The King v. TVienis Silva et al.
1936 Present: Hon. Mr. de Kretser, Commissioner of Assize.
THE KING v. THENIS SELVA et al.
P. C. Kalutara, 23,863.
[No. 1—Western Circuit.]
Transfer of criminal case—Application for transfer on the ground that a fairand impartial trial cannot he had—Powers of Supreme Court—CourtsOrdinance, Nos. 46 and 47—Criminal Procedure Code, s. 422.
The Supreme Court has no power to transfer a criminal case pendingbefore it from one Court to another on the ground that a fair impartialtrial cannot be had in any particular place.
Section 46 of the Courts Ordinance has been repealed so far as itrelates to the transfer of criminal cases.
HIS was an application for the transfer of a case from Kalutara toColombo in the same circuit.
Sri Nissanka, for the applicant.
Kariapper C.C., for the Attorney-General.
December 3, 1936—- :
This is an application by the second accused for the transfer of the abovecase from Kalutara to Colombo in the same circuit on the ground that thecase has aroused so much local interest that the accused fears he may notobtain an impartial trial at Kalutara. The first and third accusedappeared by Counsel assigned to defend them and raised no objection tothe transfer applied for. Application had been made to the Attorney-General that he should exercise his powers under section 47 of the CourtsOrdinance, and he had not acceded to that application. I understandCrown Counsel to object to the present application.
• The scene of the offence is alleged to be some 13 miles from Kalutaraand it is not likely that jurors attending here will be more informed of thefacts of the case than they will be when the case is opened in any Court,and it ought to be possible to take steps to see that any juror possessedof any special knowledge of the facts of the case informs the Court anddoes not sit to try the case. On the merits it is, therefore, at least doubt-ful whether there is any foundation for the fear of the accused.
But the first question for decision is whether this Court has the powerto order the transfer now applied for. Such transfers have been madepreviously, but it is conceded that the Court purported to act in eachcase under the provisions of section 46 of the Courts Ordinance, No. 1 of1889, that is where it did not act on the application of the Attorney-General under section 47. Section 46 of the Courts Ordinance wasrepealed by Ordinance No. 1 of 1900 so far as it provided for the transferof. criminal cases, and the reason for the repeal was that section 422 of theCriminal Procedure Code made sufficient provision. But this repealseems to have been lost sight of in some instances. Provision for thetransfer of criminal cases had been made by Ordinance No. 11 of 1868and later by Ordinance No. 3 of 1883 which existed side by side withsection 46 of the Courts Ordinance. These earlier Ordinances recognized
Mather v. Somasunderam.
as a reason for transfer the fact that it appeared that a fair and impartialtrial could not be held in any particular Court or that it was expedienton any other ground. With these provisions before it the Legislatureenacted section 422 of the Criminal Procedure Code and repealed theprovisions of section 46 of the Courts Ordinance. It must be presumedthat the alteration was deliberately made.
‘The Indian Criminal Procedure Code of 1898, section 526, providesfor a transfer on the ground that a fair and impartial tried cannot be hadin any Criminal Court subordinate to a High Court. In India a SessionsCourt may be subordinate to the High Court in view of the scheme ofjudicature there observed, but in Ceylon the position is different- TheIndian Code was subsequently amended in 1&23, 1925, 1926, and 1927.The report of the Select Committee shows that they considered it wouldbe a mistake to amend the section by providing for the transfer of a casewhen the accused has reasonable grounds for apprehending that he wouldnot get a fair and impartial trial. (Vide The Code of Criminal Procedureby Dinesh Ch. Roy, p. 1217.)
Our Code gives the same grounds for transfer as the Indian Code, andas I said before, deliberately departed from the earlier provisions of awider nature. It was apparently thought sufficient to entrust the dutyto the Attorney-General, at whose instance, for example, the Talpe murdercase and the Ludowyke case were transferred.
Mr. Nissanka, for the applicant, sought to bring himself under clause (a)of section 422, but that clause refers to a subordinate Court, and obviouslythis Court is not subordinate to itself.
He has also argued that the Court ought to have the power, but that isquite another matter. The Court has no powers other than those whichthe law has expressly given it.
I invited him to consider clause (a) but he did not think he would comeunder it. He was given time till to-day to discover any authority bearingon the point, or any definition of “ convenience ” which would help him,but he informs the Court that he has not been able to discover any inspite of diligent search. There is, besides, the fact that provision hasbeen made for a case where a fair and impartial trial cannot be had, butthis is limited to subordinate Courts.
In these circumstances I must hold that this Court has no power toallow the application and it must therefore be dismissed.
THE KING v. THENIS SILVA et al