004-NLR-NLR-V-76-P.-V.-VELU-Petitioner-and-VELU-son-of-Ramasamy-and-another-Respondents.pdf
WEERAMANTRY, J.—Velu v. Velu
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Present: Weeramantxy, J.
P. V. VELU, Petitioner, and VELU (son of Ramasamy) andanother, Respondents
S.C. 125/68—Application in Revision in M. C. Kurunegala, 51908
Revision—Case of alleged murder—Non-summary proceedings—Discharge of accused by Magistrate and Attorney-General—Whether it can be set aside by Supreme Court in revision—Attorney-Genera Vs powers and functions in this respect—Criminal Procedure Code, ss. 162, 163, 347, 357, 388, 391.
A Magistrate discharged the accused persons at the conclusion ofthe non-summary proceedings relating to a charge of murder. Thepetitioner in the present application in revision asked that the orderof discharge be set aside and. that the respondents be committedto stand their trial in the Supreme Court.
Held, that the proper remedy of the petitioner was to seek- theintervention of the Attorney-General in terms of section 391 of theCriminal Procedure Code. In such a case, if the Attorney-Generalrefuses to intervene, the Supreme Court would not exercise itspowers in revision unless a positive miscarriage of justice wou!3result.
APPLICATION to revise an order of the Magistrate's Court,Kurunegala.
N. Balakrishnan, for the petitioner. .
Cur. adv. vult.April 10, 1968. Weeramantry, J.—
This is a most unusual application, in which this Court isasked to review an order of a Magistrate discharging twoaccused persons in a murder case after non-summaryproceedings. The applicant asks that the order of discharge heset aside and that the respondents be committed to stand theirtrial in the Supreme Court. I
I understand from Mr. Balakrishnan, though it is not sospecifically averred in the petition, that the Attorney-Generalhas been interviewed in regard to this discharge and has refusedto interfere.
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WEERAMANTRY, J.—Velu v. Vela
There is no doubt that this Court has very wide powers inrevision and that these may be exercised in cases where therecord of proceedings is called for by this court or where amatter otherwise comes to the knowledge of this Court. Section357 of the Criminal Procedure Code contains express provisionto this effect. Read with section 347 this provision would entitlethis court in revision, as in appeal, to alter or reverse any orderin respect of which relief is sought from this court.
But do these provisions enable this court to set aside an orderof discharge and require a Magistrate to commit to this courtan accused person whom he has discharged ?
Commitment to this Court is a duty imposed on Magistratesby section 163 if they consider the evidence sufficient to putthe accused on his trial. Discharge of an accused person wherethe Magistrate considers the evidence against the accusedinsufficient to put him on his trial is likewise renderedobligatory by section 162.
When a Magistrate discharges an accused person under theprovisions of this latter section the appropriate though notperhaps the exclusive authority for reviewing this order is theAttorney-General, who, in terms of section 391, may direct thecommitment of such accused to the court nominated by him ororder the Magistrate to re-open the inquiry and give suchinstructions with regard thereto as appear requisite. It shouldalso be observed that in the converse situation of a commitmentwhen the Attorney-General is of opinion that there is notsufficient evidence to warrant it, the Attorney-General is bysection 388 given a corresponding power of quashing suchcommitment.
Although, then, this Court may in theory have the power torevise an order of discharge made by a Magistrate, the Courtwould in so doing be entering upon a field where, to say theleast, another authority, namely the Attorney-General, enjoys aconcurrent jurisdiction.
The difficulties resulting from such a situation became clearlyapparent in the case of The King v. Noordeen* where theAttorney-General pointed out that an order made by this Court
(1910) 13 N. L. R. 116.
WEERAMANTRY, J.—Velu v. Velu■23
in similar circumstances would be a mere brutum fulmen sinceit would be open to the Attomey-Gentral to enter a nolleprosequi at any stage of the subsequent proceedings.
It becomes apparent therefore that the undoubted powers ofthis Court to revise any order in its discretion, including as waspointed out in The King v. Noordeen such an order as an orderof discharge, must only be exercised, if it will be exercised atall, in the most extra-ordinary cases, where a positive miscarriageof justice would otherwise result. In view however of theAttorney-General’s powers and functions in this respect, therecan be no doubt that through their exercise such cases of positivemiscarriage of justice will not arise. The subject is therefore notlacking in a remedy against orders of discharge or commitmentwith which he is dissatisfied, and in the result it ought neverto be necessary for this Court to be called upon to exercise itspowers. The fact however that this Court does enjoy such powerscannot be controverted and has been assumed on more thanone occasion
I should also make reference to the recent case of TheAttorney-General v. Don Sirisena alias Michael Baas’ where aDivisional Bench had occasion to review the scope of the sectionsof the Criminal Procedure Code relating to commitment by aMagistrate. In this case it was held that the Attorney-General'clearly had the power in the case of an order of discharge madein the exercise or purported exercise of the power conferredby section 162 (1), to give him subsequent directions forcommitment under section 391. A Magistrate’s refusal to complywith such directions was’ held in that case to be unlawful. Itwas further observed that the powers of the Attorney-Generalwhich have been described as quasi judicial, have traditionallyformed an integral part of our system, of Criminal Procedureand that the Attorney-General is vested with a measure ofdiscretion which is rendered effective by his statutory power tosecure that inquiries under Chapter 16 will terminate in amanner determined .in the exercise of that discretion. Into thesphere where this.discretion is exercised it is not the provinceof this Court to enter save for the gravest cause and I may addthat in the present case no cause whatever has been made out,for the Magistrate would appear in a.considered order to have
1 The King v, Noordeen, mtpra ; Attorney-General v. Kamtgaratnam(1950), 52 N. t. B. 121 at 125.
* (1968) 70 N. L. B. 357.
WEERAMANTRY, J.—Veiu v. Velu
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given his careful attention to all the features of the evidenceand to have set out compelling reasons in support of the orderof discharge which he made.
The application is accordingly refused.
It only remains for me to record my appreciation of theassistance rendered to me by Dr. Colvin R. de Silva andMr. M. M. Kumarakulasingham, who made available to me at myrequest the benefit of their fund of knowledge and experienceof our criminal law, in what seemed to me to be an applicationfor the exercise of this Court’s powers in an unprecedentedway.
Application rejused.