050-NLR-NLR-V-78-A.-B.-SAARAKOON-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
133
TENNEK.OON, C.J—Sainurakoon o. Attorney General
Present: Tennekoon, C. J., Vythialingam, J. and Ratwatte, J.A. B. SAMARAKOON, Appellant and THE ATTORNEY-GENERAL, Respondent
S. C. 52/75—D. C. Colombo 197/B
Bribery—Meaning of phrase ‘ perpetrator ’ of an offence—Bribery Act,
S, 16.
S. 16 of the Bribery Act inter alia provides that any person whobeing a Police Officer employed in any capacity for the prosecution,detection or punishment of offenders accepts any gratification asan inducement for such officer protecting from detection orpunishment the perpetrator of any offence shall be guilty of theoffence of bribery.
Held : That the gratification should be accepted upon a conditionexpress or implied operating in the officer’s mind at the time ofthe acceptance of the gratification that the giver or some otherperson will obtain some benefit or immunity from the officer in theperformance of the duties of his office. It is not necessary in acharge under this section for the prosecution to establish theexistence of an actual perpetrator of an offence. It is sufficient ifthere is a suspected, alleged or hypothetical perpetrator of an offence.
APPEAL from a judgment of the District Court, Colombo.
V. S. A. Pullenayagum with A. P. Niles for the accused-appellant.
Tilak Marapana, Senior State Counsel for the Attorney General,December 8, 1976. Tennekoon, C. J.
The accused appellant was indicted on four charges the 1st and2nd related to solicitation and acceptance on the 10th of May,1973, of a gratification of Rs. 10 amounting to bribery withinthe meaning of section 16 of the Bribery Act. The 3rd and 4thcounts were also charges of bribery under the same section ofthe Bribery Act, but relating to solicitation of a sum of Rs. 100on the 11th of May, 1973, and to acceptance of such a sum as agratification on 19th of May, 1973. After trial the appellant was
TENNEKOON, C.J.—Unmarakoon o. Attorney-General
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acquitted on charges 1, 2 and 3, he was found guilty on count 4 ;he was sentenced to 2 years rigorous imprisonment and to a fineof Rs. 500, a default sentence of 5 months was also passed.
The appellant has appealed on the conviction.
Count 4 on which the appellant was convicted reads asfollows:—
“ That on or about the 19th day of May, 1973, at Colomboand in the course of the same transaction, you being a PoliceOfficer employed for the prosecution, detection and punish-ment of offenders did accept a gratification of a sum of Rs. 100from the said V. D. S. Fernando as an inducement or rewardfor your protecting from punishment the perpetrator of anoffence, to wit, the aforesaid V. D. S. Fernando and thatyou have thereby committed an offence punishable undersection 16 of the Bribery Act. ”
The only submission made in appeal was that the prosecutionhad failed to establish that V. D. S. Fernando was the perpe-trator of an offence within the meaning of section 16 of theBribery Act, and that the prosecution having thus failed toestablish an essential ingredient of the offence the conviction isbad.
It is unnecessary for the consideration of this submission to setout the facts in detail. It is sufficient to say that V. D. S. Fern-ando was the accused in a criminal case pending in the Magis-trate Court of Gampaha. This was a case in which Fernandowas charged with criminal breach of trust of a certain sum ofmoney. There was also another case pending against Fernandoin the J.M.C., Colombo. The accused-appellant, who was a PoliceSergeant attached to the Peliyagoda Police Station was thePolice Officer investigating and prosecuting the offences involvedin these two cases. The evidence accepted by the learned DistrictJudge is that on the 19th of May, 1973, the appellant accepted agratification of a sum of Rs. 100 from Fernando. The learnedDistrict Judge also found that the 2 cases in which Fernandowas involved were in respect of alleged breach of trust andalleged cheating in respect of a large sum of money, and thatthe accused was in fact investigating the offences and had infact sought to get statements hjm Fernando in relation to theeomplaints. There is nothing to indicate that the accused-appellant and Fernando had any transactions or relationshipbetween them other than the one arising from the fact thatFernando was one in respect of whom complaints had beenreceived of certain offences alleged to have been committed byhim, and that the appellant was a Police Sergeant investigatingand prosecuting in respect of those complaints.
440
TENNEKOON, O.J.—Samarakoon v. Attorney-General
Submission made by Mr. Pullenayagum is that under section16, the gratification has to be given as an inducement or rewardfor the recipient’s protecting from punishment the perpetratorof an offence. It is submitted that the word 4 perpetrator ’ canin the context only mean a person who has actually committedan offence, and that there was no proof in the case that Fernandohad committed the offences which were being investigated bythe appellant.
This submission of Counsel is not by any means making itsmaiden voyage through this Court. A similar submission wasmade in the case of Bultjens and Poothathavriby vs. The Attor-ney-General, S.C. 18—19-75 (S. C. Minutes of 2.2.76 ; a Benchconsisting of Sirimane, J., Vythilingam, J., and Gunasekera, J.rejected the submission holding that the words * perpetrator ofan offence ’ appearing in section 16 of the Bribery Act. in thecontext which they appear must be given a meaning to includethose who have committed an offence as well as those who arealleged to have or are suspected of having committed an offence.In that case Mr. Pullenayagum relied heavily upon the cases ofQueen vs. Ramalingam 2 N.L.R. 48, Notley vs. Antonis 22 N.L.R.335 and Piyidasa vs. Herath 54 N.L.R. 552 in all of which theSupreme Court held that section 211 of the Penal Code penalisesthe offer of a gratification to any person in order to prevent oravoid the legal consequences of offences actually committedJustice Vythialingam commented as follows : —
“ Moreover such an interpretation would make the provi-sions of section 16 almost identical with the provisions ofsection 221 of the Penal Code. What then was the purposein re-enacting in section 16 of the Bribery Act the identicalprovisions contained in section 211 of the Penal Code ? Itis only explicable on the basis that section 211 was consi-dered inadequate to deal with the growing menace of corrup-tion and section 16 was intended to have a wider scope. Itcould not have been the intention of the Legislature to re-enact in section 16 the identical provisions contained insection 211 with all its limitations particularly so as theBribery Act was intended inter alia to penalise acts whichthe Supreme Court had ruled were outside the scope of thesections in the Penal Code and was * intended to apply to awider class and to have a wider scope than the provisionsof the Penal Code ”.
TENjSTEKOON, C.J.—Srnnarakoon o. Attorney-General
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The same point was taken by Mr. Pullenayagum in anothercase which was argued before Justice Sirimane, Justice Vythi-alingam, and Justice Gunasekera, all of whom had already pro-nounced on this question in S.C. 18—19/75. Justice Sirimanewho wrote the judgment in this case said :
“ This same question was argued by the same Counselbefore the same Bench in S.C. 18-19/75—D.C. Colombo 169/B— (S.C. Minutes of 2.2.1976). It was there held that theobjects of section 211 of the Penal Code and section 16 of theBribery Act are completely different and cannot be said to beanalogous provisions. It was also held that the words “ per-petrator of an offence ” must be given a wider meaning toinclude those who are alleged to have committed offences oraccused of having committed offences”
Mr. Pullenayagum again took the point before a Bench consist-ing of Sirimane, J., Sharvananda, J. and Gunasekera, J., first andlast of whom had already participated in the judgments of thetwo earlier cases. Justice Sharvananda delivered the judgmentin this case which will be found in the S.C. Minutes of 22.3.76relating to S.C. Case No. 22/75. Justice Sharvananda said :
“ I agree with the judgment of Vythialingam, J., inS.C. 18-19 of 1972, D. C. Colombo 169/Bribory S.C. Min. thatthe motivation of section 16 in the Bribery Act is differentfrom that of section 211 of the Penal Code and that the con-text calls for a wider meaning of the words “ ‘perpetrator ofan offence ’ to include ‘ suspected perpetrator. ’ ”.
One can I think understand Mr. Pullenayagum’s persistence inthis argument ; for a strict grammatical and even logical cons-truction of the section seems to support him. The words of thesection are ‘ for protecting from detection or punishment theperpetrator of an offence’. Counsel’s submission is that thelegislature could not have contemplated an innocent man beingafraid of or in need of protection against detection ; equally, hesubmits and even more so, one cannot imagine the legislaturecasting so great a slur upon our system of criminal justice as tosuppose an innocent man being in fear of or in need of protec-tion from punishment by our courts. Counsel further submitsthat neither the term ‘ perpetrator ’ nor the term * offender ’ bearin themselves the meaning * suspected or alleged perpetrator oroffender’. These terms mean only ‘actual pe-petrator’ or1 actual offender ’. It. is only, he submits a context that cancompel one to give these terms the extended meaning of ‘ allegedor suspected perpetrator or offender ; such as for example inthe expression ‘ prosecute an offender or ‘ arrest an offender!
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TEN'U’EKOON, C.J.—Samarakoon c. Attorney-General
In section 16 he submits, being coupled with * protection fromdetection or punishment the word ‘ perpetrator ’ can only bearits ordinary meaning.
I agree with Counsel’s submission that the immediate contextin section 16 does not warrant the giving of the extended mean-ing to the term ‘ perpetrator But I agree, with respect, withthe judgments of Vythialingam, J., Sirimane, J. and Sharvananda
J.. that the broader context warrants a construction somewhatwider than that contended for by Counsel for the appellant.
Mr. Marapana, Senior State Counsel has submitted a differentline of approach to the section from that adopted by this courtin the cases I have referred to. The words * for such officers ’protecting from detection or punishment the perpetrator of anoffence ’ are descriptive of the purpose for which the gratifica-tion was given or accepted, solicited or offered. Senior StateCounsel’s submission then is that the whole of that group ofwords refers to the motivation of the giver, the acceptor, thesolicitor or the offeror, as the case may be, and have no referenceto reality but only to a mental state : Counsel submits that thisis the natural conclusion one is driven to if one approaches thesection from a cons deration of the general objects of the BriberyAct and section 16 in particular.
The Bribery Act contains many provisions dealing with whatacts amount to bribery. In the original Biibery Act as passed in1954 an effort was made at detailing in various sections theparticular nature of the act and/or the particular category ofofficer intended to be caught up ; ultimately by means of twoamendments made by Act No. 40 of 1958 and by Law No. 38 of1974 there was provided in section 19 (c) as follows :
“ A person who, being a State officer, solicits or acceptsany gratification,
shall be guilty of an offence punishable with rigorousimprisonment for a term of not more than seven years and afine not exceeding five thousand rupees :
Provided, however, that it shall not be an offence for aState officer to solicit or accept any gratification which he isauthorised by law or the terms of his employment toreceive.”
Indeed this section seems to render many of the earlier sectionsrelating to public officers superfluous. However, having regardto section 19(c) and to the general purpose of the Act. while
TENNEK.OON-. C.J.—Samara koon v. Attorney■ General
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Mr. Pullenayagum’s argument may have—nay, does havean
attraction to the strictly logical mind, I prefer to reach for ameaning to section 16 which while being within the languageused by the legislature would be more effective in defeating theevils at which it was aimed.
It is I think a matter of common knowledge that gratificationsare not entirely uncommon among investigators at the handsnot only of those who are detected in the act by police and otherinvestigating officers but also at the hands of those who in con-sequence of a complaint or other information become liable tobe investigated and perhaps prosecuted ; this class of alleged orsuspected offenders would include those who are innocent as wellas those who are guilty. In either case the catalyst that predis-poses such a person to willingness to give a bribe to the investi-gator is the avoidance of a prosecution, irrespective of whetherhe is guilty or not ; even in the case of the innocent they wouldbe prepared to pay to avoid what sometimes turns out to beoppressive methods of investigation or a damaging but fruitlessprosecution or the expense of defending a groundless one.
To my mind there is no doubt that section 16 of the BriberyAct is also directed towards gratifications solicited or receivedfrom persons indulging in activities outside the law who arewilling to make a monthly or otherwise regular payment to apolice officer in order to induce him to turn a blind eye to histransgressions of the law. In such cases at the time of givingthe gratification it may well be that no perpetration of an offencehas yet occurred and it may also happen that no such perpetra-tion occurs during the anticipated period in respect of which thegratification was given. Even in a case of this type section 16 wouldapply, for it can truly be said that the gratification was solicitedor accepted or offered or given (as the case may be) as an in-ducement for the officer’s protecting from detection or punish-ment the perpetrator of an offence, although at the time of thegratification there may be no offence yet perpetrated and henceno perpetrator actual or suspected. Having regard to the categoryof public servants referred to in the section, viz. those employed‘ for the prosecution, detection or punishment of offenders ’ 1 amconvinced that the expression in the latter part of the section, viz.“ gratification as an inducement or reward for protecting fromdetection or punishment the perpetrator of an offence ” is only acompendious way of giving expression to what is in commonparlance referred to in this area of corrupt activity as ‘protectionmoney ’ ; it is a phrase signifying the purchase of immunity fromthe legitimate performance of their duties by State Officers
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TENNEK.OON, C.J-—Saiaarakoon c. Attarney-Genaral
employed for the purpose of investigating offences, arresting andprosecuting those against whom reasonable grounds exist ofhaving committed offences.
I am therefore of opinion that when section 16 of the BriberyAct speaks of “ any person who being a Police Officer employedin any capacity for the prosecution, detection or punishment ofoffenders accepts any gratification as an inducement for suchofficer’s protecting from detection or punishment Lhe perpetratorof an offence”, it is speaking of a gratification accepted upon acondition express or implied, operating in the officer’s mind atthe time of the acceptance of the gratification that the giver orsome other person will obtain some benefit or immunity fromthe officer in the performance in the duties of his office ; it is notnecessary in a charge under this section for the prosecution toestablish the existence of an actual perpetrator of an offence, ftis sufficient if there is a suspected, alleged or hypothetical perpe-trator of an offence.
The very literal construction contended for by Counsel forthe appellant would tend to defeat what I consider to be thevery obvious intention of the legislature. While I agree, with allrespect, with the conclusions reached by my brother judges inthe cases I have referred to in the course of this judgment Iprefer the approach to section 16 which I have endeavoured toset out in this judgment, and which goes somewhat beyond theconclusions reached in those judgments.
To get back to the facts of this case I am of opinion that therecan be no doubt that the appellant accepted the money onlywith this in mind, viz. that he was, in consideration of thatgratification expected to provide protection to the giver fromdetection or punishment on the supposition that the giver was theperpetrator of an offence.
I would therefore hold that the acceptance of Rs. 100 by theappellant from Fernando is an offence within the meaning ofsection 16 of the Bribery Act.
The appeal is dismissed. The conviction and sentence areaffirmed.
Vythialingam, J. — I agree.
Ratwatte, J. — I agree.
Appeal dismissed.