Rex v Meghji and Another (Criminal Appeals Nos. 5 and 6 of 1945 (Consolidated)) [1945] EACA 55 (1 January 1945)

APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and BARTLEY, J.

REX. Respondent

$\mathbf{v}$

(1) SHAH DEVRAJ MEGHJI, (2) SHAH KALIDAS HIRJI, Appellants (Original Accused Nos. 1 and 2)

Criminal Appeals Nos. 5 and 6 of 1945 (Consolidated)

Criminal Law—Attempt wrongfully to interfere with or influence a witness in a judicial proceeding—S. $116$ (1) (f) Penal Code—Existence of judicial proceedings a necessary ingredient of the offence.

Held (6-4-45).—That the existence of a judicial proceeding is an essential ingredient of the offence of attempting wrongfully to interfere with or influence a witness in a judicial proceeding *contra* S. 116 (1) (f) Penal Code and that omission to adduce such proof was fatal to a conviction.

Burke for the Appellants.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—There is an insuperable obstacle to our upholding the decision in this case. For the unexplained reason the prosecutor omitted to lead evidence on an essential element of the offence in the absence of proof of which a conviction could not be had. That element was to prove that at the time the alleged offence took place there was in existence a judicial proceeding. That essential was not proved or attempted to be proved. It could have been proved by calling a court clerk to produce the case file, that is if a judicial proceeding was in existence on the afternoon of the 17th February, 1944, the date of the alleged offence for we cannot exclude the possibility of the omission being due to there being no judicial proceedings in existence at the critical time. It has been argued by learned Crown Counsel that this essential had not to be proved, that it was sufficient to prove that the offence charged of attempting wrongfully to interfere with or influence Kariuki as a witness in a prospective judicial proceeding was sufficient. On consideration we do not agree with that submission. A study of section 116 of the Penal Code which contains a category of offences relating to judicial proceedings $(a)$ to $(i)$ convinces us that a judicial proceeding must be proved to be in existence as a requisite to a conviction. We have most carefully examined the record to ascertain whether the evidence establishes the essential and are quite satisfied that it does not. Confirming our interpretation of section 116, it will be found by reference to Archbold, 31st Edition, 1198, that the English Common Law relating to interference with witnesses on which no doubt section 116 (1) $(f)$ is founded refers to witnesses in existing judicial proceedings.

The appeals must be allowed, the convictions and sentences quashed and the accused acquitted.