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FERNANDO v. WICKREMESINGHE
NLR33V304
1931 Present:
Macdonell C.J.
FERNANDO v. WICKREMESINGHE.
409-P. C. Colombo, 2,647.
Obstructing a public
servant-Inciting others by words to obstruct-Overt act- Penal Code, s. 183.
Where the accused by words incited others to obstruct a police officer
empowered to execute an order under section 114 of the Criminal Procedure Code,-
Held, that he was guilty of voluntarily obstructing a public
servant in the discharge of his functions.
APPEAL
from a conviction by the Police Magistrate of
Colombo.
N. E. Weerasooria, tot accused, appellant.
August 31, 1931. MACDONELL
C.J.-
In this case the accused was charged under section 183 of the Ceylon Penal Code
with voluntarily obstructing a public servant, namely, , a Superintendent of
Police, in the discharge of his public functions, was convicted and fined, and
brings an appeal from that conviction. The facts were that a Police Magistrate
had issued an order under section 114 of the Criminal Procedure Code prohibiting
the picketing of a certain newspaper office in Colombo. No exception is taken to
that order which need not therefore be set out. The evidence as to obstruction
was as follows: -The Superintendent of Police said: "I saw this accused come up
Main Street leading a small party of women, i.e., four women. They turned into
Bristol Street and I stopped them-with Sub-Inspector Marriott. I asked the women
to go quietly away and to move on. As I was not certain if they understood me I
called Sub-Inspector Fernando and asked him to explain the emergency order of
this Court made in case No. 26,411 which I had in my hand. While the
Sub-Inspector was explaining this and interpreting for me, this accused came
between me and the party of women and told them in Sinhalese to sit down. He
also made a downward motion with his hands. I ordered his arrest and gave him in
charge of Sub-Inspector Fernando-I then repeated my order to the women to move
on and they obeyed it. Accused was released later on personal bond to appear
before this Court. Beyond this obstruction complained of, accused was quite
orderly." The evidence of the Sub-Inspector was: '' The Superintendent asked me
to interpret what he said. As I was doing so accused turned round to the women
and asked them not to go away but to sit down there. He was exhorting the women
to sit down. Mr. Muller ordered me to arrest the accused. When accused
interfered the women did not go away-they did not sit down. There were about
five women and accused led them. " The learned Magistrate accepted this evidence
and in particular that the accused made a motion with his hands.
It has been argued that this was " a mere verbal refusal to allow a public
servant to perform his duty and so that it does not constitute voluntarily
obstructing " within the meaning of section 183 (per Lascelles C.J, in Fernando
v. Alia Marikar 1[Court of App. Cases 175.]). The same judgment goes
on to say: " There must be some overt act done or physical means used. " I think
in this case there was something more than a mere verbal refusal, and that there
was an overt act done or physical means used. The accused did not refuse to obey
the order but he said and did something which amounted to an incitement to other
people to disobey that order. If the women in question had done as he requested,
namely, sat down in the public street, there would have been an act by them
which would have " rendered force necessary " for the due enforcement of the
Magistrate's order-see Rasavasagram v. Siwandi 2[9 N. L. R. 88.]. Per
Wood Renton J. The accused had endeavoured to place " an obstacle " in the way
of carrying
out of the order and this was an
obstruction to the public servant attempting to see that order carried out. One
may compare the case to the law as to assault. Mere words do not amount to
assault, but if they are accompanied by a threatening attitude they may
constitute an assault. Here t
