know your law By Chandra Tilake Edirisuriya-2016-08-12
Of "wrongful restraint", Section 330 of the Penal Code of Sri Lanka says, whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said "wrongfully to restrain" that person. The exception to this Section is that the obstruction of a private way over land or water, which a person in good faith believes himself to have a lawful right to obstruct is not an offence within the meaning of this Section.
In illustration it is said that A, obstructs a path along which Z has a right to pass, A not believing in good faith that he has a right to stop the path; Z is thereby prevented from passing; A wrongfully restraints Z.
Of "wrongful confinement" Section 331 says, whoever wrongfully restraints any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said "wrongfully to confine" that person.
Illustration
In illustration it is said, (a) A, causes Z to go within a walled space and locks Z in; Z is thus prevented from proceeding in any direction beyond the circumscribing line of wall; A wrongfully confines Z and (b) A places men with firearms at the outlets of a building and tells Z that they will fire at Z if Z attempts to leave the building; A wrongfully confines Z.
Prescribing punishment for wrongful restraint Section 332 says, whoever wrongfully restraints any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.
Prescribing punishment for wrongful confinement Section 333 says, whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Wrongful confinement
On wrongful confinement for three or more days, Section 334 says, whoever wrongfully confines any person for three days or more, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
On wrongful confinement for ten or more days, Section 335 says, whoever wrongfully confines any person for ten days or more, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
On wrongful confinement of a person for whose liberation a writ has been issued, Section 336 says, whoever keeps any person in wrongful confinement, knowing that a writ for the liberation of that person has been duly issued, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to any term of imprisonment to which he may be liable under any other Section of this Code.
On wrongful confinement in secret, Section 337 says, whoever wrongfully confines any person in such manner as to indicate an intention that the confinement of such person may not be known to any person interested in the person so confined, or to any public servant, or that the place of such confinement may not be known to or discovered by any such person or public servant as herein before mentioned, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to any other of punishment to which he may be liable for such wrongful confinement.
Imprisonment
On wrongful confinement for the purpose of extorting property, or constraining to an illegal act, Section 338 says, whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security, or of constraining the person confined, or any person interested in such person, to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Of wrongful confinement for the purpose of extorting confession or of compelling restoration of property, Section 339 says, whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined, or any person interested in the person confined, to restore or cause the restoration of any property or valuable security, or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Prof. G.L. Peiris, in his monumental work on the Criminal Law, Offences under the Penal Code of Sri Lanka says that in the case of Herath v. William Silva (1928) 30 NLR 376 the accused was convicted of having wrongfully restrained the complainant from proceeding along the public highway in a lorry. The complainant's version was believed by the Court was that the accused was seated on the middle of the road and that, as the lorry approached the accused sprang up and walked backwards, so that the driver could not proceed without running over him. The question of law raised in appeal on behalf of the accused was that, to constitute the offence of wrongful restraint, the obstruction offered must be one which raises in the person obstructed a fear other than for the person obstructing. This contention was uncompromisingly ejected by Lyall Grant J. who observed:
Physical obstruction
"The accused put an actual physical obstruction in the way of the lorry, namely, the obstruction of his own body. The mere fact that, physically, the person obstructed might have been able to overcome the obstruction does not seem to me to alter the nature of the accused's act. The complainant could not have overcome the obstruction except by running the accused down, which would have been a criminal act. An act by one person which prevents another from proceeding in a direction, in which he has a right to proceed, unless the latter chooses to commit a criminal act, seems to me to amount to wrongful restraint".
On the meaning of "obstruction" Lyall Grant J declared: "The word 'obstruct' in Section 330 has not, so I am informed, been the subject of decision in Ceylon. Nevertheless, His Lordship accepted as applicable to Ceylon the following principles which had been formulated for Indian law: (a) Obstruction may consist of a physical impediment or the use of physical force to restrain movement. (b) However, obstruction need not necessarily consist of actual application of physical force. The element of obstruction may be satisfied by a threat or order which operates on another's will and in consequence of which the natural operation of the will is changed or subverted. In other words, harm actually inflicted is not necessary; threatened harm is sufficient. (c)The crucial consideration is not the act by the accused, but the effect it produces in the mind of the other party. Whatever the nature of the accused's act may be, the legal requirement of obstruction would be satisfied if the result of the accused's act was to prevent a person from proceeding in a direction in which he had a right to proceed – this consequence being voluntarily brought about".
Sympathizers
In the case of Justin Perera v. Ratnayake (1957) 63 NLR 90, the accused persons were either employees or sympathizers of employees of a bus company. On the day in question, most of the company's employees had struck work and assembled outside the garage.
The management of the company had requested X an employee who had not joined the strike, to drive one of its buses out of the garage and on to the road in order to commence the normal passenger service. This proved impossible because the thirteen accused persons sat down or reclined in front of the bus and, while lying on the ground, declared that X would not be allowed to reach the road.
The point of law urged in appeal on behalf of the accused persons was that, as the obstruction was to X driving off in the bus and as X was free to proceed by himself without attempting to take the bus with him, the offence of wrongful restraint could not be held to have been committed. It was held that this contention was not entitled to prevail. T.S. Fernando J posed the question: "Is not a person prevented from proceeding in a direction in which that person has a right to proceed when he is not permitted to proceed armed or equipped or even encumbered with anything with which he may lawfully be armed, equipped or encumbered? If it is lawful, for instance, for a person to lead his dog along the road, is he not being wrongfully restrained within the meaning of Section 330 when obstruction is offered to his so leading the dog, although it is made clear to him that he would be allowed to proceed if the dog is not brought along with him?"
In circumstances where a legal right to proceed is dependent on fulfillment of a condition, obstruction of the complainant before he satisfies the condition does not amount to wrongful restraint. In Knatchbulv. Fernando (1906) 9 NLR 222, the complainant, a military officer, charged the accused, a toll-keeper, with wrongful restraint. It appeared that the complainant, who was in uniform but was not on duty at the relevant time, rode his bicycle through the toll bar but did not pass the bridge on being asked by the accused to pay the toll, the complainant refused to do so on the ground that he was in uniform. The accused did not ask the complainant for his name and address but detained him until the arrival of a constable who noted the material particulars and released the complainant. It was held that the complainant was liable to pay the toll because he was not on duty even though he was clad in uniform.
Wrongful restraint
It follows from this conclusion that the accused's refusal to allow the complainant to pass the toll bar cannot be the basis of a conviction of wrongful restraint, because the complainant had the right to proceed beyond this point only on payment of the stipulated sum. However, the evidence indicated that, before the constable arrived, the complainant had offered to re-pass the toll bar and go back but that the accused had declined to allow this. It was on the footing of this latter act that the conviction of wrongful restraint could have been sustained. While the complainant had no right to traverse the toll bar without payment, he did have the right to turn back and to proceed in the opposite direction. It was the accused's unwillingness to allow this that exposed him to criminal liability. Wood Renton J, in his judgment, also placed some emphasis on the fact that the complainant was at no time asked for his name and address. His Lordship declared: "In any event, the onus of justifying the detention rested with the toll bar keeper, and as he made no attempt to ascertain the complainant's identity before detaining him at the toll, it appears to me that he was guilty of wrongful restraint".
Where the complainant prima facie has a legal right to use the road but the accused maintains that there was justification for curtailment or denial of the right in the circumstances of the case, the onus of establishing the facts which gave rise to the legal justification for suppression of the right, devolves on the accused. This is illustrated by the decision in the case of Ossen V. Ponniah (1932) 1 CLW 246. The accused, an Excise Inspector, received information that arrack was likely to be transported in a particular car. He made arrangements to watch it and took with him an instrument in the form of a small inverted harrow with spikes which had been designed in accordance with the instructions of the Excise Commissioner for the purpose of puncturing tyres. The complainant's car was damaged by the use of this instrument. The number of the complainant's car did not correspond with that of the vehicle under suspicion. The accused failed entirely to prove that there was any reasonable cause to believe that illicit arrack was being transported in the vehicle in question. Dalton J held, on these facts that the accused's act in preventing the complainant from proceeding along the road amounted to wrongful restraint. The conclusion reached in this case is defensible in the light of evidence which revealed a complete absence of legitimate grounds for suspecting the complainant or his vehicle.
