In lieu of an abstract, here is a brief excerpt of the content:

43 Chapter 3 Misconduct in Public Office This chapter deals with a number of offences relating to misconduct in public office by holders of any such office. The offences under this head fall into five broad categories, namely, violence, corruption, abuse of office, culpable abstention (that is, omitting or failing to do an act required by the duties of the office), and torture. A criminal charge will thus lie against a public officer for misbehaviour in office by demanding or receiving improper or ill-gotten gain91 , for fraud or negligence in office92 , for oppressive or illegal acts done corruptly or from improper motives93 , or by neglecting a duty imposed upon him by law94 . For malpractices during the course of his work, a public officer will of course be criminally liable in the ordinary way if it can be proved that he has committed any of the offences of general application such as treason, theft, homicide, assault, sexual indecency, and so on. But over and above his liability as an ordinary citizen, a public officer may be liable to special, more severe punishment. This is so because the criminal law lays great stress on the importance, and tries to ensure the maintenance, of integrity in public life. Misconduct in public office is injurious to the common weal rather than to the corruptor. It is criminalised for the protection of the public welfare rather than for the protection of those doing the corrupting or allowing themselves to be corrupted. The offences under this chapter are, generally speaking, those that are capable of being committed only by a person virtute officii (that is, in his official capacity) as the holder of a public office. In other words, they are offences that can be committed only by a person having the status of public servant. A public servant for the purpose of the criminal law includes “any judicial or legal officer, any law official, any employee or official of the state or of any other body corporate governed by public law, or of a corporation or semipublic corporation, of a law official, any Armed Forces or Gendarmerie serviceman, any employee of the National Security or Prison Administration and any person charged, whether continuously or occasionally with any public duty, mission or task, while acting in the discharge of his office or in relation to the said office”95 . The term ‘public servant’ is thus much wider than ‘civil servant’. The word 91 Sections 134, 134a, 135, and 136. 92 Sections 137-139. 93 Sections 140-144. 94 Sections 145-151. 95 Section 131. 44 ‘includes’ in the definition of ‘public servant’ suggests that the enumeration in section 131 is merely indicative, not definitive. For example, officers of the Department of Customs and Excise are not mentioned in the list under section 131. But there can be little doubt that those officers are also public servants. It is however doubtful that persons called to holy orders and the like come within the broad definition of public servant; for if they do simony96 would then become a criminal offence. Where a public servant is guilty of any felony or misdemeanour against which it is his duty to guard or take action, the fact of his position as a public servant becomes a general aggravating circumstance making him liable to increased punishment97 . Where he is guilty of certain offences enumerated in section 132(2) the same fact of being a public servant becomes a special aggravating factor making him liable to increased punishment. For example, any public servant who uses force against any person is liable, on conviction, to imprisonment for from 6 months to 5 years98 . But this is the minimum penalty, and it is inflicted only if no heavier penalty is provided. Further, s. 132(2) provides that where the offender is a public servant the prescribed penalty for each of the following offences shall be doubled: forging licences and similar documents99 , forging official certificates100 , false arrest101 , forced labour102 , invasion of residence103 , tampering with correspondence104 , disclosure of professional confidence105 , forgery of a private document106 , and taking a copy of a government document107 . In The People v. Kwah David Annim & Tita Sikod Choh (1979)108 , a count in the charge was properly drawn when it alleged as follows: “That you … without authority took a copy of a document, to wit, a petition … from a file in the Sub Divisional Office … and thereby committed an offence contrary to and punishable under section 189 as read with section 132...

Share