Rashidi v. R., Crim. App. 3-D-70, 16/10/70, Biron J.

 

Rashidi  v.  R.,   Crim.   App.   3-D-70, 16/10/70,     Biron J.

The appellant was convicted of corrupt transaction with agents c/s   3(2) of the Prevention of Corruption Ordinance Cap.400 and sentenced to two years imprisonment. The evidence for the prosecution, accepted by the magistrate, was that three members of a police patrol saw a vehicle being driven somewhat erratically on a road in the Amboni Sisal Estate. The members of the patrol were in a police landrover. The vehicle, on getting near the landrover suddenly reversed and went off emitting smoke. The patrol gave chase and caught up with the vehicle after is had collided with a gatepost.  The appellant offered the police three 20/= notes to let him off”. Counsel for the appellant argued:  (a) that before a person can be charged with corruption consequent on an alleged offence, it must be established that he had in fact committed such an offence. (b) That the vehicle was not on a public road since the Amboni Sisal Estate is a private establishment.

Held:  (1) “There is a wide gulf between the old section 91 of the Penal Code which is repealed and replaced by the Prevention of corruption Ordinance and section 214 of the Indian Penal Code on the one hand and section 3(2) of the Prevention of Corruption Ordinance Cap.400, “To my mind the very wording of the three sections are sufficient to demonstrate the difference between them without any further elaboration”. Therefore proof of offence as a reason for offering a bribe is not necessary. (2) [Quoting the definitions of “road” and “public” in section 2 of the Traffic Ordinance Cap.168], “the road in the Amboni Sisal Estate would constitute a public road for the purpose of the Traffic Ordinance.” (3) “I feel, as I think the learned magistrate himself would have done had this recommendation by the Commissioner [for Social   Welfare] been put to him, that there are in this case special circumstances which, as noted, the appellant being a first offender, the bribe being less than 100/=, can empower a court to exercise its discretion and propose a sentence less than the minimum one. The sentence of imprisonment imposed is reduced to such term as will result in the immediate discharge of the appellant.”  (4) “Order of forfeiture of 60/= is ultra vires, as section 3(iii) of the Prevention of Corruption Ordinance which provides for an order of forfeiture applies only to the bribe received by the offender.”  (4) Appeal dismissed.