Case No.:

(PC-SN.C-CR.APP-17-1960)

Court:

Province Court

Issue No.:

1960

Principles

·  Criminal law—Offences against the public tranquility—Sudan Penal Code, s. 127 —Intention to cause or acts likely to cause a breach of the peace a necessarily elernent—Khalwa not a public place—Sudan Penal Code, s. 127. Criminal law—Criminal trespass—Sudan Penal Code, s. 390—House trespass in order to commit offence punishable with imprisonment—Hash not a “building within the meaning of S. 39o—Khalwa not a building used as a place of worship —Sudan Penal Code. Ss. 380,381

The accused was a Roman Catholic priest and was responsible for giving religious instruction to Catholic boys in some of the schools in Juba. On August 8, 1960,he went to the Khalwa at Malakia and entered the Hosh where he was met by the Farash and Supervisor of the Khalwas. On being asked his business he replied that he had come t see if he could give religious instruction to the Catholic boys in the Khalwa. The supervisor told him that this would not be possible and this was confirmed by the Sheikh of the Khalwa, whereupon the accused left without fuss or argument. The Sheikh showed no resentment at the time, but nine days later he lodged an informa tion against the accused under section 127A and section386 of the Sudan Penal Code. The accused was tried and convicted under sections 127A and 390 by the Resident Magistrate. Juba and was sentenced to three months’ and one month’s imprisonment, to run concurrently, and £S.50 fine. The court also recommended that the accused be expelled from the Sudan.
On application for revision to the Province Court.
Held: That the accused, as a person r for instructing Catholic boys in schools in Ju ha, was entitled to ask to instruct the Catholic boys in the Khalwa, as there were Catholic boys there. He was not guilty of an offence under section 127A of the Sudan Penal Code and his acts were not intended to cause nor likely to cause a breach of the peace or to disturb the public- tranquillity. Furthermore, to constitute an offence under section 127A the acts must be committed in a public place and a Khalwa, like a school or college, is not a public place, as the publics do not go there.
The accused was not guilty of an offence under section 390 of the Sudan Penal Code since none of the essential ingredients of the offence had been proved, viz.:
(i) That the accused had entered the premises with intent to commit an offence or to intimidate, insult or annoy any person in possession thereof, and
(ii) That the accused had entered a building or any building used as a place of worship. The concept “building” implies a structure, which is enclosed and covered, and so the Hosh itself is not a “building” within the meaning of the section. A Khalwa is not a building used as a place of worship. And
 
(iii) That the accused had entered in order to commit an offence punishabk with imprisonment.
Conviction by Resident Magistrate. Juba (Non-summary case 150-1960) quashed.

Judgment

(PROVINCE COURT)

SUDAN GOVERNMENT v. FATHER SILVANO GOTTARDI

(PC-SN.C-CR.APP-17-1960)

Criminal revision

Advocate: Hanna George for applicant

October 13, 1960. Gala! All Lutul P.J.: —I have quashed the finding, sentence, orders and recommendations and I have ordered the release of the accused forthwith for reasons set out below.

The facts of the case as believed by the court below and which are not in dispute are as follows: On August 8, 1960, at about 8.35 a.m. accused Father Silvano Gottardi went to the Khalwa at Malakia. He left his motorcycle outside the Hosh of the Khalwa and entered through the Khalwa gate. Just as he was entering into the Hosh he met the Farash and then one El Sadik Faragalla (PW. 3) who is the supervisor of the Khalwas. They greeted each other and shook hands. He (PW.3 El Sadik Faragalla) asked him why he came to the Khalwa and in a polite and decent manner the accused told him that he came to see if he could give instruction in the Catholic religion to the Catholic boys in the Khalwa. He (PW. 3) informed him that it was not possible to allow him to do so. PW. 2 Babikir El Hag Mohamed Au, the Sheikh of the Khalwa, who had seen the accused with PW. 3 came out and joined them. After greeting the accused and shaking hands he took part in the conversation. He knew the purpose of the accused’s visit and he confirmed to him that the Khalwa is a place where the Koran is taught and that it is not possible for hint to instruct the boys there in the Catholic religion. The accused did not argue and he cordially left the place. After some time PW. 2 (Babikir El Hag Mohamed Au) went and informed the Sharia Kadi at Juba of what had taken place and after nine days (i.e., on August 17, 1960) information was lodged against the accused under section 127A and section 386 of the Sudan Penal Code. After the police investigation was completed he was tried and convicted on both counts but the court altered the second charge to one under section 390 of the Sudan Penal Code instead of one under section 386 of that Code and the following sentence and orders were passed

(1) Three months’ imprisonment under section i 27A of the Sudan Penal Code.

(2) One month’s imprisonment to run concurrently with the first sentence and £S.50 fine and in default of payment one month’s imprisonment under section 390 of the Sudan Penal Code.

(3)The court recommended that the accused be expelled from the Sudan and that he be granted special treatment in prison.

These are briefly the facts of the case.

On considering the applicatioh for revision this court found that the learned Resident Magistrate had misdirected himself as regards points of law and inferences, which he had drawn from the facts adduced. The conviction under section 127A was not proper in this case. Section 127A of the Sudan Penal Code reads as follows:

“Whoever does any act with intent to cause or which is likely to cause a breach of the peace or disturb the public tranquillity shall be punished with imprisonment which may extend to one month or with fine or with both.”

There is no corresponding section to this section (127A) in the Indian Penal Code, but in the Sudan Penal Code it is considered as one of the offences against the public tranquillity, which are contained in Chapter XII. Its ingredients will be clearly understood when read conjunctively with section 127 of the Sudan Penal Code which is the original section and which for the sake of convenience I quote hereunder:

“Whoever in a public place disturbs the public peace shall be punished with imprisonment for a term which may extend to one month or with fine which may extend to £S.2 or with both.”

The corresponding section to section 127 in the Indian Penal Code is section 159 which punishes an affray as a typical example of the dis turbance of the public peace. It is clear from the text of the two sections. i.e., 127 and 127A that the difference between them is as follows:

(i) In section 127 of the Sudan Penal Code it is not necessary to prove the intention of the accused but he will be punished as long as his act has resulted in disturbing the public peace. But according to section 127A it must be proved that the accused has done the act with the intent to cause a breach of the peace or disturb the public tranquillity or that his act itself is likely to cause a breach of the risturb the public tranquillity: So intention is an essential ingredient in the offence under section 127A.

(2)The second difference is that in the offence under section 127A it is not necessary to prove that the public tranquillity was actually disturbed nor that a breach of the peace was caused but it is sufficient if it is proved that the act was done with intent to cause the above results or to prove that the said act is likely to cause the same. In section 127 the actual disturbance must be proved. Both sections being part of the sections affecting public tranquillity they have an important common ingredient without which the offence is rendered incomplete. Both sections require that the act must be commited’ in a public place, because there will be no breach of the peace or disturbance of public tranquillity if the act was done in a private place. ‘ Offence here con templated must be committed in a public place, and in the presence of the public without whom there can be no breach of the public peace.” (The Penal Law of India, 6th edition, p. 662, by Gour).

So it is for the prosecution to prove that the alleged act was done in a public place. In this case now before the court, it is proved that the Khalwa is adjacent to the Zawia at Malakia and that each of them has its own fence around it and that the Hosh of the Khalwa is different from that of the Zawia with separate outlets. It is also proved and admitted that the accused had entered the Hosh of the Khalwa through its proper gate and that he went out through the same place. It is also proved that Arabic and arithmetic are taught in the said Khalwa in addition to the main subject, which is the Koran. In other words the said Khalwa is a sort of school below the elementary school where the Koran is mainly taught together with Arabic and arithmetic. It is a private place just like any other school. It is not a public place and it is not alleged by the prosecu tion that it is so. Moreover it is not a part of the Zawia adjacent to it because it has got its own fence, Hosh and outlets and being like that it is not therefore a place for worship. It is expressly stated in the commentary on section 159 of the Indian Penal Code that a school is not a public place where such an offence could be committed. Gour in the aforesaid reference puts it clearly in the following words (p. 663)

 “A school or college is not a public place, because the public do not  go there and the fact that the public are permitted to pass through it or convenience does not make any difference.”

The Khalwa, as stated before, is a sort of school, which is under the control, and supervision of the Education Authorities at Juba (see statement of PW.5). So the alleged act by the accused, i.e., going to the Khalwa and asking to give the Catholic boys some instruction in the Catholic religion is not an offence; because it has taken place in a private place where it cannot be said that his act was intended to cause or likely to cause a breach of the peace or disturb the public tranquillity?

Moreover, even if the above is not applicable and if the Khalwa is considered to be a public place— Did the accused enter the Hosh of the Khalwa and ask to instruct the Catholic boys in the Catholic religion with intent to disturb the public tranquillity, or cause a breach of the peace, or did he know that his act was likely to cause a breach of the peace or disturb public tranquillity?

From the facts proved before this court the accused’s intention was never to disturb the public tranquillity or to cause a breach of the peace. This is clearly shown in the following:

(1) It is well known to the educational authorities and officially recognised that the accused (Father Silvano Gottardi) is the instructor in the Catholic religion in most of the schools at Juba and that he has been practising this since 1957 (see the official letter from the education officer of Equatoria, produced by the accused at the trial). He used, to instruct the Catholic boys in Juba Elementary School No. 1, Juba Elementary School No. ‘2, Malakia Elementary School and Juba Intermediate School. He has no written permission to do so and he was allowed verbally by the people responsible to instruct in such schools. On one occasion only he had a letter from the Education Officer at Juba dated February 22, 1957, and it is not an official permission to allow him to instruct, but is a sort of direction to the headmaster concerned to make facilities for him to carry out his duties which were impliedly consented to. The learned magistrate has wrongly taken it as an official permission and drew the conclusion that the accused must obtain such approval in all cases of the same nature. The meaning of the letter is very clear. Its translation reads as follows:

“P. E.O.E/A. A. 1

Ministry of Education,

Juba

June 22, 1957.

Headmaster, Malakia Elementary School.

The Roman Catholic Church has appointed Father Gottardi in order to instruct Catholic boys in the Catholic religion at your school.

Please send him the timetable showing the time of periods for teaching religion at the earliest opportunity possible so that he may be able to instruct the Catholic boys in the Catholic religion.

Please let me know when the above was carried out.

                                                (Signed)

                                        ForEducationOfficer,             Equatoria Province

Copy to:

.

Secretary Of Catholic Education.”

It is obvious that the above letter is not a permission to the accused to go to the said school to teach Catholic boys but only a ‘request to the head master to make the facilities available to enable him to carry out his work by sending him the time-table. The said letter was written after the accused was already detailed by the Catholic Church for the said work. As regards other schools he had also no written permission and it was verbally given to him. What proves that’It was really given to him is that he was instructing in the aforesaid schools until this case was raised against him, otherwise he ought to have been prosecuted for all his activities in other schools. It is even evidently clear from the said letter that the approval was tacitly given because it was something which could not be rejected, for the simple reason That every boy in the school has the right to receive teaching in the religion in which he believes.

So the teaching in the Catholic religion in schools at Juba where there are Muslim boys and Christians as well is not something to arouse alarm or to disturb the public tranquillity because it has already been going on for a long time.

It is proved that in this particular Khalwa on the date’ of the incident. i.e., August 8, 1960, there were Catholic boys as well as Muslim boys. The Catholic boys did not change their religion to Islam and they were keeping to what they believed at the time the accused visited the Khalwa and after that when they were dismissed in September 1960. Those boys were namely: (1) Albino Trunkilo, (2) Biyo Wani, (3) Saros Aliko, (4) Alberto Osman, (5) Alfred.

As is very clear from the evidence, the accused was asked by the said boys’ relatives to go and instruct their boys in the Catholic religion as he used to do in other schools and accordingly he went to the Khalwa and offered to teach the Catholic boys. The accused did not go to the Khalwa to preach nor to cause any person to change religions or join his religion. He only went to instruct his own Catholic boys, whom he knew well and whom he knew to be there and he has every right to do so. Had he known there were no Catholic boys there he would never have been interested in visiting the Khalwa. Despite the fact that he knew that his boys were accepted in the Khalwa and that he was told not to get in touch with them. in the Khalwa, he went away in a friendly and cordial manner. It is he who ought to have been provoked and not the people of the Khalwa; because it is they who were teaching his boys a religion different from that with which they have started. What is strange is that the learned Resident Magistrate did not consider this fact, i.e., the presence of Catholic boys in the Khalwa, though it is very essential in knowing the accused’s intention. It is not the accused’s mistake that the Khalwa accepted the Catholic boys but is the fault of the Khalwa people to admit theni knowing that they are still keeping to their religion. It is clear from the evidence that the said boys have only joined the Khalwa to learn arithmetic and Arabic and not to change their religion to Islam. The Assistant Education Officer’s (Mohamed Ibrahim Hilmi) general statement that all boys in the Khalwa are Muslims is not true and the court ought not to have taken it as such, especially after it was admitted by the Khalwa people themselves that there were Catholic boys in the Khalwa when the accused came to it. So the accused was not at fault when he came to visit the Khalwa and asked to instruct the Catholic boys in the Catholic religion because he knew that there were some Catholic boys there

(2) The idea of going to the khalwa and asking to teach the boys was. not wholly the accused’s. He was requested by the boys’ relatives (D.W.2 and D.W.4) to go and instruct them as he used to do with other boys in the different schools at Juba. And even if the idea was wholly his own, he had every reason, to believe that he was entitled to do so as long as there were Catholic boys in the Khalwa and as long as he is the person responsible for instructing the Catholic boys in most of the schools at Juba.

(3)The court was wrong in finding that the accused’s act was provoca tive to those in the Khalwa. All the evidence and the circumstances show that it was not. The accused, as admitted by the prosecution witnesses, met the Sheikh of the Khalwa and the supervisor in a friendly way and cordial manner. He shook hands with them and went away in the manner he came. He did not even insist to talk to the Catholic boys whom he knew to be in the Khalwa. Such an act does not provoke any reasonable Muslim to disturb the public peace. The Sheikh of the Khalwa did not utter a word or do any act at the time to show that the visit of the accused had really provoked him or injured his feelings. He simply went and’ informed the Sharia Kadi; and after nine days this information was lodged against the accused. Why the complainant, did not lodge it immediately after the accused’s visit if he was really provoked and Why he kept silent for nine days is what the court below did not take the trouble to ascertain, though it is relevant in order to know the effect on the complainant of the accused’s visit, It is true that it is not essential in some cases of this type to prove that the complainant was really pro voked by the accused’s act, but in this particular case where religion is involved retaliation ought to have been spontaneous. The contrary happened in this case. The complainant’s attitude and that of those with him show that the accused’s act was not taken as something injurious to their feelings. He (complainant) waited for nine days and then for some reason, which was not brought in evidence he lodged the said information. The act itself is not provocative or injurious to any reasonable Muslim. It would be rather absurd if the court considered the mere presence of a member of the Roman Catholic Church at the premises of the Khalwa and his talking to its masters as an offence in itself. If this is considered to be an offence, it therefore follows that any one of the Muslims who teaches the Islamic religion will be equally prosecuted if he entered the Hosh of any school where the Catholic religion is being taught. So the finding under section 127A was improper according to law and as to inferences drawn from the facts proved and therefore it ought not to stand.

Then we come to the other charge under section 390 of the Sudan Penal Code, i.e., house-trespass in order to commit any offence punishable with imprisonment. The court did not discuss the facts leading o convic tion under this section nor the law justifying it. It simply disdussed the facts of the whole case generally and then reached its finding under sections 127A and 390 of the Sudan Penal Code. The essential ingredients of the offence ought to have been discussed separately and each of them must be proved before a conviction is reached. The settled facts ought to have been clearly pointed out and it must not be left for the Revising Authority to fish for them in the statements of the witnesses. An offence under section 390 of the Sudan Penal Code is not easy to prove because of the many ingredients required being satisfied and so the court ought to have been very careful in considering every part of the offence. Section 390 of the Sudan Penal Code reads as. Follows:

“Whoever commits house-trespass ifl order to the committing (sic) of any offence punishable with imprisonment shall be punished with imprisonment for a term which may extend to two years and shall also be liable to fine;

This means that two ingredients must be proved in order to complete the offence:

(1) That the accused has committed house-trespass and

(2) That he did so in order to commit an offence punishable with imprisonment.

But the first ingredient needs to be explained and so we have to resort to its definition in section 381 of the Sudan Penal Code, which reads as follows:

“Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship or as a place for the custody of property or any railway carriage used for the convenience of passengers or goods, is said to commit house-trespass.”

Criminal trespass is defined in section 380 of the Sudan Penal Code as follows:

“Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or, having lawfully entered into or upon such property unlawfully remains’ there with intent thereby to intimidate, insult or annoy such person or with intent to commit an offence, is said to commit criminal trespass.”

So it is clear from the above definitions that in order to establish anoffence under section 390 of the Sudan Penal Code in this particular case the following ingredients must be fulfilled:

(1) That the accused has entered the said premises with the intent to commit an offence or to intimidate, insult or annoy any person in possession thereof, and

(2)That he has entered a dwelling or any building used as a place of worship, and

(3) That he entered it in order to commit an offence punishable with imprisonment.

Taking the first ingredient, we find that it is not proved. As discussed above when considering the conviction under section 127A the accused did not enter the Hosh of the Khalwa with intent to commit any offence or to intimidate, insult or annoy any person in possession. He entered to fulfil a lawful object, to which the Catholic boys are entitled, and there were sufficient grounds to make him believe that his entry would even be welcomed by those responsible for the Khalwa. So the first ingredient is not proved. It follows therefore from the failure to establish the said ingredient that the offence is rendered incomplete and so the accused ought not to have been convicted under this section. But in spite of this, let us see if the other two remaining ingredients were satisfied. The second ingredient requires that the entry must be made into a dwelling or any building used as a place of worship. It is proved that the accused did not enter the buildings of the Khalwa and this is not even alleged by the prosecu tion. He only entered its Hosh and a Hosh according to the legal definition of “building” is not a building. Gour in the same reference (above), at page 1740, defines a building as follows:

“The question what constitutes a building must depend upon what is ordinarily understood by that term. It certainly does not include the open compound around the house, such as a garden or open space attached to bungalows and villa residences. In England the concept implies a walled enclosure with a roof or covering, and this is the least that is necessary, for the building must be enclosed and covered, though it must necessarily have an outlet.”

So the entry here into the Hosh of the Khalwa was not an entry into a building and therefore this part of the section is not satisfied.

On the other hand neither the Khalwa ‘nor its Hosh are places for worship and their being adjacent to the Zawia does not make them so. A Khalwa, as stated before, is a school below the elementary school where mainly the Koran is taught, together with Arabic and arithmetic. There are many Khalwas, which are not adjacent to a Zawia, or a Mosque and Muslims never go to a Khalwa to pray. In this particular case it is proved that the Khalwa has a fence and that it has its own outlets. It is not proved that the accused had entered the Zawia nor its Hosh nor even passed through it to the Khalwa. So his eptry cannot be said to have been into a building used for worship because it is not proved. And even if it was preved that he entered the Hosh of the Zawia it cannot be said that he has committed house-trespass because the Hosh is not a building. These facts are in addition to the fact that his entry was in good faith.

The third ingredient is that which requires that the accused has done the above with intent to commit an offence punishable with imprison inent. This ingredient was also not satisfied because the prosecution has failed to prove that the accused entered with intent to commit any bffence. A mere entry does not raise any presumption against the accused especially if the facts proved are of the same nature as the facts in this case where the entry was in good faith and there were reasonable grounds to make the accused believe that he was entitled to enter and ask for what he asked for. Gour succinctly expresses the proof of this part in the above-quoted reference in his explanation of section 451, which corresponds to our section 390. On page 2125 he states as follows:

“This section is the last of three commencing with section 449 in which the fact of house-trespass is aggravated by the accused’s intention to commit an offence of varying degrees of gravity. In each of them the special criminality of the accused depends not so much on account of the house-trespass, as upon that offence being committedi to achieve a still greater criminal purpose which is upon the prose cution to establish. How it is to be established must depend upon the circumstances of each case. But in the absence of such circumstances it cannot be presumed that the accused’s entry has been made with one intention rather than with another, but a person found passing into another’s house at an unusual hour or in disguise, may well t presumed to have entered there for the purpose of committing an offence which the court would be justified in presuming in the absence of any satisfactory explanation.”

It is obvious that the prosecution in this case has failed to prove the criminal trespass, the house-trespass and the intent to commit an offence punishable with imprisonment; while the accused was able to give a satis’ factory explanation of his entry, which is supported by stronge vidence.

So the conviction under this section (390, Sudan Penal Code) was based on  neither legal nor factual grounds and ought not to have been reached. Proceedings are returned herewith to carry out the aforesaid directions.

                                                         (Conviction quashed)