THE ATTONEY-GENERAL, Appellant, and WILLIAM et al, Respondent

003-NLR-NLR-V-57-THE-ATTONEY-GENERAL-Appellant-and-WILLIAM-et-al-Respondent.pdf

3955Present:de Silva J. and Sansoni J.THE ATTORXEY-GENERAL, Appellant, and WILLIAM ei at.,
Respondents
S. C. 12— D. C. (Criminal} Jajjna, 1,-189
JBribery Act, .Vo. II of 193 l—Indictment—Pegnirement of signature of Attorney -General—Sections 3 (2), 5, G (I), S, 0 (1), 10 (0), So, 78 (7)— Criminal Pro-cedure Code, ss. 1JS (c), 163 !•', 1S6, 39-3.
In a prosecution for bribery under tho Bribery Act, an indictment- signetl bya. Crown Counsel contravenes tho requirement of sections 5, S and 7S (1) thattho indictment should not bo signed except by tho Attorney-General. ADistrict Judge has no jurisdiction to try tlic accused upon such an indictment.
.^^LPPGAL from a judgment of the District Court, Jaffna.
Douglas Jansze, Acting Solicitor-General, with L. 11. T. Premaralnranti V. ,S'. .1. Pullenayagam, Crown Counsel, for the Attorney-General,appellant.
S. Nadtsan. Q.C., with J. I*. C. Xtdhtniicl, for the accused respondent.
Cur. adv. cult.
August 22, 1955. Sansoni J.—
This is an appeal by the Attorney-General .against the order of thelearned District Judge of Jaffna discharging both the accused whoappeared before him in these proceedings upon being served with copiesof an indictment in the following terms;-.-
“ You are indicted at tho instance of Thnscw Samuel Fernando,Esquire, Q.C., Her Majesty’s Attorney-General, and the charge againstyou is
That on or about tho ISt-h day of Juno 1954, at Jaffna within thojurisdiction of this Court, you, Rajapaksa Vithanago William, being, apublic servant, to wit. Examiner of Motor Vehicles in tho Departmentof the Commissioner of Motor Traffic, did accept a gratification, to wit,a sum of Rs. 50, as an inducement or reward for your performing anofficial act, to wit, tho examining of and recommending tho issue of alicence to drive a motor vehicle to P. B. R. S. Coo ray of Jaffna, andthat you are thereby guilty of an offence punishable under Section19 (b) of tho Bribery Act, No. 11 of 1954.
2. That at tho timo and place and in the course of tho sametransaction aforesaid you, Arunasalam Sinnapodiya Nagalingam, thesecond accused above-named, did abet tho commission of tho saidoffence of bribery which said offence was committed in comequcncoof such abetment, and that you aro thereby guilty of an offencepunishablo under Section 19 (b) read with Section 25 of tho saidBribery7 Act, No. 11 of 1954.
This 19tb day' of October, 1954.
Sgd.
Crown Counsel. ”
A preliminary objection was taken by their Counsel based on S. 7S (J)of the Bribery' Act, No. 11 of 1954, which reads:No prosecution for
any offence under this Act shall be instituted in any' Court except by',or v ith the written sanction of, the Attorney'-General ”. It was contendedthat this prosecution had not boon instituted by tho Attornoy-Gcncralor with his written sanction. Tho Act makes provision for the prosecutionof two classes of offences, namely', offences of bribery and offences otherthan, bribery', and these two classes aro dealt with in Part II and Part Vrespectively'. The offences with which tho accused were charged fallwithin Part IT, and all prosecutions for such offences have to be institutedby' tho A llomcy-Gencral.
The earliest stage at-which, it can bo said that a prosecution has beeninitiated is -alien the Attorney-General requires a Magistrate, upon awarrant under S. 14S (1) (e) of the Criminal Procedure Code, to hold aninquiry' in respect of an allegation of bribery—S. 3 (2), but that- coursewas not adopted in tin's prosecution. A prosecution can also be saidto be initiated where without such preliminary' inquiry the Attorney-General indicts the offender before the Supreme Court or tho DistrictCourt, or arraigns him before a Board of Inquiry'—S. 5 and S. S. It willbe observed that the Attci ney-Gcncral alone is empowered to act underSS. 3 (2), 5 and S.
There are two Sections which confer upon tho Attorncy-Gcncml thepower to indict for bribery'. One is S. 5 which reads : “ If the Attorney-General is satisfied that there is a prim a facie case cf bribery lie may'
(a) where the offender is not a public servant, indict tho offenderbefore the Supremo Court or the District Court, as tho Attorney-General mayr determine ; and
(6) where tho offender is a public servant, either indict tho offenderas provided in the preceding paragraph (a) or arraign thooffender before a Board cf Inquiry, .after informing the PublioService Commission.”
Tho otiier is >S. S which empowers tiio Attornoy-Gcnoral to indict aperson for bribery without a preliminary inquiry by a Magistrate’s Courtas provided in Chapter 16 of tho Criminal Procedure Code.
Xow although tho two accused wero indicted in this ease upon asupposed exercise of tho powers vested in tho Attorney-Gcnoral by SS. 5and S, tho indictment presented was not signed by the Attornoy-Goncralbut by a Grown Counsel, and the. preliminary objection was based onthis omission. Tho learned Judge in his order took tho view that thogeneral scheme of the Act was that the Attorney-General himself shouldbo concerned with tho prosecution of cases arising undor tho Act, and hoheld that this was not a prosecution by the Attorney-Genoral. Thopoint that arises foi decision is whether an indictment signed by a CrownCounsel and presented to tho District Court in a case whore thero has-been no preliminary inquiry by a Magistrate, contravenes tho expressprovision of S. 7S (1) that no prosecution shall bo instituted hi any Courtexcept by the Attorney-General.
Tho Act contemplates power being exercised by the Attorney-Generalin three different ways. In some matters ho must act himself; in othermatters he may act himself or through an officer authorised by him ;in yet other matters lie may authorise an officer in writing to tako action.
Instances where t he Attorney-General himself must act arc :
Under SS. 3 (2) and 3 (3) to require a Magistrate upon warrant-under S. I4S (1) (e) of tho Criminal Procedure Code, to hold an inquiryunder Chapter 16 of that Code, and at tho conclusion of the inquiry torequire the Magistrate to record such further evidence as tho Attorney-General may consider necessary.
Under S. 4 (1) by written notice- (a) to require an accused personto furnish a sworn statement- in writing of his property, and tho propertyof the members of his family ; (b) to require tho Manager of any Bankto produce the accounts of an accused person or of any member of hisfamily; (c) to requiro the Commissioner of Income Tax to furnish allinformation .available to him relating to tho affairs of an accused jjoi'sonor any member of his family ; (d) to requiro the person in charge of anyGovernment Department or of a Local Authority or of a scheduled insti-tution to produce any document in his possession or undor his control.
Under S. 42 to select tho members of a Board of Inquiry.
Under S. SO (2) to determine how long a person remanded toFiscal’s custody' in default of bail should bo kopt in such custody.
Instances where tho Attorney'-General may act himself or through anofficer authorised by him are :
Under S. 3 (I) to direct and conduct the investigation of allegationsof bribery.
.(2) .Under S. 3 {4) to direct in writing any person to appear and answerquestions orally on oath or affirmation, to state facts by means of anaffidavit, and to produce documents. ■.
Under SS. 4 (3) and (4) to enter and search any Department, officeor establishment of the Government with such assistance as msv benecessary ; and to apply to any public servant or any other person forassistance in the exercise of his p owe is and the discharge of his dutiesunder the Act.
Under S. 7 to apply to such Magistrate as the Attorney-Generalmay determine for a search warrant to enter and searoli any place crbuilding and to remove anything relevant to an investigation.
Instances where an officer authorised in writing by the Attorney-General may act are :
Under S. 11, to present the caso against a Public Servant who isarraigned before a Board of Inquiry.
Under >S. 81 (1) to authorise a Magistrate to tender a pai-don to aporson directly or indirectly concerned in or privy to an offence of bribery,with tho view of obtaining the. evidence of such a person.
Under S. S3, to delegate to the Solicitor-General airy of Iris powersand functions under the Act. except the power to sanction civil or criminalproceedings.
'(.’hat the legislature intended to draw a clear distinction between these,three classes of cases becomes apparent when one considers some of theseSections which I have already referred to. If one considers SS. 3, 4 and7, to mention only three, one- finds that each of them requires theAttorncy-General to exercise certain powers himself, and authoriseshim to exercise other powers through an officer authorised by him. Itis only too clear that this distinction has been deliberately drawn, andthere is no room for tho argument that- where a Crown Counsel acts itshould be presumed that- he acted with the authority of the Attorney-General. The reason, I think, is obvious. .Some of the powers conferredon the Attorney-General arc of such magnitude that it was probablyconsidered necessary that they should be exerc ised by him and by himalone to ensure that his judgment and decision will serve as a guaranteethat those powers would be properly exercised.
When we examine tho question arising on this appeal in the light ofthese considerations, wo can understand why S. 5 empowers the Attorney -Goneral (and nobody else) if ho is satisfied that there is a prima faciecase of bribery, to indict or arraign an offender, and also why S. S conferson the Attorney-General (and nobody else) the power to indict a personfor bribery without a preliminary inquiry by -a Magistrate. >S. 5 makesthe opinion of tho Attorney-General the deciding factor as to whetherthere should be a prosecution or not. S. S brings into being an entirelynovel procedure, since it abolishes such safeguards as the preliminary
exauiiniition of witnesses on oath or affirmation, oncl their cross-examina-tion. S. 3 (2) is another drastic provision which relates to eases where apreliminary inquiry has boen held by a Magistrate : the Magistrate is notpermitted to excrciso the normal judicial function of discharging theaccused in a ease where ho considers that no useful purpose will beserved by committing him for trial, but is required irstead to transmit-the record to the Attorney-General. Powers such as these which havebeen entrusted to the Attorney-General arc not to bo regarded lightly ;they must bo exercised by him and him alone.
Mr. Nadesan who appeared for the accused submitted that the words
no prosecution shall bo instituted except by the Attorney-General ”to be found in S. 78 connote that the Attorney-General and nobody•else shall institute the prosecution. Ho drew attention to the analogousprovisions of S. 14S of tho Criminal Procedure Code which enumeratethe different ways in which proceedings shall bo instituted by differentcategories of persons in a Magistrate’s Court, and his contention was that-since the Act empowered the Attorney-General to indict an offendertho signing of tho indictment by the Crown Counsel would not bo incompliance with the Act, for if Crown Counsel signs it is he who indicts.
Now a prosecution for an offence of bribery can be instituted in one of
two ways.
By warrant under tho hand of the Attorney-General requiring a
Magistrate to hold an inquiry under Chapter 16 of the Criminal ProcedureCode—S. 3 (2).’
Byr indictment before tho Supremo Court or District Court, orarraignment before a Board of Inquiry—S. o. It seems to me that itis only where the Attorney-General signs tho warrant or the indictmentcv the order for arraignment th.it the prosecution can be said to havebeen instituted by him, just as it is only where lie signs tho writtensanction for the institution of proceedings that it can be said that theyhave been instituted with his written sanction.
Mr. Nadc-san also relied on tho judgment of Pereira J. in the ease of the-Attorney-General v. Silva 1 where tho learned Judge had to interpretthe provisions of SS. 336 and 393 of the Criminal Procedure Code. UnderS. 336 there can be no appeal from an acquittal by* a District Court or aMagistrate’s Court except at tho instance or with the written sanctionof tho Attorney-General ”. In that case the Solicitor-General acting ona delegation under S. 393 preferred a petition of appeal which was in thoname of the Attorney-General, but signed by himself as Solicitor-General.Pereira. J. held that the petition of appeal should in such a case havebeen in tho name of tho Solicitor-General, and that one which ran in thoname of the At tornej'-G on oral should Jiavo been signed by* the Attorney-General. This position is all tho clearer in view of the many referencesto cases where officers other than tho Attorney-General have boonspecifically empowered to act where the legislature has thought fit toempower them.-
(to 14) 17 27. L. JR. 103.
The Sclicitor-Gonoral rolied strongly on S. 9 (1) of the Act as hichdirects that “ an indictment prepared in the manner prescribedby S. 186 of. tho Criminal Procedure Codo shall bo transmitted bytho Attorney'-General to tho Court of trial selected by himHo
submitted that sinco S. 1S6 of tho Code provides that all indictmentsshall be brought in tho name of tho Attorney'-General .and bo in accordancewith tho prescribed form, and shall be signed by tho Attorney-Generalor the Solicitor-General or a Crown Counsel or some Advocate authorisedby' tho Attorncy-General, the indictment in this case could have beensigned by any of those persons. But this argument overlook- thopurpose for which S. ISO cf the Code has been referred to in S. 9. S. 9merely' provides that the indictment should be jirepared in tho mannerprescribed in S. ISO, and not that it may be signed by' the different officersmentioned in S. JS6. The reference to S. ISO is limited in scope, and isconfined to tho manner of tho preparation of the indictment, which Iunderstand to mean tho form in which it shall be made ready' or drawnup. To that extent the indictment in question is in order, but I cannotextend tho meaning of the word “ prepared ” to include the essentialoperation of signing. This duty', it seems to me, has already been castupon the Attorney'-Gcneral by SS. 5 and 8. I would refer in this con-nection to S. 1 Gok of the Criminal Procedure Code which speaks of anindictment being t; drawn up ” and “ signed ” as two distinct operations ;also to S. 18S of the Civil Procedure Code which similarly' speaks of adecree being “ drawn up ” and signed ”. S. 9 docs not, it will be noted,require the Attorney-General to prepare the indictment, and this duty-can therefore be performed by' any' officer in his Department- ; but itdocs require tho Attorney-General to transmit the indictment to theCourt of trial selected by' him, and to transmit copies of the indictmentfor service on the accused persons to the Fiscal. A later provision of theSection requires the Fiscal to make return of such service to the Courtof trial and to the Attorney'-General or any officer appoinled by the Attorney-General to represent him. Here again, then, we find a provision whichdraws a sharp distinction between the Attorney'-Gcneral acting himselfand acting through ail officer appointed by' him.
The Solicitor-General, however, contended that where the Act requiresthe Attorney'-Gcneral to sign a document it says so, and therefore theabsence of any' provision in SS. o and S requiring the Attorney-Generalto sign the indictment implies that any- other officer of his Departmentmentioned in S. ISO of the Code may sign it.
It is true that instances of the Attorney-General being required to signdocuments arc to be found, for example, in S. 11, under which he mayauthoriso in writing an Advocate or Proctor or other officer to 2’rcsentthe case against tho public servant before a Board of Inquiry, and inS. S3 under which he may by' writing under his hand delegate all butone of his powers and functions to the Solicitor-General. But it is onething for tho Act to require the Attorney-General to confer authority',or to delegate his functions, or to give directions, by writing under his-hand ; it is a different- thing to require that he and ho alone—for that,it seems to .me, is the necessary' inference in the absence of all reference
to any other person exercising the function—should indict. The veryreference to the act of indicting necessarily involves the duty of signing,for ono cannot indict except by a written document,-whereas one candelegate or authorise or direct orally.
In passing I would refer to S. G (1) of the Act which enacts that suchof the provisions of tho Criminal Procedure Code as are not inconsistentwith the provisions of tho Act shall apply to proceedings in any Courtfor bribery, but in my opinion those provisions of S. ISO which empowerpoisons other than the Attorney-General to Sign an indictment areinconsistent with SS. 5 and S of tho Act, and cannot therefore apply tothis case.
S. 393 of the Code which empowers tho Solicitor-General and CrownCounsel to exercise all or any of the powers conferred upon, and to performall or any of tho duties imposed upon the Attorney-General by the Codeif the Attorney-General so directs, except tho power to enter a nolleprosequi, and to pardon an accomplice,does not apply either.
The absence from the Act of any provision similar to S. 393 of the Code,and the pointed references in the Act to certain duties being performed bythe Attorney-General alone, and others being performed by him or of!leersauthorised by him, necessarily How from the far-reaching nature of certainof tho powers conferred upon the Attorney-General by the Act. Itis only reasonable to presume that tho legislature designedly abstainedfrom conferring upon any officer but the Attorney-General the right toexercise the more responsible powers conferred upon the latter. It wasnot prepared to permit tho Attorney-General to delegate the power tosanction civil or criminal proceedings. This is a power which has tobe exercised in connection with the prosecution of offences other thanbribery. It woidd not bo unreasonable to expect that the correspondingpower of indicting or arraigning, in the ease of offences of bribery, shouldbe exercised by the Attorney-General and nobody else, and it is noteasy to see why the legislature appears to have empowered the Attorney-General by writing under his hand to delegate to the Solicitor-Generalthe power to indict, but not the power to sanction civil or criminalproceedings. The question docs not, however, arise for decision in thiscase whether S. S3 requires such an interpretation to be placed upon it,since it is not suggested that there has been any such delegation, andin any event the indictment- has not been signed by the Solicitor-General.
For the reasons I have given I would hold that the indictment in thiscase failed to comply with tho requirements of SS. 5, S and 78 (1) of thoAct. The District Judge therefore lihrl no jurisdiction to try tho accusedupon .such indictment-, and the proper order to be made was that thoindictment be quashed. . I would, make, that order now and dismissthis appeal.
de Silva J.—I agree.
Appeal dismissed.