Punchi Banda V. Ibrahim Et Al.,

1927 Present: Fisher C.J. and Drieberg A.J.

PUNCHI BANDA v. IBRAHIM et al.

24-D. C. Kandy, 33,915.

Police Ordinance-Protection given to acts of Police Officer-Scope of authority-Reasonable and bona fide belief-Ordinance No. 16 of 1865.

Section 79 of the Police Ordinance extends protection to any act which a Police Officer does in the reasonable and bona fide belief that he is acting within the scope of his authority and which is not actuated by any malice or ulterior motive.

APPEAL from a judgment of the District Judge of Kandy. The facts are fully stated in the judgment of Drieberg A.J.

H. V. Perera (with Rajapakse), for first defendant, appellant.

B. L. Pereira, for second defendant, appellant.

Keuneman, for plaintiff, respondent.

September 16, 1927. Fisher C.J.-

As regards the first defendant, in my opinion the plea under section 79 of the Police Ordinance must prevail. The learned Judge has decided that he was not entitled to the protection of the section, because he finds that he did not act in good faith. He says: -

" The protection afforded by provisions like section 79 of the Police Ordinance are only intended to apply in cases where the public officer has acted bona fide and not in cases where he has acted out of the scope of his duties."

By " the scope of his duties " I take it that the learned Judge means the extent to which he is expressly or impliedly authorized to act. I do not think that on the true construction of this section its operation is limited as the learned Judge has found. I think that by the words " intended to be done " it extends protection to any act which a police officer does in the reasonable and bona fide belief that he is acting within the scope of his authority, that is to say, that when he did the act under consideration he intended to do what he conceived and reasonably and honestly thought to be his duty and was not actuated by any malice or ulterior motive. Whether the writing of the word " police " on the petition really constitutes an express direction to do what he did in this case, if he thought the occasion demanded it, is a question which I do not think it is necessary to go into.

In my opinion the learned Judge's finding that the first defendant was not acting bona fide cannot be upheld. He was a police sergeant of fourteen years' service. So suggestion was made that his record was tarnished. He was not cross-examined as to his credit nor as to his " having been in touch with the second defendant's party even before the petition was brought to him," of which there was no evidence but which the learned Judge says that his " prompt action " indicates to his mind. There is no evidence of any motive why he should give false evidence. According to his uncontradicted evidence the transfer to the widow was produced to him by her, and there must have been in all probability indications of hostility between the brothers, as two of them were actually there to support their mother's claim. Under these circumstances the first defendant ordered the elephant to be given to the person who seemed to him by reason of the document to have the legal right to it, pending resort to Court to have the question of legal rights determined. The effect of his evidence is that he prevailed upon the plaintiff to take that view and made a note of the circumstances which, had he had it in his mind to be a thorough partisan in favour of second defendant and to fabricate a note accordingly, would not, in my opinion, have taken the form that it did. As it is, it seems to me to be a note which is natural and consistent with the surrounding circumstances and to bear on the face of it the impress of truth. Moreover, the plaintiff, a man of twelve years' experience in such matters, admitted that the first defendant questioned him and wrote down what he said and took his signature to what he had written. He does not suggest

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