1935  Present: Maartensz J.

GOONESEKERE v. APPUHAMY.

 1,255-P. C. Dandagamuwa, 15,676.

Public servant-Offering obstruction to discharge of duties-Using force to prevent discharge of duty-Legality of public servant's act-Penal Code, ss. 183 and 344.

Where a public servant, who was obstructed, was not acting with lawful authority, a person who resisted him cannot be convicted under section 183 of the Penal Code of obstructing a public servant in the discharge of his public functions or under section 344 of using force with intent to prevent him from discharging his duty as public servant.

A person cannot be convicted under these sections unless the act of the public servant was strictly legal.

APPEAL from a conviction by the Police Magistrate of Dandagamuwa.

Siri Perera, for accused, appellant.

Weerasooria (with him Eric de Soysa), for complainant, respondent.

Cur. adv. vult.

March 12, 1935. MAARTENSZ J.-

This is an appeal by the first accused in this case who was convicted of (1) obstructing R. S. Goonesekere, Additional Deputy Fiscal, a public servant, in the discharge of his public functions, to wit, the execution of an order of delivery of possession issued in the District Court of Negombo case No. 6,478, an offence punishable under section 183 of the Ceylon Penal Code; (2) using force on the said public servant by pushing him with intent to prevent or deter him from discharging his duty as such public servant, to wit, the execution of the said order of delivery of possession, punishable under section 344 of the Ceylon Penal Code.

In case No. 6,478 of the District Court of Negombo the plaintiff, Natchiappa Chettiar, obtained a mortgage decree on July 29, 1932, against R. A. Appusingho Appuhamy as principal and Peter Wickramanayake as surety for the recovery of a sum of Rs. 3,000 and interest. The decree provided that in default of payment the hypothecated properties should be sold by Messrs. M. P. Kurera & Co., auctioneers.

The mortgaged properties were sold in due course as payment was not made, and they were purchased by the decree holder on November 10, 1932.

On May 17, 1933, the District Judge of Negombo issued the order referred to in the charge addressed to the Fiscal, North-Western Province, Kurunegala, directing him to put the plaintiff in possession of the lands sold under the decree, of which the defendants were in possession, and, if need be, to remove any person bound by the decree, who may refuse to vacate the same.

On September 8 Mr. Goonesekere went with his assistant Mr. Dahigomuwa to place the plaintiff's attorney in possession of one of the lands called Kahatagahawatta; there is a house on this land on the roadside with a portico in front extending almost up to the road reservation. The house cannot be entered except through the portico. The Deputy Fiscal first explained to the first accused that he had come to execute the order for delivering possession, to which the first accused replied that the house was his and that he would not " allow anyone to come here " ; behind him in a line were the other 10 men who were made accused and acquitted. Mr. Dahigomuwa then stepped on to the portico and was pushed out by the first accused and Mr. Goonesekere was also pushed out when he entered after Mr. Dahigomuwa. Mr. Goonesekere got the impression that further violence would be used if he persisted in trying to execute the order and he and his assistant left the place.

At that time the first accused did not take up the position he did at the trial that he was the watcher of R. A. Appuhamy's sister, Punchihamy.

The learned Magistrate has accepted the evidence of Mr. Goonesekere and Mr. Dahigomuwa, and I see no reason to dissent from his findings on the facts.

I entirely agree with the Magistrate for the reasons given by him that the first accused obstructed the execution of the order with a view to rendering the plaintiff's dec