizance.
THE facts of the case sufficiently appear in the judgment.
Van Langenberg, for appellant.
3rd June, 1896. Bonser, C.J.-
This is an appeal from a conviction by Mr. Lushington, Acting Police Magistrate of Nuwara Eliya. Much difficulty has been occasioned by the way in which the Acting Police Magistrate has treated the case. It is to be regretted that so much of the time of this Court should be taken up by pointing out and correcting the errors of gentlemen who are either unable or unwilling to make themselves acquainted with the law which they have to administer. The appellant is a man with whom one cannot have much sympathy. He is a man who
uses coarse, abusive, and offensive language, but at the same time he is as much entitled to justice as the most estimable citizen in this community. He was the sub-kangany on the Kabaragalla estate, of which Mr. Maclean is the superintendent. The whole story is very clearly set out by Mr. Maclean in his evidence, and Mr. Maclean has, in my opinion, told the story, from beginning to end, in the fairest manner, without exaggerating in any way the conduct of the appellant, or without seeking to minimize any points which would tell in his favour; and I must say, in addition, that. Mr. Maclean, under all the circumstances, behaved with very creditable self-control. I believe every word of what Mr. Maclean said, and I see no ground whatever for the discredit which the Acting Police Magistrate has thrown upon his testimony. Now, the story is this. On the 7th April Mr. Maclean sent for a police officer and directed him to bring the accused to his bungalow. The police officer went and brought the accused, whereupon Mr. Maclean charged him with absenting himself from his work, and ordered him to be taken to the Nuwara Eliya Police Court, a distance, it is proved, of nearly twenty miles from the estate. On this the appellant broke out into a storm of abuse, and applied indecent terms, not only to the superintendent, but even to the estate. He was thereupon marched off by the police officer to the Nuwara Eliya Police Court, where he was charged by the police officer and released on bail. He returned to the estate on the 9th. This abusive language is one of the offences of which the appellant has been convicted. The appellant denied that he had used any abusive or indecent language, but I do not believe him. I give full credit to what Mr. Maclean said. Therefore, the only question is, Was the use of this abusive language at this time and place, and under the circumstances of the case, an offence punishable under section 11 of Ordinance No. 11 of 1865 ? One of the circumstances of this case is that at the time the abusive language was used the appellant was in the custody of the police officer, and that that custod
