THAMOTHERAM, J.—Mohamed v. The Attorney-General
Present: Thamotheram, J., Sirimane, J., andColin Thome, J.
MOHAMED USOOF MUTHU MOHAMED, Accused-Appellant
THE ATTORNEY-GENERAL, RespondentS. C. 25/75 D. C. Colombo B 147
Bribery Act—Meaning of phrase ‘ official act ’—Sections 19 and 24.
The accused being a Grama Sevaka was convicted of an offencepunishable under Section 19 of the Bribery Act. The submission onbehalf of the accused-appellant was that on the evidence as acceptedby the trial Judge that when the accused solicited the gratificationhe did so in an area outside his jurisdiction, consequently itwas not in relation to an official act. which he could have profonned.It was submitted therefore that there was no official act in relationto which he solicited such gratification.
Held: That the term ‘official act’ in section 19 of the BriberyAct must not be restricted to the meaning of the term in section3 58 of the Penal Code. The words must be given a wider meaningin the total context of the Bribery Act, and therefore the actof the accused in the present case fell within the term ‘ officialact* in the section.
Cases referred to :
Mohamed Auf v. The Queen, 69 N.L.R. 337.
Zoysa v. Subameera, 42 N.L.R 357.
Tennekoon v. Dissanayake, 50 N.L.R. 403.
Karunaratne v. The Queen, 69 N.L.R. 10.
The State v. Sadhu Charan Panigrahi, (1952) 53 Sriminal LawJournal 367.
^_PPEAL against conviction in the District Court, Colombo.
S. A. Pullenayagam with S. J. Mohideen and Asoka
Sotnaratne for the accused-appellant.
G. M. A. Bogollagama, Senior State Counsel, for the attorney-
Cur. adv, vult.
July I, 1976. Thamotheram, J.
The accused-appellant was convicted of the followingcharge:—
That on or about the 25th day August 1972 at Murunkan youbeing a public servant to wit a Grama Sevaka did solicit fromV. Ramalingam a gratification of a sum of Rs. 25 or two bottlesof arrack as an inducement or a reward for your performingan official act to wit—returning the switch key of tractorNo. 25 Sri 9586 and the timber removal permit No. A. 32 XXXIV001280 taken charge of by you from, the said V. Ramalingamand that you are thereby guilty of an offence punishable undersection 19 of the Bribery Act.
THAMOTH ERAM, J.—Mohamed v. The Attorney-General
The case for the prosecution was that the tractor with a load■of fence posts driven by one V. Ramalingam was stopped atMurunkan by the accused-appellant and the 2nd accused, whowas acquitted of the charge of abetment. The 1st accusedintroducing himself as the acting Grama Sevaka of Murunkandemanded the permit from Ramalingam to transport the fenceposts. Ramalingam handed him the permit which was valid tillmidnight of 25.8.72.
Although a valid permit was produced, the accused-appellantmaintained it was invalid and demanded Rs. 25 or two bottlesof arrack if he was to return the switch key of the tractor andthe permit which he had taken. The suggestion he had madewas that the fence posts were being transported without avalid permit and that if he was to refrain from taking officialaction and release the tractor he was to be given the bribedemanded.
The learned Judge had accepted the evidence that the accusedhad demanded the bribe, that this demand was made atMurunkan, and that although he was a Grama Sevaka he wasnot acting as Grama Sevaka of Murunkan, the place where thealleged detection and demand were made. Mr. Pullenayagammade his submissions of law based on these findings of fact. Hiacontention was that as the accused acted in an area outside hisjurisdiction the demand of the bribe was not in relation to anofficial act in relation to which he solicited the bribe.
The facts of this case illustrate some of the absurd resultswhich follow if one were to adopt the narrow view of whatconstitutes an official act. The tractor was stopped almost atthe boundary line of the two areas. On one side of it he couldperform an official act on the other he could not for want ofjurisdiction.
If it was a case of acceptance, then under section 24 of theAct the fact that he had no power to act in the particulararea did not matter and he would be guilty of the offence ofaccepting an illegal gratification. But the soliciting for the samegratification will not be an offeence as he had no power to actin that area.
It must be noted that the meaning given to the term officialact in section 19 must be the same as that given in section 24except that certain defences open in the case of section 19 (b)will not be open if section 24 is applicable. In the case of accep-tance the acceptor or taker cannot plead: —
That he did not actually have the power, right oppor-tunity to do the act or to forbear to do it.
<2) That he did not intend to do it or forbear.
<3) That he did not in fact so do or forbear.
THAMOTHEBAM, J.—Mohamad v. The Attorney-General
These defences are not open to a public servant who acceptsbut are available to him if he only solicits. In Mohamed Auf vs.The Queen, 69 N.L.R., page 337, H. N. G. Fernando, C. J..
T.S. Fernando, J. and Abeysundera, J. were of the view that theexpression “ Official Act ” in section 19 of the Bribery Act shouldnot be given a wider meaning than that which was placed inthe two judgments in Zoysa vs. Subaweera, 42 N.L.R., page 357(Wijewardene J.) and in Tennekoon vs. Dissanayake, 50 N.L.R..page 403 (Gratiaen J.)
Manicavasagar J. and Samarawickreme J. were of the viewthat the words “ Official Act ” should be given a wider meaningT. S. Fernando J. who agreed with the C. J.’s view had in anearlier case expressed dissatisfaction with giving a narrowmeaning to the term “ Official Act He said in that case i.e.Karunaratne vs. The Queen, 69 N.L.R., page 10—“ Performingan official act is not in my opinion restricted to the performanceof those acts which a public servant is required by law toperform, but embraces all these acts which he does which arereferable to his official capacity of a public servant or whichaccording to recognised and prevailing practice he does as apublic servant.”
Manicavasagar J. in Mohamed Auf vs. The Queen while agree-ing with T. S. Fernando J.’s opinion in the Karunaratne casethough it did not go far enough. Manicavasagar J. said—“ I find it difficult to see any principle in the distinction betweenthe act of a public servant which falls strictly within his officialfunctions and an act which he has not the power or duty toperform at all, but which he nevertheless does for a gratifica-tion or making the giver believe that he has the power to dowhat may be an official act—in either; case the official actscorruptly.” Manicavasagar J. then proceeded to quote from thejudgment of Jagannadhadas J. in The State vs. Sadhu CharanPanigrahi (1952) 53 Criminal Law Journal, page 367 at page 369in which the Judge said:—“The gist of the offence clearly isnot that there was at the time, an official act to be procuredcapable of being performed by the taker of the bribe or byanother public servant with whom he intended to exercise hisinfluence, but that the extra-legal gratification if obtained isa motive or reward for doing official acts, that is for doing whatmay be or is believed or held out to be official conduct. Thestress in the section is not so much on the performance of theofficial act itself, or on its being capable of performance but onthe nature of the act being official. ”
Samarawickreme J. said “ I think that ‘ Official Act ’ in section19 (a) and (b) has been used as opposed to personal or privateconduct. I am, therefore, of the view that * Official Act ’ in thatprovision should be read to mean any act of a public servant
T3X.U10TJIF.EA3I, J.- Moham-A < The At'ormj General
referable to his office or employment and the doing of whichdoes not constitute private or personal conduct. ”
Both Manicavasagar J. and Samarawickreme J. had pointedout that the Bribery Act was passed because it was found thatthe provisions of section 158 of the Penal Code were insufficientto deal with cases of corruption. Manicavasagar J. said : —“ This provision, and I believe the Bribery Act itself—thoughit took quite a time to be brought into the statute book—waslargely influenced by the judgments delivered by two eminentjudges of this court, Wijewardene J. in the case of De Zoysa vs.Suraweera and Gratiaen J. in Tennekoon vs. Dissanayake. Theyrefused to give an extended judicial interpretation to the plainmeaning of “ Official Act ” in section 158 of the Penal Code,which Gratiaen J. in language so characteristic of him describedas “ an antiquated enactment, conceived a century ago, whichstill remains unamended, and helpless to cope with modernmethods of corruption. ” Both judges took the view that it wasno offence under section 158 if a public servant received a bribeto confer a favour which he had not the power to perform.
In this view of the matter I do not see any reason why weshould be tied down to the meaning of “ Official Act ” givento section 158 which appears in quite a different setting. Section158 appears in a chapter with the heading “Of Offences By ordelating to Public Servants. ”
The Bribery Act is an Act “ to provide for the prevention andpunishment of bribery and to make consequential provisionsrelating to the operation of other written law. ” In order to giveeffect to the object of the Act the provision is made for theappointment of a Bribery Commissioner, and an entire newDepartment was created with a special procedure provided. Thewords “ Official Act " must given a meaning in the total contextof the Bribery Act and it is our view that the words so lookedat must be given the wider meaning given by Manicavasagar
J., Samarawickreme J. and T. S. Fernando J. in Karunaratne vs.The Queen, supra, as Samarawickreme J. pointed out in regardto section 158 of the Penal Code that “ provisions in that sectionwere designed to secure impartiality and fairness in the perfor-mance of official acts rather than to stamp out corruption. ”
As we are unanimously cf the view that the term “ OfficialAct ” must be given the wider meaning, the act of the accusedappellant falls well within the term “ Official Act ”. The sub-missions of Mr. Pullenayagam must necessarily fail. We dismissthe appeal. The conviction and sentence are affirmed.
Siriviane, J.—I agree.
Colin Thome, J.—I agree.
MOHAMED USOOF MUTHU MOHAMED, Accused-Appellant and THE ATTORNEY-GENERAL, Respo