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VANCUYLENBERG v. FERNANDO et al.
NLR32V45
1930 Present :
Akbar J.
VANCUYLENBERG v. FERNANDO et al.
54-P. C. Colombo, 5,416.
Police officer-Right to order
driver of motor vehicle to drive to police station-Obstruction caused to
officer-Right of private defence against public servant-Penal Code, s. 92,
exception 1.
A police constable has no right to require the driver of a motor bus who has
committed an offence under the Motor Car Ordinance to drive him to the police
station.
The exception to section 92 of the Penal Code regarding the light of private
defence against an illegal act done by a public servant in good faith,
explained.
APPEAL
from a conviction by the Police
Magistrate of Colombo.
Sri Nissanka, for accused, appellant.
Vernon Grenier, Deputy S.-G., for the Court.
April 16, 1930. AKBAR J.-
The two accused were convicted of obstructing police constable Silva in the
discharge of his duties and of using criminal force on him when he was lawfully
discharging his duties as a public servant, punishable under sections 183 and
344 of the Penal Code.
There was a third count against the second accused, namely, of committing theft
of the prosecutor's police whistle, but the Magistrate has apparently ignored
this charge, for he says nothing in his judgment. The two accused have been
sentenced to three month's rigorous imprisonment each, and they fully deserve
this severe sentence if the conviction can be justified in law. The two accused
are the driver and the conductor of bus No. 2011, which was plying for hire on
August 17, 1929, a race day, taking passengers to and from the race course.
Police constable Silva, the prosecutor, was on fixed duty at the junction of
Turret road and Union place, when bus No. 2011 came up to his point and took the
turn on the wrong side. The first accused, who was driving, ignored the
constable's signal to stop and drove on. On the return journey, the constable
stopped the bus and noted its number, and he then committed what I think was a
blunder. He insisted on taking the bus to the police station, got on to the
front seat, sat down and asked the accused to drive to the police station. The
accused drove instead along Turret road and then turned to Park street, and so
on to Rudd's lane, where the bus was stopped and the constable pulled off his
seat. The constable had the number of the bus, and as admitted by the Deputy
Solicitor-General, he was not within his right in insisting on being driven in
the bus to the police station. The bus had a full load of passengers, and it was
not fair to the passengers to take them all to the police station. So that, in
law, I cannot see how the police constable can be said to have been obstructed
in the discharge of his duties. A constable can only arrest a person under
section 32 or 33 of the Criminal Procedure Code. Under section 32 (1) (f) a
constable can arrest a person who obstructs him while in the execution of his
duty. The facts in this case show that the first accused clearly violated the
provisions of the Motor Car Ordinance when he went on the wrong side on his
first trip, for which he could have been prosecuted. The constable would have
had no difficulty in tracing the accused because he had the number of the bus.
He signalled the bus to stop on its second trip, and the subsequent events,
which took place when the constable overstepped his powers, cannot be said to be
an obstruction of the police constable in the discharge of his duties. The
accused, when he went on the wrong side, was guilty of a non-cognizable offence,
and under section 33 a Police officer can arrest a person (not a whole bus full
of passengers) for such an offence only when the person guilty refuses to give
his name and address or gives a name and address
which the police officer has
reason to believe to be false. In this case the police officer did not ask
accused for his name and address, probably because he was satisfied
