070-NLR-NLR-V-69-MOHAMED-AUF-Appellant-and-THE-QUEEN-Respondent.pdf
H. N. O. FERNANDO, C.3 .—Mohamed Auf v. The Queen
337
Present: H. N. G. Fernando, C.J., T. S. Fernando, J.,Abeyesundere, J., Manicavasagar, J., and Samerawickrame, J.MOHAMED AUF, Appellant, and THE QUEEN, RespondentS. C. 5167—.D. C. Kandy, BJ3
Bribery Act (Cap. 26)—Sections 19 (6) (c), 24, 90—"Official act"—Burden of proof—
Penal Code, as. 19, 158—Evidence Ordinance, as. 105, 106.
The accused-appellant, who was a public servant, being an Inspectorof Schools, accepted a sum of money from an Estate School teacher for makinga certain endorsement on the teacher’s Certificate Boon after the accused hadconducted an inspection of an Estate School in which the teacher was employed.Although the accused was not required by any relevant rule to make theendorsement which he did make on the teacher’s Certificate, there was no doubtthat the teacher regarded the making of the endorsement as an official act.
Held (Abeyesundere, J. dissenting), that the making of the endorsementon the teacher's certificate was an official act by the appellant within themeaning of section 19 (b) of the Bribery Act.
Podi Singho v. the Queen (68 N. L. R. 524) overruled.
Where a public servant is charged, under section 19 (c)‘of the BriberyAct, with having accepted a gratification which he was not authorised by lawor the terms of his employment to receive, the burden of proving that thegratification was unauthorised lies on the prosecution.
A.PPEAL from a judgment of the District Court, Kandy.
H. W. Jayewardene, Q.C., with M. T. M. Sivardeen, for the Accused-Appellant.
Ananda Pereira, Deputy Solicitor-General, with L. B. T. Premaratne,Senior Crown Counsel, and Noel Tittawella, Crown Counsel, for theCrown.
Cur. adv. wilt.
March 13, 1967. H. N. G. Fernando, C.J.—
This appeal was reserved for consideration by a Bench of five Judgesbecause of a conflict of opinion as to the scope of certain provisions ofthe Bribery Act, Chapter 26.
The appellant was indicted on 2 counts as follows :—
That on or about the 13th day of February, 1963, at Katugas-tota, in the division of Kandy, within the jurisdiction of this Court-,you being a public servant, to wit, Inspector of Schools, Department
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H. N. G. FERNANDO, C.J.—-Mohamed Auf v. The Queen
of Education, did accept a gratification of a sum of Rs. 30 fromNamasivayam Vathavoovar as an inducement for performing anofficial act, to wit, making an endorsement on the Teacher’s Certificateof the said Namasivayam Vathavoovar and that you are therebyguilty of an. offence punishable under section 19 of the Bribery Act.
2. That at the time and place, aforesaid and in the course of thesame transaction you, being a public servant, to wit, Inspector ofSchools, Department of Education, did accept a gratification of asum of Rs. 30 from the said Namasivayam Vathavoovar whichgratification you were not authorised by law or the terms of youremployment to receive and that you are thereby guilty of an offencepunishable under section 19 of the Bribery Act,
and was convicted by the learned District Judge of Kandy on bothcounts. He was sentenced to imprisonment for one year on each count,sentences to run concurrently and to a fine of Rs. 25 on each count andto pay a penalty of Rs. 30.
Tho second count- with which tho appellant was charged was framedin terms of paragraph (c) of section 19 of the Act. The correctness ofthe conviction of the appellant on the first count depends upon thoconstruction which should be placed upon sections 19 and 24 of theAct, and particularly of certain expressions which occur therein.
In the case of Pocli Singho v. The Queen1 the accused who w as a publicservant employed as a Game Watcher in the Department of Wild Lifewas held to have accepted a sum of Rs. 15 from a person whom he hadfound to bo in possession of wild boar flesh. The facts of the case werethat tho Game Watcher solicited tho money in consideration of a promiseto abstain from prosecuting tho person for the possession of the flesh.Abeyesundero J. (Alles J. agreeing) held that because there was noevidence that the possession of wild boar flesh is an offence known tolaw, the accused in accepting tho money did not do so as an inducementor a reward for abstaining from performing an official act. The basis ofthis decision appears to be that, while the institution of a prosecutionfor an offence known to the law is an official act, nevertheless theinstitution of a prosecution for an act which is not such an offence wouldnot be an official act. In the later case of Karunaratne v. The Queen2T. S. Fernando J. expressed his inability to agree with the interpretationgiven in the former case to the expression “ official act ”,
In Karunaratne v. The Queen the Judge in the lower Court hadapprently regarded the term “ official act ” as meaning only an act whicha public servant is required by law to perform, but it was held in appealthat an official act “ embraces all those acts which a public servantdoes which are referable to his official capacity, or which, according torecognised and prevailing practice, he does as a public servant.”
» (1966) 68 N. L. B. 624.
(1966) 69 N. L. R. 10.
H. N. G. FERNANDO, C.J.—Mohamed Auf v. The Queen
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In the instant case, the accused was an Inspector of Schools who, inthe course of his duties as such, conducted an inspection at an EstateSchool in which the virtual complainant was employed as a teacher.After the inspection, he duly made in the school Log Book an entryconcerning the results of his inspection. Thereafter he was requestedby the teacher to make an endorsement on the Teacher’s Certificate,which is in the form of an official booklet issued to Teacher’s by theGovernment. He refused to make this endorsement except on paymentof some monoy. On a subsequent occasion he accepted the money andmade the endorsement on the certificate. This acceptance was theground of his conviction.
According to the evidence the endorsement made on a Teacher’sCertificate pfter inspection has to be in identical or similar terms to th6entry made in the School Log Book. But Rule 130 in Cap. 15 of theInspector’s Manual provides that an endorsement (of a Teacher’sCertificate) should be given on all certificates except certain specifiedcertificates ; and one of the clauses contained in the list of such exceptedcertificates is “ certificates of Teachers employed in Estate Schools ”.
Clearly therefore, the accused was not required by the relevant ruleto make the endorsement which he did make in the certificate of theTeacher in this case. He had previously made a similar endorsement,after a similar inspection, on this very certificate. But for presentpurposes I am not disposed to hold that the fact that he had oncepreviously endorsed the same certificate sufficed to establish that themaking of the endorsement was referable to his official capacity or wasan act done by him as a public servant according to recognised andprevailing practice.
But the matter does not end there, because thcro is no doubt that theteacher regarded the making of the endorsement as an official act, andsection 19 is not the only provision of the Act which ean be applicable.Section 24 also requires consideration, and before referring to thatsection, I consider it necessary to explain what in my view is the historyof that section.
The expression “ official act ” when it occurs in section 19 of theBribery Act does not prima facie appear to have been used in anyconnotation different from the same expression occurring in section 158of the Penal Code. The meaning of that expression in section 158was considered in two judgments of this Court. In the first of themDe Zoysa v. S-ubaweera1, Wijeyewardene J. held that a Police Officerwho obtained a gratification upon a representation that he would favoura person at a Police inquiry could not be convicted of an offence undersection 158, if in fact the officer knew that he had no official functionto perform at the inquiry. Similarly, Gratiaen J. held in Tennakoonv. Dissanayake2 that an offer of a gratification to a public servant wasnot punishable under section 158 if in fact the act which the offeror1 (1941) 42 N. L. R. 357.* (1948) 50 N. L. R. 403.
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requests the public servant to perform was not within the power ot thepublic servant. Although a different view of the corresponding sectionof the Indian Code has been taken in some Indian judgments, I do notfind it necessary to differ from the construction of section 158 whichwas accepted in the two Ceylon cases cited above. I think it fair topresume that the Legislature in enacting section 19 of the Bribery Actdid not intend that there should attach to the term “ official act ” ameaning wider than that which was placed on it in the two judgmentsot this Court which I have cited above.
Section 24 of the Bribery Act is in the following terms :—
“ Where in any proceedings against any person for any offenceunder any section in this Part of this Act, it is proved that he acceptedany gratification, having grounds to believe or suspect that thegratification was offered in consideration of his doing or forbearingto do any act referred to in that section, he shall be guilty of an offenceunder that section notwithstanding that he did not actually have thepower, right or opportunity so to do or forbear or that he acceptedthe gratification without intending so to do or forbear or that he didnot in fact so do or forbear.”
It is convenient at this stage for me to refer to the construction whichmy brother Abeyesundere J. placed upon section 24 in observationsmade during the argument of this appeal. That construction wasthat section 24 was intended to “ extend ” the application of section 19to two situations in which section 19 by itself would not apply. Inthis construction the first assumption (with which I have alreadyexpressed agreement) is that section 19 only applies when a gratificationis offered or accepted in connection with the performance or the abstainingfrom performance of an act which is an official act in the strict sensethat some public servant does have the power by virtue of his office toperform the act. The extension effected by section 24 is that if thereis an acceptance of a gratification in connection with such a strict officialact, the acceptor will be guilty of an offence—
notwithstanding that he did not actually have the power, right or
opportunity to do the act or to forbear to do it, or
notwithstanding that he did not intend so to do or forbear or that
he did not in fact so do or forbear.
In passing I may remark that there are really three extensions involved. because the matters I have reproduced in (2) above involve two differentsituations.
Thus far I entirely agree with the construction acceptable to mybrother that section 24 does render the acceptance of a gratificationpunishable in . two or three situations in which other sections of theBribery Act would not render the acceptor guilty of an offence. Butthere is another apparent extension in the language of section 24 whencompared for instance with the language of section 19. Whereas
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section 19 refers to “ a public servant (who) accepts a gratification a*an inducement or a reward for his performing or abstaining fromperforming any official act”, section 24 refers to a public servant againstwhom it is proved that “ he accepted a gratification, having groundsto believe or suspect that the gratification was offered in considerationof his doing or forbearing to do any official act ”,
It seems to me that the differences of language in the two sectionshas the consequence that the basic fact which the prosecution mustprove when it relies on section 24 is different from the basic fact to beproved when section 19 alone is relied upon. The fact to be provedfor the purposes of section 19 is the acceptance of a gratification as aninducement or a reward {inter alia) for performing an official act. Butwhen section 24 is invoked the basic facts to be proved are :—
that a public servant accepted a gratification, and
that the public servant had grounds to believe or suspect something.
What then is the something which the public servant must have hadgrounds to believe or to suspect ? The something is the considerationfor the offer of the gratification. In the simplest example of an offersuch as a transaction in a shop, a person offers the proper price andasks for a pound of sugar. The consideration for his offer is a matterdetermined by him : his reason or motive for making the offer is that hewishes or expects to receive in return the pound of sugar which herequires. Even if there are three grades of sugar on the counter, labelledat three different prices, the offeror impliedly indicates his choice bytendering the appropriate amount of cash. When such an offer is made,what does the shop assistant have reason to believe to be theconsideration for the offer? The answer is of course “ the receiving ofa pound of sugar ”, but only because that is precisely the considerationpresent in the mind of the offeror, and expressly or impliedly specifiedby the offeror.
Let me suppose that A is deluded by X into thinking that X hasmermaids for sale at a price of Rs. 1,000. If then A offers X that sumand asks for a mermaid, will not X have reason to believe that theconsiders’, ion for the offer is that he should sell a mermaid to A ? Thefact that X knows that mermaids are non-existent can make no differenceto his belief as to what is A’s motive or expectation in making theoffer.
If the offeror of a gratification thinkB that a particular act is an officialact, and if his conduct is such that it reasonably leads to the beliefthat he is offering the- gratification because he desires the performanceof the act which he thinks to be an official one, then the public servantto whom the gratification is offered has grounds to believe that theofferor’s motive for the offer is that the public sorvant should performan official act, whether or not the act be in truth “ official”.
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In section 19, the Legislature has referred to the fact that the considera-tion for a gratification is of a specified nature. In section 24, however,the Legislature has referred to a reasonable belief or suspicion that theconsideration is of the same nature. I must assume that the contrastin language was deliberate and not without purpose. The only purposesuggested during the argument of this appeal is that which I havementioned in the preceding paragraph.
In considering the intention of the Legislature, it seems perfectlyreasonable to infer that there was an intention to remedy an evil asgreat, if not greater, than that formerly provided for by section 158 ofthe Penal Code. The evil I have in mind is the circumstance that publicservants do accept gratifications upon representations dishonestly made(I borrow the word from Wijeyewardene J.) that some acts they offerto perform are official acts, knowing full well that the favour or reliefoffered is one that cannot be granted. The language of section 24 isquite easily capable of a construction which will remedy that evil. Inthe absence of any other reasonable explanation for the use by theLegislature of that language, I would hold that section 24 (when readwith s. 19) applies not only in the situations contemplated by my brotherAbeyesundere J. and mentioned earlier in this judgment, but alsorenders it an offence for a public servant to accept a gratification if hehas grounds to believe or suspect that the motive for the giving of thegratification is that the offeror expects that the public servant will do orforbear to do an act regarded by the offeror as an official act. I wouldadd that section 24 must be so construed in connection also with actsreferred to in other provisions of Part 2 of the Bribery Act.
In the case of Podi Singho v. The Queen the ground for the acquittalof the accused in appeal was that the threat of a prosecution was an idleone because in fact the person threatened had not committed an offenceknown to the law. In the view I have taken as to the scope of section24 that ground for the decision in that case must be overruled.
The provisions of section 19 (c), in terms of which the 2nd count of theindictment in this case is framed, renders it punishable for a public servantto solicit or accept any gratification which he is not authorised by lawor his terms of his employment to receive. There was no evidenceled in the case of any term of the appellant’s appointment prohibitingthe receipt by him of any gratification, nor are we aware of any provisionof law imposing such a prohibition. Nevertheless the learned DeputySolicitor-General submitted that section 19 (c) casts on an accusedperson the burden of proving that a gratification accepted by him isauthorised either by law or by the terms of his employment. What isinvoked in this submission is section 105 of the Evidence Ordinance.The relevant provision of that section which can, if at all. apply in thepresent case is to the effect hat an accused person has the burden ofproving “ the existence of circumstances bringing the case within ….any special exception or proviso contained …. in any law defined inthe offence.’’ But section 19 (c) contains no proviso nor is the reference
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therein to the authorisation “ by law or the terms of his employment ”in any way compatible with an intention of the Legislature to prohibitabsolutely the acceptance of a gratification by a public servant, subjectto the exception that authorisation by law of the terms of employmentwill be a defence. In other words, the offence defined by section 19 (c)is that of accepting an unauthorised gratification, and one of theingredients of the offence is the fact that the gratification acceptedis an unauthorised one.
Section 106 casts on a person the burden of proving any act which isespecially within his knowledge. A fact can be said to be especiallywithin the knowledge of one party, only if it is apparent that the samefact is not or is probably not, within the knowledge of the other party.In the present case there is no evidence to show that the appellant wasin fact aware of his terms of his employment; on the contrary thoseterms are surely within the knowledge of the Government, which is theappellant’s employer, and on whose behalf the prosecution in this casewas lodged.
For these reasons I would hold that the burden of proving that thegratification was unauthorised lay on the prosecution.
The conviction of-the appellant on the 1st count and the sentences -imposed in respect of that conviction are affirmed. The conviction andsentences on the 2nd count are set aside.
T. S. Fernando, J.—I agree.
Abeyesundere, J.—
I agree with His Lordship the Chief Justice that the appellant isnot proved to be guilty on count 2 of the indictment. But I respectivelydisagree -noth him in regard to his finding that, by the application ofsection 24 of the Bribery Act, the conviction of the appellant on count 1of the indictment can be upheld.
Count 1 refers to an offence under section 19 (h) of the Bribery Actand states that the official act for the performance of which thegratification was accepted by the appellant . is the making of anendorsement on the teacher’s certificate of the giver of the gratification.The appellant is an Inspector of Schools and the giver of the gratificationis a teacher in an estate school. The evidence is that an Inspector ofSchools is not required by rule 130 in the Inspector's Manual to makesuch endorsement as is referred to in count 1 on the certificate of ateacher in an estate school. There is also no evidence that it is theofficial function of some public servant to make such an endorsementon the certificate of a teacher in an estate school. The making of theendorsement referred to in count 1 is therefore not an official act.Consequently it cannot be held that the appellant is guilty of anoffence under section 19 (6) of the Bribery Act.
28- Volume LXIX
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MANIC AVAS AGAR, J.—Mohamed Atif v. The Queen
As the appellant was prosecuted on count 1 for an offence undera section in Part II of the Bribeiy Act with reference to the official , actspecified in that count, section 24 of that Act may be applied to holdhim guilty of such offence if there is proof that he accepted thegratification having grounds to believe or suspect that the gratification wasoffered to him in consideration of his doing such official act. Theofficial act referred to in section 24 is the same as that referred to in thestatement of the offence under section 19 (6) in view of the words “ offenceunder any section in this Part ” and the words “ any act referred toin that section ” occurring in section 24. Those words in section 24do not permit the view to be taken that, although an offence undersection 19 (6) must relate to an existent official act and not to an imaginaryofficial act, the commission of such offence may be proved by evidencethat the alleged offender accepted the gratification having grounds tobelieve or suspect that the gratification was offered in consideration ofhis doing an act which the giver of the gratification thought was anofficial act although in truth it was not an official act. As the actspecified as an official act in count 1 is in fact not an official act, section24 cannot be applied to establish the commission of the offence specifiedin that count.
Section 24 does not create an offence. It indicates the evidencesufficient for proving an offence under any section in Part II of theBribery Act and also indicates that certain defences are not availableto the accused. Firstly, section 24 indicates that, where a person isprosecuted for an offence under any section in Part II of the BriberyAct, the evidence sufficient for finding him guilty of that offence isevidence that proves that he accepted the gratification having groundsto believe or suspect that the gratification was offered to him in con-sideration of his doing or forbearing to do the act referred to in thesection creating the offence which he is alleged to have committed. Theprosecution will therefore not be handicapped by the inability to provethat the giver of the gratification stated to the alleged offonder theofficial act with reference to which the gratification was given. Secondlysection 24, by reason of the clause therein commencing with the word“ notwithstanding ”, indicates that it is not a defence that the accuseddid not actually have the power, right or opportunity to do or forbearto do the act specified in the charge, or that he accepted the gratificationwithout intending so to d.o or forbear, or that he did not in fact so door forbear.
For the aforesaid reasons I hold that the conviction of the appellanton count 1 of the indictment must also be quashed.
Mabicavasagab, J.—
I have had the benefit of reading the learned opinions of my Lord,the Chief Justice, and of my brother, Abeyesundere J., and I agreethat the conviction of the appellant on count 2 should be set aside for
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the reasons given by His Lordship the Chief Justice. In regard tocount 1, I regret to take a view different to that of Abeyesundere, J.,whose knowledge of the interpretation of statutes by reason of hisexperience in the Legal Draftsman’s department, is entitled to respect.I agree with the decision of His Lordship, the Chief Justice that theverdict and sentence on the 1st count should be affirmed, but myreasons are somewhat different.
The appellant in this case is a public servant, being an Inspector ofSchools, attached to the Education Department: he received froma teacher of an Estate School which came under the EducationDepartment, a gratification to make an endorsement on his certificatebook : this was an act which as a public servant, neither the appellantnor any other public servant was required by law or by any regulation toperform : but he did make an endorsement favourable to the teacher.Having regard to these facts, is the act an official act as contemplatedby the section ? Different opinions have been given in two judgmentsof this court which were cited to us at the argument ; and whilst I agreewith the meaning given by T. S. Fernando, J. in Karunaratna v. TheQueen11 say, with respect, that it does not go far enough.
Section 19(6) of the Bribery Act penalises the public servant whoaccepts a gratification for the performance of any official act. I havestated only tliat part of the section which is relevant to the case underconsideration. Section 24 refers to certain circumstances which ifproved would render the public servant who accepts a gratificationliable to punishment for any offence in Part II of the Act; section 19 (6)is in Part II. Section 19 (6) refers to what I think is a straightforwardcase, whore the giver makes known to the public servant the purposeof the gratification. Section 24 provides for a case where the publicservant has grounds to believe or suspect that the gratification was offeredin consideration of his doing any act which is made an offence by Part II,though he may not have the power, right or opportunity to do that act,or did not even intend to do it. This provision, and I believe theBribery Act itself—.though it took quite a time to be brought into thestatute book—was largely influenced by the judgments delivered by twoeminent judges of this court, Wijeyewardone J. in the case of de Zoysav. Subaweera2 and Gratiaen J. in Tennakoon v. Dissanayalce 3. Theyrefused to give an extended judicial interpretation to the plain meaningof “ official act ” in section 158 of the Penal Code, which Gratiaen J.in language so characteristic of him described as “ an antiquatedEnactment, conceived a century ago, which still remains unamended,and helpless to cope with modern methods of corruption.” Both Judgestook the view that it was no offence under section 158 if a public servantreceived a bribe to confer a favour which he had not the power toperform.
We are however here concerned with the meaning of the words “ officialact ” which occur in the two sections of the Bribery Act.
1 (1966) 69 If. L. R. 10 at p. 19.* (1941) 42 N. L. R. 357.
• (1948) 50 N. L. R. 403.
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Ihe plain meaning would be of an act which falls within the purviewof the functions of a public servant. This would exclude acts requiredby law or regulation to be performed, but which do not fall within theambit of his functions, and acts though official in character, which neednot be done at all by any public servant, or the doing of which is not anoffence known to the law. If the interpretation is restricted to the plainmeaning alone, it would undoubtedly open the door for corrupt-mindedpublic servants to accept extra-legal gratification without compunction.This could certainly not have been the intention of the legislature : toconstrue the words strictly would in my opinion not give effect to thereal intent of the legislature. Maxwell in his Interpretation of Statutes(1962 Edn. p. 266) says—
“ The paramount object, in construing penal as well as other statutes,is to ascertain the legislative intent, and the rule of strict constructionis not violated by permitting the words to have their full meaning,or the more extensive of the two meanings, when best effectuatingthe intention. They are indeed, frequently taken in the widestsense, sometimes even in a sense more wide than etymologicallybelongs or is popularly attached to them, in order to carry outeffectually the legislative intent, or, to use Sir Edward Coke’s words,to suppress the mischief and advance the remedy.”
I find it difficult to see any principle in the distinction between the actof a public servant which falls strictly within his official functions, aDdan act which he has not the power or the duty to perform at all, butwhich he nevertheless does for a gratification, making the giver believethat he has the power to do what may be an official act or what is believed,or held out even impliedly as an official act: in either case the officialacts corruptly : the legislature must surely have intended to catch upsuch cases as well, and therefore it is necessary to give the words ameaning “ which best suits the scope and object of the statute ”.
The opinion I have formed is so clearly expressed in a passage in thejudgment of Jagannadhadas J. in the case of The State v. Sadhu CkaranPanigrahi1 that I propose to quote it: it was a case where the meaningof the words official act in s. 161 of the Indian Penal Code (same assection 158 of our Code) was considered by a Bench of 2 Judges, inregard to a public servant who had no official function to perform inrespect of the matter 'or which he was offered a gratification, neverthelesstho principle is equally applicable to the words in the Bribery Act.The learned Judge said—•
“ The gist of the .offence clearly is not that there was at the time,an official act to be procured capable of being performed by the takerof the bribe or by another public servant with whom he is intendedto exercise his influence, but that tho extra-legal gratification isobtained as a motive or reward for doing official acts, that is for doingwhat i:iay be or is believed or held out to be official conduct. Thestress in. the section is not so much on the performance of the official
1 (1952) 53 Criminal Law Journal, 367 at page 369.
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act it sell’, or on its being capable ol’ performance but on tho natureof the act being official. This is meant to exclude from its purviewacts which were totally unconnected with any official conduct andwhich may be attributable purely to the private capacity of thebribe-taker or of the other public servant. The emphasis is on thegratification offered being a motive or reward for official conduct(inclusive of that which is believed or held out to be so).”
This opinion which is different to the earlier decisions some of whichWijey>. wardene J. has cited, has been approved in two subsequent cases,viz. Bhirn Singh v. State1 and by the Supreme Court in Mahadev Dhan-appa v. State of Bombay2, and in my judgment is the right meaning ofthe words ” official act to interpret it otherwise would be, to usethe words of Sir Edward Coke in a different sense, to suppress the remedyand advance the mischief, a situation which could not have been theintention of the legislature. It is the duty of the Courts, where theobject of the statute is clean public morality, that the words shouldbe given a wide meaning to give effect to that object.
Sam era wickeame , J.—
This appeal is against the conviction of the appellant of the commissionof offences of bribery, on two counts under the Bribery Act. I agreethat the conviction of the appellant on count 2 should be set aside forthe reasons given in his order by My Lord the Chief Justice. In regardto count 1, I agree that the verdict and sentence should be affirmed.I set out my reasons for affirming them.
The appellant is an Inspector of Schools and the allegation madeagainst him is that he accepted a gratification for making an endorsementon the certificate of a teacher who was employed in an estate school.Evidence has been led that the rules of the Department do not requirean endorsement to be made on the certificate of a teacher of an estateschool. The question, therefore, is whether the appellant accepteda gratification as an inducement or reward lor performing an officialact within the meaning of Section 19 (6) of the Bribery Act.
The Bribery Act was passed because it was found that the provisionsof Section 158 of the Penal Code were insufficient to deal with cases ofcorruption. Section 158 of the Penal Code contains provisions whichmake a public servant who accepts a gratification liable to punishmentfor the commission of an offence. The offering of the gratification isnot a substantive offence but the offeror is liable as an abettor. ThisCourt has held that under that provision, a public servant who wasfunctus officio or had no power to do the official act in question couldnot be convicted if he accepted a gratification. The Penal Code toocontains in Section 19 of the definition of public servant and thepersons who could be made liable under Section 158 are thosebelonging to the categories of public servants set out in that definition.1 (1955) 56 Criminal Law Journal 992.* (1953) Criminal Law Journal 992 (S. O.).
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Having regard to the definition of public servant in the Penal Code, thenature of the provisions of Section 158 and its place in the Code, itseems to me that the provisions in that Section were designed to secureimpartiality and fairness in the performance of official acts rather thanto stamp out corruption.
The Bribery Act, however, is without doubt, meant to deal with themenace of corruption in public and official life of this country. The term1 public servant ’ is defined in Section 90 of the Act as follows :—•
“ ‘ Public servant ’ includes every officer, servant or employee ofthe Crown, or of any local authority, or of any scheduled institution,every juror, and every arbitrator or other person to whom any causeor matter has been referred for decision or report by any court orby any other competent public authority.”
The schedule refers to 34 institutions and includes bodies such asCo-operative Societies registered under the Co-operative SocietiesOrdinance, registered Community Centres and registered Rural Develop-ment Societies. Section 24 of the Act also provides that a person whohas accepted a gratification will be guilty of an offence even thoughhe did not actually have the power, right or opportunity to do or toforbear to do an act. It will thus be seen that the provisions in theBribery Act are intended to apply to a wider class and to have a widerscope than those in the Penal Code. Having regard to these mattersand also to the object of the Act, I am of the view that the term ‘ officialact ’ in Section 19 (a) and (6) should be given a wider meaning thanthat given to it in the construction of Section 158 of the Penal Code.I think that the term was intended to have a meaning wide enough tocatch up all acts connected with official conduct or employment ofa public servant, as the performance or non-performance of them shouldnot be used by him for the purpose of making gain. I think that‘ official act ’ in Section 19 (a) and (b) has been used as opposed topersonal or private conduct. I am, therefore, of the view that ‘ officialact ’ in that provision should be read to mean any act of a public servantreferable to his office or employment and the doing of which does notConstitute private or personal conduct.
Under the provisions of Section 24, a person who accepts a grati-fication is liable in respect of an act even though he did not actuallyhave the power, right or opportunity to do the act. That a publicservant has no y ower to do an act may be due either to the fact thathe personally is not empowered to do that act or that no public servantis so empowered. In either case, however, in view of Section 24, a personwho accepts a gratification for doing such an act would be liable if itis an act the doing of which, if he had the power to do it, would bereferable to his office or employment and would not constitute hispersonal or private conduct.
The Queen v. Kalimuttu
340
In the present case, the appellant made the entry in the certificateof the teacher as the officer who had conducted an inspection of theschool in which the teacher was employed. Had he not held the officeor post of Inspector of Schools, no question of an entry by him in thecertificate of this teacher would have arisen. It is because he held theinspection as an Inspector of Schools and held that office that he wasasked to make and made the entry in the certificate. It is clear, there-fore, that the making of the entry in the certificate was an act referableto his office or employment and was not an act which constituted hispersonal or private conduct. I am, therefore, of the view that themaking of the entry in the teacher’s certificate in the circumstanceswas an official act by the appellant within the meaning of Section 19 (6)of the Bribery Act.
Conviction on 1st count affirmed.
Conviction on 2nd count set aside.