1936 Present : Koch J.

DE SILVA v. VAAS.

36-P. C. Gampaha, 37,222.

Offering a gratification to screen on offender-Essentials of charge-Accused charged with offence-Conviction for abetment of different offence-Penal Code, s. 211.

Where an accused is charged under section 211 of the Penal Code with offering a gratification to a person for screening another from legal punishment, it must be proved that an offence has been committed by the person to screen whom the gratification was offered.

An accused person cannot be convicted of the abetment of an offence different from the offence with which he is charged with abetting.

Notley v. Antonis (22 N. L. R. 335) followed; King v. Amith (31 N. L. R. 457) referred to.

APPEAL from a conviction by the Police Magistrate of Gampaha.

H. E. Garvin, for accused, appellant.

Jayawickrama, C.C., for Crown.

March 18, 1936. KOCH J.-

The appellant in this case has been charged under section 211 of the Ceylon Penal Code with giving or offering a gratification to Dr. M. W. M. de Silva. Medical Officer of Gampaha, in consideration of Dr. Silva's not proceeding against the proprietor of Wijeygiri Hotel for the purpose of bringing him to legal punishment. The charge which was to that effect was read from the Police report under section 148 (b) of the Criminal Procedure Code.

To begin with, it will be noticed that the charge referred to above does not set out what the alleged offence is that was committed by the hotel proprietor, and it has been contended on appellant's behalf that by reason of this omission he has been prejudiced in bis defence, for he was entitled

to know precisely what the charge against him was. There is reason in this argument because, before a person can be convicted under this section, it must be shown that an offence has been committed by the person to screen whom the accused did offer the gratification. (See Queen v. Ramalingam [2 N. L. R. 48. ] Suppiah v. Kadrigamar [2 8 N. L. R. 114. ] , and Notley v. Antonis [3 22 N. L. R. 335.] .)

It is common ground that the hotel proprietor was later charged with concealing a case of chickenpox and acquitted as there was no case of chickenpox in the hotel. This essential was entirely lost sight of by the learned Police Magistrate who convicted the accused under section 211, and fined him Rs. 75 in default six weeks' rigorous imprisonment in spite of the offence of concealing a case of chickenpox by the hotel proprietor not having been proved.

Learned Crown Counsel who appeared for the respondent began his argument by conceding that the conviction of the accused could not be sustained under that section, but contended that on the facts established by the prosecution in the evidence that had been led, a different offence has been proved to have been committed by the accused, viz., an abetment of the offence set out in section 158. This section makes it an offence for a public servant to accept or agree to accept or to obtain from any person any o gratification other than legal remuneration as a motive or reward for showing favour to any person. It will be seen that under this section the party charged with the offence provided for by that section must necessarily be a public servant, and it has been argued that the accused's conduct shows that he had attempted to bribe the public servant concerned in this section, viz., Dr. de Silva, in order to persuade him thereby not to prosecute the hotel proprietor for concealing a case of chickenpox in that locality.

I immediately pointed out to Crown Counsel the difficulty I felt in being unable to subscribe to that contention that a person can be convicted of the abetment of an offence different from that with which he had been charged. However, the submission merely was that if I considered that the facts established an abetment of a different offence the accused could rightly be convicted of abetment under sectio