[In Revision.]

1926 Present: Dalton J.

RAJAPAKSE v. WARUSA et al.

P. C. Avissawella, 11,184.

Obstruction to a commissioner appointed under section 5 of Partition Ordinance-Statutory public servant-Penal Code, s. 183.

A Commissioner appointed under the Partition Ordinance is a public servant within the meaning of section 183 of the Penal Code.

APPLICATION to revise an order made by the Police  Magistrate of Avissawella, discharging the accused.

B. F. de Silva, for appellant.

E. G. P. Jayatilleke, for respondent.

July 9, 1926. DALTON J.?

This is an application by the complainant, a licensed surveyor, to revise an order of the Police Magistrate discharging the accused in the case. The complaint made was that the two accused had voluntarily obstructed the surveyor in the, discharge of his duties on a commission issued to him, the surveyor, on February 9, 1926, in D. C. Colombo, case No. 9,371, thereby committing an offence under section 183 of the Penal Code. That section deals with the obstruction of a public servant in the discharge of his public functions.

Without taking evidence, purporting to follow the decision in Silva v. Wijesinghe,1 the Magistrate held that section 183 did not apply to any order made in a civil suit between party and party, and accordingly on May 11, 1926, discharged the accused. On May 21 complainant filed a petition to revise that order. The order mode was clearly an order of discharge under section 191 of the Criminal Procedure Code, and not an acquittal. In Suppiah v. Loku Banda 2 De Sampayo J. held that a complainant has a right of appeal against an order of discharge. It is urged for the respondents, however, that whichever it be, the complainant had a right of appeal, which he has not exercised. The right of appeal against an acquittal is of course subject to the obtaining of leave under section 336. Here, however, no such leave is required. The petition in revision is also filed within the time limited for lodging an appeal, and hence, even if complainant should have appealed and not have brought the matter up in revision, I think this Court is, under the  circumstances, quite justified in dealing with the matter under its powers of revision.

For the complainant it is urged first of all that, inasmuch as he was appointed a Commissioner in D. C. 9,371 under the Partition Ordinance, he was in fact himself a public servant within the meaning of section 183 of the Penal Code. If that is not so, at any rate it is urged he comes within the second class of persons mentioned in the section, " persons acting under the lawful orders of a" public servant," inasmuch as he was acting under the lawful orders of the "District Judge, who is a public servant. In this latter connection I am referred to the decision in Bowes v. Meera Tamby.3 It is enacted, however, by section 147 (1) (a) of the Criminal Procedure Code that no Court shall take cognizance of any offence punishable under section 183, amongst others, except with the previous sanction of the Attorney General, or on the complaint of the public servant concerned, or of some public servant to whom he is subordinate. Here the complainant is the surveyor or commissioner himself. It is clear from the record that there is no previous sanction of the Attorney-General, and inasmuch as there is no complaint by the District Judge or of any public servant to whom he is subordinate, it is not necessary to consider the question whether the complainant was a person acting under the lawful orders of a public servant. It only remains to be considered whether he was in fact a public servant himself in his capacity as a commissioner of the Court. .

The decision of the Court in Bowes v. Meera Tamby (supra) does not help on this point. The facts there show that the Court, dealt with the person obstructed, not as being a public servant himself, but as acting in pursuance of the lawful order