Case No.:

AC-CR-REV- 162-1956

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 139------Confinement contrary to Iaw—-Deliberate intention is essential element

·  Criminal Law—Penal Code. s. 288—Wrongful confinement—Deliberate intention is essential element

·  Criminal Law—Penal Code. s. 44—Defence of mistake of fact—Wrongful confinement —Good faith arrest of wrong man

The accused policeman arrested and confined complainants. Police magistrate acquitted the accused, charged with confinement contrary to law under Penal Code. s. 139. and wrongful confinement under Penal Code. s. 288, on the ground that there was no proof of “deliberate and wilful intention.”
Held: Charges under Penal Code. ss. 139 and 288. were properly quashed because of failure to prove essential element of “deliberate and wilful intention”
Obiter dictum: Policeman mistakenly arresting wrong man In good faith may raise defence of mistake of fact under Penal Code, s. 44.

Judgment

)CRIMINAL RFVISION(

SUDAN GOVERNMENT v. GHAREIBALLA- NIMR

AC-CR-REV- 162-1956

Advocate: Abdalla El Hassan …… for the accused

R. C. Soni J, December 8, 1956 —In this case an offence under either Penal Code, s. 139 or s. 288. would be committed if the prosecution is able to prove a criminal intent.

The accused policeman was investigating and proceeding according to the orders of his superior officers who have appeared as Defence Witness No. 1 and Defence Witness No. 2. These persons and the accused had no malice whatever against any of the complainants. There is no question of bad faith involved in this case. The prosecution must prove a deliberate and wilful intention on the part of the accused when using his powers of arrest. I can find nothing to justify his conviction of any criminal offence. The judgment of the magistrate is, in my opinion, quite correct. The accused might also fall back upon Penal Code, s. 44. He may have made a mistake of fact; if accompanied by good faith this is a complete defence. The superior officers of the accused and he may have all thought mistakenly. but there Is no lack of good faith.

December 12, 1956. M. A. Abu Rannat C.J. :—I agree. I read the record of this case and the accused Is lucky to have escaped conviction.

The Commandant of Police. Khartoum, should warn this Shawish that he was lucky because the court gave him the benefit of the doubt Furthermore, the police must be careful In handling such cases, as by such acts they will Involve the Government in paying heavy damages if the complainants chose to sue the Government for the tort of false Imprisonment

I have decided not to intervene