013-NLR-NLR-V-64-ATTORNEY-GENERAL-Appellant-and-PARANAVITHANA-Respondent.pdf
Attorney-General v. Paranavithana
91
Present: Basnayake, C.J., and H. N. G. Fernando, J.
ATTORNEY-GENERAL, Appellant, and PARANAVITHANA,
Respondent
8. C. 72/59—D. C. {Grim.) Galle, 16304
Criminal procedure—Trial on indictment—Absence of Crown Advocate—Incapacity ofCourt to discharge the accused—Appeal from District or Magistrate's Court—Power of Supreme Court to order Crown to pay costs—Criminal ProcedureCode, 8. 352.
Where, on the date of trial upon an indictment, the accused is present butthere is no one to represent the Attorney-General, the Court has no power tomake an order discharging the accused.
Although section 352 of the Criminal Procedure Code saves a law officer of theCrown from being condemned in costs it does not save the Crown from an orderto pay costs.
'*■ {1959) 60 N. L. R. 313.' G Cr. Appeal Repts. 159 at p. 165.
92
BASNAYAKE, C.J.—Attorney-General v. Paranavithana
ApPEAL from an order of the District Court, Galle.
V. S. A. Pullenayegum, Crown Counsel, for Complainant*Appellant.G. S. B. KumaraJmlasinghatn, for Accused-Respondent.
March 2, 1960. Basnayake, C.J.—
The accused, Somapala Paranavithana, was indicted on a chargepunishable under section J59 of the Penal Code before the District Judgeof Galle. On the day fixed for the trial the .accused was present andwas represented by a proctor, and the Crown Advocate appeared forthe Attorney-General. The accused pleaded not guilty to the indict-ment which was read to him. . The Crown Advocate then asked for apostponement of the trial as a witness who was material for the prosecutionwas attending the Supreme Court and was unable to be present in Courton that day. Counsel for the accused had no objection and the trialwas postponed for 16th October 1959 and the Crown Advocate appliedfor summons on the witness who was absent.
On the 15th October 1959 the accused was present and his proctorappeared for him, but there was no one to represent the Attorney-General.The' proctor for the accused thereupon moved that the accusedbe discharged, and the learned District Judge made the followingorder :— “ I dischai'ge the accused ”,
y
It is submitted on behalf of the appellant that this order is one thatlearned District Judge could not have made. We are of the opinion thatthere is no provision of the Code under which the learned District Judgehad power to make the order he made in this case. We therefore set asidethe order of the learned District Judge and send the case back to thelower court with a direction that the accused be tried on the indictmentserved on him.
As the accused had to incur expense for no fault of his by retaining alawyer to appear for him on the date on which counsel for the Attorney-General was absent, we think that this is eminently a case in which weshould order the Crown to pay the costs of the accused. Learned counselfor the appellant states from the Bar that the costs incurred by theaccused on the 15th October 1959 are 60 guineas. We therefore orderthe Crown to pay to the accused the sum of 60 guineas and also the costs,of the hearing of this appeal which we fix at 25 guineas.
Don Anthony v. The Bribery Commissioner
93
After this judgment had been dictated Crown Counsel appeared andasked for our indulgence to make further submissions in respect of theorder to pay costs. We afforded him an opportunity of doing so. Herelied on the proviso to section 352 of the Criminal Procedure Code. Thatsection empowers this Court to award costs in all proceedings underChapter XXX but saves the Attorney-(General and the Solicitor-Generalfrom being condemned in costs. We are unable to regard that provisoas saving the Crown from an order to pay costs. It protects the twolaw officers of the Crown from being condemned in costs personally. Asimilar protection is afforded by section 462 of the Civil Procedure Codewhich provides that no writ against person or property shall be issuedagainst the Attorney-General in any action brought against the Crownor in any action in which he is substituted as a party defendant.
H. N. G. Fernando, J.—1 agree.
Case sent back for trial.