Peter Protace and another, Crim. App. 835-M-69; 25/2/70; Kimicha J.

Peter Protace and another, Crim. App. 835-M-69; 25/2/70; Kimicha J.

The first appellant was convicted on five counts, namely: (1) abuse of office, c/s 96, Penal Code: (2) false assumption of authority c/s 99(2), Penal Code; (3) wrongful confinement c/s 253, Penal Code; (4) corrupt transaction c/s 3(1), Prevention of corruption Ordinance; and (5) corrupt transaction c/s 3(1), Prevention of Corruption Ordinance. The second appellant, who was jointly charged with the first, was convicted on the last two counts only. The facts, in brief, are as follows. On Saturday, the first appellant, who was a primary court magistrate, in the company of the second appellant, made a number of purported “health inspections” of various shops at Kalemera Minor Settlement. In the course of these “inspections”, he purported to discover

Violations of health regulations, and, in a number of cases, he threatened the shop-owners with prosecution unless they paid money. The following day, Sunday, he rounded up three of the shop-keepers in question, and ordered them to be locked up. On Monday, they were brought to court, and the magistrate heard one of their “case”, convicting one accused of the offence of not having a latrine and fining him Shs. 500/=. The other “cases” were never heard due to the intervention of higher authorities. On these facts, the accused were convicted as charged. On appeal to the High Court, the convictions were sustained on all counts, after a lengthy discussion of the facts and the evidence, which is not reproduced here. However a number of legal rulings were made which are given below.

            Held: (1) “The first question to decide ….. is whether the 1^st accused had solicited a bribe from Kalali and or the Somali [two of the shop-keepers whose shops were “inspected”]. The evidence as to such demands by the 1^st accused is only that of each of these two victims. It is clear that a victim of extortion cannot be an accomplice and hence his evidence does not need corroboration – SRINIVAS MULL v. E. A. 1947 P.C. 135 – Quoted in Sarkar, on evidence. But it is obvious that great caution must be exercised in founding finding of such solicitation on the word of a single witness – especially in view of the harsh penalties involved. I have upon evidence before me come to the conclusion that is must accept as true the evidence of each for thee two witnesses as to the solicitation …..” (2) “The essence of the offence of Abuse of Authority is doing of an act by a public servant – which act it may have been within his power to do – with motives not of upholding the law or doing his duties as a public servant – but doing it for the prosecution of his own designs and whims – with total disregard to the rights of the victim and denying him elementary justice – and resulting in damage or injury to the victim. An example would be of a Traffic Policeman who every other day detains a taxi, allegedly for “inspection “ overnight at the police station because the taxi driver refused to give the policeman’s girl friend a fee ride! The policeman, no doubt, has powers t detain vehicles in such manner for the purpose of inspection and he may in fact carry out the inspection on each of the succeeding mornings – but if the motive of punishing the taxi driver for refusing to help the policeman’s girl friend could be established then the fact that he did have the lawful power to stop the vehicle will not avail him if he is prosecuted under this section. (I should perhaps say here that neither Archbolld disclose a similar English provision nor the Indian Penal Code  could disclose a similar section nor the N. A. Law Reports seem to report a case under this or similar section ). I believe that this is the correct view to be taken of the law in view of the wording of section 96, Penal Code. Of course, in most of these cases it had be possible to see that the limits of lawful authority have been exceeded or that powers not appertaining to that office have been assumed by the accused. But, the minima of proof, that needs to be established is I hold to be as described above. To come to the 1^st accused’s defenced that he was acting both as a magistrate and a Justice of the Peace in ordering the arrest of these 2 people; I should perhaps quote the relevant legal provisions. By Section 52 (1) of the Magistrates Courts Act, Cap. 537, every primary court magistrate shall be a justice of the peace. By Section 47 “A justice may arrest or may order any person to arrest any person who in his view commits a cognizable offence.” It is clear that no offence whatsoever known to the law was committed by either Kaloli or the Somali within the view of the accused – which was a

cognizable offence. A primary court magistrate’s powers of ordering arrest are laid down in the Primary Courts Criminal Procedure Code. It is clear that no personal powers of arrest are given to such a magistrate in his capacity as a magistrate like those granted to District and resident Magistrates. It is thus clear that the accused exceeded his authority as a Justice of the Peace and assumed non-existent powers of arrest as a magistrate when he arrested Kalili and the Somali.” (3) “now turn to the third count alleging wrongful confinement c/s 253 of Penal Code by the 1^st accused of the three complainants – the old Arab, the Somali and Kaloli. The accused No. 1 has admitted having arrested and detained these three persons. He claimed that he detained them because they had been accusing him of taking bribes. He had intended to send them to the police. I have, while discussing the law and facts relating to the 1^st count, already dealt with the powers of arrest, the accused possessed and the reasons for the arrest. The conclusions arrived there are applicable in this case. The offence has been declared to correspond to the English offence of false imprisonment – Rep. v. Sefu Said (1964) E.A. 178. In English It is for the accused to justify the arrest, once the fact of arrest has been proved. The accused has failed to justify the arrest, inter alia for two main reasons: (a) He has failed to show that the complainants had committed any cognisable offence within his presence: (b) he had failed to show that the complainants act amounted to any offence known to the law. For his reason I am satisfied that the prosecution witnesses …. Have told the truth and as I accept their evidence and convict the accused on count 3.” (4) Appeal dismissed on all counts.