Rex v Ali (Criminal Appeal No. 88 of 1943) [1943] EACA 58 (1 January 1943)

## APPELLATE CRIMINAL

## BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

## REX. Respondent

v MOHAMED ALI, Appellant

Criminal Appeal No. 88 of 1943

Arrest without warrant—Assaulting tribal police officer in due execution of

duty-Essential Commodities (Control of Distribution) Regulations, 1943-Tribal Police Ordinance, 1929, Section 8—Defence Regulations, 1939, Regulation 80.

Tribal police constables were sent by a police officer in charge of a police station to arrest any persons found offending against an order made under the provisions of the Essential Commodities (Control of Distribution) Regulations, 1943. The accused resisted arrest.

Held $(5-7-43)$ —(1) That an offence against the Essential Commodities (Control of Distribution) Regulations, 1943, was not a war offence and that the power to arrest without a warrant conferred by Regulation 80 of the 1939 Defence Regulations did not therefore apply.

(2) That the record did not show that the tribal policemen acted in accordance with<br>the provisions of section 8 (2) of the Tribal Police Ordinance, 1929, before effecting the<br>arrest and that there was nothing to show that provisions of that section.

The appeal was allowed.

(*Note*.—"War offence" is defined in Regulation 2 of the Defence Regulations, 1939.) Appellant present, unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The point in issue in this case is whether the Tribal Policeman was acting in the due execution of his duty when an assault on him took place. The Magistrate answering the question in the affirmative rested his decision on Regulation 80 of the 1939 Defence Regulations which reads: —

"Any police officer, any member of His Majesty's Forces acting in the course of his duty as such, and any person authorized by the Governor to act under these Regulations may arrest without warrant any person whom he has reasonable grounds for suspecting to have committed a war offence."

The offence alleged in the present case was not a war offence but one under the Essential Commodities (Control of Distribution) Regulations, 1943, to which Regulation 80 does not apply. Alternatively the Magistrate considered that he was entitled to hold that the Tribal Police Officer was acting in execution of his duty by virtue of section 8 of the Tribal Police Ordinance, 1929. The perusal of that section, particularly of S. 8 (2), will at once show that the section does not confer an authority of peremptory arrest without a warrant. The section provides: -

"Any person who shall fail to produce such licence, permit or pass when called upon by a Tribal Police Officer may be arrested without a warrant unless he shall give his name and address and shall otherwise satisfy the Tribal Police Officer that he will duly answer any summons or other proceed. ings which may be taken against him."

There is nothing on the record to show that the Tribal Policeman acted in accordance with the provisions of S. 8 (2) before effecting the arrest and nothing to show that the accused failed to comply with its provisions. On the contrary it is clear that the Tribal Policeman set out to arrest unnamed persons on the instructions of a Police Officer in charge of a police station who himself would not have had authority to arrest in the circumstances without a warrant. We have considered the question whether the accused in resisting what was an illegal arrest used excessive force and come to the conclusion that he did not. In the course of the arrest the Tribal Police succeeded in knocking him down and overcoming him, and it was not until then that he drew his knife.

The appeal is allowed and the accused acquitted.