088-NLR-NLR-V-19-In-re-APPLICATION-OF-ABDUL-LATIFF.pdf
( 346 )
1917.
Present : Wood Renton C. J. and De Sampayo J.
In re Application of Abdul Latiff.
P. C. Colombo, 6,143.
Writ of prohibition—Revision—Power of Supreme Court in non-tupvmary
cases—Cross-examination-—Power of Judge to control—Search warrant.
i
No mandate ofprohibition canbe issued toaPoliceMagistrate
•unless he has acted in excess of his jurisdiction.
The Supreme (3ouffr—ooight not to interfere lightly in the < exerdise•of its powers of revision in. non^stimmftry cases.'
A Judge has the right to control cross-examination in regard j 'iboth j
-to its direction and to its volume. That right must, however, be■exercised with the utmost discretion.?
Where one partner charged another (in a non-summary , case)with criminal breach of trust,the Magistrateissueda)| search
warrant to securethe productionand inspectionofall the '^partner-ship books.^
Held, that theMagistrate hadpower to dosoundersection 66
of the Criminal Procedure Code.t
T
HIS was an application in the alternative for a writ of prohi-bition or for the exercise of the powers of the Supreme Court
In revision in regard to certain proceedings in P. C. Colombo, 6,148.The facts are set out in the judgment. This application was referredto a Bench of two Judges by De Sampayo J. Notice of this applicaf-tion was ordered to be served on the Attorney-General.
H. J. C. Pereira, Hayley, and Tisseverasinghe, for the applicant.-
Bawa, K.C., and Elliott, for the complainant, respondent.
Garvin, 8.-Q., representing the Crown.
Cur. adv. vult.
( 847 )
January 27, 1917. Wood Renton C.J.—Iwii.
This is an application in the alternative for a writ of prohibition .1** re Appli-es for the exercise of the powers of the Supreme Court in revision AbduLatiff.in regard to certain proceedings in the Police Court of Colombo inthe.present case.The applicant stands charged with having cheated
the complainant-respondent, with whom he had been in partnership,and al 30 with the offence of criminal breach of trust in respect of asum of Rs. 100,000. The grounds on which this application arebased are (i.) that there is no evidence to support a charge of cheating,
(ii.) that nd charge of criminal breach of trust has been framed, (iii.)that the learned Police Magistrate declined to record certain portionsof the cross-examination of the respondent by the applicant’scounsel, and (iv.) that he issued without jurisdiction a searchwarrant to secure the production and inspection of all the partner-ship books.
It is clear that no mandate of prohibition can issue unless thePolice Magistrate has in one or other. of these matters acted inexcess of his jurisdiction, and, while I have no doubt as to, andhave certainly no intention of restricting, the width and generalityof the powers of the Supreme Court under section 21 of the CourtsOrdinance, it is equally clear that we ought not to interfere lightlyin non-summary cases.
I agree with counsel for the applicant that there is on the record,as it stands, no evidence on which a charge of cheating could be ~framed. There is. no allegation that the applicant' fraudulentlyor dishonestly induced the respondent to part with the property inquestion by any deception as to the purpose for which it was to beused. It does not, however, appear to me that the charge of cheatingis being seriously pressed. The search warrant is founded on thecharge of criminal breach of trust alone. The case is a non-summaryone, and, if the Police Magistrate should proceed further with thecharge of cheating, the Attorney-General will no doubt deal with ■the matter at the proper time. There is nothing in the circum-stances as they stand at present to justify the interference of thisCourt by way either of prohibition or of revision.|
There is evidence, although it -might well have been made moreprecise, in the record to support, a charge of criminal breach of trust.
When the statements of the respondent in examination-in-ehief andin cross-examination and – the mortgages signed on the 3th andattested on February 12, 1916, are closely examined, it is possibleto arrive at the conclusion that the respondent’s case against theapplicant is that the latter converted to his own use a sum ofRs. 100,000 entrusted to him for partnership purposes, and thathis independent dealings with portions of that property in themortgages just mentioned are overt acts disclosing his fraudulentintention. The applicant clearly understood the charge in thatsense, for he not only pleaded not guilty to it, without any exception-
( 348 )
1917.being taken to the charge by his counsel, but gave the names' of
Woodcertain witnesses to prove that the property had, in fact, been trans-
Renton C.J. ferred to him in ownership. In this state of the facts, although thein re Appli- charge is vague and was explained to the applicant only from the
cation of warrant for his arrest, I see no reason to interfere.
Abdul Latiff.
The Solicitor-General informed us that he was not in a positionto make any observations in regard to the alleged refusal by thePolice Magistrate to record part of the respondent’s cross-examina-tion, and the matter is not one with which we are in a position todeal. Every Judge who is trying a case has the right to controlcross-examination in regard both, to its direction and to its volume.That right must, however, be exercised with the utmost discretion.The chief complaint of the applicant’s counsel in this'matter wasthat an admission by the respondent that on the eve of the institutionof the present proceedings he had agreed to submit the points indispute between himself and the applicant to arbitration had notbeen recorded. There will, however, be early opportunities for ,th$rectification of any omission of this kind.
I do not myself doubt that under the third paragraph of section68 of the Criminal Procedure Code the Police Magistrate had fullpower to order a general search for, and inspection of, all the booksof the partnership, if he considered, as the search warrant itselfshows that he did consider, the adoption of that course necessaryfor the purposes of these proceedings. The analogous provisionsof the Indian Criminal Procedure Code, 1882, were construed in the•same sense by the High Court of Calcutta in the case of MahomedJackariah if Co. v. Ahmed Mahomed,l But, apart altogether fromjudicial decisions, it is essential, for the adequate administration ofjustice in this country that th&t power should exist. We are notat present called upon to decide the question whether, under the '■provisions of section 130 -of the Evidence Ordinance, exception*-cauld be successfully taken on behalf of the applicant at the trial tothe admissibility in evidence against him of any of the books coveredby the search warrant, and I do not propose to express any opinionupon that point now. If the manner in which the inspection of the-applicant’s books is being carried out is causing unnecessary incon-venience to him, the Police Magistrate will no doubt be prepared ;-to modify its terms.
The rule nisi for prohibition must be discharged, and the-application for revision dismissed."
1)e Sampayo J.—I agree.
Application refused. i
i (1887) I. L. R. 16 Cal. 109.