051-NLR-NLR-V-49-HENDRICK-SILVA-Appellant-and-IMBULDENIYA-S.-I.-Police-Respondent.pdf
HOWARD C.J.—Hendrick SUva v. Imbuldeniya.
159
1948Present: Howard C. J.
HENDRICK SELVA, Appellant, and IMBULDENIYA(S. I. Police), Respondent.
5. C. 1,321—M. C. Matara, br,,977.
Penal Code, sections 158 and 109—Abetting acceptance of illegal gratification bypublic servant—Ingredients of offence—State of mind of accused—Proof thatpublic officer was acting in lawful exercise of duties.
Where a person is charged with abetting the acceptance of an illegal grati-fication by a public officer the only question at issue is the state of mind of theaccused. It is irrelevant whether the officer had authority to make the investi-gation in the course of which the gratification was offered.
Perera v. Kannangara {1939) 40 N. L. 11. 465 referred to
_/V PPEAL from a judgment of the Magistrate, Matara.
Colvin R. de Silva, with K. C. de Silva, for accused, appellant.
C. AUes, Croton Counsel, for the Attorney-General.
Cur. adv. vvlt.
February 24, 1948. Howard C.J.—
The appellant appeals from bis conviction of aiding and abetting apublic servant, to wit, P. S. 2666 D. D. Abeywardena of the CriminalInvestigation Department to accept for himself a gratification otherthan legal remuneration, namely, a sum of Rupees one hundred as areward for doing an act, to wit, suppressing evidence recorded by thesaid public servant in his official capacity as such by destroying thepaper wherein he had recorded the statement of one Lairis and obtainedspecimens of the handwriting of the said Lairis whilst inquiring into acase of alleged forgery of some applications for permits to purchasematernity outfits at Pathegama South, but which said act was notcommitted by the said P. S. Abeywardena in consequence of such abet-ment. The charge was laid under sections 158 and 109 of the Penal■Code. The evidence c.f P. S. Abeywardena so fax as material was asfollows:—
“ On October 23, 1946, I was investigating into a case of fraud. Icompleted investigations and came to Kapugama on October 24, 1946.I had another inquiry there in connection with the alleged forgery ofsome paddy permits. The accused came to the Headman's housewhen I was making inquiries with another man. He said that be wasinterested in one Lairis whose statement I had recorded and a specimen■of whose signature I had. taken at the earlier inquiry at Pathegama.Accused addressed the man he came with as “ Dionis ”. At Pathegamatoo while I was investigating the accused came, and wanted to knowfrom me where I was going next and said he wanted to see me. W henhe told me at Kapugama that he was interested in Lairis 1 asked himwhat he wanted. He said he would give me Bs. 100 and asked meto tear up the notes of inquiry relating to Lairir.. I refused. TneHeadman was not there then. Accused went away. When theHeadman came home the accused came back again and persisted in
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HOWARD C.J.—Hendrick Silva v. Imbuldeniya.
asking me to take the Rs. 100 and destroying the notes. He thenhanded roe Rs. 100 in ten ten-rupee notes. I took the money andnoted the numbers of the notes and 1 anded it over to the Headman-The man whom the accused called Dionis, tie accused, the headman;and I were present, when the mone was handed over to me.When I started taking down the numbers of the notes the manaddressed as Dionis ran away. The Headman and I took the accusedwith the money to the Police Station. The Headman heard theaccused asking me to take the Rs. 100 and destroy the notes ofinquiry.”
The evidence of Sergeant Abey wardene was corroborated by the testimonyof the Headman. The appellant called no evidence, but on his behalfthe point was taken that, inasmuch as no evidence was produced to provethat the Sergeant was investigating the case of forgery, a non-cognizableoffenc.e, with the authority of the Court under section 129 of the Criminal-Procedure Code, a prosecution would not lie. The Magistrate held thatthere was no substance in this point. In convicting the appellant hehas cited the case of Perc.ro, v. Kannangara 1.
Dr. Colvin R. de Silva on behalf of the appellant has raised the same-point as was taken for the defence before the Magistrate. The appellantwas charged under section 158 of the Penal Code -which is worded asfollows:—
“ Whoever, being or expecting to be a public servant, accepts orobtains or agrees to accept or attempts to obtain from any person,for himself or for any other person, any gratification whatever, otherthan legal remuneration, as a motive or reward for doing or forbearingto do any official act or for showing or forbearing to show, in theexercise of his official functions, favour or disfavour to any person, orfor rendering or attempting to render any service or disservice to anyperson with the legislative or executive Government of Ceylon or withany public servant as such, shall be punished with imprisonment ofeither description for a term which may extend to three years, or withfine, or with both.”
Section 129 (1) of the Criminal Procedure Code is worded as follows :—
“ Every inquirer and Police Officer shall have power upon receivingan order from a Magistrate, to investigate a non-cognizable offenceand to exercise all the powers conferred upon them by this Chapterin respect of such investigation.”
Dr. de Silva contends that as the offence of forgery, a non-cognizableoffence, was being investigated by Sergeant Abeywardena the latterwas not, in the absence of proof that he had the authority of the Magistrateto make such investigation, acting in any official capacity. In thesecircumstances Dr. de Silva contended that the charge must fail. Insupport of this proposition he cited the case of De Zoysa v. Subaioeera2-In that case it was held by Wijeyewardene J. that where a Police Constable,who had no official functions to perform at a Police inquiry, dishonestly-represented to a person that he would favour him at such inquiry and.
1 {1939) 40 N. L. R. 465 ; 14 C. L. W. 1068 (1941) 42 N. L. R. 357.
HOWARD C.J.—Hendrick Silva v. Imbtddeniya.
191
obtained a gratification from him, the constable had not committed anoffence under section 168. The accused was taking no part in theinquiry. There was, therefore, no proof that he accepted the gratification■as a reward for showing favour in the exercise of his official functions,in the present case it was the appellant who asked for a favour. Inthese circumstances I do not consider that the decision in De Zoysa v.Subaweera has any relevance so far as the facts in the present case are•concerned. Dr. de Silva also cited the case of Mudalihamy v. Isma1the headnote of which is as follows :—
“ In the case of a non-cognizable offence (such as that under theGame Protection Ordinance) the person who searches for and seizesanything necessary for an investigation must act under the orders ofthe Police Magistrate.
When an Arachchi acting under the orders of a Ratem&hatayaseized (for the purposes of inquiry) a wild buffaloe captured by theaccused, and the accused rescued the animal by force—Held: thataccused could not be convicted under section 183 of the Penal Code.
‘ The complainant cannot be said to have been obstructed in thedischarge of any public function. The public function must for thispurpose be legally authorised : it is not enough that the public servantwhen he acts under any order believes that the order is lawful. Theorder must in fact be lawful.’ ”
I do not think that this case has any bearing on the present case.'The Arachchi was admittedly exercising a function for which he had nolegal authority. Moreover the offence alleged to be committed by the•accused arose as the result of the action taken by the Arachchi on theorders of the Ratemahataya. In the present case it is not concededthat Sergeant Abeywardena was acting without the authority of theMagistrate. There is merely lack of formal proof. Moreover SergeantAbeywardena was approached by the accused. There was no connection,between the investigation on which he was engaged and the bribe ofRs. 100 offered by the appellant- Mudalihamy v. Isma was followed inBanda v. Tihka 2 where the same principle was formulated.
In Perera v. Kannangara3 it was held by Soertsz A.C.J. that in a chargeof abetting the acceptance of an illegal gratification by a public officerunder sections 158 and 109 of the Penal Code (Chapter 15) the relevantstate of mind is not that of the person to whom the offei is made, but ofthe person making the offer. In the present case the only question atissue is the state of mind of the appellant. Did the latter by the offerof a gratification instigate the Sergeant to forbear to do an official act,namely, forward the notes of the inquiry relating to Lairis? There isno doubt tha*- he did. The bribe offered by the appellant had no con-nection with the inquiry on which S.rgeant Abeywardena was engagedn.t the time it was offered. The question as to whether Sergeant Abey-wardena was holding either inquiry with the authority of the Magistrateis not material.
Tor the reasons I have given the appeal is dismissed.
Appeal dismissed.
1 (1916) 19 N. L. R. 286.* 4 C. W. R. 242.
» (1939) 40 N. L. R. 465 ; 14 C. L. W. 106.