A. PARAMALINGAM, Petitioner, and THE ATTORNEY-GENERAL and another, Respondents

040-NLR-NLR-V-63-A.-PARAMALINGAM-Petitioner-and-THE-ATTORNEY-GENERAL-and-another-Respondents.pdf


202
EERASOORTYA, J.—Paramalingam v. Attorney-General
1959
Present: Weerasooriya, J.A. PARAMAXiINGAM, Petitioner, and THE ATTORNEY-GENERAL
and another, Respondents
S. C. 383—Application for the Re-transfer of M. C. Kayts,Case No. 7,677 from the Magistrate's Court, Colombo, to theMagistrate's Court, Kayts
Fiat issued by Attorney-General transferring a case from one court to another—A pplicationfor re-transfer by an aggrieved party—Meaning of expression “ any party con-sidering himself aggrieved ”—Power of Supreme Court to examine matter fully—Courts Ordinance {Cap. 6), ss. 42, 43—Criminal Procedure Code, ss. 135, 338.
In an application under the proviso to section 43 of the Courts Ordinance forthe re-transfer to the Magistrate’s Court, Kayts, of a case the trial of which theAttorney-General, acting under the main provisions of that section, had by hisfiat transferred to the Magistrate’s Court, Colomho—
Held, (i) that the expression “ any party considering himself aggrieved ” inthe proviso to section 43 of the Courts Ordinance is not restricted to a party onrecord, that is to say, either the accused or the person who is formally thecomplainant. Accordingly, where the Police have filed a prosecution on acomplaint made by a person, the latter (though not a party on the record) is aparty within the meaning of the proviso and is entitled to move the SupremeCourt for the re-transfer of the case.
(ii) that a re-transfer would be ordered by the Supreme Court if the Attorney-General adopts an attitude of silence in regard to the reasons that moved him toissue his fiat.
PPL IC ATI ON for the re-transfer of M. C. Kayts, Case No. 7,677from the Magistrate’s Court, Colombo, to the Magistrate’s Court, Kayts.
Thiagalingam, Q.C., with S. Sharvananda, for the petitioner.
Ananda Pereira, Crown Counsel, with V. S. A. Pullenayegam, CrownCounsel, for the Attorney-General.
Cur. adv. mat.
December 21, 1959. Weerasooriya, J.—
This is an application under the proviso to section 43 of the CourtsOrdinance (Cap. 6) for a re-transfer in M. C. Kayts, Case No. 7,677 thetrial of which the Attorney-General, acting under the main provisions ofthat section, had by his fiat transferred to the Magistrate’s Court ofColombo.
WEEK AS O OftlY A, J.—Paramalingam v. Attorney-General
203
The case is one in which the Assistant Superintendent of Police, Jaffna,who is the 2nd respondent, acting on a complaint made by the petitioner,filed a report under section 148 (1) (b) of the Criminal Procedure Codecharging Sub-Inspector Palipanai of the Kayts Police Station withvoluntarily causing hurt to the petitioner, assault and using criminalforce intending thereby to dishonour him, offences said to have beencommitted on the 27th June, 1958, and punishable under sections 314,343 and 346 of the Penal Code. After trial the accused was found guiltyof all the charges and sentenced to terms of imprisonment but in appealthe convictions and sentences were set aside, by my brother Sinnetambyand he ordered a re-trial before another Magistrate.
The Attorney-General’s fiat issued after the case had been sent back forre-trial. Mr. Thiagalingam, who appeared for the petitioner, submittedthat in terms of the order of this Court the re-trial must be held in theMagistrate’s Court of Kayts and the Attorney-General had no power,therefore, to transfer the trial to the Magistrate’s Court of Colombo. Iam unable, however, to see anything in the provisions of section 43 of theCourts Ordinance which expressly or by necessary implication takes awayfrom the Attorney-General the power to issue a fiat of transfer after anorder has been made in appeal by this Court that a re-trial should be held.
The proviso to section 43 allows “ any party considering himselfaggrieved ” by the Attorney-General’s fiat of transfer to apply to thisCourt for, inter alia, a re-transfer, and the substantial question thatarises is whether such an application can be made by the petitioner.Learned Crown Counsel, while not denying that the petitioner may wellbe aggrieved by the fiat of transfer, contends that he does not comewithin the expression “ any party ”, which expression, Crown Counselsubmits, must be construed as meaning a party on record, that is to say,in the present case, either the accused or the 2nd respondent.
There appears to be no previous decision of this Court covering theparticular question raised, but Crown Counsel relied on the judgment ofDalton, J., in Babi Nona v. Wijesinghe1. The provision of law con-sidered in that case was section 338 of the Criminal Procedure Codewhich confers a right of appeal on any person who is dissatisfied with anyjudgment or final order pronounced by a Magistrate’s Court or DistrictCourt in a criminal case or matter to which he is a 'party. It was held thatthe injured person, in respect of hurt caused to whom a prosecution undersection 315 of the Penal Code was instituted against the accused by thePolice on a report filed in terms of section 148 (1) (6) of the CriminalProcedure Code, had no right of appeal against the order of the Magis-trate referring the matter of the complainant to the Village Tribunal.The ratio decidendi was that “ party ” in section 338 denotes a party tothe proceedings and, therefore, only the Sub-Inspector of Police whoinstituted the proceedings, or the accused, had a right of appeal underthat section.
1 (1926) 29 N. L. R. 4-3.
204
WEERASOORIYA, J.—Paramcdingam v. Attorney-General
But, as Mr. Thiagalingam pointed out, a decision as regards the meaningof “ party ” in a particular provision of law is no criterion for determiningthe meaning of the same expression in a different provision of law. Theexpression is a comprehensive one the meaning of which would vary withthe context in which it occurs. To cite one or two cases out of theinnumerable decisions of the Courts in England on the point, in Be QuartzHill Gold Mining Co., Ex Parte Young1, the expression “any party ” insection 40 of the Chancery Amendment Act, 1852, was equated to “ anyperson ”, but in Smith vs. Harlow2, the expression “ parties ” in section 17of the Common Law Pxocedure Act, 1860, was held to denote onlylitigant parties.
Even where the word “ party ” occurs in different contexts in the samestatute it does not necessarily bear the saixxe meaning. There aresections of the Courts Ordinance where the word appears to be used in thesense of a party to the case (sections 73, 78, 79, 88, 89). But I am unableto regard this as a reason for assigning the same meaning to “ party ”in section 43.
Generally speaking, the word “ party ”, when used with reference tothe binding effect of a judgment of a Court of law, would indicate only aparty to the case. Likewise, when there is statutory provision for anappeal, by availing himself of which a “ party ” is afforded an opportunityof being relieved from the binding effect of the judgment appealed from,there would be reason for the view that “ party ” in that context meansa party t.o the case, as was held in Babi No tut v. Wijesinghe (supra).But in issuing a fiat of transfer under section 43 of the Courts Ordinancethe Attorney-General acts in an administrative capacity only. There isno' person or “ party ” whose objections he need consider before takingsuch a step. I do not think that the proviso to section 43 can be re-garded as allowing a right of appeal from a judicial or quasi-judicial actof the Attorney-General in issuing a fiat of transfer.
Section 43 immediately follows certain provisions (section 42) where-under this Court is given, inter alia, wide powers for the transfer of pendingcases. Section 42 provides that any transfer shall be made afterapplication bj7 motion, supported by affidavit, setting out the grounds onwhich it is based. It would seem that such application is not restrictedto a party to the case and may, therefore, be made by the virtualcomplainant.
Section 526 of the Indian Criminal Procedure Code contains provisionsanalagous to section 42 of the Courts Ordinance for the transfer by theHigh Court of pending cases. Sub-section (3) of section 526 providesthat the High Court may act either on the report of the lower Court, oron the application of a “ party interested ”, or on its own initiative. Sub-section (8) as it originally stood referred to the Public Prosecutor, the
1 (1882) 21 Ch. D. 642.
» (1884) 26 Ch. D. 605.
WEERASOORIYA, J.—Paramalingam v. Attorney-General
205
complainant or the accused as the persons competent to move a Court,before which the trial or appeal is pending, for a postponement oradjournment so as to enable an application being made to the HighCourt for a transfer of the proceedings. But by a subsequent amendmentthere were substituted for the words “ the Public Prosecutor, the com-plainant or the accused” in sub-section (8) the words “any partyinterested”. In Sardar Shah v. Ghirdit Singh and Others a Judge of theLahore High Court sitting alone (Haidar, J.) held that where the Policehad filed a prosecution on a complaint made by a person, the latter(though not a party on the record) is a party interested within themeaning of section 526 (3) and is entitled to move the High Court incertain circumstances for a transfer of the case. It would appear, how-ever, from the cases discussed in the judgment of Haidar, J., that judicialopinion is not uniform on the point in the different Indian High Courts.In Om Badhe v. Emperor 2, it was held that a witness, on whose informa-tion the prosecution had been filed by the Police, was a party interestedwithin the meaning of section 526 (8). These cases seem to be moredirectly in point than the case of Babi Nona v. Wijesinghe (supra) reliedon by learned Crown Counsel.
In the absence of anything in the context which would justify arestricted meaning being given to “ party ” in the proviso to section 43 ofthe Courts Ordinance, I hold that it is competent for the petitioner, asthe virtual complainant in the ease, to make this application for are-transfer.
The next question that arises is whether good cause has been shewn whythe application should be granted. The petitioner has set out severalgrounds in his application none of which, however, can be regarded asvery convincing. Mr. Thiagalingam did not press the application on anyof those grounds. But he urged that no material whatever had beenplaced before this Court by the Attorney-General for a departure fromthe rule stated in section 135 of the Criminal Procedure Code that everyoffence shall ordinarily be tried by a Court within the local limits of whosejurisdiction it was committed, and for that reason alone he asked that hisclient’s application be allowed. Crown Counsel submitted, on the otherhand, that the Attorney-General having already issued his fiat of transfer,the burden is on petitioner to make out a case for a re-transfer.
The proviso to section 43 of the Courts Ordinance specially provides fornotice being given to the Attorney-General of an application under it soas to enable him, if he thinks fit, to show cause against it. Except for astatement made from the Bar by Crown Counsel at the hearing of theapplication, that the fiat was issued on representations contained in a
* A. J. R. 1934 Lahore 612.
A. I. JR. 1939 Sind 238.
206
WEERASOORIYA, J.—Para moling urn v. Attorney-General
petition sent by tbe accused, no cause on the merits has even beenattempted to be shewn by the Attorney-General against the presentapplication. If the petition which the accused is said to have addressedto the Attorney-General contained any ground or grounds which madeout a prima, facie case for a transfer of the trial I do not see whythose grounds should have been withheld from this Court. As stated byDrieberg, J., in The King v. Imdcnvykea, where the Attorney-Generalhas directed a transfer and an application has been made under theproviso to section 43 for a re-transfer, the matter is open to the fullestexamination by this Court. But as a result of the attitude of silenceadopted by the Attorney-General in regard to the reasons that movedhim to issue his fiat, the position is simply this : that no cause has beenshewn against the petitioner’s application. I would, accordingly, allowthe application and direct that the trial be re-transferred to the Magis-trate’s Court of Kayts. It is to be hoped that the trial will now takeplace without further delay.
Before I conclude I wish to state that this application was originallyargued before me on the 24th and 25th September, 1959, and thereafterI reserved my order. A few days later Crown Counsel brought to mynotice that with effect from the 25th September, 1959, the operation ofthe proviso to section 43 of the Courts Ordinance was suspended byRegulation 47 (4) of the Emergency (Miscellaneous Provisions and Powers)Regulations which had been brought into force on that day. I thereuponhad the matter listed for further hearing, which took place on the 29thOctober, 1959. At that hearing Mr. Thiagalingam challenged the validityof Regulation 47 (4) on various grounds, and in view of the importance ofthe questions raised I referred the application to the decision of a fullerBench. The application was accordingly listed before a Bench of threeJudges on the 3rd December,* 1959, but it became unnecessary to decidethose questions as the Proclamation under section 2 of the Public SecurityOrdinance, No. 25 of 1947, by virtue of which the Emergency (Mis-cellaneous Provisions and Powers) Regulations were in force wasrevoked on the same day, and Counsel on both sides were agreed that theapplication could be dealt with by me on the basis of the arguments onwhich I originally reserved my order.
Application alloived.
1 (7935) 36 N. L. R. 397.