Police Sergeant Hambantota V. Simon Silva

1939 Present: Soertsz A. C. J.

POLICE SERGEANT, HAMBANTOTA v. SIMON SILVA.

356-M. C. Hambantota 5,587.

Obstructing public servant-What constitutes voluntary obstruction-Physical force unnecessary-Penal Code, s. 183 (Cap. 15).

A threat used to prevent an officer from performing his duty would amount to voluntary obstruction within the meaning of section 183 of the Penal Code.

Whether force is used or not, there is voluntary obstruction when that is done which can reasonably be regarded as hindering or being likely to deter an officer from discharging his duty.

Fernando v. Alim Marikar (1 C. A. C. 173) and Hendrick v. Kirihamy (12 N. L. R. 28) referred to.

APPEAL from a conviction by the Magistrate of Hambantota.

M. M. K. Subramaniam (with him C. J. Seneviratne), for the accused, appellant.

D. Jansze, C. C., for the plaintiff, respondent.

Cur. adv. vult.

July 24, 1939. SOERTSZ A. C. J. -

The charge preferred against the accused-appellant was that he ?did ....on April 11, 1939, voluntarily obstruct a public servant, to wit ....examiner of weights and measures, in the discharge of his duties and thereby committed an offence punishable under section 183 of Chapter 15, Volume I.? of the Legislative Enactments. This charge was laid in the terms of the section referred to which reads as follows : ?Whoever voluntarily obstructs any public servant or any person acting under the lawful orders of such public servant in the discharge of his public functions shall be punished . . . .?

The facts on which this charge was based are these : B. T. Jamion, an examiner of weights and measures, whom, it is clear, the accused knew as such, visited the Green Market in Hambantota on April 11, 1939, and detected some false measures in the provision stall of one D. C. Jayaweera. The accused came up and claimed one of those measures . saying he had lent it to Jayaweera. The examiner took charge of it and scaled it in the presence of the Vidane Arachchi. Later in the day, the examiner went to the boutique of the accused and intimated to him that he ?wanted to search for the weights and measures", obviously meaning the weights and measures the accused kept in his boutique. The accused said ?he has no weights and measures in his boutique". The examiner said ?he did not believe him? and ?must search". The Vidane Arachchi was with the examiner at the time. The accused threatened the examiner and the Vidane Arachchi saying ?he would know what to do if he searched the boutique". The examiner says, ' we could not search as the man was obstructive and boisterous. I anticipated trouble if I used force?. That is the evidence of the examiner. The Vidane Arachchi's evidence is to the same effect. The accused said if the premises are searched, you know what will happen. ?The Vidane Arachchi also says that the accused wanted to see ?the authority? and would not allow a search until he saw it and that the accused said? ?if you want to search the house please bring the police?. Another witness Nikulas corroborates the evidence of Jamion and the Vidane Arachchi. The accused gave no evidence himself. He called a witness, who was, by no means, impressive. The learned Magistrate accepted the version given by the witnesses for the prosecution, and convicted the accused and sentenced him to pay a fine of Rs. 15, in default two weeks' simple imprisonment.

In view of the punishment imposed, the accused had no right of appeal on the facts, and the appeal is preferred on a question of law. The question submitted is whether assuming the facts to be as stated for the prosecution, there was ?voluntary obstruction? in the meaning of those words in section 183. It was contended that there was no more than a ?verbal refusal to allow the public servant to perform his duty?, and that that ?does not constitute voluntary obstruction within the meaning of the section under which

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