024-NLR-NLR-V-52-ATTORNEY-GENERAL-Applicant-and-KANAGARATNAM-et-al.-Respondents.pdf
1950Present : Nagalingam J. and Pulle J.ATTORNEY-GENERAL, Applicant, and KANAGARATNAM et dl.,
Respondents
8. C. 239—Application in Revision inM. C. Nuwara Eliya, 4,944
Revision—Rower of Supreme Court to revise orders of Magistrate in a non-summaryinquiry—Criminal Procedure C&de (Gap. 16), ss. 5, 356, 357, 358—Effect, of words“ whether already tried or pending trial ”—Courts Ordinance (Cap. 6), ss. 19(b), 36, 73.
Non-summary inquiry—Duties and obligations of Magistrate vis a vis the Attorney-General—Scope of power of Attorney-General to issue instructions to Magistrate—Criminal Procedure Code (Cap. 16), s. 390 (2).
The powers ot revision given, to the Supreme Court by section 3S6 of theCriminalProcedureCodeshouldbe read with section 12(b) of theCourts
Ordinance and section 5 of the Criminal Procedure Code and extend, therefore,to the revision of orders made by a Magistrate in the course of non-summaryproceedings, whethersuchorderswere made prior to orsubsequentto the
presentation of the indictment against the accused.
In a non-summary inquiry, the Magistrate cannot question the validity ofan orderor instruction issued tohim by the Attorney-General undersection
590 (2) of the Criminal Procedure Code.
"Where, in a non-summary inquiry, the Magistrate directs the prosecutionto furnish particulars in order to amplify certain charges, the Attorney-Generalhas the power to direct the Magistrate to proceed with the charges in the formin whichthey werereadout tothe accused and withoutfurther particulars
being supplied by the prosecution. It is not open then to the Magistrate todo anything but carry out the instructions of the Attorney-General.
A PPLICATION by the Attorney-General to revise an order of theMagistrate’s Court, Nuwara Eliya.
In the course of a non-summary inquiry the Magistrate was of opinion-that some of the charges which had been read over to the accused undersection 156 of the Criminal Procedure Code did not contain suffcientparticulars. He therefore directed the prosecution to furnish furtherparticulars and, on the application of Crown Counsel, the inquiry waspostponed. Before the inquiry was resumed the Attorney-Generalcalled for the record of the case and, acting under the provisions ofsection 390 (2) of the Criminal Procedure Code, sent instructions to theMagistrate to proceed with the inquiry on the changes which had alreadybeen read over by the Magistrate to the accused.
When the inquiry was resumed it was contended on behalf of the1st accused (a) that the Magistrate had no power to vacate the orderwhich he had already made for further particulars of the charges, (6) that;if the Magistrate did not have the power, the Attorney-General couldnot confer that power on the Magistrate by means of instructions. Thelearned Magistrate then made order that he*eould not give effect to theinstructions of the Attorney-General and that the inquiry should proceedin respect of the remaining charges. The legality of this order was,,thereupon, challenged by the Attorney-General by the present appli-cation m revision.
Colvin R. de Silva, with H. W. Tambiah and J. G. Thurairatnam, for the-1st accused respondent took a preliminary objection to the hearing offthe application by way of revision.—There is no “ order ” in this casecapable of revision. What is before the Court are the contents of a-transaction which took place between the Magistrate and the Attorney-General. The Magistrate has given tcr> his reasons for not complying;with the Attorney-General’s instructions the form only of an order.The Supreme Court can only intervene in respect of the consequences-in Court of the compliance or non-compliance by the Magistrate of therAttorney-General’s instructions.
Assuming there is an “ order ”, revision does not lie in respect of a.case not “ already tried or pending trial ”. Vide section S56 of the-Criminal [Procedure Code. This is a matter pending preliminary inquiry.
. Inquiry under Chapter 16 of the Criminal Procedure Code is an inquirypreliminary to the decision whether there should be a trial or not. At;such inquiry there is no pleading in respect of a charge. A plea is -a-necessary concomitant of a trial. A trial cannot be said to be pending:in a Court which has no power to try. Nothing can be said to be pending'where a third party’s decision has 'to intervene as to whether amindictment should be framed or not.
The “ order ” sought to be revised in this ease, if it is an order, is-appealable because it is a final order. Where there is a joinder of charges'-there are as many inquiries as there are charges, and an order strikingout a charge is a final order.
H. W. R. Weerasooriya, Acting Solicitor-General, with Douglas JanszerCrown Counsel, and Boyd Jayasuriya, Crown Counsel, for the Attorney-General, applicant.—In regard to the preliminary objection, sections 35S>and 357 are not exhaustive of the revisional powers of the Supreme Court-Vide sections 19 and 36 of the Courts Ordinance and section 5 of theCriminal Procedure Code.
Once proceedings are instituted a case is pending trial, whether it bea summary or a non-summary case. The Supreme Court has consistentlyexercised its powers of revision in this manner. See Alles v. PalaniapparChetty 1, In re Application of Abdul Latiff 2 and Costa v. Peris 3.
In regard to the main application, the duty of framing a charge is om>the Magistrate. He cannot delegate this duty to anyone else—Jbbert v~Perera 4; Solicitor-General v. Aradiel 5.
The Magistrate cannot decline to proceed with. the. inquiry or make-an order of discharge when the prosecution fails to furnish particulars.
Colvin R. de Silva, in reply.—The duty of the Magistrate is to carryinto effect the instructions of the Attorney-General “ subject to the–provisions ” of the Code. Vide section 390 (2) of-the Criminal Procedure-
(1917) 19 N. L. R. 334.
(1917) 19 N. L. R. 346.c
2 (1933) 36 N. L. R. 326 ; 13 C. L. Rec. 73.
23 N. L. R. 362 at 367.
6 (1948) 50 N. L. R. 233 at 235.
Oode. A Magistrate may in appropriate cases disregard instructionswhich are manifestly in contravention of the provisions of the Code.
A charge, to be valid, requires amplification—Section 169 of the<Criminal Procedure Code.
E. D. Cosme, with O. M. da Silva, for the 2nd accused respondent.
A. I. Rajasingham, with G. Kamalanathan, for the 3rd accusedarespondent.
Cur. adv. vult.
November 20, 1950. Nagamngjusi J*—-
r This is an application by the Attorney-General to revise an orderdated April 27, 1950, made by the learned Magistrate of Nuwara Eliya,.and iti focuses attention on the question as to what are the duties and-obligations of a Magistrate vis a vis the Attorney-General.
A report under section 148 (1) (6) of the Criminal Procedure Codewas made to the Magistrate by an Inspector of Police complaining thatAhe three respondents and another accused person had committed certainoffences which were set out in duly numbered paragraphs and which-disclosed no less than fourteen charges. The learned Magistrate gavehis mind to the charges, separated the charges which affected each ofthe accused and read out to each of them as they put in their appear-ances the charges relevant to each of them. The inquiry was taken upon March 9, 1950, and after learned Crown Counsel opened the case,Counsel for the 1st respondent -applied that “ the Court will be pleased"to direct that it (charge 2) should contain such particulars of the manner'•of abetment alleged as will give notice to the accused which form ofabetment as defined in section 100 of the Penal Code the Crown is relying-on ” and added that his application extended to “ partieularisation■of the acts of abetment ”. Crown Counsel opposing the applicationstated that it was unnecessary and that he was not prepared to giveparticulars of the manner of abetment, contending thati sufficientparticulars had already been furnished in the counts as framed. Thelearned Magistrate made an order directing the prosecution to giveparticulars of the abetment in respect of the counts where the res-pondents were charged with abetment and in the course of the orderobserved that the remark of Crown Counsel that he was not prepared;to give particulars of the manner of abetment rather startled him.drown Counsel thereupon moved for a date for “ consideration to giveparticulars ” and the inquiry was put off for March 15. On the following•day, namely March 10, 1950, the Attorney-General called for the recordand acting under the provisions of section 390 (2) of the Criminal Pro-cedure Code sent instructions t© the Magistrate dated March 16, 1950,an these terms : —
The Magistrate, Nuwara Eliya,
Alan Edward Percival Rose., Kt., K.C., His Majesty’s Attorney-
*General for the Island of Ceylon, do hereby, under the provisions of
section 390 (2) of the Criminal Procedure Code, order you to proceedwith the inquiry against—
Joseph Jeyeratnam Kanagar atnam,
Jim Albert Navar atnam,
) itengasamy Mutturetty,
Mervyn Kingsley Joseph Koelmeyer,
accused in Case No. 4,944 of your Court, on the charges which have-been read over by you to the said iaccused under section 156 of theCriminal Procedure Code.
Given under my hand at Colombo this 16th day of March, 1950.
(Sgd.) Ax,ast Pose,
Attorney-General^
When the inquiry was resumed on March 22, 1950, the learned Magistrateinformed Counsel of the Attorney-General’s instructions to him, where-upon Counsel for the 1st respondent raised the question of t,he validity ofthe instructions by formulating his objection in the form of the followingtwo questions : —
Has the Court the power to vacate 'the order already made ?
If the Court has not got the power, can the Attorney-General.
confer that power on the Court by instructions ?
These questions appear to have been argued at very great length on.a subsequent date by Counsel for the respondents and by the learnedSolicitor-General for the Attorney-General..
The order on these questions was delivered by the Magistrate onApril 27, 1950, in t-he course of which, after making an observation that“ it would appear that there is a duty cast on the Magistrate toconsider whether the instructions of the Attorney-General are instruc-tions in terms of the Code ’ ’, he ruled :'
“ By my order of 9.3. 50, I have held that- the abetment-
charges against the 1st, 3rd and 4th accused (respondents) are not-proper and valid charges as they do not conform to the provisions ofChapter 17 of the Code. Therefore the instructions of the Attorney-General to proceed on these , charges which have been held by this.Court to be not in terms of the Code are instructions which this Courtis unable to give effect to. In the result this inquiry as against the1st, 3rd and 4th accused will proceed on the charges other than the-charges of abetment.”
The legality and propriety of this order is challenged by the Attorney-General by filing papers in revision. A preliminary objection has teentaken to this application on the grounds, (a) that this Court has no-jurisdiction to entertain the application having regard to the revisionarvpowers of the Court, and (b) that assuming that the Court has, the ordermade by the Magistrate is one which cannot form the subject of reviewby this Court.
XAGAXiljNGrAir J.—Attorney-General v. Kanagaratnam .1-25
In support of the first ground, attention was drawn to section 356>of the Criminal Procedure Code which runs as follows : —
The Supreme Court may call for and examine the record of anycase, whether already tried or pending trial in any court, for thepurpose of satisfying itself as to the legality or propriety of atrysentence or order passed therein or as to the regularity of the proceed-ings of such court.
It was argued that the powers of this Court to call for and examine therecord of cases are limited to cases either “ already tried or pending trial ‘' .The argument was elaborated by putting forward the contention thatthe term “ pending trial ” has reference in respect of non-summaryproceedings to a stage subsequent to the presentation of the indictmentagainst the accused persons and not to any proceedings had anteriorthereto and would not apply to a non-summary inquiry held by aMagistrate under Chapter 16 of the Code.
I am wholly unable to accept this contention. The phrase “ whetheralready tried or pending trial ” has been used in the section with a viewto comprehend all cases that a Criminal Court may take cognizance ofas all cases, whatever their character or nature may be and whateverthe stage they may be in, must necessarily fall under the two broaddivisions of (a) cases that have been concluded, or (b) cases that havenot been concluded. The word “ tried ” as used in this section is notto be given a technical or narrow meaning but the popular and broadone in the sense of “ disposed of ”. A non-summary inquiry beforea Magistrate may end in an order of discharge being made therein; the-Attorn ey-General may himself concur in the propriety of the ordermade by the Magistrate and refuse to re-open proceedings. A partydissatisfied with the order made by the Magistrate would not be liableto canvass the correctness of that order by an application to this Courtby way of revision if it be held that the term “ already tried ” is to- begiven a technical meaning in the sense in which the word “ trial ” is-used in the headings to Chapters XVIII, XIX and XX of the CriminalProcedure Code. In fact, in practice applications have been made to-this Court by parties to have orders of discharge made by Magistrate-in non-summary cases revised. In regard to cases triable summarilyit was similarly contended by learned Counsel for the respondents thata case could be said to be pending trial only subsequent to the chargesbeing read over by the Magistrate to the accused person.
If these submissions are correct a large class of matters would on thebasis of the contention be beyond the purview of this Court to reviewor rectify—matters in which the Court has consistently and over a longperiod of years exercised its powers of revision. The learned actingSolicitor-General referred to various such matters, such as the issue bya Magistrate of a warrant in the ease of an offence in respect of whichsummons should issue in the first instance or of a warrant without en-dorsing bail in a bailable offence (section 51) or of a proclamation inrespect of a person alleged to be absconding (section 59) or of a searchwarrant for a document in the custody of posted or telegraph authorities(section 68 (3) ) or of an order requiring a person to execute a bond for
-keeping the peace (section 81)| or imposing imprisonment for failureto give such security (section 94) or making an order for disposal ofproperty produced at the conclusion of the inquiry or trial (section 413)or of property in respect of which an offence is alleged to have been•committed (section 417). In all these cases it may be said that there.is no case already tried or pending trial and its would then follow thata party would be without remedy where an error has been committediby a Magistrate.. Mr. de Silva, while conceding that such would be-the result, however, seeks to surmoqpt the difficulty by putting forward•the view that in respect of these the Legislature has provided no remedyand that the true position is that there is a lacuna in respect of thesematters. He sought to reinforce^ his argument by asserting that the•question had not arisen before and had in consequence not been con-sidered by his Court. An examination of the reported cases, however,-reveals the contrary.
In the case of Alles v. Palaniappa Che tty 1 the Magistrate took noh-•summary proceedings against the accused person and acting under the‘provisions of the Fugitive Offenders Act, 1881, issued a warranti for hisarrest. The accused then applied by way of revision to have the warrant-withdrawn on the ground that the Fugitive Offenders Act did not apply"•to the' circumstances o'f 'his case. Objection was taken to the application■inter alia, on the specific ground that the non-summary proceedingsbefore the Magistrate did not fall within the class of cases “ already triedor pending trial Shaw J. repelled the objections in these words : —
“ The powers of revision given to the Supreme Court by sections 21and 40 of the Courts Ordinance are very wide and general, and in avery recent case, No. 6143, P. C. Colombo, the Chief Justice expressedhis opinion that in a proper case they might be exercised in respectof non-summary proceedings.”
The case referred to by Shaw J. is that of In re application of AbdulJLatiff a which was argued before a bench of two Judges consisting ofWood Fenton G.J. and He Sampayo J., and tjhe former of whom in-delivering the judgment of the court observed:
“ . . . while I have no doubt as to, an<l have certainly no intentionof restricting, the width and generality of the powers of the SupremeCourt under section 21 of the Courts Ordinance, it is equally clearthat we ought not to interfere lightly in non-summary cases.”
An order of a . Magistrate purporting to be made under section 419 of-the Criminal Procedure Code in the course of non-summary proceedings—rthe charge was -one of criminal misappropriation of property valuedover Es. 1,300—held before him was revised by this Court withoutobjection being raised to the competency of this Court to deal with the-matter by way of revision—Costa v. Peris 3.
I should myself construe the words “ pending trial ” in this sectionas the equivalent of “ not finally disposed of by an order of acquittal,-'conviction or d:scharge ”, and to embrace every stage of the case from*the presentation of a report to Court, and in the case of a non-summary
1 (1917) 19 N. L. R. 334.2 (1917) 19 N. L. R. 346.
(1933) 35 1ST. L. R. 326 ; 13 C. L. Rex 73.
offence through the entire gamut of non-summary proceedings in the:Magistrate’s Court, and. in respect of hoth summary and non-summarycases to the final order made by a Magistrate or by a higher Court, endingin a verdict of acquittal or conviction or in an order of discharge.
I now proceed to notice another argument of Counsel in this connectiomCounsel’s argument based on the wording of section 356 is founded onthe assumption that the jurisdiction of this Court in revision is conferredon it by that section. In truth and in fact it is not. This section merelyreiterates a jurisdiction that this Court stood already possessed of andre-enacts that it extends to all eases before a criminal Court. I sayre-enacts because the jurisdiction of this Court to act in revision is con-ferred on it by section 19 of the Courts Ordinance, which, to quote onlywhat is relevant for the purpose of the present discussion, enacts :
“ The Supreme Court shall have and exercise sole and exclusive-cognizance by way of revision of all causes, prosecutions, matters andthings of which any original Court may take cognizance.”
The term “ jurisdiction ” I use in this context in the sense of the authority"conferred on the Court to deal with a matter and not in the sense of the-power the Court might exercise in pursuance of that authority. Thewords of section 19 conferring authority as set out above, it would be-noticed, are subject to no limitation or modification of any kind or nature-whatsoever. The words are perfectly general and extend to all mattersboth civil and criminal though I have not set out the words which aremore properly applicable to civil proceedings. There is nothing singular-in this, in as much as unless this Court as the highest tribunal of judicature-in the Island were vested with such wide powers, no relief would beavailable in a large class of matters in respect of which no remedycould be obtained either by way of appeal or by means of any of thewell known writs that, issue from the Registry of this Court. Further-more, that neither section 356 nor any of the other sections of the Codewas intended to limit the powers of this Court is made manifest by theCode itself, which in section 5 provides :
" ‘ Xo thing in this Code shall be construed as derogating from thepowers or jurisdiction of the Supreme Court or of the Judges thereofor of the Attorney-General, ”which are perfectly plain.
It was also attempted to narrow down the jurisdiction of this Courtby reference to the provisions of section 37 of the Courts Ordinance.To my mind, it is clear that this section does not limit the jurisdiction,but it indicates the nature of the order the Court equld make—in other-words, the powers of the Court in the exercise of its jurisdiction inrevision, and this notwithstanding the use therein of the phrase “ subject-to the provisions in the preceding section and in the Criminal Procedure-Code contained ”. The preceding section, namely section 36, in the first-part thereof confers powers on this Court in its appellate jurisdiction to-coreet all errors committed by an original Court and in the secondpart thereof proceeds to indicate that in the exercise either of its appellate^jurisdiction or of its revisionary jurisdiction, it should not interfere,unless the error shall have prejudiced the substantial rights of either-party. This part of the section is substantially re-enacted in section 425■of the Criminal Procedure Code. Neither the second part of section 36of the Courts Ordinance nor section 425 of the Criminal Procedure Code,therefore, can be said to limit the jurisdiction but rather the maimer ormode of the exercise of that jurisdiction.
The qualifications contained in the Criminal Procedure Code are saidto be those prescribed in section 356, 357, 358 and 425. I have already-discussed the scope of sections 356 and 425 and indicated my viewthat far from making an attempt toccurb the jurisdiction of the Courtthey point to the jurisdiction being co-extensive with the whole rangeof cases of which a Criminal Court may take cognizance. Section 357(1) is a provision which in effect indicates, even as section 37 of the CourtsOrdinance does, what orders the Court may pass in the exercise of itsrevisionary powers. Sub-section (2) of the section and section 358 areprocedural sections, indicating that no order should be made withoutthe accused being given an opportunity of being heard and that no partyas of right can claim to be heard. Sub-section (3) of section 357 enactsthat a finding of acquittal should not be converted into one of convictionin the course of revisionary proceedings. This sub-section cannotproperly be said to take away any jurisdiction the Court may possessin regard to revisionary proceedings. On the other hand, this is a limi-tation on the nature of the order this Court may make and does notaffect its jurisdiction, for it is on the basis that the jurisdiction existsthat the direction is given to the Court that it shall not alter a verdict•of acquittal into one of conviction but leaves the Court free to make anyother order the circumstances may demand. For instance, there wasa time when this Court could have sentenced a.n accused person foundguilty on a capital charge to transportation for life. This particular-sentence was thereafter abrogated. Can it be said that the jurisdictionof this Court in regard to capital offences was in anywise therebyaffected ? I do not think so. The term “ jurisdiction ” may be used,in' more than one sense. The jurisdiction in the sense of the authority•of the Court to try a capital case was in no way affected while itsjurisdiction in the sense of the nature of the sentence it could pass wasmodified. If one looks at the main provisions of section 37, it wouldbe found that it enumerates all possible orders that the Court may deemit necessary to make, in fact every conceivable order is catalogued inthis section. I do not consider that this section in any. way limits thejurisdiction in the first of the senses referred to in regard to revisionmatters nor is there either in section 36 of the Courts Ordinance or inany other provision of the Criminal Procedure Code any rule that couldbe- said to so limit it.
I therefore hold that this Court is vested with ample jurisdiction to■entertain this application.
I shall now deal with the next ground of objection, namely, that theorder sought to be revised is one in respect of which no revisionaryproceedings lay. The foundation for this argument is that the ordercomplained of is not in fac£ an order but, to use the language of Counsel,“ a transaction ” between the Magistrate and theAttorney-General
whereby the Magistrate “ replies ” to the Attorney-General in regard
to the order issued by the. latter to him. I do not agree with this con-tention either, for the reasons I shall set out presently in discussing themain application.<
This brings me to a consideration of the principal questions involvedin this application. It cannot be emphasised too strongly that thisapplication is in connection with a non-summary inquiry. Chapter 16of the Code requires the Magistrate to hold the inquiry. in such a case.In view of the phraseology of section 392, it would be apparent that itis the right of the Attorney General to conduct the prosecution before-the Magistrate, so that it will be correct to say that the Magistrate isa-equired to conduct the inquiry under Chapter 16 with the assistanceof the Attorney-General. The inquiry itself should be conducted in-accordance with the law and in conformity with the provisions of the• Code and in particular of Chapter XVI. At the conclusion of theinquiry a Magistrate is empowered to make one of two orders, eitheran order of discharge or an order of committal. Where the Attorney-General is of opinion that the order of discharge should not have beenmade, he can in the exercise of the powers conferred on him by section592 of the Code direct the Magistrate either to commit the accused tothe Court nominated by him or to re-open the inquiry and give suchinstructions as he deems proper. Where the Attorney-General doesdirect the Magistrate to .commit an accused person to a higher Courtor to re-open the inquiry,. the order of the Attorney-General has the effectof superseding the order made by the Magistrate discharging the accused,-and this without any specific Order vacating the order of' discharge.It will be noticed that the Attorney t General directs the Magistrateeither to commit or re-open, and himself does not commit the accused toa higher Court or re-open the inquiry. The directions of the Attorney-General in these cases are imperative, and there is no option left- to theMagistrate but to comply with the order (Section 391).-<
Where the Magistrate has made an order of committal of the accused,one of three courses is open to the Attorney-General ;.
He may, if he concurs in the committal of the’ Magistrate, proceedto draw up an indictment ’ for trial before a higher Court(section 165 (f) ), an over-riding power to alter the venue ofthe trial being vested in the Attorney-General ; ori(b) He may direct the Magistrate to take further evidence, and in thiscase the committal of the Magistrate would stand and theMagistrate would, after taking fresh evidence, return the certi-fied copy to the Attorney-General, who would be at liberty • toadopt either course (a) or course (c) ; or •,
c) He may if he takes the view that the committal is not justified, onthe evidence recorded, or for any other reason, notwithstandingthe order of committal of the Magistrate quash the committal,and the proceedings thereupon terminate and no further – stepscan he taken by the Magistrate against the accused (section 383)t.In regard to every order of committal or discharge made by theMagistrate, the final word, therefore, as to whether the < committal' or■ order of discharge should stand or not is with the Attorney-General.
It is of the greatest importance to note in this connection that theorders of committal or discharge made by a Magistrate are judicial orders-made .by him in the exercise of judicial functions. These sections,391, 388 and 399 permit of the intervention of the Attorney-Generalonly after the inquiry is concluded and not during its pendency.
Hie right to intervene during the pendency of an inquiry is conferredon the Attorney-General by section 390 of the Code. The function of■sub-section (1) of the section is to vest in the Attorney-Genera! a rightto call for any record from the Court either of a Magistrate or of a DisrictJudge, and in order to indicate that that right extends to all cases, what-ever the stages they may be in, the sub-section uses the phrase inany criminal case in which an inquiry or trial has been or is being held ",that is whether concluded or yet pending. Sub-section (2) then pro-ceeds to confer on him powers to issue instructions to a Magistrate—-the scope and extent of the instructions being circumscribed, if at all,by the qualifications, (a) that the instructions should be with regard tothe inquiry, and (b) that the instructions should be such as he mayconsider requisite. These qualifications in reality on a close scrutinydisappear as any qualifications at all. Any instructions that may begiven must necessarily be given in regard to the inquiry itself. Andwhen the Attorney-General is empowered .to give such instructions as-he may consider requisite, the language, far from imposing any limitation,
■ vests an unlimited discretionary power in him. But it is said that the.latter part of the sub-section does create a limitation in regard to thenature of the instructions that the Attorney-General may give, ft is-urged that the limitation is created by the words “ It shall be the dutyof the Magistrate to carry into effect subject to the provisions of this Code-the instructions of the Attorney-General ” and emphasis is laid on thephrase, “ subject to the provisions of this Code ”. It is sought to readthis phrase into the earlier part of the sub-section and to read it in thisway:“ It shall be competent for the Attorney-General … to give-
such instructions subject to the provisions of this Code … as he' mayconsider requisite ”. I do not think there is any warrant for transposingthis phrase in this manner. If it was the intention of the Legislaturethat the nature of the instructions should be subject to the provisionsof the Code, it could very well have said so, but it has not, and it seems-to me that it has deliberately not said so for good reasons.
It is then said that the same effect is achieved by the Legislatureenacting that the Magistrate is to carry into effect the instructionssubject to the provisions of the Code and that a duty is thereby cast onthe Magistrate to see that the instructions he is called upon to carry outare instructions which do not offend against the provisions of the Code rit has also been suggested that were it otherwise the Magistrate wouldbe under an obligation to carry out an absolutely illegal order. Theanswer to that is that it is inconceivable that any Attorney-Generalwould issue instructions that would be so palpably illegal. Should sucha case ever arise, other remedies should be sought for and would be avail-able to an aggrieved party. The omission to incorporate the phrase“ subject to the provisions of the Code ” in sections 388, 389, and' 391has also been adverted to as, supporting, the contention. I do’ not
ri-iiriV any speeial significance Gan be attached* either to. the omission ofthe phrase in these sections or to the inclusion of the phrase in section 390.I qtti satisfied that the phrase “ subject to the provisions of this Code ”,however, relates to the manner in which the Magistrate is to carry out theinstructions, that is to say, he is to carry out the instructions in con-formity with the provisions of the Code, such, for instance, as the takingof evidence in the presence of the accused person and of permitting theaccused or his lawyer to cross-examine the witnesses to record theevidence in writing, and so on. *
The upholding of the contention put forward would without the leastdoubt tend to introduce chaos and uncertainty into judicial proceedings.If the Attorney-General takes a different view from that of the Magistratein regard to some particular question that arises in the conduct of aninquiry, and he gives instructions directing the Magistrate to act in aparticular manner, and were it open to the Magistrate to sit in judg-ment on the Attorney-General’s instructions and disregard them, theproceedings would reach a deadlock. It is said that in such an event it Willbe open to the Attorney-General to apply for a writ of mandamus or put inmotion some other machinery to see that his instructions are carried out.Assuming that a mandamus lies in those circumstances. I cannot believethat it was the intention of the Legislature to permit such a situation to arise.
The difficulties would present themselves only on the basis of theconstruction placed upon the section by Counsel for the respondents,but if the section is construed according to its plain and true meaning,I cannot see that there is any over-riding power in the Magistrate toquestion the' validity of an order or instruction issued by the Attorney-General, and no impasse would then result. That this should be so isalso clear from the consideration that it is the Attorney-General who isultimately responsible for the indictment, that is to say, for thesufficiency of the charge upon which an accused person is committed totrial and for the proper conduct of the anterior inquiry according to the-provisions of law, while no such responsibility is placed on the Magistrate.
feet be an order. I do not think that any Magistrate would feel hurtthat inroads have been made upon his dignity, status or position as ajudicial officer by the use of the word “ order ” by the Attomey-GeneraLin conveying the instructions, which is the proper legal term to indicatethat an instruction or direction or guidance issued or offered should be-carried out..
It seems to me that the difficulty in this case has arisen as a result ofthe attitude adopted by Counsel for the prosecution before the Magistratein conveying his submission that the defence was not entitled to ask forany further particulars than were already furnished in the Gounts readout to the accused persons, for otherwise the learned Magistrate would,not have made a pointed reference to the fact that he was rather startledby the statement of Counsel for the prosecution that he was not preparedto give particulars of the manner of abetment. It may be that notmerely the words themselves but the manner and the tone in which thewords were uttered annoyed the learned Magistrate. The situationthus created certainly does not appear to have been improved by theposition. taken up by the Crown before the Magistrate in regard to thepowers of the Attorney-General in relation to a Magistrate. The learnedSolicitor-General in his argument before the learned Magistrate appears-to have contended that the Attorney-General was in relation to a Magis-trate in the position of an appellate tribunal and that the orders of the-Attorney-General had to be implicitly obeyed by the Magistrate. Atthe argument in this Court, however, the learned Acting Solicitor-Generaldid not support the analogy, but he rather strove to define the powers ofthe Attorney-General in relation to a Magistrate as supervisory. I do-not think, having regard to the framework of the Code, it is necessary *to define the relationship by reference to the powers of an appellate-tribunal or to supervisory powers, for the same result can be achievedby drawing attention to an analogy in the law of partnership. I think the-Attorney-General and the Magistrate are more like eo-partners withresidual powers in the Attorney-General to direct and guide the Magis-trate in the common task which both of them are jointly engaged in ofbringing offenders to justice. If the relationship is viewed in this waythere would be no conflict and the wheels of the legal machinery wouldrun" smooth. .'
If ’ in a ease it should ever happen—say through an error of a typistor clerk or even through the oversight of a member of the Attorney-General’s department—that an order palpably erroneous is issued to the-Magistrate by the Attorney-General, the proper course for a Magistrateto pursue in those circumstances would be to refer the matter back to*the Attorney-General, and inquire whether the instructions eorrectlyset out his view, indicating at the same time any doubts that may have-arisen in his mind in regard to the regularity of the order. In suchan ‘event I do not' think any one can doubt that the Attorney-General"himself would be the first person to rectify the error and would expresshis feeling of obligation to the Magistrate for pointing out the defect.Should the Attorney-General, on the other hand, say that the instructions-need no modification, thei Magistrate has no further responsibility inthe matter 'but to carry them out, for it may then well be a case where-diametrically opposite views are taken on the subject of the instructions.
X should also say in this connection that it will not .he proper for aMagistrate to disclose to the accused persons or to' members of the publicany instructions he may have • received in regard to the inquiry pendingbefore him. The instructions are of a confidential nature and neverintended to be and should not be divulged..
There is no specific provision in the Code which expressly enables aMagistrate to- direct the prosecution to furnish particulars in order toamplify a charge. The absence of such a provision ‘is referable to thepolicy of the Code which regards*the framing of the charge and amendingit from time to time as part of the duty of a Magistrate. But neverthelessthe Magistrate is entitled to have ^the assistance of the prosecution andthere can be little doubt that the prosecution -should ordinarily complywith a request of the Magistrate. If the prosecution is unhelpful, it isopen to the Magistrate to Call for notes of the investigation made by thePolice Officers and with the material then available make the necessaryamendments. If the material available be inadequate, he may, afterexamining the principal witnesses, amend the charge. But where theprosecution fails to furnish particulars, the Magistrate cannot fQr thatreason decline to proceed with the inquiry or make an order of::dischargeof the accused person. There is no provision in the Code which sanctionssuch a course.
It seems to me that in fact the learned Magistrate fully appreciatedthis position for, after making the order that the prosecution shouldfurnish the particulars, he proceeded to make the further order that theprosecution was to submit the notes of inquiry to him. This ordersuggests to my mind that it was the intention of the learned Magistratein the event of the prosecution not furnishing any or adequate particularsto equip himself by a perusal of the notes of inquiry in order to dischargethat duty. The course the events took did not permit the Magistrateto carry out his own intentions. On the day after the learned Magistratemade these orders the Attorney-General called for the record and issuedthe order dated 16th March fully set out at the beginning.
It may be a question whether it was really necessary for the Attorney-General to have intervened at that stage- There certainly was noirregularity in the proceedings and the order made by the learnedMagistrate can hardly be said to be one which required to be set rightor one which if not set right would have tended to deflect the true courseof proceedings in his Court. The learned Acting Solicitor- Generalsubmitted that because of the view taken by the Attorney-General’sDepartment, that the Magistrate would not proceed with the chargesof abetment unless the particulars were furnished* the Attorney-Generalintervened- A perusal of the proceedings had up to the stage at whichthe Attorney-General made his order does not sustain the submissionmade by the learned Acting Solicitor- General* but apparently someobservation of the Magistrate may have given such an indication tothe prosecuting Counsel, for when the Magistrate came to make his orderof April 27, 1950, he expressly states that he had held that the abetmentcharges against the 1st, 3rd and 4th accused (respondents) are not properand valid charges as they do not conform to the provisions of Chapter 17<of the Code. In the light of these observations of the learned Magistrate,
It is not possible to take the view that the intervention of the Attorney-General was -unnecessary at the stage he intervened.•
It was argued on behalf of the Attorney-General that the order of theAttorney-General amounted to no more than directing the Magistrateto proceed with the inquiry according to law and left it open to theMagistrate to amend the charges if he deemed fit. I do not think thatsuch a construction of the order is possible; if that is all that was meantthe order of the Attorney-General would have been a superfluity. But,as was pointed out by Counsel for the respondents, the purpose of theorder was to direct that the Magistrate should proceed with the inquiryon the basis of the charges which had- teen read over by him,, that is to say,that the Magistrate should continue the inquiry without amending thecharges but as they stood at the date he read them out to the accused.
These facts raise the fundamental question whether the Attorney-General can compel a Magistrate to conduct an inquiry upon chargeswhich the Magistrate has rightly or .wrongly held to he defective. AsI remarked earlier, the responsibility for conducting the inquiry and forpresenting an indictment embodying proper charges is placed on theAttorney-General and not on the Magistrate. I think I have alreadysaid enough in discussing the provisions of the relevant sections toindicate my view that it is not open to the Magistrate to question thepropriety, regularity or validity of the Attorney-General’s order, and1 do not think that any question of vacating the order made by the learnedMagistrate or of the conferring of any power on him by the Attorney-General by, means of instructions arises. By the Magistrate carryingout the instructions of the Attorney-General, the order made by theMagistrate would get submerged in the subsequent proceedings just as,under the provisions of sections 388, 389 and 391 other orders made bythe Magistrate get submerged. All that the Magistrate need have-done op receipt of the instructions of the Attorney-General was to haveindicated to the defence that he was proceeding with the inquiry on the■charges as read out by him. If the accused were dissatisfied with thatorder, then it would have been open to them to pursue any legal remedythey deemed proper. In such an event, it would be for the Attorney-General to sustain the correctness of his instructions. If the’ accusedpersons succeeded in obtaining relief, then the order of the Attorney-General would cease to be effective, but that must and can happen onlyin other proceedings and before another tribunal, and it certainly wasnot open to the Magistrate to refuse to carry out the instructions of theAttorney-General.
The effect of the order issued to the Magistrate by the Attorney-General is that in the Attorney-General’s opinion the charges do notstand in need of amendment by the furnishing of more particulars thanwere to be already found in the charges read out to the accused. Ifthe charges were invalid, as was held by the learned Magistrate, and the-inquiry proceeded on the invalid charges, the validity of the chargescould be called in question by the accused persons both before trialin the Court of trial and, if unsuccessful before the Court of trial and thetrial ended in a conviction by way of appeal thereafter.
It lias been contended by Counsel for the respondents in. regard tothe operative part of the order made by the learned Magistrate that theorder of the Magistrate means ■ nothing more than that he was not?prepared to proceed with the charges of abetment as then framed butnot that he was not prepared to proceed with the charges of abetmentafter making the neeessary amendments in the charges. It was on thebasis of this interpretation of the order that the argument was putforward that what the learned Magistrate termed “an order dated27. 4. 50 ” was nothing more than a “ reply ” to the Attorney-Generalin public in regard to a “ transaction ” between him and the Attorney-General, and that no application by way of revision there-fore lay.*
If the Magistrate in this ease had merely declined to carry out theinstructions but made no order directing that the charges of abetmentshould be excluded from the inquiry, then undoubtedly no case forrevision would have been made out, for there would have been np orderin the case capable of revision, for a revision of an order implies theinterference with it to the prejudice of a party. But unless many morewords are read into the Magistrate’s order it is utterly impossible toaccept the interpretation of the order placed by learned Counsel for therespondents. The order is clothed in language which necessarily leadsto the inference that the Magistrate does not propose to proceed at allwith the charges of abetment. Whatever the nature of the “ trans-action ” may be between the Magistrate and the Attorney-General,
Magistrate has no jurisdiction to make an order directing that theinquiry shall not proceed in respect of charges which need investigation,merely because of the existence of some such “ transaction ”.
The only powers vested in a Magistrate in respect of charges he isinquiring into are: (a) to discharge an accused person in respect of anycharge where the Magistrate considers that the evidence led is notsufficient to put the accused on his trial—-this the Magistrate can onlydo after recording all the available evidence; (b) to discharge the accusedat any stage if the Magistrate considers the complaint to be groundless(section 162). The order of the Magistrate that the inquiry will proceedon the charges other than the charges of abetment does not fall undereither class of orders that a Magistrate can make under section ■ 162,for he has not expressed the view that, there is an: .insufficiency of evidenceor that the complaint is groundless. The order of the learned Magistratecannot in these circumstances be sustained.'
I therefore set aside the order of the learned Magistrate dated April27, 1950, and remit the case for the inquiry to be proceeded with.
Before, however, leaving this record, I feel it my duty to saythat it is a matter for regret and one that should cause grave concernto all engaged in the administration of justice that nothing tangiblehas been done in these proceedings though over nine long months haveelapsed since the plaint was filed, and it is to be hoped that even at thislate stage an effort would be made to have t-be inquiry concluded without-further avoidable delay, if not for other reasons, at least in fairness to>the accused persons.‘
Pullb J.—
I agree that the contention on behalf of the respondents that thisCourt has no jurisdiction to entertain the present application fails.
It was argued that the words “ whether already tried or pending trialin any Court ’ ’ in section 356 of the Criminal Procedure Code have theeffect of restricting the revisionary jurisdiction to summary or indictablecases in which verdicts have been entered and to other cases, whetherin a Magistrate’s Court or a District Court, in, which the stage has beenreached for the trial to proceed. after %he plea of the accused personhas been taken. Whatever interpretation the words “ or pendingtrial ” are capable of- bearing any( difficulties arising therefrom areresolved by the very wide powers of revision conferred by section 19 (b)of the Courts Ordinance read with section 5 of the Criminal ProcedureCode. The latter provides that nothing -in that Code shall be construedas derogating from the powers or jurisdiction of the Supreme Court. –
On the' main point I should like -to make a few observations. It isundisputed that the Code has conferred on the Attorney-General byChapter XVI and by sections 387, 388 , 389, 391 and 392 the widestpowers of control over non-summary proceedings when such proceedingsare brought to a termination by order of commitment or an order ofdischarge. Again, it is not disputed that before the proceedings arebrought to a close the Attorney-General is empowered “to give suchinstructions with regard to the inquiry as he may consider requisiteIn my opinion the amplitude of his powers and the exercise thereofcannot be'called in question by the ’ Magistrate to whom the instructionsor the order, whichever term one may use, is addressed. Section 390 (2)gives, in my view, the Attorney-General a free hand to do all that hedeems necessary because the duty is cast on him to present an indictmentor quash a commitment or to order a discharge at any stage of -the non-summary proceedings or re-open an order of discharge made by theMagistrate, and it is the Attorney-General who takes the ultimateresponsibility for putting a person on trial by indictment and for conduct-ing the trial. If an order made by the Attorney-General is not on theface of it bad, I think there is no legal process by which the reasons forthe order can be canvassed.
On March 9,1950, the learned Magistrate concluded his ’ order
in the following words ; “ Xn the result I direct the prosecution to giveparticulars of the abetment in the counts where the 1st, 3rd, and the4th accused are charged with abetment As I look at the matterit is not necessary to decide whether this order amounted to an expressrefusal to proceed with the inquiry on the charges of abetment. Icannot blame the prosecution for interpreting that order in the sameway in which the learned Magistrate did in his order of April '27.These are his words, “ By my order of the 9th March, 1950, I have heldthat the abetment charges against the 1st, 3rd and 4th accused are not properand valid charges as they do not conform to the provisions of Chapter 17 ofthe Code ”.
Whether the view taken*by the prosecution or by the Magistrate asto the sufficiency of the particulars in the charge is the right one. is not
the crucial question, The questions •which conclude the mutter are (a)whether- the Attorney-General had the power to direct the Magistrateto proceed with the charges in the form in which they were read out tothe respondents and without further particulars being supplied by theprosecution, and (6) whether it was competent to the Magistrate todispute the correctness of the order. To my mind the Attorney-Generaldid have the power to make the order and it was not open to the learnedMagistrate to do anything but carry it out.
In my opinion the application in revision is entitled to succeed.
Order set aside.