[1944] EACA 5

## APPELLATE CRIMINAL

## Before Sir JOSEPH SHERIDAN, C. J., and BARTLEY, J.

REX. Respondent (Original Prosecutor)

## MOHAMED LIBAN ALI, Appellant (Original Accused) Criminal Appeal No. 31 of 1944

False information to person employed in the public service—Person under arrest answering question put by constable—Penal Code, section 124.

The facts sufficiently appear from the Judgment.

Held (6-4-44).—An answer to a question put to a person under arrest by a police constable does not constitute giving information to a person employed in the public service within the meaning of section 124 of the Penal Code.

Appellant in person.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—The accused was charged with the following offence:

"Giving false information to a person employed in the public service, c/s 124 P. C. Mohamed Liban, that on 6.1.44 you gave information to $1/C$ Mukoroni (K. P.) knowing it to be false, concerning your tribe, knowing that thereby you could cause such person to omit to take action which would have been necessary had he known the true facts."

The plea of the accused reads:

"Yes, it was as you say."

On this plea the accused was convicted and sentenced to pay a fine of Sh. 300 and to six months imprisonment with hard labour and to a further three months in default of payment of the fine.

From the record the facts of the case are that a police constable arrested the accused on suspecting him of being an alien Somali residing in Isiolo District without a pass. The constable asked the accused what his tribe was and the accused replied that he was an Aulihan, which tribe evidently is permitted to be in that part of the district in which the accused was found. The police constable subsequently found that the accused was not an Aulihan.

The accused appealed against both the conviction and sentence. If, of course, the facts constituted an offence against section 124 of the Penal Code no appeal would lie against the conviction, but in our view, notwithstanding the submission of learned Crown Counsel to the contrary, the facts do not constitute an offence against the section. The section of the Penal Code in question is word for word the same as section 182 of the Indian Penal Code from which it is obviously culled. We think it clear from the illustrations to section 182 of the Indian Penal Code that the facts in this case do not constitute an offence.

These illustrations read as follows: -

"(a) A informs a magistrate that $Z$ , a police officer subordinate to such magistrate, has been guilty of neglect of duty or misconduct, knowing such information to be false, and knowing it to be likely that the information will cause the magistrate to dismiss $Z$ .

A has committed the offence defined in this section.

(b) A falsely informs a public servant that $Z$ has contraband salt in a secret place, knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z's premises, attended with annovance to Z.

A has committed the offence defined in this section.

- $(c)$ A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assailants, but knows it to be likely that in consequence of this information the police will make inquiries and institute searches in the village to the annovance of the villagers or some of them. - A has committed an offence under this section."

In *Empress v. Devarka Prasad* (1884) 6 All, 97, it was held that a person attempting to obtain his recruitment in the police force of a district by giving certain information which he knew to be false to the District Superintendent of Police had not thereby committed an offence punishable under section 182 of the Indian Penal Code.

In our view a person arrested on suspicion of having committed an offence cannot possibly be considered as giving information to the police officer who arrested him within the meaning of section 124 of the Penal Code by answering a question put to him in connexion with the offence. Any other view would be absurd for obvious reasons.

The conviction and sentence are set aside and the fine, if paid, is ordered to be refunded.