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Present: Mr. Justice Wood Benton.
THE KING NOORDEEN et al.
D. C. (Grim.), Negombo, 2,779.
dcguttfai—Refusal of Attorney-General to sanction an appeal —Appli-cation for revision—Powers of Supreme Court—Criminal ProcedureCode, ss. 356 and 357y
The Supreme Court has full powers of revision in all criminalcases. That power is not limited to those cases in which either' noappeal lies, or for some reason or other an appeal has not .beentaken; it extends, as a matter -of law, to cases in which theAttorney-Generalhas refused to sanction an appeal from an
acquittal, provided proper materials have been laid before the Courtto call for its exercise.
N this case the accused, who belonged to the Ceylon Police Force,were indicted before the District Court of Negombo on five
counts; (1) Being members of an unlawful assembly, the commonobject whereof was to cause hurt to Carry; (2) using force; (3)criminal trespass; (4) grievous hurt to Carry; (5) voluntarily causinghurt to Planson.
The learned District Judge convicted all, except the 1st, 3rd, and7th to the Hth accused. Carry petitioned the Attorney-General toappeal against the acquittal of the accused. The Attorney-Generalrefused to appeal. Carry then moved the Supreme Court to exerciseits powers of revision under section 356, Criminal Procedure Code.The Supreme Court issued notice cn the accused.
Van Langenberg, Acting S.-O.f for the Crown, intervened withHis Lordship's permission.—The Attorney-General desires to say
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May 4,1910 nothing on the merits oi the ease; but he desires to bring a matterKing v of principle before Your Lordship as regards the exercise of the rightNoordeen of revision. The Legislature has vested in the Attorney-General thefirst right of asking Tour Lordship to say whether the decision ofacquittal is right or wrong. He has exercised his discretion. WillYour Lordship, under the circumstances, entertain an applicationto revise, practically, his decision in the matter? [Wood Benton J.:It would involve two questions: first, the power of the Court toentertain applications of this nature.] No. I cannot question thatpower at all. It is a pure question of expediency. Under section357 of the Criminal Procedure Code, sub-section (3) enacts that theSupreme Court cannot in revision convert a finding of acquittal intoone of conviction. The only order the Supreme Court can make, ifit disapproves of the acquittal, is to order a new trial. An awkwardsituation may arise if the Attorney-General exercises his right toenter a noili prosequi when the Supreme Court orders a new trial.Under the old Code of 1883 there was an appeal from orders ofdischarge in non-summary cases. In an appeal against an order in anon-summary case discharging an accused on the instructions of theAttorney-General, Burnside C.J. said: “ That we have a right toreverse this order I do not doubt, but the question is, except underexceptional circumstances, should we exercise that right. I thinknot. Unless, indeed, the circumstances were such as would justifythe Court in interfering, it is better to leave these questions to bedealt with by the Attorney-General’s Department.”
Bawa, for the 1st accused, who was acquitted.—Under section202, Criminal Procedure Code, the Attorney-General can nullify theeffect of any order the Supreme Court may make by entering a' nolli prosequi. The Supreme Court has in many cases refused tointerfere with an order discharging an accused (see Vsoof v. BharatShing'). The Supreme Court should not exercise its powers ofrevision except in exceptional cases. [Wood Benton J.: It is clearthat the power must not be exercised so as to admit, by a sidewind, an appeal.] The prosecutor in this case is the Attorney-General. He had a right to appeal. He has decided not to appeal.Where there is a remedy by appeal no revision is allowed. Mr.Carry is a mere witness. Is it open to him to apply for revision?Counsel cited Perera v. Silva,2 Ooonawardana v. Orr.*
Sandrasegra, for the 3rd and 7th to 11th accused.—Unless therebe very strong grounds the Attorney-General’s decision should notbe questioned. He cited 25 All. 128.
[Wood Benton J.: I think I will now hear Mr. Pereira on themerits. I suppose you will admit, Mr. Pereira, that an exceptionalcase must be made out?] 1
1 (1896) 6 Tam. 96.2 (1908) 4 A. O. JJ. 79.
* (1907) 2 A. C. R: 172.
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H. J. C. Pereira (with him if. A. Jayewardene), then argued thecase on the merits.
May 4, 1910. Wood Benton J.—
I have had the advantage in this ease of hearing counsel uponboth sides on the questions as to the jurisdiction of the SupremeCourt to entertain motions in revision where the Attorney-Generalhas refused to sanction an appeal from an acquittal, and the class ofcircumstances in which that power, if it exists, should be exercised.On behalf of the applicant, who was the actual complainant in theCourt below, Mr. H. J C. Pereira has read to me the whole of theevidence, and has argued very clearly and fully every point whichcould be taken in his client's interest. I have come clearly to theconclusion that the application should be refused.
1 propose, in the first place, to deal with the issues of law, andthereafter to indicate quite briefly the grounds on which I feel thatit is impossible and would be wrong for me to interfere on the facts.Under section 357 (1) of the Criminal Procedure Code, the SupremeCourt is empowered “ in any case, the record of the proceedings ofwhich has been called for by itself or which otherwise comes to itsknowledge,’* to exercise its revisionary powers at its discretion. Itappears to me that the language of that section invests the SupremeCourt with full powers of revision in all criminal cases. I do notthink that that power is at all limited to those cases in which eitherno appeal lies or, for some reason or other, an appeal has not beentaken. I hold without hesitation that as a matter of law it extendsto cases in which the Attorney-General has refused to sanctionthe appeal from an acquittal, provided that proper materialshave been laid before the Court to call for its exercise. In thecourse of his observations on this subject the learned Solicitor-General called my attention to sub-section (3) of section 357,which provides that nothing in the foregoing sub-sections, ofwhich I have already quoted the substance of the first, shall bedeemed to authorize the Supreme Court to convert a finding ofacquittal into one of conviction. He pointed out that all thatthe Supreme Court could do in such a case would be to direct anew trial, and he argued that any order of that nature would bea mere brutum fvlmen, since it would be open to the Attorney-General, under section 202 of the Criminal Procedure Code, to enters nolli prosequi at any stage of the subsequent proceedings priorto verdict. If the Supreme Court really possesses, as I hold it doespossess, under section 357, sub-section (1), of the Code of CriminalProcedure, the power to entertain applications of this kind, in spiteof the prior refusal of the Attorney-General to sanction an appeal,I feel quite sure that no Attorney-General would feel himself justifiedin exercising his powers under section 202, and I desire to guard
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May 4, 1910 myself expressly from being supposed to hold that in suoh a case^OOD where the Legislature has itself conferred jurisdiction on the SupremeRenton J. Court, it would be competent for the Attorney-General to over-ridejfonqv that jurisdiction under the provisions of section 202. At the sameNoordeen time there can be no doubt but that we are called upon to apply,in dealing with an application like the present, a fortiori!, the samerule which the Supreme Court has laid down for its guidance in allcases where an application is made to it for the exercise of its powersin revision. I say a fortiori, for we are bound to take account of thefact that section 336 of the Criminal Procedure Code, in providingthat there shall be no appeal from an acquittal by a District Court ora Police Court, except at the instance or with the written sanctionof the Attorney-General, has clearly indicated its intention to investthe Attorney-General with a wide and almost judicial discretionin such matters, and, without in any sense attempting to lay downa general rule which should have the effect of fettering the discretionof future Judges, 1 am clearly of opinion that a very heavy onusrests upon the applicant who comes before the Supreme Court, forthe purpose of inviting it in effect to over-ride the deliberate refusalby the Attorney-General to sanction an appeal. It is incumbentupon him, I should say, to make out a strong case amounting topositive miscarriage of justice in regard to either the law or theJudge's appreciation of the facts.
I am unable to agree with Mr. H. J. C. Pereira that any questionof law is really involved in the case before us. It is a case whichraises 'a question of fact that we are all familiar with in the AssizeCourt. I refer to the question whether a common intention hasbeen proved affirmatively to have existed on the part of certainpersons who are alleged to have committed, or to have participated,by virtue of a common intention and object, in the commission of©. criminal offence. It is a question for a jury in the AssizeCourt, and in such a case as the present it is a matter for thedecision of the Judge who fulfils the functions of a jury as well asof Judge.
I propose to say nothing at present in regard t-o the case of thoseof the accused who have been convicted. I will deal with thatmatter when I have heard the appeal. I will merely take one by onethe case of the 1st, 3rd, 7th, 8th, 9th, 10th, and llth* accused inthe District Court, and consider whether the finding of the DistrictJudge in regard to each of them can be considered perverse. Forit is only on the ground of perversity that, in the view which I takeof the law, I should be entitled to interfere.
[His Lordship then proceeded to discuss the evidence.]
THE KING v. NOORDEEN et al