Tennakoon v. Dissanayaka
1948Present : Gratlaen J.
TENNAKOON, Appellant, and DISSANAYAKA (A. S. P.),Respondent
S. C. 1,255—M. C. Colombo South, 19,010
Penal Code—Taking of illegal gratification by public servant—Ingredients ofoffence—Abetment—Sections 158 and 101.
A public officer who takes a bribe in connection with a matter inrespect of which he has no power to act officially is not guilty of anoffence under the first part of section 158 of the Penal Code.
In a prosecution for the abetment of an offence it is essential that theact abetted should be capable, if committed, of constituting an offence.A man cannot be punished for abetting an act which is not an offenceeven though he believes that it is an offence.
.A.PPEAL from a judgment of the Magistrate, Colombo South.
H. V. Perera, K.C., with A. H. C. de Silva and G. E. Jayewardene,for the accused appellant.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. wilt.
GRATXAJEN J.—Tennakoon v. Diaaana.ja.ka
December 8, 1948. Gbattatik J.—
This case illustrates the unsatisfactory state of the law in Ceylonrelating to. bribery. The provisions of the Penal Code are not alwayswide enough to deal with the iniquity of persons attempting by impropermeans to influence the actions and decisions of public servants. It isnot surprising that this is so. Chapter 9 of the Code was adapted inthis country from the corresponding provisions of the Indian PenalCode of 1860, the final draft of which had been completed by its dis-tinguished author in 1837. At that time the law aimed principallyat the taker and not at the giver of bribes, because “ the giver was sooften found to be a person struggling against oppression by the taker.”
(Law Quarterly Review, Volume 60, at -page 46). For this reason it wasnot thought necessary to introduce a substantive section directly prohi-biting persons from giving or offering bribes to public officials, suchconduct being caught up, if possible, by the somewhat circuitousapplication of the law dealing with abetment. In spite of the mis-chievous changes which have since taken place, the law which was con-ceived over a century ago still stands unamended. That is of coursea matter for the consideration of the Legislature. In the meantimethe plain meaning of the language of an antiquated enactment cannot begiven an extended judicial interpretation so as to cope with modernmethods of corruption.
The facts of the present case are set out in the learned Magistrate’svery helpful judgment. An uncertified teacher named H. M. Ratnayakealias Mudalihamy, in whom the appellant was interested, had throughpast disappointment almost abandoned hope of passing by honest meansthe Government examination in Sinhalese for Ceylon teachers. For thisexamination he had again presented himself as a candidate in November,1947. On September 6, 1948, the appellant approached Mr. Lorage, the3rd Assistant Director of Education, and offered him a bribe of Rs. 50to ensure that Ratnayake ‘ ‘ obtained a pass either in Part 1 or Part 2 ofthe examination for 1947”. As it turned out, this was an official actwhich it was not within Mr. Lorage’s power to perform. Apart fromthe Government regulations which rule out the possibility of any officialaction by Mr. Lorage in the matter, and apart from Mr. Lorage’sunwillingness to act dishonestly, the true position was that Ratnayakehad already irrevocably failed the examination in accordance with whathad become in his case a somewhat painful habit. The decision of theExaminers that he had failed had been announced in May, 1948, fourmonths before the offer of the bribe..
The appellant has certainly been guilty of most deplorable conduct.A person enjoying the status of a School Manager cannot reasonablyexpect the sympathy which is reserved for the “ struggling victims ofoppression” whom the draftsman of the Indian Penal Code had in mind.
The prosecution have been handicapped in this case by the absence ofany simple provision of law which directly makes the offer of a bribeto a public officer a punishable offence. An attempt was therefore madeto lead the appellant to his punishment through the side-entrance, soto speak, of the law dealing with abetment. The substance of the charge
QRATIAEN J.—Tennakoon v. Dissanayaka
is that he “ abetted the commission by Mr. Lorage of the offence ofobtaining for himself a gratification other than legal remunerationas a motive or reward for showing favour to Ratnayakein the exercise of his official function”. In other words, the case againstthe appellant is that he had abetted an act which, if it had been com-mitted by Mr. Lor age, would have rendered Mr. Lorage liable to punish-ment for an offence under section 158 of the Penal Code. As Mr. Loragehad neither the intention nor the power to commit the offence which theappellant is alleged to have abetted, the strategy which the prosecutionwas compelled to employ might well appear to a layman to border onunreality. To the advocate the situation presents many opportunitiesfor the exercise of skill and ingenuity, and the Judge finds it difficult attimes to realise that he is not merely “ supervising a game of forensicdialectics”. (Per Lord Justice Mackinnon in Newstead v. London ExpressNewspapers, Ltd.1). All this could be avoided by an amendment of thelaw. In the meantime, persons who commit acts which certainly shouldbe made punishable sometimes escape punishment. The question fordecision is whether the appellant is such a person.
The argument for the defence in this case can be summarized asfollows :—
(а)that it was not within the power of Mr. Lorage to do any official
act in the exercise of his official functions in respect of whichthe bribe was offered ;
(б)that it was accordingly impossible for Mr. Lorage to commit an
offence (punishable under section 158 of the Penal Code) whichthe appellant sought to abet;
(c) that the appellant was therefore not guilty of abetment becausethe act abetted could not constitute an “ offence ”.
The Crown in reply to these submissions maintained that although thepropositions (a) and (6) above were not seriously disputed, all that wasrelevant in disposing of a charge of abetment was to consider the state ofmind of the abettor. It was therefore argued that as the accused clearlyintended to abet the commission of an offence by Mr. Lorage, the requisitemens rea was established, and bis conviction by the learned Magistratewas justified. I have come very regretfully to the conclusion that thecontention of the defence is correct, and that the submission for theprosecution sets out what the law ought to be and not, unfortunately,what it is at present.
It is first necessary to analyse the provisions of section 158 of thePenal Code. This section is directed against public officers who takebribes, and not as I have already pointed out, against persons who offerbribes to them. The intention is to ensure that public officers shouldnot be subjected to any sinister temptations while performing theirofficial duties. What the section specially prohibits is (a) the receipt byany public officer of an illegal gratification of any description whatsoeverin connection with the performance of Jus official acts or functions, and(6) any form of subtle influence which might be exercised upon a publicservant who has official duties to perform by another public servant who
1 (1940) 1 K. B. 377.
GrRATIAEU J.—Tennakoon v. Dissanayaka
has been bribed for the purpose. Section 158 therefore makes it apunishable offence for any public officer or prospective public officer toreceive an illegal gratification which is intended either to influence him inrespect of any official duty which he has to perform or to persuade himto exercise some influence upon another public officer in respect of someofficial duty which the latter has to perform. It similarly prohibits thereceipt of any illegal gratification for official favours of the same des-cription which have already been granted. If the matter is consideredfrom this point of view, it follows that the first part of the section hasno reference to any bribes received or about to be received in respect ofthe performance of functions other than strictly official acts. A publicofficer who takes a bribe in connection with a matter in respect of whichhe has no power to act officially is not therefore guilty of an offence underthe first part of section 158 of the Penal Code although his conduct mayin certain cases amount to the commission of some other offence withwhich we are not at present concerned. Learned Crown Counsel alsoconcedes that the second part of section 158 which prohibits the taking ofa bribe “ for rendering or attempting to render any service or disserviceto any person with the Legislative or Executive Government or with anypublic servant ” does not apply to this case.
In the view which I have taken, it follows that even if Mr. Lorage hadaccepted the bribe which he was offered and which he very properlydisdained, he would not have been guilty of an offence under section 158because it was not within his power to perform any official act or toconfer any official favour in connection with the Exarm nation which hadcaused Mr. Patnayake alias Mudalihamy so much frustration. Thisconclusion is in conformity with the decision of my brother Wijeye-wardene in De Zoysa v. Suraweera x, where he held that a police constablewho took a bribe for promising to confer a favour which he was powerlessto confer was not guilty of an offence under section 158. The same viewhas been consistently taken by the High Courts of Madras and Calcutta(in re Pulipati Vankiah 2 and Venkatarama v. Emperor3). With respect,
I agree with my brother Wijeyewardene that the reasons given incertain judgments of the High Court of Lahore for taking a contraryview do not appear to be sound. In fact the Federal Court of Indiahas recently accepted as correct the decisions of the Madras Courtas far as the first part of the corresponding Indian section 161 goes(Afzalur Rahman v. Emperor)4 but rightly pointed out that inappropriate cases a public servant may be found' guilty under thesecond part of the section if, though acting independently of his officialfunctions, he obtains a reward for rendering or attempting to renderany service to a person with another public servant. I am satisfied thatthe provisions of section 158 of the Code do not, in their present form,prohibit the receipt by a public officer of an illegal gratification as amotive or reward for doing an act which it is not within his official powerto perform and which does not answer to the description of an " officialact”. This is certainly a most unsatisfactory state of affairs, and it isto be hoped that the law will soon be amended to meet the situation.
1 (1941) 42 N. L. R. 357.3 A. 1. R. (1929) Madras 756.
• A. 1. R. (1924) Madras 851.* A. I. R. (1943) F. C. 8, at p. 23.
GRAT'IATCjNT J.—Tennakoon v. D iesana yaka
The only question which remains for consideration is whether a personcan be found guilty of abetment if he offers a bribe to a public officer fordoing something which it is not within the power of the latter officiallyto achieve. Section 100 of the Penal Code defines abetment and it isclear that the appellant has “ abetted ” by instigation the commission byMr. Lorage of what he desired Mr. Lorage to do. But section 100 onlytells us when a person “abets the doing of a thing”, and it is section 101which declares when a person must be regarded as having abetted anoffence. The effect of section 101 is to render a person liable to punish -ment for the abetment of an offence only in one or other of the followingcases:—
when he abets the commission of an offence which has actually
been committed by the person abetted ;
when the act abetted has not been committed but would,
if it had been committed by a person capable of committing anoffence (e.g., a person not protected from the consequences ofhis actions by reason of lunacy, minority, or other incapacityrecognised by the criminal law), have constituted an “ offence ”.It is the second of these alternatives which indicates, as shownin the statutory explanations to section 101, that a man can beregarded as guilty of the abetment of an offence even though theoffence has not in fact been committed. It is in that sensealso that when a person is charged with abetment the relevantstate of mind is not that of the person to whom the offer ismade but of the person making the offer. (Perera v. Kannan-gara1 and Hendrick Silva v. Imbuldeniya8.) In both thosecases, however, the act abetted was an act which, if committedby the public officer concerned, would have possessed therequisite elements of a punishable offence. It is not the lawthat a man can be regarded as having “ abetted an offence ”if the act abetted, judged from a objective standard, couldnot possibly constitute an offence. In other words it is essentialthat the act abetted should be capable, if committed, ofconstituting an offence. A man cannot be punished forabetting an act which is not an offence even though he believesthat it is an offence. In the present case the appellant offereda bribe to Mr. Lorage, in order to induce Mr. Lorage to dosomething which Mr. Lorage, in the discharge of his officialfunctions, was powerless to achieve. He has therefore abettedan act in respect of which it was legally impossible for Mr.Lorage to commit an offence punishable under section 158. Thejudgment of the High Court of Madras in Venkatarama v.Emperor (supra) is precisely in point. His Lordship the ChiefJustice of Madras, in disposing of that case said, “ it is timethat fresh legislation was introduced into the Penal Code tomake these most dangerous offences of giving and takingbribes punishable in much wider terms than are contained inthe Code at present ”. I venture to express the view that this
1 (1939) 40 N. L. X. 465.* (1948) 49 N. L. X. 159.
GRATIAEN J.—Tennahoon v. Dissanaydka
suggestion also merits the consideration of the Legislature inthis country. In the present state of the law the appellant isnot guilty of the offence with which he was charged.
Luring the argument I suggested tb_leamed Counsel, to whom I amgreatly indebted for their assistance, that the appellant might perhapshave been found guilty under section 490 of the Penal Code of anattempt to abet the commission of an offence, and that the verdict ofthe learned Magistrate could with propriety be varied accordingly interms of section 183a of the Criminal procedure Code. That aspect oithe matter was not however fully Segued before me, and learnedCrown Counsel did' make any submission on the point. I do
not therefore feel jui i in giving any direction other than on thebasis that the appellant is not guilty of the particular offence withwhich he was charged. I make order acquitting the appellant.
TENNAKOON, Appellant, and DISSANAYAKA (A. S. P.), Respondent