037-NLR-NLR-V-30-KANNANGARA-v.-KANNANGARA.pdf
( 149 )
Present: Garvin J.
1928.
KANNANGARA v. KANN ANGARA.567—P. C. Kaluiara, 25,852.
Appeal—Order of discharge by Police Magistrate—Instructions of the
Attorney-General—Criminal Procedure Code, s. 158.
No appeal lies from an order of discharge made by a PoliceMagistrate under section 158 of the Criminal Procedure Codeon a direction by the Attorney-General.
PPEAL by the complainant from an order of discharge
entered by the Police Magistrate od instructions from theAttorney-General.
Soertsz, for complainant, appellant.
U. V. Perera (with Rajakarier), for accused, respondent.
Schokman, C.C., for the Attorney-General.
November 21, 1928. Garvin J.—
The prosecution in this case was initiated with the sanction of theAttorney-General. That sanction was necessary inasmuch as thecharges were of offences punishable under section 454, section 480,and section 180 of the Ceylon Penal Code. Non-summary proceed-ings were taken as required by law, and the record was forwarded tothe Attorney-General in pursuance of the order made by the PoliceMagistrate under the provisions of section 157 of the CriminalProcedure Code. The Attorney-General, acting in pursuance of thepowers vested in him by section 158, directed that the accused bedischarged. In accordance with this direction he was forthwithdischarged. From this discharge the complainant is appealing.
Counsel for the accused takes the objection that no appeal lies.But Counsel for the appellant urges that the discharge here is theresult of a final order pronounced by the Police Magistrate, and is,therefore, an appealable order within the meaning of section 338.
It is to be noted that in the explanation to section 338 an ordercommitting or discharging a prisoner made under section 157 isexpressly stated not to be “ a judgment or final order ” within themeaning of section 338. It is urged that the omission to excludean order of discharge under section 158 supports the contentionthat such an order is appealable. Section 158 enacts that whenthe Attorney-General directs that the accused be discharged heshall be forthwith discharged." Unlike an order of discharge under
30/13( 150 )
1928.
Garvin J.
Kannangara
v.
K annangara
section 157 which a Police Magistrate is empowered to make in theexercise of his own discretion a discharge under section 158 is inthe discretion of the Attorney-General. In communicating theorder of the Attorney-General to the accused and giving effect to it,the Police Magistrate is not giving judgment or making a final orderwithin the meaning of section 338 any more than in the case wherelie is communicating and giving effect to an order made in appealby the Supreme Court.
Having regard to Chapter XVT, as a whole and to the circumstancethat the only section which expressly contemplates an order ofdischarge made by a Police Magistrate in his own discretion (section157), is expressly excluded from the purview of section 338, my ownopinion is that in discharging or committing a person under thediscretions of the Attorney-General the Magistrate is not makingfinal orders such as are contemplated by section 338. But evenif one were to assume that the order of discharge made by the PoliceMagistrate is a final order of the Police Court within the meaningof section 338, then the order is clearly right; for the law states thatupon receipt of the direction from the Attorney-General that theaccused be discharged he shall be forthwith discharged. In so far,therefore, as this discharge is an order of the Police Court, it isunimpeachable. What Counsel is endeavouring to do is to obtaina revision by this Court of the direction given by the Attorney-General to the Magistrate to discharge an accused. I am aware ofno provision of law which enables that to be done. The appellantis, therefore, upon the horns of a dilemma. If the discharge amountsto a final order of the Police Court the order is correct; if it does not.he has no remedy since the law has made no provision for the revisionof a direction by the Attorney-General that the accused be dis-charged under section 158 of the Criminal Procedure Code.
The objection to this appeal is sound and must be upheld. Theappeal is accordingly dismissed.
Appeal dismissed.