Gound v Queen (Criminal Appeal No. 760 of 1953) [1954] EACA 161 (1 January 1954)

## APPELLATE CRIMINAL

### Before SIR HECTOR HEARNE, C. J.

## LAKHAMAN GOUND, Appellant (Original Accused)

# THE QUEEN, Respondent (Original Prosecutrix)

# Criminal Appeal No. 760 of 1953

Criminal Law-Penal Code-Section 93 (2)-Bribe offered in respect of "imaginary offence"—Whether this amounts to official corruption—Criminal procedure and practice—Order of witnesses—Proper procedure—Defence witness giving evidence before accused—Effect—Criminal Procedure Code, section 356—Bail allowed before filing of appeal—Effect on sentence.

Two African Police constables stopped a lorry and found two Indians and an African in the front seat. One of the Indians was the owner of the lorry and the African was his driver. The constables intimated that they intended to prefer a charge against the driver. The owner then tendered one of the constables Sh. 3 to drop the charge. He was charged with official corruption and led evidence in his defence that the police asked for money.

A defence witness was allowed by the court to give evidence before the accused. This was made a ground of appeal. The accused was convicted and sentenced to four months' imprisonment with hard labour. Without waiting for an appeal to be filed the magistrate that day released the accused on cash bond.

The accused appealed. The Appeal Court accepted that the principal objection to the conviction was that, as it was no offence for three persons to travel in the front seat of the lorry, the driver could not have been charged with any offence and, as the offence was an imaginary one, there could be no offence in tendering a bribe to drop such a charge. The judgment of the Appeal Court was delivered more than four months after the date of sentence.

$Held$ (22-1-54).—(1) Under the law in force at the time it was an offence for more than<br>one person to occupy the front scat of a lorry unless the driver's seat was partitioned.<br>Such an offence was cognizable to the police. our an offence was cognizative to the police. It also not appear in offence which we can be appear in offence with the appeal or not there was any such partition so that it could not be said whether or not a charge would h

(2) Where an appellant intimates that he elects to give evidence himself and also to call a witness in his defence, the proper procedure is for the accused to go first into the witness box. There mere reversal of this procedure, however, did not amount to a sufficient ground for allowing the appeal.

(3) The magistrate having unlawfully released the accused on bail after conviction before a memorandum of appeal was lodged, contrary to the provisions of section 356 of<br>the Criminal Producer Code, the term of imprisonment ran from the date of sentence<br>and had expired before the appeal was decided. The a deemed to have served his sentence.

Circular cited: 23 K. L. R. 132.

Swaraj Singh for the appellant. Bechgaard, Crown Counsel for the Crown.

JUDGMENT.—The facts of the case may be stated very briefly. Constable Kibolo $(P. W.1)$ and Constable Omondo $(P. W.2)$ stopped a lorry driven by one Mbuvi. They were of the opinion that Mbuvi had committed an offence in allowing three persons to occupy the front seat. There were in the front seat, besides the driver, two Indians of whom the appellant was one. It is not stated by P. W.1 or P. W.2 in so many words that they mentioned that Mbuvi would be charged by them for allowing three persons to occupy the front seat, but it is clear that the appellant was in no doubt that it was their intention to charge Mbuvi with this offence; for he gave P. W. 1 Sh. 3 and said: "Shika Chai wacha Kwmshika driver". The driver was the appellant's driver. By what the appellant said P. W.1 understood him to mean that he should accept the money and drop the charge against Mbuvi.

It was argued by the advocate for the appellant that it was not proved, as it ought to have been proved, that P. W.1 had a duty, by virtue, of his appointment, to charge persons with traffic offences. This was, however, abandoned, and the real argument was put in this way: that as it was no offence in law for three persons to occupy the front seat of a lorry and, as, therefore, Mbuvi could not have been charged with any offence, the offer of Sh. 3 in consideration, as it was said, of "dropping the charge of an imaginary offence" was not an offence *contra* section 93 (2) of the Penal Code under which the appellant was charged.

Under the law in force at the time it is an offence for a person or persons other than the driver to occupy the driver's seat. If the front seat of the lorry has the driver's seat partitioned off, then passengers may occupy the remaining portion of the front seat; but if there is no partition then the whole of the front seat is the driver's seat. It does not appear in evidence whether the front seat was in fact partitioned and it is, therefore, not clear whether the charge of an offence, which was certainly cognizable to the police, would have been successful or not. But that is not the point. If the appellant corruptly gave P. W.1 Sh. 3 in order that he should omit to prefer a charge against Mbuvi, whether it would have been successful or not (and this was proved to the satisfaction of the magistrate) he was properly convicted.

It is noted that the magistrate allowed the appellant to call a witness and then to give evidence himself. Reference was made to 23 K. L. R. 132, but I do not think this is a good reason for allowing the appeal which is dismissed. The appellant was admitted to bail before he had filed an appeal and he must be deemed to have served his sentence.