094-NLR-NLR-V-75-THE-ATTORNEY-GENERAL-Petitioner-and-C.-SUNTHARALINGAM-et-al.-Respondents.pdf
SAMERAWICKRAME, J.—The Attorney.General v'r Suntharalingam627
1971 Present: Samerawickrame, J., and Thamotheram, J.
THE ATTORNEY-GENERAL, Petitioner, andC. SUNTHARALINGAM et aZ., Respondents
S.C. 583/70—Application in Revision in M. C. Mallakam, 9747-
Criminal Procedure Code—Section 199—Trial before a Magistrate—Private prosecu-tion—Right of Attorney-General to appear and conduct the prosecution.
The right granted to the Attorney-General by section 199 of the CriminalProcedure Code to appear and conduct the prosecution in any case triablesummarily extends even to a ease initiated by the tiling of a private plaint,unless there is sufficient material to show, that the Attornoy-General is actingmala fide and for an improper purpose.
Application to revise an order of the Magistrate’s Court, Mallakam.
V. S. A. Pullenayegum, Senior Crown Counsel, with Faisz Mustgpha,Crown Counsel, for the petitioner.
First respondent in person.
Cur. adv. vult.
November 16, 1971. Samerawickrame, J.—
The Attorney-General has made this application in respect of an orderof the learned magistrate of Mallakam refusing to permit Crown Counselto appear and conduct the prosecution in terms of Section 199 of theCriminal Procedure Code.
The Attorney-General had filed a civil action against the first respondentand another and had obtained an interim injunction restraining themfrom preventing certain classes of persons from entering the Kandasamy
628 SAMERAWIOKRAME,Attorney‘General >. Sunlharnlingam
Kovil, Maviddapuram. The injunction was served on 7th July, 1970.A few days later the first respondent instituted in the Magistrate’s Courtof Mallakam the proceedings in which the order sought to be revised wasmade and preferred charges of intimidation, criminal trespass andabetment against certain police officers.
The learned magistrate refused the application made to him by CrownCounsel on the ground that the Attorney-General was not free frombias.
Section 199 of the Criminal Procedure Code states »
“ The Attorney-General, the Solicitor-General, a Grown Counsel,or a pleader generally or specially authorized by the Attorney-Generalshall be entitled to appear and conduct the prosecution in any casetried under this Chapter”
The right granted to the Attorney-General extends to all eases triedunder the Chapter including any initiated by the filing of a private plaint.The Section however is procedural and is intended to secure the properadministration of justice and it is therefore essential that it should bemade to serve and be subordinate to that purpose. If therefore anattempt is made by the Attorney-General to exercise the right given tohim by this provision mala fide and for an improper purpose in respectof a private prosecution, it is, in my view, open to a Court to refuse topermit it.
I am however satisfied that on the material before him the learnedmagistrate was not justified in arriving at a finding that the Attorney-General was biased. The first respondent who appeared in person statedthat it was the same Crown Counsel who appeared and obtained theinjunction in the civil notion who made the application to the magistrate.Crown Counsel however aet under the direction of the Attorney-Generalor Senior Officers of the Department. There is no reason to think thatthe same fair and careful consideration was not given to this matter as isusually given to all other matters touching the administration of justiceby the Attorney-General and/or the officers of his Department.
It may be that in this case as in Ailomey-QmmX w. Sivapmffasam *=60 N. L. R. 409, no evidence will be offered. As Sansoni, J.‘, remarked inhis judgment in that ease, " conducting the prosecution does notnecessarily mean leading evidence. It may happen that all theavailable evidence taken together will not establish the charge againstthe accused, and in suoh a case a fair-minded prosecutor will refrain fromleading any evidence
I set aside the order made by the learned magistrate on the 22nd ofJuly, 1970, and I direct that Grown Counsel he permitted to appear andconduct the prosecution. I also direct that further proceedings in thecase should be heard before another magistrate.
Thamotobram, J.—>X agree.
Order set wide*
‘ (mo) 60 if. L‘ ft, 466,