GUNASEKARA J.—The Attorney-General v. SrisTcandarajdh
1952Present : Gratiaen J. and Gunasekara J.THE ATTORNEY-GENERAL, Applicant, andP. SRISKANDARAJAH, et al., Respondents
S. C. 64—Application for Conditional Leave to Appeal tothe Privy Council in S. G. Application 594 of 1951
Privy Council—Mandamus—Refusal by Supreme Court—Question of criminalprocedure involved—Right of appeal to Privy Council—Appeals (Privy Council)Ordinance, Schedule, Rule 1Criminal Procedure Code, as. 152 (3), 390 (2).
In an application by the Attorney-General for conditional leave to appealto Her Majesty in Council against a refusal by the Supreme Court to issue amandate in the nature of a writ of mandamus directing tbe first respondent,a Magistrate, to carry into effect instructions of the Attorney-Generalto take non-summary proceedings in respect of an offence which, acting undersection 152 (3) of the Criminal Procedure Code, the Magistrate had already.decided to try summarily—
Held, that the question involved was not one of great general or publicimportance within the meaning of Rule 1 (6) of the Schedule to the Appeals(Privy Council) Ordinance.
PLICATION for conditional leave to appeal to the Privy Council.
Walter Jayawardene, Crown Counsel, for the applicant.
No appearance for the respondents.
Cur. adv. vult.
February 26, 1952. Gunasekara J.—
This is an application by the Attorney-General for conditional leaveto appeal to Her Majesty in Council against a refusal by this Court toissue a mandate in the nature of a writ of mandamus directing the firstrespondent, a Magistrate, to carry into effect certain instructions whichthe Attorney-General had purported to give him under section J9Q (2)<of the Criminal Procedure Code (Cap. 16). It is contended for theAttorney-General that the application for a mandamus was a civil suitor action within the meaning of section 3 of the Appeals (Privy Council)Ordinance (Cap. 85) and that the question involved in the proposedappeal is one of great general and public importance and is one which,by reason of such importance, ought to be submitted to Her Majestyin Council for decision.
GUNASEKARA J.—The Attorney-General v. Sriskandarajah521
Tke instructions related to a case instituted in the Magistrate’s Courtof Colombo on the 10th October, 1951, in which the second and thirdrespondents are accused of having on or about the 22nd July committedcriminal defamation (punishable under section 480 of the Penal Code)by printing and publishing certain statements in a newspaper. The-offence is one that is not triable summarily by a Magistrate’s Court butis triable by a District Court or the Supreme Court, and is punishablewith simple imprisonment for a term which may extend to two yearsor with fine or with both. On the 24th October the first respondent,who is a Magistrate of Colombo and is also a District Judge havingjurisdiction to try the offence, decided to try it summarily in the exerciseof his discretion under section 152 (3) of the Criminal Procedure Code,He took this decision after he had heard the evidence of the personalleged to have been defamed and after counsel for the defence hadstated that “ the publication and the contents of the article are notdisputed and he would like the case being heard summarily ”. Thesecond and third respondents were then charged summarily with theoffences alleged against them and they pleaded not guilty, and the casewas set down for trial on the 12th November, 1951. On the 7th Novemberthe Attorney-General, purporting to act under section 390 (2) of theCriminal Procedure Code, instructed the first respondent to discontinue thesummary proceedings and to take proceedings under Chapter XVI ofthat Code in respect of the offences alleged against the second and thirdrespondents. On the 12th November counsel for the defence contendedbefore the first respondent that the Attorney-General had no powerto give him these instructions and objected to his carrying them intoeffect. On the 19th November the first respondent made orderupholding the objection and setting the case down for trial. Thereupon,on the 21st November, the Attorney-General made his application fora mandamus. That application was eventually heard by a Bench ofthree Judges and was refused on the 11th February, 1952.
Though the application for a mandamus may have been a civil suitor action, the question involved in the proposed appeal is purely a questionof criminal procedure, and the rights that would be affected by a decisionof the appeal would be the rights of parties to a criminal proceeding.It seems to be appropriate, therefore, that in exercising the discretionvested in this Court by Rule 1 (6) of the Rules in the Schedule to the-Appeals (Privy Council) Ordinance we should be guided by the principlesupon which the Privy Council acts in granting or refusing special leavoto appeal in criminal cases.
In Reg. v. Bertrand1 the Judicial Committee’s judgment, havingreferred to “ the inherent prerogative right and, on all proper occasions,the duty, of the Queen in Council to exercise an appellate jurisdiction,with a view not only to ensure, so far as may be, the due administration-of justice in the individual case, but also to preserve the due course ofprocedure generally ”, pointed out however that “ interference by HerMajesty in Council in criminal cases is likely in so many instances tolead to mischief and inconvenience, that in them the Crown will be very
1 (1867) 1 A. C. (P. C.) 520.
Gr UJJASEKARA J.—The Attorney-General v. Sriskandarajah
slow to entertain an appeal by its officers on behalf of itself or byindividuals As regards the circumstances in which such an appealwould be entertained the judgment said :
“ It is not necessary, and perhaps it would not be wise, to attemptto point out all the grounds which may be available for the purpose ;but it may safely be said, that when the suggestions, if true, raisequestions of great and general importance, and likely to occur often,and also where, if true, they show the due and orderly administrationof the law interrupted, or diverted into a new course, which maycreate a precedent for the future, and also where there is no othermeans of preventing these consequences, then it will be proper forthis Committee to entertain an appeal, if referred to it for its decision. ”
What the Attorney-General maintains in the present case is thathe has the power to vary an order made by a Magistrate in the exerciseof the discretion vested in the latter by section 152 (3) of the CriminalProcedure Code. If he has that power it does not appear that he hasever exercised it in the past, and Counsel for the Crown have been•content to invoke instead the jurisdiction of this Court to review suchorders. It cannot be said, therefore, that the question sought to besubmitted to the Privy Council is one that is likely to occur often, orthat if the Attorney-General's contention is sound the refusal of hisapplication for a mandamus would have the effect of interrupting thedue and orderly administration of the law or diverting it into a newcourse. On the other hand, the proposed appeal must delay by manymonths the disposal of the criminal case. I am not satisfied that thereis sufficient ground for a view that the question involved is “ one which,by reason of its great general or publie importance ~or otherwise, oughtto be submitted to Her Majesty in Council for decision. ”
I would refuse the application.
Gratia tsk J.—I agree.
[The following order was made subsequently in connection with thesame Application :—]
Present: Gratiaen J. and Gnnasekara J.T. S. Fernando, Crown Counsel, for the petitioner.
No appearance for the respondents.*
April 8, 1952. Gunaseelaba J.—
In the judgement delivered by me on the 26th February I said :
“ What the Attorney-General maintains in the present case isthat he has the power to vary an order made by a Magistrate in theexercise of the discretion vested in the latter by section 152 (3) o
GTTNASEKARA J.— The Attorney-General v. Sriskandarajah
the Criminal Procedure Code. If he has that power it does not appearthat he has ever exercised it in the past, and Counsel for the Crownhave been content to invoke instead the jurisdiction of this Courtto review such orders.”
Two orders made by the Attorney-General, one in October 1933 inPolice Court Kalutara Case No. 9296, and the other in April 1947 inMagistrate’s Court Horana Case No. 2283, are now cited to us as instancesof the exercise of the power that is in question, and it is submitted onbehalf of the Attorney-General that my statement that “ If he has thatpower it does not appear that he has ever exercised it in the past” hasbeen made per incur iam. In each of these cases the police institutedproceedings before a Magistrate’s Court on a charge of attempted murder,an ofFence triable only by the Supreme Court and not summarily bya Magistrate’s Court, but the Magistrate framed against the accusedmerely a charge of voluntarily causing hurt, which is an offence triablesummarily by a Magistrate, and the Attorney – General thereupon in-structed the Magistrate to discontinue the summary proceedings and"take non-summary proceedings on the charge of attempted murder.In neither case was there an exercise or purported exercise of the dis-cretion vested by section 152 (3) in a Magistrate who is also a DistrictJudge to try summarily an offence triable by the District Court andnot summarily by a Magistrate’s Court, and in neither case did theAttorney-General’s order purport to vary an order made by theMagistrate in the exercise of that discretion.
My statement to the effect that if the Attorney-General has the powerto make such an order “ it does not appear that he has ever exercisedit in the past ” was made advisedly and after Mr. Jayawardene whoappeared for the Crown had said in answer to a question from me thathe was not in a position to say that there had been any previous in-stance of the exercise of such a power. Apparently, even subsequentresearch in the archives of the Attorney-General’s Department has failedto bring to light a single previous instance of an order made by theAttorney-General purporting to “ vary an order made by a Magistratein the exercise of the discretion vested in the latter by section 152 (3)of the Criminal Procedure Code ”.
In the circumstances, I see no reason to alter the statement alreadymade in my judgement.
THE ATTONEY- GENERAL , Appellant ,and P. SRISKANDARAJAH et al , Respondents