Magori v. R. Crim. App. 480-D-70: 4/11/70; Biron J.

 

Magori v. R. Crim. App. 480-D-70: 4/11/70; Biron J.

The appellant who was employed as a clerical officer in the Immigration Office in Dar es Salaam was convicted of corruption and sentenced to three and half years plus the mandatory 24 strokes.. It was alleged that he received Shs. 150/- from a person who wantedto get a passport. Evidence showed that after the appellant had demanded Shs. 150/- from one Laxman, the later informed the authorities and a trap was arranged by the police who handed over to Laxman some money notes whose numbers had been recorded. The appellant was arrested immediately after Laxman had handed the money to him. Appellant’s story was that Shs. 150/- had been given to him by Laxman who wanted some change in order to pay Shs. 5/- to taxi driver. This was disbelieved by the trial magistrate. One appeal it was argued (a) that the appellant could not be convicted of corruption in accepting a bribe in connection with the issue of a passport, as it was neither his duty to issue passports, nor had he any power to issue passports. (b) That a statement which had been made by the appellant and recorded by the police was improperly admitted because it was not read over by him before signing it, but only read over to him.

            Held: (1) “The section where under the appellant was charged and convicted, was deliberately drafted and enacted in such wide terms in order to spread the net of corruption so wide as to catch and hold even such small fry as the appellant with such limited powers.” (2) [The learned judge then set out the provisions of Ss. 3(1) and 6 of the Prevention of Corruption Ordinance Cap. 400 and continued] “Although the appellant’s statement made to the police constitutes a defence to the charge laid against him, in that the money was not received corruptly by him, which factor is an essential ingredient of the offence as laid, his statement does constitute a confession to an offence under section of the Ordinance above set out. The question that, therefore, poses itself, was such statement admissible. I think that there is some judicial conflict as to whether, and if so, when, a confession made to a police officer who constitutes a defence to the charge an accused is facing if it also constitutes a confession to some other offence, is admissible in evidence. There is, I think, a death of authority on the matter, and the only case I can recall is that of BAMPAMIYKI s/o BUHILE v. R., (1957), E. A. 473. in that case the accused was charged with murder and he made a statement to the police which constituted a confession to arson, and as it did not constitute a confession to murder with which the accused was charged, the judge admitted it. However, on appeal the Court of Appeal for East Africa held,” that (i) “the word “confession” in s. 25 of Indian Evidence Act means a confession of any offence and should not be confined to a confession of the specific offence with which an accused may ultimately be charged.” And that (ii) “The statements made by the appellant to the police officer were wrongly admitted in evidence. I consider my self bound by the ruling in this case and therefore hold that the statement made to, and produced as exhibit ‘C’ was inadmissible.” (3) “It is abundantly clear from the judgment as a

whole that the magistrate was not apparently influences by this statement. There is only a single reference to it when setting out the evidence in chronological sequence, and in his examination and directing himself on the evidence, and arriving at the conclusion he did, it is abundantly clear that the magistrate based such conclusion on the weakness of the defence.” Therefore although the production of the statement was improper, it is curable by section 346 of the criminal Procedure Code.” (4) “In sentencing the appellant the magistrate directed himself, inter alia. “However, corruption cases are particularly bad at this juncture and they are even more so when they involve passports. I take a more serious view of this kind of corruption; I sentence the accused to 3¹/₂ years imprisonment and 24 strokes.” It was notorious, and could hardly escape judicial notice, that there was, at about the time this particular offence as committed, what was known as the passport scandal’ apparently involving many people in high places and it is obvious that this is what influenced the magistrate in imposing the sentence he did. But as very rightly submitted by learned Counsel for the appellant, it is abundantly clear that the appellant was not involved in this passport scandal. His act was a purely individual one, and he was not mixed up in any large scale conspiracy concerned with passports.” (5) Sentence reduced to two years imprisonment. Award of corporal punishment stands.