THE ATTORNEY-GENERAL, Applicant, and SRI SKANDARAJAH Respondent

090-NLR-NLR-V-53-THE-ATTORNEY-GENERAL-Applicant-and-SRI-SKANDARAJAH-Respondent.pdf


The Attorney-General v. Sri Skandarajah
409
1952 Present: Nagallngam S.P.J., Gratlaen J. and Pnlle J.THE ATTORNEY-GENERAL., Applicant, and SRI SKANDARAJAH.
Respondent
S. C. 595—In the matter of an Application for a Writ ofMandamus on P. Sri Skandarajah, Chief Magistrate, Colombo
Criminal Procedure Code—Non-summary inquiry—Assumption by Magistrate ofsummary jurisdiction—Povcer of Attorney-General to give instructions to Magis-trate in summary proceedings—Meaning of term " inquiry ”—Section 153 (8),390 (2).
Alter a Magistrate, daring a non-summary inquiry relating to an indictableoffence, has assumed summary jurisdiction under section 162 (3) of the CriminalProcedure Code, the Attorney-General has no power under section 390 (2)of the Code to direct the Magistrate to discontinue the summary proceedingsand take non-summary proceedings. The power of the Attorney-Generalto give instructions to a Magistrate is limited to non-summsry inquiries underChapter 16 of the Code and does not extend to trials either of summary offencesor of non-summary offences in respect of which the Magistrate has assumedjurisdiction under section 162 (3).
1 HIS was an application for a writ of mandamus to compel the ChiefMagistrate of Colombo to carry out certain instructions issued to himby the Attorney-General.
H. W. R. Weerasooriya, Acting Solicitor-General, with T. S. Fernando,R. A. Kannangara and N. T. D. Kanekeratne, Crown Counsel, for theAttorney-General.—The Attorney-General took action under section390 (2) of the Criminal Procedure Code. He had the right to interveneand give instructions as to the inquiry even though the proceedingsbefore the Magistrate was a trial. The inquiry need not necessarily bea pending inquiry. It could be an inquiry relating to the proceedingswhether pending or not. The present Code of Criminal Procedureenlarged the powers given to the Attorney-General by the earlier Codeof Criminal Procedure Ordinance, No. 3 of 1883, as amended by Ordinance-No. 8 of 1896. The view of Middleton J. in Silva v. Silva 1 sets outthe correct view.
S. Nadesan, with C. Manohara, for the accused parties noticed.—Theword “ inquiry ” in section 390 means a proceeding under Chapter XVIof the Criminal Procedure Code. One must read section 390 in the contextof the other sections m the Code. The only basis on which the Attorney-General could have caUed for the record was that there was an “ inquiryor trial ”. In this case there could be no question of an inquiry that waspending. There-were only certain preliminary – proceedings. But thesedid not constitute an inquiry under Chapter XVI of the Code. There is
(1904) 7 N. L. R. 182.
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N AG-ALIN GAM S.P.J.—The Attorney-General t>. Sri Skandarajah
no doubt that in section 390 the word “ inquiry ” contemplated a non-summary inquiry under Chapter XVI. In section 390 (1) the words" or trial ” were added, but the “ inquiry ” mentioned in section 390,sub-sections I and 2, still contemplated an inquiry under Chapter XVI.
The Attorney-General called for the record, not because there was aninquiry under Chapter XVI, but because there was a trial. It is onething for the Attorney-General to give directions regarding an inquiry,but it is a totally different proposition to say that the Attorney-Generalcould give instructions as to whether one is to have a trial or an inquiry.The view of Wendt J. in Re application of V. G. Vellavarayam 1 iserroneous as it is based on the Indian Code. Further, the inquiry mustbe an existing inquiry, because the only record that could be called forunder section 390 is in a case in which an inquiry “ has been or is beingheld.” There is a fundamental difference in principle between instruc-tions regarding the conduct of an inquiry and the conduct of a trial. TheAttorney-General could not interfere with a matter that was essentiallya function of the Magistrate. If there was an inquiry he could giveinstructions; not otherwise.
H. W. R. Weerasooriya, in reply.—The word ” inquiry ” should notbe limited in meaning to an inquiry which had already commenced. Itmight also refer to an inquiry which may commence.
Cut. adv. vult.
February 11, 1952. Nagalingam S.P.J.—
A writ of mandamus is applied for in these proceedings by the Attorney-General to compel the Chief Magistrate of Colombo to carry out certaininstructions issued by him acting under the provisions of section 390 (2)of the Criminal Procedure Code.
The circumstances giving rise to this application briefly are: A reportunder section 148 (1) (b) was presented to the learned Magistrate by anInspector of Police charging certain persons with having committedoffences punishable under section 480 of the Penal Code. The learnedMagistrate directed the issue of summons to the accused persons andon the day they appeared examined one of the principal witnesses forthe prosecution and made order in the presence of Crown Counsel that, hehad decided to hear the case in his capacity as Additional District Judgein terms of section 152 (3) of the Code. After having made the order,the learned Magistrate charged the accused, recorded their pleas andset down the case for tripl. At this stage the Attorney-General calledfor the record of the proceedings and, purporting to act under section390 (2) of the Code, instructed the learned Magistrate (1) to discontinuethe summary proceedings and (2) to take proceedings under Chapter 16of the Criminal Procedure Code against the accused. When the casewas taken up on the day fixed for trial, the learned Magistrate communi-cated to Counsel for the defence the instructions he had received,whereupon defence Counsel challenged the regularity, if not the legality,of the instructions issued by the Attorney-General. After hearing
(1903) 7 N. L. R. 116.
NAGAIjINGAM S.P.J.—The Attorney-General t>. Sri Skandarajali
411
arguments on the point the learned Magistrate held that it was notcompetent for the Attorney-General to give instructions in case of asummary trial, which was the character of the proceedings before him,and directed the trial to proceed. Virtually, therefore, the learnedMagistrate’s order amounted to a refusal to comply with the instructionsof the Attorney-General, and hence the application of the latter to thisCourt.
The controversy thus raised centres round the proper constructionto be placed upon section 390 (2) of the Criminal Procedure Code.
The first question is, does the term “ inquiry ” in this sub-sectionextend to all proceedings of whatever nature before a Magistrate?Mr. Nadesan appearing on behalf of the accused persons by reference tothe title to various Chapters of the Code as well as to the languageused in various sections therein pointed out, confining his argument toMagistrate’s Courts, that the Code classifies under three separatecategories the proceedings therein: (1) inquiry, that is, a non-summaryinquiry under Chapter XVI, (2) trial, that is, a summary trial underChapter XVlil, and (3) proceedings, that is, steps taken or investigationsmade by a Magistrate which do not fall under either of the categoriesof trials or inquiries.
It is to be observed that the reference to the third category of proceed-ings was made by Mr. Nadesan, as at one stage of the argument it wassuggested on behalf of the Crown, that the action or steps taken bya Magistrate in order to determine whether he should assume jurisdictionunder section 152 (3) may properly fall under the designation of aninquiry in the sense of an inquiry under Chapter XVI, and Mr. Nadesancontended that the proper term to be applied to the steps taken bya Magistrate anterior to his determining the question whether he shouldact under section 152 (3) or not would properly be termed “ proceedingseven as that term is used in the title to Chapter XV of the Code.
Mr. Nadesan submitted that the term “ inquiry ” in section 390 (2)is used in contradistinction to the terms “ trial ” and “ proceedings'”,and properly signifies a non-summary inquiry under Chapter XVI of theCode, so that, according to him, neither a summary trial before aMagistrate nor proceedings which result in a Magistrate assumingjurisdiction under section 152 (3) fall within the designation of " inquiry ”in sub-section 2 of section 390.
Mr. Nadesan also challenged the correctness of the obiter dicta in thecases of re application of V. C. Villavarayan for a Writ of Prohibition 1and Silva v. Silva 3, where the view was expressed that the term “ inquiry ”in section 390 (2) was wide enough to include a summary trial.
In regard to these obiter dicta the learned Solicitor-General took upfirst of all the position that he claimed the benefit of the views expressedin these cases but stated that it was not necessary for the purpose of thepresent case for him to contend that an inquiry included a summarytrial under this sub-section. In view, however, of the distinction drawnin the Code itself in various places as pointed out by Mr. Nadesan, thei (1903) 7 N. £. R. 116.* (1904) 7 N. L. R. 183.
412NAGALiINGAM S.P.J.—The Attorney-General t>. Sri Skandarajah
learned Solicitor-General subsequently conceded that the term “ inquiry ’’in section 390 (2) properly designates only a non-summary inquiry underChapter XVI.
Mr. Nadesan's next contention was that if this is the proper meaningto be attached to the term, there was in fact no inquiry before theMagistrate in the sense of a non-summary inquiry and therefore theAttorney-General had no power of direction under this sub-section in thecircumstances of this case, for it was said by Mr. Nadesan, and it was notdenied by the learned Solicitor-General, that by the Magistrate havingmade order that he had decided to assume jurisdiction as a District Judgeunder section 152 (3) and by his taking the pleas of the accused personsand setting down the case for trial a summary trial had commenced beforehim and that was the only • matter pending before him at the time therecord of the proceedings was called for by the Attorney-General.
The argument on behalf of the Crown was in these circumstancesnarrowed down to one contention, which was formulated as follows:that the word “ inquiry ”, though properly referable to a non-summaryinquiry under Chapter XVI of the Code, would embrace not only anexisting or concluded inquiry but also one that may be said to lie dormantin the womb of the future.
The sub-section enables the Attorney-General to give such instructionsas he may consider requisite “ with regard to the inquiry to which suchproceedings relate ”. It will be seen that it is the definite article ” the ”that is prefixed to the word ” inquiry ” in this sub-sectiou and not theindefinite article ” an ”. The learned Solicitor-General urges that nospecial significance attaches to the use of the definite article. There areother sections of the same Chapter where the indefinite article is prefixedto the word ” inquiry ” while in yet other sections the definite article isused. It seems to me that it is not without a due sense of appreciationof the effect of their use that the draftsman has employed the definite andindefinite articles in the way he appears to have done. “ The inquiryin this sub-section refers to the inquiry that has been or is being heldbefore a Magistrate and referred to in sub-section 1 of section 390. Thissub-section, it will be noticed, divides all inquiries before a Magistrateinto two classes, (1) inquiries that have been held, that is to say, held andconcluded. (2) inquiries that are yet being held before him, that is to say,pending before him. There is no other third class of inquiries contem-plated under this sub-section, such as, for instance, inquiries to becommenced in the future; so that, when sub-section 2. refers to “ theinquiry ” the inquiry must fall under either one or the other of the abovetwo classes and not to one yet unborn.
The learned Solicitor-General sought to reinforce his argument that theterm “ inquiry ” included one in the future as well by formulating thisquestion: Would it be competent or not for the Attorney-General to callfor the record of proceedings in which an inquiry is being held bya Magistrate in respect of, say, a charge of robbery, and to direct theMagistrate to discontinue the proceedings in respect of the charge ofrobbery and to direct him to commence an inquiry in respect of the-offence of murder? The answer, no doubt, to this question was intendedto be in the affirmative, and I think that is the correct answer.
NAGALINGAM S.P.J.—The Attorney-General e. Sri Skandarajah413
The argument was then put forward that, if that be so, the inquiryinto the charge of murder being an entirely new one and having itsorigin in the direction given by the Attorney-General and which couldin no sense have been regarded as one that had either been concludedor been pending before the Magistrate, the propriety of the Attorney-General giving directions in regard to an inquiry that was not in easeat the time the record was called for was thereby admitted; and if thusan inquiry non-existent at the time the proceedings were called for couldbe initiated properly by the Attorney-General, there could equally beno objection to an inquiry being ordered by the Attorney-General inregard to proceedings in a summary trial in which there neither had beennor was a non-summary inquiry.
I do not think this result flows. In the former case, the instructionsof the Attorney-General relate to the non-summary inquiry which waspending before the Magistrate, for by his directions the Attorney-Generalmerely moulds the existing non-summary inquiry from one of a particularcharacter into, true, that of an entirely different character, but neverthe-less the instructions are in regard to an inquiry that was before theMagistrate. In the latter case there was and is no non-summary inquirybefore the Magistrate at all, and what the Attorney-General purportsto do in this latter case is really tantamount to his converting a summarytrial into a non-summary proceeding by interfering with the progress ofa summary trial.
Another point of view was put. forward on behalf of the Crown bylaying stress on the phrase " to which such proceedings relate ”, whichqualifies the words “ the inquiry It was urged that although theremay have been no inquiry under Chapter XVI in respect of any particularproceeding before a Magistrate, nevertheless, where an inquiry under ChapterXVI is for the first time suggested by the Attorney-General, thatwould come within the category of inquiries to which such . proceedingsrelate. This may be so. But in such a case the instructions would benot in regard to an inquiry but in relation to or in respect of proceedingsbefore the Magistrate’s Court irrespective of whether there was an inquirynr not. The sub-section, however, enacts that instructions should be inregard to the inquiry and not in regard to the proceedings. I do not there-fore think that this argument is of any assistance.
A third line of argument was attempted based on the historical develop-ment of the legislation. In the earlier Criminal Procedure Code (Ordi-nance No. 3 of 1883) there was no provision for a Magistrate to trysummarily a case triable by a District Judge. In 1896, however, the Ordi-nance was amended by Ordinance No. 8 of that year, whereby, by section1 thereof provision was made for the first time that in cases where thesame officer is both the Police Magistrate and the District Judge in aparticular area then it should be lawful for the Magistrate to trysummarily cases ordinarily triable by a District Court. He, however,was not called upon to give any reason for adopting a summary trial and,in fact, as observed in the case of Silva v. Silva 1 " nothing was left tothe discretion of the Magistrate as to which of these cases (cases triableby District Courts) he might try ”.
1 (1904) 7 N. L. R. 183.
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NAGALING-AM S.P.J.—The Attorney-General v. Sri Skandarajah
By sectiou 4 (a) of the abovesaid amending Ordinance power was con-ferred on the Attorney-General to call for the proceedings in every casein which an inquiry or trial was being held Tinder section 1 thereof. Itshould be observed that the effect of this was to enable the Attorney-Generalto call for proceedings in which a non-summary inquiry wasbeing held as well as those in which the Magistrate has assumed jurisdic-tion to try summarily offences ordinarily triable by a District Judge.The Attorney-General, it will be noticed, was therefore not given powerto call for proceedings where there was a summary trial proper, that isto say, a trial relating to an offence within the ordinary jurisdiction of aPolice Magistrate.
Sub-section (b) of section 4 of the amending Ordinance then proceededto provide that in respect of any case forwarded to him under sub-section (a) the Attorney-General could exercise all or any of the powersconferred upon him by Chapters XVI and XX of the Code of 1883.Chapter XVI of that Code related to nonTsummary inquiries and ChapterXX to powers of the Attorney-General, corresponding in the main toChapters XVI and XXXV respectively of the present Code. Neither inChapter XVI nor in Chapter XX of the old Code was any power vestedin the Attorney-General to give instructions in regard to a trial. Boththese Chapters, insofar as they refer to matters considered in this casehave application to powers in regard to non-summary inquiries.
The section particularly emphasised by the learned Solicitor-Generalfor the purpose of his argument was section 253 of the Code of 1883,but as it will be essential to consider the two preceding sections too, Ishall set out all three sections: —
Every police magistrate shall, whenever required so to do bythe Attorney-General, forthwith transmit to the Attorney-Generalthe proceedings in any case in which an inquiry has been or is .beingheld before the police court of such magistrate, and thereupon suchinquiry shall be suspended in the same and the like manner as upon anadjournment thereof.
Whenever, in the course of any inquiry before a police court,the police magistrate of such court shall consider the case one ofdoubt or difficulty, or that there are peculiar circumstances connectedtherewith, or he shall be in doubt as to whether an accused personshould be committed or not, he may, in his discretion, – transmit theproceedings on such inquiry to the Attorney-General, in order that theAttorney-General may give such instructions in the case as to him shallappear requisite.
It shall be competent for the Attorney-General, upon theproceedings in any case being transmitted to him, under the provisionsof the two last preceding sections, to give such instructions with regardto the inquiry to which such proceedings relate as he may considerrequisite; and thereupon it shall be the duty of the police magistrateto carry into effect, subject to the provisions of this Code, the instruc-tions of the Attorney-General, apd to conduct such inquiry in accordancewith the terms of such instructions.
XAGAI/INGAM S.P.J.—The Attorney-General v. Sri Skandarajah
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Jt will be seen that sections 251 and 252 both relate exclusively to non-summary -inquiries; so that, when section 253 before to proceedings thatare transmitted to him under the provisions of these sections, theproceedings are limited to non-summary inquiries. As a result ofsection 4 (6) of the amending Ordinance conferring upon the Attorney- •General all or any of the powers conferred by, to take the same section,namely, section 253, even in regard to- a summary trial held by a PoliceMagistrate in respect of a non-summary offence, the Attorney-Generalwas vested with powers of interference in this class of summary trials.His powers would have therefore extended to directing the stay of asummary trial and the commencement of non-summary proceedings inregard to it.*
The learned Solicitor-General contends that in these eases any exerciseof his powers by the Attorney-General could only be justified if thedirections given by him to a Magistrate to start non-summary proceedingsin respect of a summary trial can be referred to the word “ inquiryin section 253, in other words, that the term “ inquiry ” here mustembrace an inquiry non-existent at the date the proceedings are calledfor by the Attorney-General.
A decision in regard to this point is beset with the same difficultiesthat confront one in settling the main question that arises in theseproceedings ; but I am of the view that it is not by virtue of any specialsignificance that may have been attached to the term “inquiry ascontended by the learned Solicitor-General, that the Attorney-Generalexercised his right of interference in summary trials held by a Magistratein respect of non-summary offences, but because under sub-section (4)(b) that Attorney-General was empowered to exercise any of the powersconferred by Chapters XVI and XX, even in respect of trials of non-summary offences conducted by a Magistrate.
Furthermore, it seems to me that if one contrasts section 390 (2) of thepresent Code with section 4 (6) of the amending Ordinance of 1896, thedifference in phraseology tends to support the view that by the presentCode the Legislature has divested the Attorney-General of the formerpower he had of giving directions in respect of trials held by a Magistratein respect of non-summary offences. The learned Solicitor-Generaldid not contend that even under the present Code the Attorney-General’spowers can be said to extend to summary trials other than those heldby virtue of the powers conferred by section 152 (3)r. It would be seenthat, as stated earlier, under the amending Ordinance of 1896 the powersof the Attorney-General were limited to calling for records of trials whichwere held by a Magistrate in respect of offences ordinarily triable by aDistrict Judge and did not extend to records of trials . in which theMagistrate had his sole and exclusive jurisdiction. Under section 390 (1)of the present Code the powers of the Attorney-General have been muchwidened by empowering him to call for records even of trials of casesproperly triable only by a Magistrate. While the Legislature did thusenlarge his powers in regard to calling for the proceedings, it clearlycurtailed his right to give instructions by confining the instructions toinquiries alone by omitting the word “ trial ’’-in section 390 (2); if the32 – N. L. R. Vol. – Liii
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GKATIAEN J.—The Attorney-General v. Sri Skandarajah
Legislature had omitted any reference to inquiries in sub-section (2),then there can be no doubt that the position of the Attorney-Generalwould have been greater than under section 4(b) of the amending
Ordinance of 1896, for it could successfully then have been argued thatthe power of giving directions by the Attorney-General was intended. to include both trials of non-summary offences held by him by virtue,of section 152 (3)i as well as trials of summary offences proper, that is tosay, those within the ordinary jurisdiction of a Magistrate. The omissionof the word “ trial ” when express reference is made to inquiries in section390 (2) is significant and can only lead to the inference that the Legisla-ture deliberately intended an alteration of the powers of the Attorney-General.
In this view of the matter, even a historical consideration of thelegislation on the subject does not assist the view of the Crown. I amtherefore of opinion that the power of the Attorney-General to giveinstructions to a Magistrate is limited to non-summary inquiries underChapter XVI and does not extend to trials either of summary offencesor of non-summary offences in respect of which the Magistrate may haveassumed jurisdiction under section 152 (3).
In view of the foregoing reasons, I reach the conclusion that theinstructions given by the Attorney-General to the Chief Magistrate ofColombo were ultra vires. In these circumstances, the application isrefused.
Gratiaen J.-—:
I agree that -mandamus does not lie, and that the application must bo-refused.
Section 390 (2) of the Code does not in my opinion confer upon theAttorney-General any supervisory control over a Magistrate who, beingalso a District Judge, has in the exercise of his discretion assumed juris-diction under section 152 (3)( to try an offence summarily in accordancewith the procedure laid down in Chapter 18. In the present ease theproceedings under Chapter 18 had already commenced; the pleas ofboth the accused persons had been duly recorded, and it was thereforethe plain duty of the learned Magistrate to proceed with the summarytrial according to law. It does not lie within the province of the LawOfficers of the Crown thereafter to give any directions or instructionsobedience to which would have the effect of divesting the Magistrate of asummary jurisdiction which he had lawfully assumed. It seems to methat the language of section 390 (2) is too clear and unambiguous topermit of reference to the historical development of the Attorney-General’s statutory powers as a guide to interpretation.
If, in the opinion of the Attorney-General, a Magistrate had wronglyor improperly exercised his judicial discretion in any particular casethe only remedy available, as the law now stands, is to makean appropriate application for the intervention of this Court byway of appeal or revision. Section 390 (2) confers upon the Attorney-General wide supervisory • control over the conduct of non-summary
BOSE C.J.—Vythilingam c. Arunasalem
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proceedings, but none in respect of summary trials. In England, aMagistrate is expressly precluded from assuming, without the express-consent of the Director of Public Prosecutions, summary jurisdiction)to try indictable offences in oases in which the Director has taken over theconduct of the prosecution. In this country, however, the Attorney-General enjoys no such power of veto. In my opinion, it is very desirablethat the provisions of section 152 (3) of the Criminal Procedure Codeshould be amended in this as well as in certain other respects.
Pulle J.—
I agree for the reasons stated by my brethren in their judgments that theapplication fails.
Application refused.