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SEENITHAMBY et al v. JANSZ
NLR47V496
1946 Present: Dias J.
SEENITHAMBY et al., Appellants, and JANSZ (A. G. A),
Respondent.
616-621-M. C., Kalmunai, 1, 754.
Charge of obstructing public
servant-Food Control Guard, alleged public servant-Proof is necessary of his
appointment and status as public servant-Penal Code, s. 183-Defence
(Purchase of Foodstuffs) Regulations, 1942, Regulations 6.
Appeal Court-Request for new trial-Circumstances when it
will not be granted.
Judicial notice will not be taken that a ?Food Control Guard?
is a public servant within the meaning of section 183 of the penal code or
that he was duly appointed under Regulation 6 of the Defence (Purchase of
Foodstuffs) Regulations 1942.
The Court of Appeal will not order a new trial where the
proceedings are so irregular that the court by acceding to a request for a
new trial will merely encourage slackness, negligence and inexactitude on the
part of prosecutors.
Per DIAS J-?Magistrates . . . . should themselves
independently consider the matter and see that the charges, whether in summary
or non-summary proceedings, are in due form and adequately set out the offence
or offences?.
APPEALS
against certain convictions from the Magistrate?s Court, Kalmunai.
G. E. Chitty (with him G. T. Samarawickreme),
for the accused, appellants.
A. C. M. Ameer, C. C., for the complainant,
respondent.
Cur. adv. vult
October 23, 1946. DIAS J-
The six accused appellants and the seventh accused were
jointly charged with committing three offences alleged to have been committed on
December 27, 1945, at a place called Periyakallar. In the first count the first
and second accused alone were charged with transporting two bags of rice without
a permit in breach of the appropriate Defence regulations. In view of the
arguments advanced at the hearing of this appeal, it is necessary that count
should be set out at length. It runs as follows-
?At the time and place aforesaid and in the course of the
same transaction, the above-mentioned seven accused did voluntarily
obstruct Food Control Guards (1) S. Saravanai, (2) A. K. Rajadurai, (3) S. Seenithamby and (4) V. Sanmugampillai acting under the lawful orders of such
public servants, and thereby committed an offence punishable under section 183,
Chap 15 N. L. R. of Ceylon?.
This charge has been copied by the Magistrate verbatim from
the Police plaint filed in the case. In the third count the seven accused were
jointly charged with voluntarily causing hurt ?to the said Food Control Guards?
under section
314 of the Penal Code.
The magistrate
found the first to the sixth accused guilty of the first two charges and the
first accused alone guilty under the third charge. it is not clear how the
Magistrate could have convicted any one other than the first and second accused
under the first count, because that charge was preferred against them alone. He
fined the first and second accused Rs. 300 each on the first charge. The
second, third, fifth and sixth accused were fines Rs. 50 each on the second
count while the first and fourth accused he sentenced to undergo four months
imprisonment on count two. On the third count he sentenced the first accused to
one month?s rigorous imprisonment.
The following submissions were made on behalf of the
appellants-
(a) Count 2 in the charge is defective in that it does not in
terms of section 169 of the Criminal Procedure Code give sufficient notice of
the matters with which the accused are charged, and in particular because the
charge in unintelligible, the manner of the alleged obstruction is not
specified, and the status of Food Control Guards to be considered ?public
servants? within the meaning of section 183 of the Penal Code has neither been
alleged in the charge nor proved by the evidence.
(b) the third count has been established, because if the
persons to whom hurt is alleged to have been caused have not been proved
to be Food Control
