096-NLR-NLR-V-22-NOTLEY-v.-ANTONIS.pdf
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Present: Schneider A.J.
NOTLEY v. ANTONIS.
46—P. C. Colombo, 33,162.
Penal Code, s. 211—Gratification to screen offender who has committed acompoundable offence—Gratification must be in respect of offenceactually committed.
Section 211 of the Penal Code applies to cases where the offenceis not compoundable.
The section penalizes the offer of gratification when they areoffered to prevent the legal consequences of offences actually *committed.
Accused offered gratification to a police officer and asked theofficer to allow the tavern to be open for some time after hours.There was no proof that the tavern was kept open after hoursat any date up to the payment of the money.
Held, that-no offence was committed.
^| ^HE facts appear from the judgment.
H. J. C. Pereira, for the accused, appellant.
«
No appearance for the respondent.
Cur. adv. vult. ^
February 9,1921. Schneider A. J.—
The Magistrate has accepted the evidence for the prosecution.
It may be summarized as follows: The accused, who is interested
in one or more arrack taverns,, came to the residence of Wagiswara,
1921.
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1921. a Sub-Inspector of PSIice, on December 2, 1920, and offered himSohneideb ®8'* saying & was for two months, and asked the officer hot
AX to molest the accused, but to allow the tavern to be open five orNoiley v '” The police officer would not take the. money. He
Antonia asked the accused to make the payment to one Perera, leading theaccused to believe that the money would reach him through thatchannel. He then reported the incident to his superior officer.The accused took the money and paid it to Perera on December 5,asking him to give it to the Inspector and say it was for Octoberand November. The .Magistrate convicted the accused “ of anattempt to bribe Sub-Inspector Wagiswara with Rs. 60 in considera-tion of his allowing tavern (?) to be left open after hours.” Thishe stated as being an offence punishable under sections 211 and490 of the Penal Code., He sentenced the accused to six weeks’
, rigorous imprisonment. The accused has appealed. I will acceptthe learned Magistrate’s findings of fact. It was argued on behalfof the appellant that, even assuming the facts to be as found by theMagistrate, the conviction was bad for two reasons. First, becauseno offence had, in fact, been committed in respect of which the. gratification had been offered; and, secondly, because even if theoffence of selling arrack outside the hours fixed by the license hadbeen committed, the offence was compoundable, and thereforesection 211 could not apply by reason of the exception at the bottomof that section. It seems to me that both these objections are fatalto the conviction; but as the first of them is by itself conclusive,there is no need to consider the second at any length. I will, there-fore, proceed to consider the first. Here let me say that the languagein which the Magistrate has recorded the conviction, and whichI have already quoted, is obviously inappropriate, and does not•disclose an offence punishable under section 211. I will, accordingly,.assume that the conviction is that the accused offered a gratificationof Rs. 50 to the Inspector in consideration of the Inspector screeningthe accused or any other person, or not proceeding against themfor the purpose o’f bringing them to legal punishment, for keepingopen an arrack tavern beyond licensed hours. Offences are dividedvariously into bailable and non-bailable, cognizable and non-cognizable, indictable and summary, compoundable and non-compoundable. The first three of these divisions are based uponprocedure, but the last upon something deeper, namely, the natureof the offence* In regard to punishment, certain offences areregarded as violations of the rights of the State as a State, .or ofsociety at large, and, therefore, that the prevention or the punishmentof them is the concern of the State, while other offences are regardedas violations of the rights of private individuals, add the punishmentof these as primarily the concern of those individuals. These latterare called “compoundable offences.” If the individual injuredis willing to accept compensation, the law will not forbid him,
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but if he will not, but desires punishment, hb is entitled to invokethe assistance of the Courts of criminal jurisdiction. It is inrecognition of the existence of this principle of the criminal lawthat the exception is added to section 211 excluding from theoperation of the section “ any case in which the offence may law-fully be compounded.”
It is therefore evident that section 211 was intended to applyto cases where the offence is not compoundable, that is, the offenceswhich are regarded as violations of the rights of the State qua State.a Section 211 is placed with a number of other sections in a chapterof the Code which is headed “ Of False Evidence and Offences againstPublic Justice.” The section is therefore intended to penalize casesof offences against “ Public Justice.” It seeks to punish any onewho through the means of a gratification endeavours to preventor prevents an ofEender from being brought to justice. The languageof the section, is that the gratification should be given or offeredin consideration (1) of the " concealing of an offence,” (2) or“ of screening any person-from legal punishment for any ofEence,”
or ” of not proceeding against any person for the purpose ofbringing him to legal punishment.” The language of the section,therefore, obviously indicates that au offence must in fact have beencommitted. The opening words of the kindred section (section 209)are “ Whenever an ofEence has been committed.” It is not only thelanguage of the section, but the very reason of the provisiondemandsthat an offence should have been committed. If a person actuatedby a mistaken belief that an offence had been committed, when^nfact no offence has been committed, offers gratification, the effectof his act will not be to screen or to prevent punishment overtakingan offender, because there is no offender in fant. The law, in otherwords, is not concerned in this section to penalise the offer of grati-fications to persons to prevent action against offences which mightor might not be committed, it seeks to penalize such gratificationswhen offered to prevent the legal consequences of offences actuallycommitted. This section has been so construed by this Court inthe case of Suppiah v. Kadir Earner,1 and in India the same con-struction has been placed upon the corresponding section of theIndian Code in Queen v. Saminatha2
The evidence in this case proves that no offence was committedduring the months of October and November for which the bribewas said to have been offered or paid, nor had any offence beencommitted up to December 5, the date of the payment of the.Rs. 50.
I therefore hold that there is no proof that the sum of^Rs. 50was offered or paid in respect of any offence which had been com-mitted, and that the prosecution fails on* this account. Althoughnot necessary for the disposal of this appeal, I would add that theoffence of keeping a tavern open outside the hours fixed by a license
1921.
SCB2CBUDBB
A.J.
Notley v.Antonia .
1(190$) S N. L. B. 114.2 I. L. R. 14 Mad. 400.
27
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1921.
A.J:
Notfey v.Antonia
appears to be created by a rule under section 31 (2) (i) (vii.) of” The Excise-Ordinance, No. 8 of 1912.” It is made punishableunder section 45. The offences punishable under section 45 arecompoundable according to the provisions of sections 53, whichenacts that it is within the competence of a Government Agent,or Excise Officer specially empowered, to accept a sum of moneyfrom any person” by way of composition for the offence,” and thatthe payment of such money shall be a bar to further proceedings.That clearly means that the offence is compoundable. For thisreason, too, the conviction must fail.
The conviction is, therefore, set aside and the accused acquitted.
Set aside. •