THE ATTORNEY-GENERAL, Applicant, and W. K. DON SIRISENA and 2 others, Respondent

079-NLR-NLR-V-70-THE-ATTORNEY-GENERAL-Applicant-and-W.-K.-DON-SIRISENA-and-2-others-Respondent.pdf


The Attorney-General v. Don Sirisena
347
1968 Present: H. N. G. Fernando, C.J., Abeyesundere, J.,and G. P. A. Silva, J.TiiE ATTORNEY-GENE RAD, Applicant, and
W.K,. DON SIRISENA and 2 others, Respondents
S. G. 327/67•—In the matter of an Application for Revision in
M. C. Colombo, 37693/C
Indictable offence—Preliminary inquiry—Opinion of Magistrate that the evidence isnot sufficient to put the accused on his trial—Power of Magistrate to dischargethe accused—Stage at which it may be exercised—Power of Attorney-Generalsubsequently to direct the Magistrate to commit the accused for trial—Magistrate’srefusal to comply with such direction—Right of Attorney-General then to moveSupreme Court in revision—Constitutional validity of Attorney-General'spower to order committal of accused—“Judicial power”—Principle ofSeparation of Powers—Criminal Procedure Code, as. 5, 159 to 264, 191, 337,356, 391—Courts Ordinance, ss. 19, 37.
At the preliminary inquiry under Chapter XVI of the Criminal ProcedureCode, sub-section (1) of section 162 which provides that “ if the Magistrateconsiders that the evidence against the accused is not sufficient to put him onhis trial, the Magistrate shall forthwith order him to be discharged ” can applybefore the stage of compliance with sections 159, 160 and 161. Sub-section (1)of section 162 will apply at the close of the prosecution case if the Magistrateat that stage considers that the evidence iB not sufficient to put the accusedon his trial. If an order of discharge is then made by the Magistrate for thereason stated in the sub-section, it is made in exercise of the statutory powerconferred by the sub-section, and not by virtue of the inherent or other powerreferred to in sub-section (2) of seotion 162. In such a case, the Attorney-General can subsequently give directions to the Magistrate in terms of section391 to commit the accused for trial.
At the preliminary inquiry into a case of alleged murder by shooting, theMagistrate made order on 18th February, 1967, discharging the 2nd, 3rd and4th accused (respondents to the present application) without proceeding toread the charge to them and act under sections 159, 160 and 161 of the CriminalProcedure Code. On 8th April, 1967, the Attorney-General directed the Magis-trate, in terms of section 391, to comply with the provisions of sections 159,160 and 161. The Magistrate then complied with the sections but again madeorder discharging the respondents. On 18th June, 1967, the Attorney-Generalagain returned the record to the Magistrate, this time with a direction to committhe respondents for trial before the Supreme Court. On 14th August, 1967,the Magistrate refused to comply with this direction, stating as his ground ofrefusal that he had made his original order of discharge under his inherentpower, and that the Attorney-General was not entitled to give directions undersection 391 in a case where an order of discharge is made by a Magistrateunder his inherent power. The Attorney-General then made the presentapplication to the Supreme Court for the revision of the Magistrate’s orderof 14th August, 1967.
The Magistrate’s order of 18th February, 1967, showed that he had two maingrounds for deciding to discharge the three respondents : firstly, the prosecutionwitnesses contradicted each other, and their evidence was to some extentcontradicted by their previous statements ; secondly, the witnesses had failedor delayed to make statements incriminating the respondents.
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Held, (i) that the order of discharge made on 18th February, 1967, was madeby the Magistrate in exercise or purported exercise of the power conferred bysection 162 (1) of the Criminal Procedure Code. Accordingly, the Attorney-General had the power to give his subsequent directions under section 391.The Magistrate’s refusal to comply with those directions was unlawful.
that the Supreme Court had revisionary power to direct the Magistrateto comply with the Attorney-General’s directions. The refusal by the Magis-trate to comply with the Attorney-General’s directions was an order withinthe meaning of section 356 of the Criminal Procedure Code and section 37 ofthe Courts Ordinance. Alternatively, the Magistrate had in substance madeorder holding that the Attorney-General had no power to give the directionswhich he did give ; such an order could be reversed or corrected by the SupremeCourt. Section 19 of the Courts Ordinance, read with section 5 of the CriminalProcedure Code, is wide enough to confer power of revision in relation tonon-summary proceedings.
that the exercise by the Attorney-General of powers under section 391of the Criminal Procedure Code is not an interference with the powers of aCourt and, therefore, does not constitute an infringement of the principle ofthe Separation of Powers recognized in the Constitution of Ceylon. A Magis-trate does not exercise a judicial function when he conducts a preliminaryinquiry for the purpose of deciding whether or not a person is to be committedfor trial. Moreover, the powers of the Attorney-General which have commonlybeen described as quasi-judicial, have traditionally formed an integral part ofthe system of Criminal Procedure in Ceylon.
■APPLICATION to revise an order of the Magistrate’s Court, Colombo.
V. S. A. Pullenayegum, Crown Counsel, with R. Abeysuriya, CrownCounsel, and R. Gunatilleke, Crown Counsel, for the Attorney-General.
E. Chitty, Q.C., with A. S. Vanigasooriar and Nihal Jayawickrama,for the 1st Respondent.
Colvin R. de Silva, with Nihal Jayawickrama and P. llayperuma,for the 2nd Respondent.
K.C. Nadarajah, with D. T. P. Rajapakse, for the 3rd Respondent.
Cur. adv. vult.
January 27, 1968. H. N. G. Fernando, C.J.—
On 26th October, 1966 proceedings were instituted in the Magistrate’sCourt, Colombo, against one Premasiri and the three respondents to thepresent application, on a charge of alleged murder by shooting. At theinquiry under Chapter XVI of the Criminal Procedure Code the learnedMagistrate committed Premasiri for trial, but he made order on 18thFebruary 1967 discharging the three respondents without proceeding
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to act in respect of them under Sections 159, 160 and 161 of the Code’Thereafter on 8th April 1967 the Attorney-General in purported exerciseof powers conferred by s. 391, directed the Magistrate—
to record such further evidence as may be adduced on behalf of
the prosecution ;
to read the charge to the 2nd, 3rd and 4th accused and inform
them that they have the right to call witnesses and if theyso desire to give evidence on their own behalf;
to comply with the provisions of sections 160 and 161 of the Criminal
Procedure Code in regard to the said accused ;
to commit the said accused for trial before the Supreme Court
on the said charge and to take such other and further stepsas are required or authorised by law.
Subsequently, the Attorney-General directed the Magistrate to strikeout paragraph (d) of his instructions, and directed him instead to“ conduct and conclude the inquiry in accordance with law ”. On 4thJune 1967, Counsel for the Crown stated in Court that he was not callingany further evidence, and it thus became unnecessary for the Magistrateto comply with paragraph (a) of the instructions. He then read thecharge to the three respondents in terms of s. 159, and proceeded tocomply with ss. 160 and 161 ; but thereafter he again made orderdischarging these respondents.
On 18th June 1967, the Attorney-General again returned the recordto the Magistrate, this time with a direction to commit the respondentsfor trial before the Supreme Court. On 14th August 1967, the learnedMagistrate refused to comply with this direction, stating as his groundof refusal that he had made his original order of discharge under inherentpowers, and that the Attorney-General has no power to give directionsunder s. 391 in a case where an order of discharge is made under suchpower. The present application of the Attorney-General is for therevision by this Court of the Magistrate’s order of 14th August 1967.
During the argument of learned Crown Counsel, reference was made tothe judgment of a Divisional Bench in the case of de Silva v. Jayatillake1,expressing the opinion that the power of discharge referred to in s. 191of the Code is an inherent right of the Court. Having regard to thesimilarity of the language employed in s. 191 and in sub-section (2)of s. 162, that opinion is probably applicable to the last-mentionedsection as well. We informed Counsel that for present purposes wewould regard the power of discharge referred to in sub-section (2) ofs. 162 as'being an inherent power, and would hear argument to thecontrary only if that course became unavoidable. It turns out thatthe present case can be decided without the need to rule on the questionwhether or not s. 162 (2) refers to inherent power.
1 {1965) 67 N. L. R. 169.
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The order discharging the three respondents, which the learnedMagistrate made on 18th February 1967, sets out his reasons for thedischarge, and in that order the three respondents are referred torespectively as the 2nd, 3rd and 4th accused. A witness, Wijesuriya,had testified that the 2nd, 3rd and 4th accused had been present withthe 1st accused at the time of the alleged incident, that the 2nd accusedhad handed a gun to the 1st and instigated him to shoot at the deceased,and that the 3rd and 4th accused had been armed with clubs. Anotherwitness, Wickremapala, testified that he had seen the 2nd accusedhanding a gun to the 1st and the latter shoot in the direction of a Co-operative Store, and that he then saw the deceased man running fromthe steps of the same Store crying out that he had been shot. Thiswitness stated that he did not hear any instigation by the 2nd accused,and that he did not see the 3rd and 4th accused at the scene. Thelearned Magistrate was of opinion that these two witnesses “ contradictedeach other hopelessly ”. He relied also on the fact that Wijesuriya,in his statement to the Police, had stated that the 3rd and 4th accuseddid not have anything in their hands, and on the further fact that allthe prosecution witnesses had apparently failed or delayed to inform thePolice of the names of the alleged assailants. The Magistrate furtherstated his opinion that the Police had conducted their investigationsin an unorthodox and irregular manner, and had built up a false caseimplicating the 2nd, 3rd and 4th accused. On these and other grounds,the learned Magistrate took the view that the evidence of the principalprosecution witness was totally unworthy of credit, and reached theconclusion that “ the evidence does not justify the committal of the2nd, 3rd and 4th accused
Sub-section (1) of s. 162 of the Code provides that “ if the Magistrateconsiders that the evidence against the accused is not sufficient to put himon his trial, the Magistrate shall forthwith order him to be discharged ” ;s. 163 provides that “ if the Magistrate considers the evidence sufficientto put the accused on his trial, the Magistrate shall commit the accusedfor trial ”. One of the main arguments urged for the respondents isthat both these provisions of the Code come into operation only afteran accused has been charged in terms of s. 159 and after ss. 160 and 161have been complied with. This argument is manifestly correct in rolationto s. 163, because a Magistrate can only commit for trial after ss. 160and 161 have been followed. But, for reasons which I am about tostate, sub-section (1) of s. 162 can apply before the stage of compliancewith ss. 159, 160 and 161.
Section 159 quite clearly applies at the stage when the prosecutionhas led all its evidence and imposes a particular duty to be performedby the Magistrate at that stage. This duty is to consider whether “ thecase should be dealt with in accordance with the provisions of s. 162 ”.If the Magistrate gives an answer in the affirmative to the questionwhich he is thus directed to consider, he must discharge the accused.
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In terms then, s. 159 directs the Magistrate’s attention to s. 162 at thestage when the prosecution’s case is closed. Sub-section (1) of s. 162provides for discharge if the evidence is not sufficient to put the accusedon his trial, and the most common ground for discharges in non-summarycases is stated in this sub-section. There is literally nothing in the termsof the sub-section to exclude its application at the stage when the prose-cution has led all its evidence, and no grounds of law or common-sensewere urged in favour of the contrary contention. Indeed, the contentionwas that a discharge at this stage is referable only to sub-section (2) ofs. 162, which means in effect that the Legislature, in directing theMagistrate by s. 159 to consider whether the case should be dealt with“ in accordance with the provisions of s. 162 ”, intended to refer theMagistrate only to sub-section (2) of s. 162. Moreover, if the assumptionon which we are acting for present purposes be correct, namely thatsub-section (2) of s. 162 refers only to an inherent power of discharge,then the contention means that the Legislature failed to provide astatutory power to discharge in the clear and eminently fit case wherethe prosecution evidence is insufficient to put the accused on his trial.
I must note here that learned Crown Counsel himself appeared tosupport this same contention. That support was apparently basedon the judgment of Macdonell, C.J. in Samsudeen v. Marikar1 in a casedecided before the 1938 amendments of the Criminal Procedure Code.The Code formerly contained 3 provisions relating to discharges innon-summary proceedings:—1. s. 156 (2) provided that when all theprosecution evidence had been adduced, the Magistrate shall dischargethe accused if the evidence does not establish a prima facie case of guilt;
s. 157 (I) provided that “ when the inquiry has been concluded, theMagistrate shall discharge the accused if there are not sufficient groundsfor committing the accused for trial ” ; and 3. s. 157 (3) was the sameas the present s. 162 (2). In that context, it was perfectly clear thats. 157 (1) applied only when the whole inquiry was concluded. Butthe present Code has no section like the former s. 156 (2). In placeof that Section and of Section 157 (1), there is the present s. 162 (1)providing for discharge when the Magistrate considers that the evidenceis not sufficient. Unlike the former s. 157 (1), this present s. 162 (1)is not prefaced by the words “ when the inquiry has been concluded ” ;the omission of these words was quite clearly intentional, and its onlyapparent purpose was to provide that the statutory power or duty todischarge is to be exercised when the evidence is considered insufficient,whether at the stage when the prosecution evidence has been led or atthe later stage after the accused has made his statement and/or ledevidence.
The contention that the operation of sub-section (1) of s. 162 mustbe restricted to a case in which a non-summary inquiry has beenconcluded, although propounded on behalf of the respondents in thiscase, is clearly unfavourable to accused persons ; it means that although a
1 36 N. L. R. 89.
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Magistrate may consider the evidence to be insufficient at the close ofthe prosecution case, he has no statutory power to make the obviousorder of discharge, which the operation of the presumption of innocencedemands in such a situation.
The contention also involves the proposition that s. 164, which refersto “ a conflict of evidence ”, only applies in a case where evidence hasbeen led on behalf of an accused, and not also where (as stated in theorder of the Magistrate in the instant case) a conflict is thought to ariseupon the evidence led for the prosecution. But the language of s. 164does not admit of a construction so unfavourable to accused persons.This Section permits a Magistrate to rely on evidence “ in favour of theaccused ” in case of a conflict, and is not in terms limited to a contradictionbetween prosecution evidence on the one hand, and defence evidence orevidence on behalf of the accused on the other.
Let me take a charge of stabbing, in which a witness called by theprosecution gives evidence that he saw the complainant being stabbed,not by the accused, but by some other person. Surely such evidenceis “ evidence in favour of the accused ” which contradicts otherprosecution testimony on a material point. Hence s. 164 will permitthe Magistrate on this ground to consider that the evidence is not“ sufficient to put the accused on trial ”. If such is the opinion of theMagistrate when the prosecution case is closed, it would be absurdthat he cannot give effect to his opinion at that stage and must insteaddefer the making of an order of discharge.
Section 164 echoes the language of s. 162 (1) in using the words“ consider the evidence sufficient to put the accused on his trial When,therefore, there is a conflict of testimony on material points, whetheron the prosecution evidence alone, or else between that evidence andevidence for the defence, the discretion to discharge is statutory (s. 164)and the power to make the order of discharge is also statutory (s. 162 (1)).
For these reasons, I would hold that sub-section (1) of s. 162 will applyat the close of the prosecution case if the Magistrate at that stage considersthe evidence not sufficient to put the accused on his trial. If an orderof discharge is then made for the reason stated in the sub-section, it ismade in exercise of the statutory power conferred by the sub-section,and not by virtue of the inherent or other power referred to in sub-section(2) of s. 162.
The summary which I have earlier made of the learned Magistrate’sorder of 18th February 1967 shows that he had two main grounds fordeciding to discharge the three respondents :firstly the prosecution
witnesses contradicated each other, and their evidence was to some extentcontradicted by their previous statements ; secondly, the witnesseshad failed or delayed to make statements incriminating the respondents.The first ground is that which is expressly stated in s. 164, and I havealready shown that a discharge on that ground is one made in exerciseof the statutory power conferred by s. 162 (1). I do not propose to
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consider whether it is lawful for a Magistrate to take any account of thesecond ground ; but even if a discharge on that ground is lawful, I holdthat the power to make the order of discharge is again that conferredby sub-section (1) of s. 162. Where, as in such a case, the Magistrate’sopinion is based on a consideration of the evidence and on the probabilitythat a Jury would not believe it, the reason for the order of discharge(if lawful) would be that the evidence is insufficient. I am quite unableto accept the submission that, if the Legislature did intend to permit adischarge for such a reason, it left the validity of the discharge to rest oninherent power.
I accordingly hold that in law, the only power which the Magistrate hadto make his order of 18th February 1967 was the power conferred by sub-section (1) of s. 162. Indeed a reading of the order itself leaves no roomfor doubt that the learned Magistrate had in mind the provisions of thatsub-section and of s. 164. Even in the order of 4th June 1967, thelearned Magistrate stated :“I have already held that there is no primafacie case made out against the 2nd, 3rd and 4th accused ”. Althoughthis is not the precise language of s. 162 (1), it conveys much the sameidea : if the evidence is not sufficient, then there is no prima facie case.At the end of the order of 4th June, the Magistrate stated his “ consideredview that the evidence is not sufficient to warrant a committal ” ; here heactually employed the language of s. 162 (I) with only an immaterialvariation. It is only in the last order, that of 14th August 1967, thatthe Magistrate claims to have made the first order of discharge underinherent power referred to in sub-section (2) of s. 162. I regret that,in the face of the reasons stated in the two earlier orders, I have to declarethat claim to be untenable.
In the result, I hold that the first order of discharge was in exerciseor purported exercise of the power conferred by s. 162 (1). Accordinglythe Attorney-General clearly had the power to give his subsequentdirections under s. 391. It was not and could not be argued that aMagistrate may in any circumstances refuse to comply with suchdirections, and I must hold that the Magistrate’s refusal so to complywas unlawful.
Even on the basis that the directions of the Attorney-General in thiscase were in due exercise of the powers conferred by s. 391 of the Code,Counsel for the respondents contended that this Court has no power,in the present application, to direct the Magistrate to comply withthe Attorney-General’s directions in this case.
It was argued that the powers of this Court in revision are notexercisable in the present case because there is not within the meaning ofs. 356 of the Code any sentence or order which may now be examined bythis Court. The Magistrate (it was submitted) was directed to make anorder of committal; but he made no such order, and therefore there doesnot exist any order which we may now reverse or correct under s. 37 ofthe Courts Ordinance. A simple answer to this argument, it seems to me,
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is that in law the Magistrate in this case has made an order refusing tomake the order of committal which the Attorney-General directed himto make, and that such an order of refusal is an order within the meaningof s. 356 of the Code and s. 37 of the Courts Ordinance. Alternatively,the Magistrate has in substance made order holding that the Attorney-General had no power to give the directions which he did give, and thatis an order which this Court can reverse or correct.
Counsel for the 1st respondent drew an analogy between the omissionor refusal of a Magistrate to comply with directions under s. 391 and arefusal to issue process. He urged that if the cases are analogous, thenin each case the only remedy open to the Attorney-General would be byway of mandamus. The unsoundness of this argument is demonstratedby s. 337 of the Code ; although the section provides that a Mandamusshall he to compel a Court to issue process, it expressly contemplatesthat an appeal will also he against a refusal of process, though only atthe instance or with the sanction of the Attorney-General. If, therefore,the cases are in truth analogous, s. 337 might even afford groundfor the contention that the Attorney-General had a right of appeal inthe present case.
It was also argued that s. 356 is hmited to cases already tried orpending trial, and that proceedings under Chapter XVI of the Code donot involve the trial of any case. This same submission was rejected inAttorney-General v. Kanagaratnam1, following previous decisions, andI am in agreement with the judgment in the cited case holding that s. 19of the Courts Ordinance, read with s. 5 of the Criminal Procedure Code,are wide enough to confer powers of revision in relation to non-summaryproceedings.
There was also a further argument of a nature which in my opinionis being adduced in our Courts far too frequently. Relying on recentdecisions holding that the principle of the Separation of Powers is recog-nised in the Constitution of Ceylon, it was argued that an order of dischargein non-summary proceedings is a judicial order, and that the purportedexercise by the Attorney-General of powers under s. 391 is an interferencewith the powers of a Court and is therefore illegal. Counsel for the 1strespondent emphatically urged that the order of a Magistrate, to commitan accused for trial or else to discharge him, “ satisfied every test ”requisite for holding it to be a judicial order. The fallacy of this argumentis exposed in the judgment of Griffith, C.J. in Appleton v. Moorehead2,which has been recognised by many Courts in other Commonwealthcountries as being the most acceptable explanation of the words
judicial power”.
1 (1950) 52 N. L. It. 121.2 (1908) 8 Commonwealth Law Reports, 330.
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The learned Chief Justice gave to the words “ judicial power ” themeaning “ the power which every sovereign authority must of necessityhave to decide controversies between its subjects, or between itself andits subjects, whether the rights relate to life, liberty or propertyDecisions in other jurisdictions, including Ceylon, have in adopting thedictum of Griffith, C.J., laid down as an essential feature of the exerciseof judicial power the requisite that there must be a determination ofrights as between citizen and citizen, or citizen and the State. In thecase of an order committing a person for trial before a Court or discharginghim from liability to trial, there is no determination of any right of acitizen or of the State.
Any order may of course be called a “ judicial order ”, if and on theground that it is made by a Judge ; but it does not follow that thereforethe order is made in the exercise of the judicial power of the State. TheMagistrate conducting an inquiry under Chapter XVI of the Code makesno determination whether or not the accused person has committed anoffence ; all that he decides is whether or not the evidence is sufficient toput the accused on his trial. Nor do I see anything in the argumentthat, because a committal for trial may be followed by a remand, thecommittal thus interferes with the accused person’s right to liberty andis therefore the exercise of judicial power. A committal need not in lawbe followed by a remand, and even when it is, the committing Magistrate,does not in his capacity as such, make any determination as to whetheror not the accused person is to be deprived of his liberty. Purelyadministrative orders are daily made which deprive citizens of theirrights, while not at the same time determining or deciding anycontroversy as to such rights. A common and simple example is thecase of an order for the compulsory acquisition of land or movableproperty whether with or without the payment of compensation.
The judgment of Griffith, C.J. in itself deals at some length with thenature of the power of Magistrates to commit for trial or discharge inpre-trial proceedings. I see no reason whatsoever to disagree with thegrounds stated in that judgment for the conclusion that a Magistratedoes not exercise a judicial function when he conducts a preliminaryinquiry for the purpose of deciding whether or not a person is to becommitted for trial.
There is also I think another answer to the argument invoking thedoctrine of the Separation of Powers in this case. Our law has, since1883 if not earlier, conferred on the Attorney-General in Ceylon powers,directly to bring an alleged offender to trial before a Court, to direct a
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Magistrate who has discharged an alleged, offender to commit him fortrial, and to direct a Magistrate to discharge an offender whom he hascommitted for trial. These powers of the Attorney-General which havecommonly been described as quasi-judicial, have traditionally formed anintegral part of our system of Criminal Procedure, and it would be quiteunrealistic to hold that there was any intention in our Constitution torender invalid and illegal the continued exercise of those powers. ThisCourt has, upon similar considerations, upheld the validitv of Statutesconferring criminal jurisdiction on Courts Martial and conferring onrevenue authorities the power to impose penalties for the breach ofrevenue restrictions.
I should add lastly that the instant case appears to have taken theturn it did, only because of some idea in the mind of the learned Magistratethat the Attorney-General was attempting improperly to interfere withjudicial proceedings, and that the directions given by the Attorney-General were a reflection on the correctness of views formed by theMagistrate on the evidence in this case. It is well to remember that,just as much as Chapter XVI of the Code confers a certain measure ofdiscretion on a Magistrate before whom non-summary proceedings aretaken, other provisions of the Code equally confer on the Attorney-Generala measure of discretion which is rendered effective by his statutory powerto secure that inquiries under Chapter XVI will terminate in a mannerdetermined in the exercise of that discretion. Indeed, the argumentsof Counsel who appeared in this case for the respondents actually involvedthe alarming proposition (which I am certain none of them wouldconcede in a different situation) that the Attorney-General may notlawfully direct the discharge of a person whom a Magistrate commitsfor trial.
For these reasons, I would, in exercise of the powers of revision of thisCourt, set aside the order of discharge made by the Magistrate on 14thAugust 1967, and remit the record to the Magistrate’s Courtfor compliance by that Court with the direction given by the Attorney-General on 18th June 1967 to commit the three respondents for trialbefore the Supreme Court on the charge specified in that direction andto take further steps according to law.
Abeyestjndere, J.—I agree.Silva, J.—I agree.
Application allowed.