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WIJESURIYA v. ABEYESEKERA
NLR21V159
Present: Shaw J. 1919.
WIJESURIYA v. ABEYESEKERA.
47-P. C. Kalutara, 49,209.
Circus - Public place - Person drunk -
Misconduct in public place - Penal Code, s. 488 - Order to give security to keep
the peace - Criminal Procedure Code, s. 80-" Involving a breach of
the peace. "
Accused, who paid for his admission, to a circus, was drank, and conducted
himself in such a manner as to cause annoyance to certain persons, and was
convicted under section 488 of the Penal Code, and ordered to be bound over to
keep the peace.
Held, that, as a circus was not a public place the conviction was
wrong.
As an offence under section 488 does not involve a breach of the peace, the
order to give security to keep the peace was irregular.
THE
facts appear from the judgment.
Bawa, K.C. (with him Zoysa), for appellant.
Amarasekera, for respondent.
February 19, 1919. Shaw J.-
In this case the accused has been convicted, under section 488 of the Penal
Code, with having been drunk in a public place, and conducting himself in such
a manner as to cause annoyance to certain
persons. He was fined Rs. 100, and bound over
to keep the peace for six months. It appears from the evidence that the accused
attended a performance at a circus, and upon the entrance of another member of
the audience, who was the Police Magistrate for Kalutara, the accused, who was
the worse for liquor, cried out " Three cheers for the almighty Wickramasinghe,
" and commenced to clap his hands. This is the offence in respect of which he
has been convicted. There are two grounds of appeal. The first is, that the
Magistrate has no jurisdiction to order the accused to be bound over to keep the
peace. This appears to be a good, point. The power of a Police Magistrate, which
the Magistrate here purported to exercise, is contained in section 80 of the
Criminal Procedure Code. That gives the Magistrate the power, whenever any
person is convicted of any offence which involves a breach of the peace or of
committing criminal intimidation, to bind the accused over to keep the peace, in
addition to other punishment. The offence under section 488 of the Penal Code
does not involve a breach of the peace, nor do the facts of the present case
show that any breach of the peace was committed by the appellant. It has already
been held by this Court in Arlinahamy v. Johannes 1 [1 4 W.
Rep.118.] that the offence of insult is not one which involves a
breach of the peace, so as to give the Magistrate jurisdiction to order security
to keep the peace. The other objection to the conviction is an even more fatal
one. It is, that the evidence does not show that the place where the accused
misconducted himself was a public place. Section 488 provides that the
misconduct shall be in a public place, or in any place which it is a trespass
for the accused to enter. There is no definition of a " public place " in the
Penal Code or in arly general Interpretation Ordinance. It is usual to provide
in similar legislation that a " public place " shall include any place where the
public are admitted on payment. But that provision is omitted in our Code. A
circus is not a public place. It is within the power of the proprietor to
prevent any one entering without payment, and, indeed, to prevent any one
entering whom he deems undesirable as a member of the audience. Therefore, a
circus is not, in my opinion, a" public place " within the meaning of the
section of the Penal Code. Neither is it shown to be a place which it was a
trespass for the accused to enter, because the accused had apparently paid for
admission to the performance. It has already been decided in Peitersz v.
Wiggin 2 [2 (1892) 2. C. L. R 111.] that a police
station is not a public place, within the meaning of this section of the Penal
Code, and Withers J. in that case expressed
