023-NLR-NLR-V-76-M.-KARUNARATNE-Appellant-and-THE-QUEEN-Respondent.pdf
G. P. A. SILVA, S.P.J.—Rarunaralne v. The Queen
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Present: G. P. A. Silva, S.P.J., and Walgampaya, J.
M. KARUNARATNE, AppeUant, and THE QUEEN,Respondent
S.C. 2/68 (Bribery)—D. C. Colombo, B/7
Bribery Act (Cap. 26)—Jurisdiction thereunder of District Courts totry offences committed prior to 29th July, 1965—Procedure andpunishment applicable to offences—Power of Legislature toalter them retrospectively.
'.Che prosecution for an offence defined by a statute may beinstituted for the first time before a Court which is conferredjurisdiction by a later statute to try and determine such offences.Accordingly, an offence of bribery committed prior to 29th July1965 may be tried by a District Court under the Bribery Act, No. 2of 1965, which was passed on 29th July 1965.
It is open to the Legislature to alter retrospectively the procedureand punishment applicable to certain offences at any time eitherbefore or after the commission of an offence.
Appeal from a judgment of the District Court, Colombo.
Nimal Senanayake, with Bala Nadarajah and Melvin Silva,for the accused-appellant.
D/S. Wijesinghe, State Counsel, for the Attorney-General.
Cur. adv. vult.
February 27, . 1973. G. P. A. Silva, S.P.J.—
The appellant was convicted on an indictment containing twocharges of bribery before the District Court of Colombo andwas sentenced to 1 year’s rigorous imprisonment, a fine ofRs. 1,000 and a penalty of Rs. 350 on each count. He appealedboth on the facts and on certain grounds of law but did notpursue any of those grounds before this Court. Instead the.counsel for the appellant relied on certain other grounds of lawalone not taken up in the petition of appeal as he perhaps tookthe view that no useful purpose would be served in contesting thefacts in view of the oral and documentary evidence which wasplaced by the prosecution.
The ground of law relied upon may be summarised asfollows : —The offence was alleged to have been committed onthe 9th September, 1960 and the indictment was presented onthe 8th February, 1966 before the District Court during whichperiod certain amendments- had been effected in the Briber/Act which altered the jurisdiction and the mode of trial
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pertaining to offences of bribery. In consequence of the relevantamendments the District Court had no jurisdiction to try anddetermine the charges and to pass the sentence that it did. Theconvictions were therefore bad in law.
More specifically, the submission was that by Act No. 2 of 1965,District Courts were empowered to punish persons committingbribery after 1965 but did not specify the tribunal which couldpunish persons for bribery committed before 29th July 1965.Even if one assumes that there was a tribunal which before theAct 2 of 1965 could impose the punishment prescribed by ActNo. 11 of 1954, namely, the Bribery Tribunal, such Tribunalceased to exist after the passing of Act No. 2 of 1965. Thereuponin 1966 when the indictment was presented against the appellantthere was no tribunal empowered by the Bribery Act to punishoffenders who committed the offence before 29th July 1965 onwhich date the Act was passed.
This submission was based on two premises. The first was thatby the term offence was meant not only the act or several ingre-dients of an act which constituted the wrong, in this case theacceptance of a certain gratification as an inducement forprocuring employment in a Government establishment, but alsothe fact that the act was made punishable with a certain penaltyunder the law. Counsel relied for this submission on the defini-tion of the word offence in Section 2 of the Criminal ProcedureCode. It followed from that contention that if the same act wasmade punishable with imprisonment only at any particular timeand with imprisonment and/or a fine or whipping, for instance,at another time the two offences were different. In other words,the sameness of the act was immaterial if the mode of punish-ment was different. The second premise was that, at the timeof the commission of the offence complained of, there was noCourt or a body of persons that could validly have taken cogni-zance of that offence and enforced a legally enforceable penalty.
I do not. find it possible to agree with either of these conten-tions. I do not think that the quantum or the mode of punish-ment has any bearing on the act that constitutes the offence. Ishall endeavour to demonstrate what I say. If one is asked, forInstance, what the offence of murder is under our law one wouldexplain it by reference to Section 294 of the Penal Code. It isnot an answer to the question if a reference is made to Section296 which sets out the punishment. This is made clear by the factthat both during the period when the death penalty was sus-pended and before or after one could only have explained theoffence by reference to Section 294. The fact that the penaltywas death at one stage and life imprisonment at another made nodifference to the definition of the offence of murder. Similarly if
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a person wished to know what the offence of rape in this countrymeant he had to be referred to Section 363 and not Section 364of the Penal Code. Apart from the Penal Code, there are variousother Acts and Ordinances in which offences are set out invarious sections without reference to any penalties and muchlater in such Act or Ordinance, there is a section which sets outthe same punishment for any of the offences previously defined. Ifind a very good example of this in Section 221 of the MotorTraffic Act (Chapter 203), which sets out the punishment of a finenot exceeding Rs. 250 for the first offence and a fine of Rs. 500and/or imprisonment of either description for a term notexceeding three months for a subsequent offence in respect ofvarious acts of commission and omission. It is also interestingto note that the wording of this section itself contradicts thesubmission made by counsel to. the appellant regarding theconnotation of the word offence, namely, that it is the act takentogether with the punishment. For, the section reads: Any per-son (a) who is guilty of the offence of using any hiring car,
private coachetc., in contravention of any provision of
Part IV or Part V or (b) who is guilty of the offence of failingto comply with any condition attached to a permit grantedunder any such Part, shall, on conviction after summary trial
be liable toimprisonment. These words clearly
show that the various acts or omissions, set out in Part IV orPart V in which punishments are not even mentioned constituteoffences and those guilty of these offences under (a) and (b) ofthe section are made liable to certain punishments. In order toascertain whether an act or omission referred to constitutes anoffence under the Motor Traffic Act one has to look at a seriesof sections in Parts IV and V of the Act and not at the sectionwhich imposes the penalty.
The second premise which also seems to me to be unsound isthat, there being no legally valid machinery to enforce thepenalty to which offenders were made liable, the act in questionwas not an offence. It would not be correct to say that becauseBribery Tribunals under the existing law of 1958 were notvalidly constituted, there was no Court which could take cogni-zance of any offence of bribery at the time of the alleged act ofthe appellant. To my mind, an error of the executive in inter-preting the constitutional provision regarding judicial powerat the time and vesting the power of appointment of a panelfrom which a Bribery Tribunal was to be constituted in theGovernor-General would not lead to the result that there wasno Court or Tribunal to try the offence of bribery. The provi-sion that offences were to be tried before a tribunal could wellhave been implemented if the tribunal was appointed by the
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proper authority in terms of the Constitution. There was there-fore in law a Court or Tribunal which could validly take cogni-zance of the offence of Bribery if only it had been properlyappointed. In the circumstances, even if counsel’s premise wassound that there could be no offence without a tribunal to try it,the answer to that is that there was a tribunal although themode of appointment was misconceived.
In this view of the matter which I am inclined to take, it isunnecessary for me to consider the allied submission that theSupreme Court had the power to try the offence in terms ofSection 11 of the Criminal Procedure Code.
Our attention has been drawn to the decision in Karunaratnev. the Queen 69 N.L.R. 10 in which almost the identical questionarose. T. S. Fernando, J. in an illuminating judgment with whichSri Skandarajah, J., agreed, made the following observations inregard to this point at page 14 of the judgment: —
“ It was apparent through out that counsel’s entire argumenton the point above outlined depended on the validity of aproposition he put forward, viz., that an offence is somethingwhich is prohibited on pain of a legally valid enforceablepenalty or sanction. According to the argument, if there wasnot at the time (2.10.1961) the alleged offence was committeda person or body of persons that could have validly takencognizance of the offence and imposed an enforceable penalty,there was really no offence punishable under the Bribery Actwhich the appellant could have been charged with or ofwhich he could have been convicted. I am unable to agreethat the argument so advanced is sound. By an offence ismeant an act or omission made punishable by law. This muchis the substantive part of the law and must not be confusedwith its procedural part. That the machinery devised for trialand punishment is illegal, unconstitutional or otherwisedefective cannot have the effect of rendering such act oromission not an offence. If the argument is valid, where anew offence is created by an Act of Parliament which alsoprescribes a new tribunal to be established under that veryAct for trial and punishment of that offence, then, inasmuchas some time must necessarily elapse between the Act cominginto force and the establishment of the new tribunal, nooffence under that Act would be committed by anyone untilsuch time as the tribunal is validly established. A propositionof that nature would be entirely unmaintainable. The trueposition in law would be that the commission, at any timeafter the Act has come into force, of the act or omissionprohibited constitutes an offence, but trial in respect of itand punishment therefor must await the constitution of the1 (1966) 69 N. L. R. 10.
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valid tribunal. The argument that there was no offence incontravention of section 19 (c) before the coming intooperation of Act No. 2 of 1965 fails.”
We are respectfully in entire agreement with these observa-tions which apply with equal force to the argument of counselfor the appellant in the instant case.
The crux of the matter seems to me to be whether an offenceof receiving an illegal gratification-as defined in the Bribery Actwas committed by the appellant. It is to be noted that thisoffence, as I understand the word, was defined in section 20 ofthe original Bribery Act No. 11 of 1954 and, despite subsequentamendment of this Act by Act No. 40 of 1958 and Act No. 2 of1965, the offence remains the same. The procedure for trial of aperson committing an act of bribery or accepting an illegal grati-fication has, of course, been altered by the two aforesaid amend-ments. While a Court would not ordinarily apply an Act involv-ing a penal offence with retrospective operation and will do soonly if the wording of the Act warrants such construction eitherex facie or by necessary implication, the same principle does nptoperate in the case of procedure applicable to the trial of anoffence. Counsel for the State contended with considerable forcethat an accused person had no vested right to any procedureand that it was open to the legislature to alter the procedureapplicable to certain offences at any time either before or afterthe commission of an offence. This is a contention with which Iagree. To take the opposite view will lead to serious anomaliesand will not accord with reason. It is the invariable experienceboth in this country and elsewhere that there is a time lagbetween the commission of an offence and its trial. Depending onthe complicated nature of certain offences and the difficulties ofinvestigations there will be unavoidable delay in bringing anoffender to Court for trial in many cases. If it can be successfullycontended that procedures will not apply with retrospectiveoperation, whenever the legislature, having regard to thefrequency or the gravity of certain offences, decides to introducea law to arraign accused before a Court superior to the one beforewhich offenders were tried before or to introduce enhancedpenalties, it will be found that all persons who committedoffences immediately prior and for some time before the newlegislation and who could not be brought to trial will enjoy anamnesty, quite Contrary to the intention of the legislature. This,among other considerations, makes the following principle laiddown by Maxwell in “ The Interpretation of Statutes ” (11th Ed.p. 216) so apposite in this case : —
“ Although to make .a law punish that which, at a timewhen it was done, was not punishable, is contrary to sound
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principle, a law which merely alters the procedure may, withperfect propriety, be made applicable to past as well asfuture transactions, and no secondary meaning is to besought for an enactment of such kind. No person has anyvested right in any course of procedure. ”
I might add that it is one of the occupational hazards ofcrimes or offences that those committing them may find them-selves being made liable at the time of the trial for more severepenalties than .what the law had already prescribed at the timethey were committed and also that the procedure for bringingthem to trial may be altered by the fegislature from time totime. This situation arises even without such changes ofprocedure or punishment in indictable offences where the sameoffence might attract heavier penalties depending on thedecision of the Attorney-General to send an indictment to theSupreme Court or the District Court.
This appeal must therefore fail. Counsel for the appellantcontended that whereas under the old procedure the accused, iffound guilty, was liable to a sentence of imprisonment or fine orboth, the new procedure introduced by Act No. 2 of 1965 madeit obligatory on a Court to impose both imprisonment and afine. He used this fact more for the purpose of showing that thetwo offences were different and that the District Court had nojurisdiction to try the case rather than to urge a reduction of thesentence. In view of what I have stated earlier, and the rejec-tion of Counsel’s argument, I need say no more on this aspect.I have however given my anxious consideration to the sentenceimposed by the learned District Judge. I find that he has takeninto account the submissions of Counsel for the defence madein mitigation of sentence and given his reasons for the sentenceimposed. Even if one considers the sentence prescribed for theoffence by the original Act before amendment, the sentence of7 years or a fine of Rs. 5,000 or both mentioned therein isindicative of the intention of the legislature to impose condignpunishment for the offence. In the circumstances I cannot saythat a period of one year’s imprisonment and a fine of onethousand Rupees on each count is an excessive sentence.
The appeal is accordingly dismissed.
Walgampaya, J.—I agree.
Appeal dismissed.