Principles

·  Criminal Law—Public servant wilfully omitting to perform duty—Penal Code, s. 1422—Must show wilfulness not sufficient—Negligence not sufficient

A postal clerk whose duty it was to answer a telephone, failed negligently to do so and so caused danger to human life. He was charged under Penal Code, s. 142.
Held: In the absence of a showing of wilfulness, the charge is not proved under Penal Code, s. 142.

Judgment

      Advocate: Abdel Rahim Hag Hamed…………..for the accused

      M. E.Mobarak P.J. April 20, 1963:—Osman Mohamed El Hassan was on April 17, 1963, convicted and sentenced by El Tayin El Abbassi in NS-39-1963 (Nahud) as follows:

(a) Sudan Penal Code, s. 142: Imprisonment for 45 days as from the date of conviction for special treatment; and

(b) Sudan Penal Code, s. 437: £S.5.000m/ms fine (and in default of payment to imprisonment for ten days)

      On applications by the prisoner and by his advocate I substitute a finding of not guilty for the finding of guilty under Sudan Penal Code s. 142, substitute a finding of guilty under Sudan Penal Code, s. 443, for the finding of guilty under Sudan Penal Code, s. 437, and confirm the sentence of £S.5.000m/ms fine and in default of payment to imprisonment for ten days as from April ‘7, 1963.

      On the charge under Sudan Penal Code, S. 142:

      Sudan Penal Code, s. 142 (public servant wilfully committed to perform duty, if such omission caused danger) is based on Indian Penal Code, s. 166, which deals with “public servant disobeying law, with intent to cause injury to any person.” The two sections are not identical but are very similar.

      To establish an offence under Sudan Penal Code, s. 142, all the following ingredients must be proved by the prosecution:

1. That the accused is a public servant;

2. That he omitted to perform any duty pertaining to his office;

3. That he did so willfully;

4. That he is legally bound to perform such duty; and

5.

That such omission causes or tends to cause

(a) danger to human life health or safety, or

(b) causes or tends to cause a riot.

      The accused in this case no doubt was a public servant and he no doubt omitted to perform his duty by not answering the telephone call by the complainant, Amir Babiker, as he ought to have done. There is no evidence to prove that the accused wilfully omitted to perform his duty in this respect. Even if his act was wilful I cannot see how such failure by him comes under the last ingredient (No.5) referred to above. I appreciate that the complainant’s wife was advanced in pregnancy and was in fact about to give birth. The complainant, no doubt, worried and wanted to ring up the hospital for medical care for his wife. The accused, on the other hand, cannot be presumed to have known all these facts. No evidence was adduced to establish that he was aware of all these circumstances. When red light appears on the switch-board the accused, as a telephone operator, knows that somebody raised the receiver of such-, and-such telephone to be connected with the operator who on request will switch him to the number required. Before talking to the subscriber the operator cannot know the number required and cannot even guess it, much more he cannot guess the importance or non-importance of the call.

      It has been established by the evidence of the Superintendent of Telephones that it was the duty of the accused to be in office from 8 p.m. to 8 a.m. next morning. The proper performance of his duty demands that he should stay inside all this time to answer all calls made. A certain bell rings inside the office whenever any subscriber takes up his telephone receiver. This shows that the Post and Telegraphs Department is taking into consideration the fact that an operator may sleep and so this bell is fixed to awaken him whenever required. It may be the accused was at fault in not disconnecting the telephone of the complainant when he finished his previous conversation and so this bell did not ring when he raised his receiver again. It is also possible that the accused, contrary to instructions, left the office and slept outside it.

      All these acts, in my view, do not come under the provisions of Sudan Penal Code, s. 142. All these acts cannot amount to anything more than an offence under the Officials Discipline Ordinance, s. 6, in that he neglected to perform his duty.

      Commenting on Indian Penal Code, s. 166, Ratanlal and Thakore, Law of Crimes 404—405 (20th ed. 1961) states:

      “The offence made punishable by this section consists, not in an inadvertent or even careless, but in a wilful departure from the direction of the law intending to cause injury to any person. . . . If the direction of law given by a special Act is violated, the punishment

will be under that Act. Thus a postal official absenting himself from his station without leave will be charged under the Post Office Act and not under this section”.

      See also I Gour, Penal Law of India 795-797 (7th ed. 1961).

      These commentaries must of course be read and taken with caution because of the difference in wording between our Sudan Penal Code, s. 147, and the Indian Penal Code, s. 166.

      I have considered the application of Post and Telegraph Ordinance, s. 25, but came to the conclusion that it is not applicable in this case as the element of wilfulness is not, and cannot be, proved.

      For all the reasons referred to above I substituted a finding of not guilty for the finding of guilty under Sudan Penal Code, s. 147.

      On the charge under Sudan Penal Code, s.437:

      The words uttered by the accused, as proved in court, amount to intentional insult under Sudan Penal Code, s. 443, and not to defamation as defined in Sudan Penal Code, s. 436. The accused, by uttering such words, never made any imputation concerning the complainant. This is clear from the evidence of the complainant and of P.W. 3, Ali Abdulla. For this reason I have altered the finding of guilty under Sudan Penal Code, s. 437, to one of guilty under Sudan Penal Code, s. 443. Considering all the circumstances I think that the sentence of £S.5.000m/ms fine is adequate and so I am not altering it.