Buhagiar J:

The appellant was on 9 January 1954 tried at the Magistrate's Court at Kuala Kangsar on the following charge:

That you on 8 October 1952 at about 5.30 p.m. in front of the Women's Hospital.Kuala Kangsar, did cause grievous hurt to one Puteh binti Lebai Saaid by doing an act, to wit, by overtaking another cyclist and then suddenly swerving to the left and collided with that cyclist so rashly or negligently as to endanger human life or the personal safety of the said Puteh binti Lebai Saaid and thereby committed an offence punishable under s. 338 Cap. 45.

At the conclusion of the trial the appellant was found guilty on the charge, convicted and sentenced to a fine of $200 or two months rigorous imprisonment.The prosecution was not conducted by any of the officers mentioned in ---- s. 377 of the Criminal Procedure Code; it was conducted by the complainant Puteh binti Lebai Saaid.

The first ground of appeal on which Counsel relied was that the offence under s. 338 of the Penal Code is a seizable offence and the complainant had no status to prosecute.He submitted that ----s. 377 of the Criminal Procedure Code is a bar to a private person conducting a prosecution.He also submitted that the appellant suffered prejudice by reason of the prosecution being conducted by an unauthorised person; in view of the serious nature of the charge it was essential that the prosecution should have been conducted by an impartial and duly authorised person who would have placed all the facts before the Court; the proceedings being conducted in contravention of the express provisions of ----s. 377 of the Criminal Procedure Code are void or tainted by an irregularity which is not curable under ----s. 422 of the Criminal Procedure Code. On this point he referred to the Privy Council decision in Subramania Ayyar v. King Emperor 25 Mad 61; in that case a person was tried for 41 separate offences in direct contravention of the provisions of s. 234 Of the Indian Penal Code.Their Lordships held that the disobedience to an express provision as to a mode of trial did not come within the description of error, omission or irregularity.That case is not an authority for the proposition that whenever there is a disobedience to an express provision of law there is an illegality which cannot be cured; there are instances of disobedience to an express provision of law which are curable and which, for convenience, are referred to as irregularities.

The decision in Subramania's case 25 Mad 61 was considered by the Privy Council in Abdul Rahman v. King Emperor [1926] ILR 5 Rang 53, which was a case of non-compliance with the provisions of s. 360 of the Indian Criminal Procedure Code; Subramania's case 25 Mad 61 was distinguished as "one which the Code positively prohibited and it was possible that it might have worked actual injustice to the accused", and s. 537 Of the Indian Criminal Procedure Code was held to cure the irregularity in not complying with the provisions of s. 360. "To sum up", their Lordships said (at p. 69), "in the view which their Lordships take of the several sections of the Code of Criminal Procedure, the bare fact of such an omission or irregularity as occurred in the case under appeal, unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction, which on their Lordship's view, may be supported by the curative provisions of ss. 535 and 537."

In Abdul Rahman's case [1926] ILR 5 Range 53 their Lordships did contemplate circumstances in which a defect in procedure might be incurable; per contra in Subramania's Case 25 Mad 61 they did not say that an illegality in the form of trial is in all circumstances incurable.The two Privy Council decisions above referred to were the subject of consideration by a Full Bench of the Court of Allahabad in the case of Kapoor Chand v. Suraj Prasad [1933] ILR 55 All 301, after considering the case of Subra