SAMSUDEEN v. MARIKAR et al

020-NLR-NLR-V-36-SAMSUDEEN-v.-MARIKAR-et-al.pdf


Samsudeen v. Marikar.
89
1934 Present: Macdonell C.J., Garvin S.P.J., and Dalton J.
SAMSUDEEN v. MARIKAR et al.
936—P. C. Colombo, 8,228.
Appeal—Discharge of accused in non-summary case before Police Magistrate—Accused discharged previously in similar proceedings—Complainant’sright of appeal—Criminal Procedure Code, s. 157 (3).
Where, in non-summary proceedings before a Police Magistrate, theaccused was discharged, before the conclusion of the inquiry, on a pleaof previous discharge in similar proceedings,—
Held, that the order of discharge was made under section 157 (3) of theCriminal Procedure Code and that no appeal lay from the order to theSupreme Court.
C
ASE referred by Akbar J. to a Bench of three Judges. Two accusedwere charged with theft under section 369 of the Penal Code in
P. C. Colombo, 6,361. The proceedings were non-summary and afterevidence was taken they were acquitted and discharged. Thereafter thesame complainant charged five accused including the two accused in theprevious case with theft and criminal breach of trust. When the accusedwere brought before the Magistrate on non-summary process the pointwas taken that two of them had been charged wi'.h the same offence andacquitted. The Magistrate discharged all of them. The complainantappealed. The question referred was whether the complainant had theright of appeal or whether the order of discharge being one under section157 (3) of the Criminal Procedure Code the proper remedy was to havemoved the Attorney-General to reopen the case.
H. V. Perera (with him Amarasekera & D. W. Fernando), for complainant,appellant.—The point is whether an order of discharge in a non-summaryinquiry is appealable. This is not a discharge under section 157. Underthat section a Magistrate can discharge if the complaint is groundless,that is, if it is groundless in point of fact or if in law the various elementsthat make up the offence do not exist. Sub-section (3) is not a sectionthat gives the Magistrate the power to discharge. It is merely a savingprovision. The power is inherent in the Court. There are other reasonsfor which an accused may be discharged than on the ground that thecomplaint is groundless. Such an order of discharge is not one undersection 157 (3), and an appeal would lie.
[Garvin J.—Would not the fact of a previous acquittal make a secondcharge groundless ?]
That would be extending the meaning of the word as used in thesection. The language used is not appropriate to cover a case of thiskind. The word “ groundless ” refers to a dew taken by a Magistratewhich he is competent to take. As an inquirer he is competent to takea view only on the evidence. Section 157 (3) merely indicates that aMagistrate may make such an order at any stage of the proceedings. Theexpression “ further prosecution ” in sub-section (2) contemplates not areopening of the case by the Attorney-General but a fresh prosecution
90
Samszideen v. Marikar.
King v. Haramanis1. If the second prosecution is merely an abuse of theprocess of the Court .a Magistrate has an inherent power to refuse toentertain the complaint. Such a discharge is not referable to section157 (3).
[Macdonell C.J.—If he did not discharge under section 157, underwhat section did he discharge ?]
There is no specific section. It is in accordance with the inherentpower in the Court. The Code is not exhaustive. There may be caseswhich are not contemplated by the Code.
[Macdonell C.J. referred to section 83 of the Courts Ordinance.The powers of the Police Court are limited as contrasted with the powersof the District Court in section 40.]
But section 9 of the Criminal Procedure Code makes these powerswider. The jurisdiction is spoken of as being subject to the provisionsof the Code. It is therefore wider than the powers conferred by thespecific sections of the Code. A Court which is given jurisdiction byStatute has power to deal with any contingencies that might arise, apartfrom the powers given by the Statute. (33 Cal. 927.) Suppose a Magis-trate during the course of the proceedings states that there are goodgrounds for the complaint but that he has some personal knowledge of thecase and discharges the accused. That is not a discharge under section 157.An appeal would lie because it would be a final order so far as the pro-ceedings were concerned. What takes away the finality from the orderunder section 157 is that under section 391 the Attorney-General canintervene. Any other order of discharge is a final order because it is adiscontinuance of criminal proceedings. It is only where an order ofdischarge is made on the insufficiency of evidence that the Attorney-General is empowered to intervene. (Sohoni’s Criminal Procedure, p. 600.)Where the discharge is made on any other ground the proper remedyis an appeal. Such a decision is a judicial decision and not an executiveact. It may be that a complainant gives himself a right of appeal,where an appeal is barred, by bringing a fresh prosecution. That cannotbe prevented. It occurs very frequently in civil cases. All that can bedone is to dismiss the appeal on the merits.
M. D. de Silva, K.C., S.-G (with him Pulle, C.C.) as amicus curiae.—The Court has no inherent power to make an order of discharge, apart fromthe power given by section 157. Inherent powers must not be lightlyattributed to Courts. Any order of discharge not falling under section 151of 156 (2) falls under section 157.(Dias v. Peiris2.) This discharge
is under section 157 (3). A case is sustained on grounds of fact as well ason grounds of law. The section is wide enough to cover both grounds. Acomplaint that is not groundless is one that is not without grounds. Acomplaint is either groundless or there are grounds on which it can besustained. There are only these two alternatives. Groundless, therefore,means unsustainable. The section gives the Magistrate the widest powersof discharge in a case in which he thinks the complaint must fail. Tosay that a second prosecution is an abuse of the process of the Court isnot to say that it is not groundless. It is the fact of its being groundlessthat makes it an abuse of the process of the Court. The effect of section* 8 N. L. R. 138.2 31 N. L. R. 437.
MACDONELL C.J.—Samsudeen v. Marikar.
91
157 (2) is to bar a fresh prosecution by the complainant and leave it to theAttorney-General to reopen the case. Even if the complainant has thatright the Magistrate may make an order of discharge, and that order willbe under section 157 (3). Even if a different accused is charged on thesame material the Magistrate may make an order of discharge undersection 157 (3). The Attorney-General is entitled to reopen proceedingsat any stage of the inquiry. Non-summary proceedings are merely apreliminary to an indictment by the Attorney-General. In the courseof these proceedings the Attorney-General may interfere at any stage.(Section 390.) The policy of the law is to limit the remedies of a com-plainant to a much greater extent than the rights of an accused.Section 391 limits the right of the Attorney-General to reopen ordersunder section 157. It has been held that orders made at any stage of theproceedings will fall under section 157. The decision of the Attorney-General is not subject to review (King v. The Middlesex Justices1).
H. V. Per era, in reply.—Section 157 (2) is not limited to a fresh prose-cution by the Attorney-General. It would be open to a complainant toprosecute. The Magistrate can prevent an abuse of the process of theCourt, but short of that there is no rule of law which prevents his enter-taining a fresh complaint. Under section 157 (3) the Magistrate may pur-port to act on the ground that the complaint is groundless. If he purportsto act on any other ground the order cannot be brought under section 157
. The word complaint does not refer to the act of complaining but thesubstance of the complaint, that is, the allegations supporting it. Themere possibility of the Attorney-General refusing to proceed is no reasonwhy the Supreme Court should not correct the errors of a Magistrate,(King v. Noordeen *).
H. E. Ameresinghe, for accused, respondents.
Cur. adv. vult.
August 29, 1934. Macdonell C.J.—
This matter comes to us on a point reserved by Akbar J. for a Bench ofthree Judges. The facts were these. A complainant had charged certaintwo accused in P. C. Colombo, 6,361, with theft under section 369 of thePenal Code. The proceedings were non-summary and after evidencewas taken the two accused were “ acquitted and discharged ” on August4, 1933. Thereafter the same complainant took these proceedings P. C.Colombo, No. 8,228, also non-summary, against certain five accused,charging Nos. 1 to 4 with theft and No. 5 with criminal breach of trust.The third and fourth accused in the present case are identical with thetwo accused in case No. 6,361.
These five accused appeared before the Magistrate on non-summaryprocess and at once the point was taken for the defence that Nos. 3 and 4had already been charged before a Magistrate with the same offence andhad been discharged. Admittedly, no application had been made to theAttorney-General under section 391 which says that ** whenever a PoliceCourt shall have discharged an accused under the provisions of section157 and the Attorney-General shall be of opinion that such accusedshould not have been discharged ”, the Attorney-General may indict or* (1933) 1 K. B. at 80.2 13 N. L. R. 115.
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MACD ONE L.L. C.J.—Samsudeen v. Marikar.
may order the Magistrate to reopen the inquiry. The Magistrateacceded to the argument and discharged all five accused. It should benoticed that only Nos. 3 and 4 had previously been discharged ; Nos. 1,2, and 5 had not previously been charged at all. The complainantappealed, and urged inter alia that in the present case No. 8,228 thecharges were different and that three out of the five accused were notcharged in the previous case No. 6,361 at all; also that section 157 (2)lays down that a discharge under that section does not bar a furtherprosecution for the same offence. Akbar J., before whom the appealcame, reserved it for three Judges in the following terms : —
“ The question is whether the complainant has the right to appeal inthis case or whether the order (of discharge) being one undersection 157 (3) of the Criminal Procedure Code the properremedy was to have moved the Attorney-General to reopenthe case.”
The argument did not address itself to the case of the three men who,though charged in the present non-summary proceedings No. 8,228, hadnot been charged in the previous proceedings No. 6,361.
The argument addressed to us, as I understood it, was that the orderof discharge appealed from was not an order of discharge under section157 (3)—confessedly it was not a discharge under section 157 (1)—and that ifthen it were not an order of discharge under section 157, the explanationto section 338 which says that a discharge under section 157 is not a finalorder would not apply, therefore this must be a final order and if so anappealable one. If there has been a discharge under section 157, thenthat discharge is not a judgment or final order. Discharges undersection 157 are provided for by section 391 under which the Attorney-General can, so to speak, reverse the discharge by ordering a trial onindictment or a reopening of the non-summary inquiry. This, thedischarge in case No. 8,228, was not a discharge under section 157 at all,then it was not provided for by section 391. No special remedy beingprovided for it, it must be in its nature final, and if final, then appealableunder section 338.
The sections of the Criminal Procedure Code which deal with non-summary inquiry are those to be found in chapters XV. and XVI.Chapter XV. explains how proceedings before Police Courts ought to becommenced. The complaint, the basis of those proceedings, may disclosea summary offence or a non-summary one. In either case the Magistratehas to make inquiry ; (he did so in this case and issued a warrant underwhich the five accused were brought before him). Eventually he will bemet by the question, Is there or is there not sufficient evidence to justifythe issue of process against the person accused, who may or may not be incustody. If he thinks after the inquiry held by him that there is “ nosufficient ground for proceedings against the person accused (if any) oragainst any other person, he shall not issue a summons or warrant ” (allcriminal process begins either by summons or warrant) “ and theaccused if in custody shall forthwith be discharged, but in such case theMagistrate shall briefly record the reasons for such discharge and shall inevery case record whether in his opinion any offence was in fact com-mittd”, section 151 (1). If there is no one in custody, then there is
MACDONEL.L C.J.—Samsudeen v. Martkar.
93
no one to discharge. If someone is in custody, then the Magistrate is todischarge that someone. In essence, the Magistrate’s refusal undersection 151 (1) seems to be a refusal to issue process at all, and if that is so,a mistaken refusal by the Magistrate to issue process seems to be providedfor by section 337, “where a Police Court has refused to issue process amandamus shall lie to compel such Court to issue such process, but thereshall be no appeal against such refusal except at the instance or with thewritten sanction of the Attorney-General ”. That section 337 purportsto provide the remedy for the Magistrate’s refusal, mandamus, or, if theAttorney-General gives his written sanction, then appeal. Section 337would seem to provide that mandamus will lie even though no requesthas been made to the Attorney-General for written leave to appeal. Asthe present case had got beyond the state of things contemplated bysection 151 and process had been issued, the discharge therein can hardlyhave been under section 151.
Take now the alternative, the inquiry does reveal sufficient ground forissuing process. Then the Magistrate will proceed under section 151 (2)and will issue process, summons or warrant—in this case No. 8,228, awarrant. He then proceeds to act under section 152 ; if the offence is onewhich he can try summarily, he will follow the procedure laid downin chapter XVIII., if it appears to him to be not triable summarily byhim, then he will follow the procedure laid down in chapter XVI. Thepresent proceedings were non-summary, so he had to proceed underchapter XVI.
In chapter XVI., section 155 lays down that the accused when broughtbefore the Magistrate is to be invited to make a statement. The recordshows that no use was made of this section 155 in the present caseNo. 8,228, the accused were discharged on a point of law before any state-ment was taken from them. After the statement has been taken theMagistrate must then follow the provisions of section 156 (1). He readsover to the accused any evidence already recorded against him and takesany “ further evidence ” against him that may be produced. Section156 (2) says : “ If such evidence does not establish a prima jade case ofguilt the Magistrate shall discharge the accused ”. That sub-sectioncontemplates a discharge after all the evidence tendered against theaccused has been led. The other sub-sections of section 156 provide forcross-examination by the accused of any witness against him, for theMagistrate himself calling at any stage of the proceedings any witness hemay think necessary and, if he does find from the prosecution evidencethat it discloses a prima fade case, for an examination of the accusedunder section 295 and for the calling of evidence by the accused himself.
Then follows section 157. It provides for the alternative that mustalways face a Magistrate at the end of or in the cpurse of a non-summaryinquiry, is there or is there not enough evidence to justify committing theaccused for trial. Sub-section (1) deals with the alternative as it facesthe Magistrate “ when the inquiry has been concluded ”. Then theMagistrate " shall (a) if he finds that there ate not sufficient grounds forcommitting the accused for trial discharge him, or (b) if he finds that thereare sufficient grounds for committing the accused for trial forward therecord to the Attorney-General ”, &c.
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MACDONEL3-» CJ.—Samsudeen v. Marticar.
Sub-section (3) of section 157 deals with the alternative as it faces theMagistrate when the inquiry has not been concluded, saying “Nothingin this section shall be deemed tb prevent the Magistrate from dischargingthe accused at any previous stage of the case if for reasons (to be recordedby him) he considers the complaint to be groundless The Magistrateacting under chapter XVI. discharges the accused, if he does dischargehim, either when “the inquiry has been concluded”, section 157 (1), or,“at a previous stage of the case ”, that is, when the inquiry has not beenconcluded, section 157 (3).
What of the power of discharge given by section 156 (2), when theevidence against the accused “ does not establish a prima facie case ofguilt ” ? Is it yet a third power of discharge, additional to those given bysection 157, or is it * caught up ’—to use the phrase of Maartensz J., inFernando v. Fernando'—by section 157? In answering this we are facedby the dilemma raised by section 157 (1) and section 157 (3). Eitherthe inquiry has been concluded or it has not. If the case provided forby section 156 (2) be considered to occur after the conclusion of theinquiry, then it is a discharge under section 157 (1), if at some stage other'than after the conclusion of the inquiry, then it is a discharge undersection 157 (3). As section 156 (3), (4), and (5) contemplate the possibilityof other evidence being led, additional to that given in support of theprosecution, it seems more consistent with the language of section 157,to-hold that it is a discharge under sub-section (3) of that section. It isnot necessary, it seems to me, to suppose that the legislature intended bysection 156 (2) to create yet a third power of discharge, when the casesupposed by that sub-section (2) of section 156 is completely provided forby one or other of the sub-sections, (1) or (3), of section 157. Putting itanother way, section 157 (3) provides in the widest terms for a dischargeat any stage of the proceedings other than that of the inquiry beingconcluded, but one of those stages is reached when all the evidence forthe prosecution has been adduced and “ does not establish a prima faciecase of guilt ”, the position stated in section 156 (2). Then section 157 (3)provides for that stage of the proceedings, and a discharge at that stagewill, it seems to me, be a discharge under section 157 (3).
The discharge in the present case was not under section 151, for processhas been issued. It was not a discharge under section 157 (1) for theinquiry had not been “ concluded ” since no evidence at all had been led.Was it a discharge under section 157 (3) ?
Now it was strenuously argued to us that the course which was takenby the Magistrate in this case, namely, discharging the accused on a pointof law before any evidence had been led and before he had even taken astatement from them under section 155 (2), could not be said to be adischarge because he “ considered the complaint to be groundless ”, andif so could not be a discharge under section 157 (3). Personally I thinkthis would be giving too narrow a meaning to the word “ groundless ”.That word is thus defined in the Imperial Dictionary : “ Wanting groundor foundation; Wanting cause or reason for support; Not authorized;False ”. The Concise Oxford Dictionary seems to define groundless asbeing the contrary of something having “ base, foundation, motive, valid
* 32 N. L. R. 152.
MACDONELL C.J.—Samsudeen v. Marikar.
95
reason In the present case the Magistrate took cognizance of the factthat there had already been a discharge in the case No. 6,361 and thatthere had been no intervention by the Attorney-General under section 391.Then he could clearly say that his reason for discharging the accused wasbecause the present non-summary proceedings were “ not authorized ”or that they were lacking in “ valid reason ”. In either case, accordingto dictionary definition, the proceedings would be “ groundless ”. Thenit would seem that his discharge of these accused was one under section157 (3).
It was argued, as I understood, that to constitute a discharge undersection 157 (3), the Magistrate “ must find that there was no ground forholding that the accused had committed an offence ”, but this again seemsto me unnecessarily to narrow the meaning of the word “ groundless ” andthe scope of the section. The evidence might give ground for thinkingthat the accused had committed an offence but it might also show thathe did so outside the Magistrate’s jurisdiction. If so, then the complaintwould be, as far as. concerned the Magistrate, “ groundless ”. Again,though the evidence showed that the accused had committed an offence,it might also show it to be one which could not be prosecuted without thesanction of the Attorney-General which had not been obtained. If so,then the complaint would equally, it seems, be “groundless”. Section157 (3) is widely expressed and I doubt a Court should be astute to narrowits scope. A complaint that for any reason is unsustainable may withoutviolence to language, be described as groundless, and in the present caseNo. 8,228 the Magistrate certainly considered the complaint unsustain-able—he described it as something that was. not “ allowed ”. Then indischarging the accused he seems to me to have been acting under section157 (3), and if so. then an appeal is not possible.
Perhaps the argument that the Magistrate did not discharge theseaccused under section 157 (3) because he could not, in the absence ofevidence have held the complaint groundless, contains a concealedfallacy. The question is, not, were the Magistrate’s reasons for holdingthe complaint groundless adequate ones, but, did the Magistrate givereasons which show that he considered the complaint groundless, orreasons which are best interpreted as showing that he considered it so.If his reasons for holding the complaint groundless were inadequate orerroneous, then section 391 exists to correct that error. But it is not,it seems to me, open to the Court to say, the Magistrate cannot have hadadequate reason for holding the complaint to be groundless, therefore it-cannot be a discharge under section 157 (3), therefore the explanation tosection 338 does not apply, and the order of discharge is final and sosubject to appeal. 2 the reasons for discharge are best interpreted asshowing that the Magistrate thought the complaint groundless, then thesufficiency of those reasons is for the Attorney-General to decide uponunder the powers given him by section 391, but not for a Court of law byway of appeal.
The argument for the appellant did not profess to assign any sectionof the Criminal Procedure Code as that under which the Magistrateordered the discharge in this case. It was not under section 157, it couldnot be under section 156 (2) or section 151, and no other section was
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MACDONELL Cj",—&i7nstu2een v. Marikar.
suggested. Then, it was argued, the ^Magistrate must be held to havedischarged them under an inherent 'power. The question whether aMagistrate has an inherent power to discharge an accused can be decidedwhen it arises. If it is correct that the discharge in this case was oneunder section 157 (3), then the question of an inherent power to dischargedoes not arise.
Several cases were cited to us in the course of argument. I have re-ferred to one of them, Fernando v. Fernando (supra). Another, Rex v. Hara-manis may also be mentioned. The facts there were unusual. Accusedhad been discharged under section 157, and later another Magistrate helda fresh inquiry into the charge against them and “ committed ” them fortrial in the District Court. The report does not say so, but presumablythis committal was with the sanction of the Attorney-General undersection 158. When they appeared in the District Court to be tried,objection was taken that the second Magistrate had had no right to holda fresh inquiry, and that therefore the committal was bad. The DistrictJudge acceded to this objection and discharged the accused. On appealit was held that this was wrong and that he should have tried the accusedand his attention was drawn to section 157 (2) which says that a dischargeunder the section does not bar a further prosecution for the same offence.
For the reasons given above, I would answer the question reserved thus,that this was a discharge under section 157 (3) and that by the very wordsof the explanation to section 338, no appeal would lie, but the properremedy for the complainant was to have moved the Attorney-Generalunder section 391. It may be, however, that outside the point reservedthere is a further difficulty. If so, it is this. Section 157 (2) reads asfollows :—“A discharge under this section does not bar a further prose-cution for the same offence ”.—The sub-section is in wide terms. A manhaving been brought up on non-summary proceedings under chapter XVI.and discharged, may yet be charged again, a further or fresh prosecution,for the same offence. When a man has been charged non-summarilyunder chapter XVI. and has been discharged tinder that chapter, whichdischarge must, it seems to me, be under section 157 if at all, and whenthat man has again been brought up for the same offence, ought theMagistrate, if he is aware of the previous discharge, to say to the com-plainant, “ you have not availed yourself of your only remedy, to requestthe Attorney-General to intervene under section 391, therefore I haveno power in the matter ”, or is it open to him, relying on the provisionsof section 157 (2), to entertain the complaint and inquire into it de nouo?The words of section 157 (2) are wide, and the judgment in Rex v.Haramanis (supra), does not contain anything negativing the power of aMagistrate to entertain a complaint which another Magistrate hasdischarged. Perhaps section 391 gives the answer to this difficulty. Evenif the second Magistrate found sufficient grounds for committing where thefirst Magistrate had not, still it would lie with the Attorney-General to 3aywhether the accused w as to be put on his trial or not. But I do not thinkthe point arises on thte question reserved to us, which for the reasonsalready given, I would answer as above.
Garvin S.P.J.—I agree.
* 8 N. L. R. 138.
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Sheriff v. British Pdrk fnsHrance Co., Ltd.
— — / _
Dalton J.—
I agree with the judgment of my'lord the Chief Justice, which I havehad the benefit of reading, that the order appealed against was a dischargemade under the provisions of section 157 (3) of the Criminal ProcedureCode, and therefore no appeal lies.
1 wish, however, lest it be assumed from one’s silence that one agreedwith the grounds upon which the order of discharge proceeded, to stressthe fact that the correctness or otherwise of those grounds did not ariseon this appeal. On that question, and on the question whether, if thereasons were not well founded, the only remedy for correcting the errorlies in applying the provisions of section 391 of the Code, 1 -would reservemy opinion.