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Present: Dalton J.
N0NIS v. APPUHAMY.
129—P. C, Kandy, 17,008,
Appeal—Order of acquittal—Solicitor-General'8 right—Delegation byAttorney-General—Criminal Procedure Code, 88, 336 and 338.
The Attorney-General has no right of appeal under section 338of the Criminal Procedure Code when he is not a party to theoriginal proceedings. The Solicitor-General has no right ofappeal, independently of any delegation by the Attorney-General.
PPEAL by the Solicitor-General from an order of the PoliceMagistrate of Kandy, acquitting the accused.
Schokman, for the Crown.
L. A Rajapakse, for the accused (Amicus Curiae),
June 18,1926. Dalton J.—
The accused was charged in the Police Court, Kandy, withcommitting an offence under the Excise Ordinance, selling fermentedtoddy without a licence. He was found not guilty and acquitted.The reasons for his acquittal are set out by the Magistrate in thefollowing terms:—
" The charge is one of illicit sale. There is only a presumptionthat Bale took place. From the above evidence no proofat all. I discharge accused.”
The Solicitor-General now appeals from this acquittal.Mr. Rajapakse appears as amicus curiae, the accused not appearing,and states he is unable to resist the appeal on the facts. It isadmittedly difficult to understand the reasons given by the Magis-trate. Objection is taken however on behalf of the accused thatthe Solicitor-General has no right of appeal. In support of thiscontention I am referred to a previous decision given by me inP. C,, Kurunegala, No, 28,130, on March 31 last. I there heldthat where the Attorney-General is not a party he has no right ofappeal under section 338 of the Criminal Procedure Code, whateverrights he may have flowing from his commission. It is agreed thatthe Solicitor-General has no right of appeal, except in so far as hecan exorcise a right given to the Attorney-General by the Code, ifthat right is delegated to him.
It has been held by this Court that section 336 of the Code givesthe Attorney-General a right of appeal against an acquittal. 1 amunable to agree, however, that the appeal mentioned in that section
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is anything but an appeal allowed under the provisions of section338. The right of appeal is given by section 338, and that right issubject to the provisions of the three foregoing sections, thosesections limiting and qualifying the right of appeal given by section338 in certain particulars. Hutchinson C.J. makes this clear inA ttorney-General v. Samarakoon.1 As held by Browne J. in AbrahamApptihamy v. Peiris? the principal section in regard to the questionwho may appeal is section 338. There is authority to the contraryin Attorney-General v. Silva? When in dealing with a questionthat came up for decision in that case, Pereira J. seems to haveassumed that a separate and distinct power of appeal'is conferredupon the Attorney-General by section 336, and that the Solicitor-General can exercise that power if it is delegated to him. Up tothat decision 1 am informed that no appeal ran in the name of theSolicitor-General, and I am unable to agree that the assumption ofthe learned Judge was correct. He appears to have appreciatedthe difficulty following upon that interpretation of section 336, forin P. C., Colombo, No. 47,711* in the course of his judgment hepoints out that section 336 does not specify who shall be the partyappellant in the case of an appeal against an acquittal with thewritten sanction of the Attorney-General. The party appellant, itseems to me, is the party given tbe right of appeal by section 338and no one else.
Mr. Shockman has however now elaborated the argument he putbefore me in the case decided on March 31 last and argues thatalthough the complainant here is an Excise Inspector the real partyother than the accused is the Attorney-General. The ExciseInspector is a public officer bringing the proceedings in the courseof carrying out his special duties, and it is urged that he is merely theformal prosecutor who is instituting the proceedings on behalf of theCrown. If that argument is accepted I take it the Excise Inspectorhas no right of appeal himself, since he merely represents the partybringing the proceedings, I am referred to Munasinghe v. Sinnapjmand others? in which a Police Headman instituted proceedings forthe theft of plumbago from Crown land. There de Sampayo J.states it must be presumed that the formal prosecutor institutedthe proceedings on behalf of the Crown, but that was apparentlyfor the reason that the plumbago was stated to be stolen fromCrown land. When considering this and other cases, Bertram C.J.in Sedris v. Singho6 where a question arose as to who was the realprosecutor in the case which came up on appeal, the Crown, a policeofficer, or the person at whose instance the police instituted proceed-ings, appears to express the opinion that it is not the Crown who isthe real prosecutor, although he states he leaves the matter open for
1 U X. L. R. 5.* 18 X. L. R. 70.
1 1 Browne's Reports, 403.-* 4 C. IT. R. 263.
8 17 X. L. R. 193.> 23 X. L. R. 171.
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further elucidation. It is clear from the provisions of section 148of the Criminal Procedure Code that proceedings can be institutedbefore Police Courts by private persons as well as public officers andothers. In the case of the former there seems no reason to doubt thattha section which names such a person the complainant regards him asthe party in the proceedings against the accused person. It wouldappear to be the same also in the case of other classes of persons namedwhether they be peace officers, Municipal servants, or others. Inthe Excise Ordinance also the Legislature has in Chapter VIII. ofthat Ordinance conferred powers upon excise officers in respectof offences and proceedings thereon. Whatever part the Crownmay take in theory in criminal prosecutions, it is impossible todisregard what in practice takes place, a practice which is based upondefinite statutory enactments. I regret I am unable to givethe word “ party ” as used in section 338 (1), the meaning for whichMr. Schokman contends. The whole trend of the section,having regard to the provisions of section 147 seems to me to beagainst it.
If his argument is sound, in the case of a prosecution institutedand conducted by a private person, the section contemplates twoparties joining as it were against the defendant, the Crown and thecomplainant to each of whom the right of appeal is given, I amunable to read such a meaning into the section. If on the otherhand it only contemplates the Crown, why, it may be asked shouldthe Attorney-General be permitted to give the Crown writtensanction to appeal. It seems to me inconceivable that if theLegislature intended it (the section) to include Crown, they wouldnot have clearly stated so. As a matter of fact it was quiteunnecessary, for the Crown has power apart from the Code to comp-in if it wishes (Queen v. Herat*). They were legislating for somethingoutside the prerogative, and had in view the actual prosecutor asbeing the “ party ” who may prefer the appeal, and not the personwho has been described by Burnside C.J. as the “ real ” prosecutor.The use of the word “ real ” is capable of being misunderstood. Itake it, he means “theoretical.” If the Attorney-General is theactual prosecutor, and(the proceedings themselves will clearly show,then under the section it is “ a case or matter to which he is aparty,” to whom a right of appeal is given In such a case he candelegate his powers under section 393, but not otherwise.
I have therefore come to the conclusion that in this case theSolicitor-General has no right of appeal, and the appeal must,therefore, be dismissed.
i 2 C. L. Ii. IIS.
NONIS v. APPUHAMY