029-NLR-NLR-V-55-THE-ATTORNEY-GENERAL-Applicant-and-R.-DISSANAYAKE-Respondent.pdf
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Attorney-General v. Di-ssanayalie
1953Present: Nagalingam S.P.J.THE ATTORNEY-GENERAL, Applicant, andR. DISSANAYAKE, Respondent
S. C. 263—Application for Revision in M. C. Colombo, 25,777
Appeal—Order of Supreme Court—Duty of court of first instance to execute it—Powerof Supreme Court to permit conditional release of offenders—Courts Ordinance,s. 37—Criminal Procedure Code, ss. 325, 350.
When a criminal case is decided on appeal and the recoi'd of the ease isreturned to the court of first instance, it is the duty of the lower court, undersection 350 of the Criminal Procedure Code, to carry out the order of theSupreme Court on the unquestionable basis that the order of the SupremeCourt is right. The Magistrate (or District Judge) must then act as theministerial officer of the Supreme Court and cannot question the correctnessof the order of the Supreme Court.
Although a Magistrate cannot discharge an offender conditionally undersection 325 of the Criminal Procedure Code if he proceeds to conviction, theSupreme Court, when it exercises its appellate or revisionary powers, may,without disturbing the order of conviction made by a Magistrate, proceed toorder the accused person to be discharged conditionally on his entering into abond in terms of that section.•
Perera v. Punchi Appuhamy (1944) 45 N. L. R. 214, followed.
Application to revise an order of the Magistrate’s Court, Colombo.
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H. A. Wijemanne, Crown Counsel, with A. Mahendrarajah, CrownCounsel, for the Attorney-General.'
N.E. Weerasooria, Q.C., with M. M. Kumarahulasingham, for theaccused respondent.
Cur. adv. vult.
NA GAUNG Ail S.P.J.—Attorney-General v. Dissanayake
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October 14, 1953. Nagalengam S.P.J.—
Tn this case the learned Chief Magistrate of Colombo has crucifiedjustice on a cross of judicial indiscretion. The Attorney-Generalintervenes and points out that an absurd situation has been reached inthese proceedings by the learned Magistrate purporting to sit in judgmentover and nullify the effect of an order made by this Court, the supremetribunal in the Island ; and that the absurdity reaches fantastic heightswhen it becomes patent that the view taken by the learned Magistrateit is that is erroneous.
The facts he within a narrow compass. The respondent was con-victed by the learned Magistrate of having caused hurt to his wife andsentenced to undergo three months rigorous imprisonment. On appealMy Lord the Chief Justice while affirming the conviction set aside theorder of imprisonment and directed that the respondent should be “ boundover in the sum of Rs. 500 in his own recognizances to be of goodbehaviour for a period of twelve months”. In pursuance of the orderof this Court the learned Magistrate directed the respondent to “ enterinto the bond as ordered by the S. C.” (Supreme Court). The bondwas signed on 19th February, 1953, before the learned Magistrate himself.On 5th May, 1953, the prosecuting Inspector brought to the notice of thelearned Magistrate that the respondent had been convicted, while thebond was still in force, of another offence, and moved that the respondentbe called upon to show cause why he should not be convicted andsentenced in this case. Notice was duly served on the respondent.The respondent appeared, and was also represented by proctor. Boththe respondent and his proctor stated that they had no cause to show.The learned Magistrate thereupon proceeded to make this order :—
“ I am afraid that this bond is not enforceable. The accused wasconvicted in this case and sentenced to three months’ R.I. He appealedagainst that conviction. In the course of the order of the SupremeCourt, it is stated that the conviction is affirmed. At the end the ordersays that the accused will be bound over in a sum of Rs. 500 in hisown recognizances to be of good behaviour for a period of twelvemonths. The binding over is obviously under section 325 (1) of theCriminal Procedure Code, this being a summary charge. Thatsection expressly states that the Court can make an order for a bindingover only if it does not proceed to conviction. With very greatrespect, I would say that an accused cannot be bound over if theCourt proceeds to conviction. Therefore, I regret, I am unable toenforce this bond. So, I discharge the accused.”
There is nothing on record to indicate that the learned Magistratebefore making this order afforded the prosecuting Inspector an oppor-tunity of being heard against the order he proposed to make ; nor indeeddoes he even appear to have invited the assistance of the proctor for theaccused to see what support he could derive from him for the view hehad taken in regard to the order of this Court; but the learned Magistratemade his order without hearing any argument.
2*J. X. B 29785 (10/53).
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NAGALINGAM S.P.J.—Attorney-General v. Dissanayake
Assuming for a moment—and it cannot be too strongly emphasizedthat the assumption is altogether fallacious—that there was some defector irregularity in the order made by this Court, the question then arisesas to what course should be adopted by a Magistrate in such an event.Is it open to a Magistrate to treat an order of this Court as erroneous andtherefore of no legal effect ? It is elementary to state that—
“ a Court has jurisdiction to decide wrong as well as right. If itdecides wrong, the wronged party can only take the course prescribedby law for setting matters right, and if that course is not taken, thedecision, however wrong, cannot he disturbed.”
—per Lord Hobhouse in the Privy Council in the case of Malkarujan v.Narhare and another 1.
The order of this Court was made as early as 22nd January, 1953.That order was binding upon the parties to the proceedings. Eitherparty dissatisfied with that order or claiming that the order was contraryto law had, if at all, a right to go before a tribunal having appellatepowers over this Court in order to have the wrong set right. But whereno such action was taken, the order, however erroneous, was binding ohthem and of full force and effect. In fact the Magistrate himself, as hewas bound to do, treated the order as binding on the respondent, forhe called upon him to execute a bond in terms'of the order of this Court.On the other hand, it would have been ridiculous to suggest that aMagistrate to whom an order of this Court is' transmitted could regardhimself as an appellate tribunal possessing powers on a par with thoseof the Privy Council and take upon himself the misguided duty ofdetermining whether the order of this Court is right or wrong.
This Court is empowered, on the hearing of any case in appeal beforeit, to pass such judgment, sentence, decree, or order, or to give suchdirection to the Court below as it shall think fit (section 37, CourtsOrdinance), and when a case is decided on appeal by it, it certifies itsorder under its seal to the court of first instance, and such Court thereuponhas to make such orders as are conformable to its order (section 350,Criminal Procedure Code). In view of these provisions, it would beobvious that the Magistrate to whom an order of the Supreme Court istransmitted “ acts not as a Judge but as the ministerial officer of theSupreme Court, and no discretion is vested in him”.—See for a discussionof this question the case of King v. Perera■
I do not therefore think it was competent to the Magistrate to assumejurisdiction as a Judge and to express any opinion on the correctness orotherwise of the order of this Court. The learned Magistrate wascompletely wrong in taking upon himself the self-imposed duty of deter-mining the regularity or otherwise of the order of this Court, for all thathe had to do at that stage was to carry out the order of this Court on theunquestionable basis that the order of this Court is right.
On this occasion it is not necessary to say more than to remind thelearned Magistrate that no usurpation of powers will be tolerated by thisCourt.
i (1900) I. L. JR. 25 Bombay, 337 at 347.2 (1926) 28 N. L. R. 151.
INTAGALEMGAM S.P.J.—Attorney-General v. Dissanayake
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I shall now proceed to consider whether the learned Magistrate wascorrect in the view he took that the order made by this Court on appealwas erroneous. Had he invited assistance from the parties before him,succour may have been proferred and his attention drawn to previousdecisions of this Court embodying the correct principles to be applied incircumstances such as those that confronted the learned Magistrate.There have been several previous instances where, without the proprietyor otherwise of the order being discussed, this Court has affirmed theconviction entered by a Magistrate but deleted the sentence of imprison-ment or fine and directed that the accused be discharged conditionallyon his entering into a bond in terms of section 325 of the CriminalProcedure Code.
However, the point was specifically raised and debated and a consideredjudgment given by this Court in Perera v. Punchi Appuhamy et al.xThat judgment was delivered by Soertsz J., and he expressly held thatwhile, no doubt, a Magistrate cannot discharge an offender conditionallyunder section 325 of the Criminal Procedure Code if he proceeds toconviction (see the cases of Marthelis v. James2 and Fernando v.Inspector of Police, Panadura 3) it was competent to the Supreme Court inthe exercise of its appellate or re visionary powers to affirm the conviction,or rather, without disturbing the order of conviction made by a Magis-trate, to proceed to order the accused person to be discharged condi-tionally in terms of section 325 of the Criminal Procedure Code. Thatdecision has been fOuoWed since in more than one case. The order ofthis Court, the correctness of which was doubted by the learned Magistrate,is therefore not only in consonance with previously decided cases of thisCourt, but is legally sound.
The order, therefore, made by My Lord the Chief Justice, if I mayrespectfully say so, is a right order and not a wrong order. The Magis-trate, therefore, was clearly mistaken in saying that “ an accused cannotbe bound over if the Court proceeds to conviction ” —a statementwhich can only be defended in relation to an order made by a Magistrateand not in relation to an order made by the Supreme Court.Manifestly, therefore, the order of the Magistrate whereby he expressedhis inability to enforce the bond is altogether erroneous, and I thereforeset it aside.
The next question is whether the respondent having shown no causeagainst his being convicted and sentenced in this case, he could properlybe proceeded against. Learned Crown Counsel submits that it is notpossible to do so in view of the terms of the bond entered into by him,as the bond that was entered into is a bond that is not in accordancewith the order of this Court. That the bond directed to be taken bythis Court could only have been taken in terms of-section 325 of theCriminal Procedure Code there can be little doubt. That the learnedMagistrate correctly construed the order of this Court in that sense,though there was no express reference to that section, is abundantlyclear, for the Magistrate remarks that the “ binding over is obviously 1
1 {1944) 45 N. L. It. 214.3 (1929) 10 C. L. Rec. 36.
3 (1948) 49 N. L. R. 333.
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Idurugappan Cheltiar v. Nadar ajart Chetliar
under section 325 (1) of the Criminal Procedure Code, this being asummary charge”. That the prosecuting Inspector himself understoodthe order in the same sense is apparent from the application he made toCourt for a notice on the respondent to show cause why he should notbe called up for conviction and sentence, which could only have beendone if the bond had been taken under section 325. That the accusedhimself understood the order in the same sense is obvious from thefact that neither he nor his proctor showed cause against his beingconvicted and sentenced in this case in view of his subsequent conviction.
But unfortunately, due to carelessness there can be little doubt, thebond that was taken by the learned Magistrate is one which conformsmore to a bond required to be furnished under section 82, rather thanto one under section 325, of the Criminal Procedure Code. It is in facta bond not in conformity with the provisions of section 325, and cannotbe availed of for the purpose of convicting or sentencing the respondentin this case. Counsel for the respondent concedes that this is so. Inthese circumstances, the application of the Attorney-General to directthe learned Magistrate to take action in conformity with the order of thisCourt is entitled to succeed.
I therefore allow the application of the Attorney-General and proforma cancel the bond entered into by the respondent, and remit the caseto the learned Magistrate for a bond to be taken in proper form in terms ofsection 325 of the Criminal Procedure Code.
Application allowed.