WUEYEWARDENE J.—De Zoysa v. Subaweera.
1941Present: Wi jeyewardene J.
DE ZOYSA v. SUBAWEERA. -866—M. C. Avissawella, 22,072.
Public servant taking illegal gratification—Elements of offence—Penal Code.
Where the accused, a police constable, who had no official functions toperform at a police inquiry, dishonestly represented to a person that hewould favour him at such inquiry and obtained a gratification from him,—
Held, that the accused had not committed an offence under sectidn 158of the Penal Code.
^ PPEAL from an order of the Magistrate of Avissawella.
O.L. de Kretser, C.C., for complainant, appellant.
N. Nadarajah (with him A. C. Alles), for accused, respondent.
Cur. adv. vult.
April 4, 1941. WlJEYEWARDENE J.—
This is an appeal with the sanction of the Attorney-General against anorder of acquittal made by the Magistrate of Avissawella.
The accused was charged under section 158 of the Penal Code withhaving obtained an illegal gratification of Rs. 5 from one Podi Sinno as amotive for showing favour to Podi Sinno in the exercise of his officialfunctions at an inquiry to De held at the Yatiyantota Police Station onSeptember 12, 1940.
The facts of the case may be stated briefly as follows:—Podi Sinnosent a'petition P 1 of August 31, 1940, to the Assistant Superintendent ofPolice, Avissawella, against one Podiya. The petition stated that“ Podiya are doing' act of mischief against the petitioner and trying toharm by the aid of several others without given to possess the land… . and damaging the plantation ….”. The petition
also referred to a pending civil cas in the Court of Requests, Avissawella,in respect of that land and filed by the petitioner against Podiya. TheAssistant Superintendent of Police forwarded the petition to the Sub-Inspector of Police, Yatiyantota, “ for attention at Station.” TheSub-Inspector fixed the inquiry for September 12, and on September 11,
358WIJEYEWARDENE J.—De Zoysa v. Subaweera.
ordered the accused, a police constable, to request the petitioner andPodiya to attend the inquiry. The accused communicated the messageof the Sub-Inspector to the petitioner on September 11, and then accordingto Podi Sinno asked him for “ a pagawa (bribe) to help him in the petitioninquiry He asked Podi Sinno for Rs. 5 and when Podi Sinno gave himRs. 3 he returned it after assaulting Podi Sinno with his umbrella andabusing him. Podi Sinno had then to borrow Rs. 2 from a friend and thusmake up the Rs. 5 wanted by the accused. Under cross-examinationPodi Sinno stated, “ I gave the money because I found that the accusedwould abuse me and assault me if I did not do so ”.
He added on being re-examined, “ when I handed over the Rs. 5 to theaccused I did not remember that the accused had earlier promised to dome some favour in the inquiry”.
I shall consider the various questions arising in this case accepting thefinding of the Magistrate that the accused asked Podi Sinno for a bribeto help him in the petition inquiry.
Now section 57 of the Police Ordinance states that it is the duty ofa Police Officer, inter alia—
to use his best endeavour and -ability to prevent all crimes, offences
and public nuisances ;
to preserve the peace.
That section, however, should be read subject to section 71 of thePolice Ordinance which enacts, “No Police Officer shall receive anycomplaint of any petty offence or take into custody any person broughtto him accused of such petty offences as trespass, assault, quarrelling orthe like”. Now the petition P 1 is the usual kind of petition sent byvillagers who desire to have a civil dispute settled summarily through theintervention of the Police. In fact the Sub-Inspector of Police who heldthe inquiry on September 12, referred Podi Sinno to his remedy in aCivil Court. The Sub-Inspector states that he took up this particularinquiry on September 12, as that was the day fixed by him for “ pettyinquiries ” at the Police Station. Even assuming that the inquiry heldby the Sub-Inspector was an official inquiry which the Police wereentitled to hold, the further question arises as to the functions of theaccused at that inquiry. The accused took no part in that inquiry.There is no evidence to show that he could have even expected to take apart however small at that inquiry. The evidence makes it clear that itwas a summary inquiry made by the Sub-Inspector of Police in the hopethat such an inquiry would induce the parties either to settle their disputesbefore him or seek redress in a Civil Court. The position then appearsto be that the accused who knew that he had no official functions toperform at the inquiry dishonestly represented to Podi Sinno that he wasgoing to show favour to Podi Sinno in the exercise of his official functionsat the petition inquiry and thereby attempted to obtain .‘.ts. 5 as a motivefor showing favour to him in the exercise of such functions. Could theaccused be then said to have committed an offence punishable undersection 158 of the Penal Code ?
WIJEYEWARDENE J.—De Zoysa v. Subaweera.
In Venkiah (1924) Madras Law Journal 662 a man was charged undersection 161 of the Indian Penal Code—corresponding to section 158 ofour Code. The charge was that he received a bribe of Rs. 20 from avillager on the understanding that he would get the villager some landon darkhast in his capacity as Karnam. Acquitting the accusedJakson J. said : —
“In a charge under section 161, Indian Penal Code, it must be shownthat the accused took the bribe as a motive for doing an official act.But getting darkhasts is not the official act of a Karnam. He mayhave cheated the villager into thinking that he was the official whogranted the darkhasts …. He might have been chargedperhaps with offering to influence the Tahsildar- or some higher official. . . . There is a nice distinction between what is criminal andwhat is departmentally reprehensible and this distinction must becarefully borne in mind. ”
In Venkatarama Naidu (1929) 59 Madras Law Journal 239, a personwas charged with offering a bribe to a public servant and having therebyabetted the commission of the offence under section 161 of the IhdianPenal Code. In that case the accused had applied to become a policeman.On the orders of the District Superintendent of Police the accused wentbefore the Reserve Inspector who found that the accused was below theregulation height and rejected his application. . “ The accused thereupontendered a five-rupee note to the officer, no doubt in the hope that theofficer would reconsider his decision and make a report to the DistrictSuperintendent of Police to that effect. ” The High Court (CouttsTrotter C.J. and Pakenham Walsh J.) acquitted the accused holding that nooffence under the section is committed where the public servant to whomthe bribe is offered is, at that time, functus officio as to the matter inrespect of which the bribe is offered.
There are also certain dicta in Ajudhia Prashad (26 Criminal LawJournal, 1367) which seem to support the view taken in the Madrascases.
A contrary view has been taken by the Allahabad High Court. InAjudhia Prashad (1929) 51 Allahabad 467 Dalai J. held that it wassufficient to constitute the abetment of an offence under this section ifthere was an offer of a bribe to a public servant in the belief that he hadan opportunity or power in the exercise of his official functions to showthe offerer a desired favour even although the public servant had in realityno such power. Dalai J. disapproved of the decision in Venkiah andthought that the decision would not have been given if the Madras HighCourt had not overlooked illustrations (c) to section 161 of the Indian Codecorresponding to illustration (b) to section 158 of our Code. He said,referring to that illustration : —
“ I am not aware of the existence of an official whose official duty itis to exercise influence with Government to obtain a title ….Such an illustration of an impossible official duty is purposely given toindicate the purpose of the legislation that, even where an act is notwithin the exercise of the official duty of a public servant (such as the-exercise of influence to obtain a title), if a public servant erroneously
WIJEYEWAKDENE J.—De Zoysa v. Subatoeera
represents that the particular act is within the exercise of his officialduty he would be liable to conviction under section 161 if he obtaineda gratification by inducing such an erroneous belief in another person. ”I am unable to read this illustration in the sense in which it has beenread in the Allahabad case. I think that illustration is merely intendedto illustrate the last “ explanation ” under section 158 which states that" a person who receives a gratification as a motive for doing what he doesnot intend to do or as a reward for doing what he had not done comeswithin these words. ”
I hold that the accused has not committed an offence punishable undersection 158 in attempting to obtain Rs. 5 on a promise to help Podi Sixmoat the petition inquiry.
I dismiss the appeal.
DE ZOYSA v. SUBAWEERA