[FULL BENCH]

Present: Bertram C.J., Ennis and De Sampayo JJ, and
 Schneider A. J.

WEERAKOON (for the Crown) v. RANHAMY.

 628-P. C. Kegalla, 30,327.

Chena-Forest Ordinance, ss. 4 and 21-Clearing land at the disposal of : - the Crown-Bona fide claim of title-Land in the Kandyan Provinces--No grant or sannas-Mens rea-Mistake of fact- Penal Code, ss. 38 and 72-When, Magistrate should refer the case to a Civil Court.

BY THE FULL COURT.-The jurisdiction of a Police Court in a prosecution under the Forest Ordinance to determine a question of title, in pursuance of section 4 of that Ordinance, is not ousted merely by the circumstance that the claim of title set up is a bona fide claim.

Per BERTRAM C.J., DE SAMPAYO J., and SCHNEIDER A.J,- Where, however, the prosecution appears to be in abuse of the process of the Court, and in particular in the following classes of ; cases:-

(1) Where the claim does not arise incidentally, but has already been the subject of dispute between the claimant and the . Crown, and it appears to the Magistrate that the real object of the proceeding is not to protect Crown lands, but to obtain an expeditious decision of the claim ;

(2) Where the questions involved appear to him to be of such intricacy and magnitude that he cannot effectually adjudicate upon them in ordinary summary proceedings ; and (3) Where the circumstances are such that it would be essentially unfair that the rights of the parties interested should be determined by such proceedings ;

the Magistrate ought to refer the prosecution to a Civil Court.

Held, further (ENNIS J. dissentiente), that in the circumstances of the present case the accused, who was charged with clearing Crown land without a permit, was acting under a mistake of law, namely, a mistaken belief that it was possible for him to acquire a good title to chena lands in the Kandyan Provinces merely by notarial deeds and possession, and that consequently he was not entitled to the benefit of section 72 of the Penal Code.

Per ENNIS J.-The mistake of the accused was a mistake of fact, On various grounds he entertained the mistaken belief that the land be cleared was private land, and he was consequently entitled to the benefit of this section.

Per BERTRAM C.J., DE SAMPAYO J., and SCHNEIDER, A.J.-The doctrine of the English criminal law, known as the doctrine of mens rea, only exists in Ceylon in so far as it is embodied in the - , express terms of sections 69 and 72 of the Penal Code.

Per BERTRAM C.J.--In one respect the doctrine of the Ceylon section is. wider than the English doctrine in that it extends to all penal enactments alike, including enactments which under the English law are outside it[?] enactments which

prohibit a thing absolutely, and which, but for this section, would be construed proposing an obligation which every man, whatever his knowledge, gates at his peril. On the other hand, unlike the English doctors, it extends to mistake only, and does not extend to mere ignorance

Per SCHNEIDER A, J.-The word " mistake " in section 72 must be taken to include " ignorance." Sections 69 and 72 are a paraphrase of the English common law maxim in its application to criminal law-" ignorantia facti excusat ; ignorantia juris non excusat."

THE facts appear from the judgment, .

J. S. Jayawardene, for the appellant.-The accused cleared the land in the bonafide belief that he was the owner of it. He bought it in 1902 and 1906 from those who claimed to have inherited the land. He planted it about sixteen or seventeen years ago, and has planted again two and a half years ago. It was held by Lascelles C.J. in Chena Muhandiram v. Rawapper [1] that in such circumstances the Police Court has no jurisdiction. Counsel also cited Silva v. Banda;[2] Chena Muhandiram v. Banda;[3] Pahalaganhaya v. Andris;[4] A. G. A. v. Perera.[5]

The ruling that no title can be set up against the Crown to chena lands in the Kandyan