This is a Reference to the Court of Appeal by Briggs, J., under the provisions of section 34 of the Courts Ordinance, 1948.

The appellant was charged and convicted under section 193 of the Penal Code for making two contradictory statements, one of which he either knew or believed to be false or did not believe to be true. The first statement was given by him during the course of a police investigation and the second before a Sessions Court, during a criminal trial arising out of the police investigation.

Under the provisions of section 129(i) of the Criminal Procedure Code, no Court may take cognisance of any offence punishable under section 193 of the Penal Code except with the previous sanction of the Public Prosecutor.

In his Certificate of Grounds of Judgment, Briggs, J. says inter alia:-

"I have to raise a point which neither counsel then dealt with; that is the question at what stage the sanction is "acted upon" within the meaning of section 129 (v). It was assumed by both counsel that this did not take place at the time of application for the issue of process, but only when the summons was issued, or at least when the Magistrate gave directions that it should issue. I assumed the correctness of that view and based my decision upon it. But I now feel some doubt whether it was correct. It seems to me at least arguable that, as the sanction to prosecute, though in form addressed "To whom it may concern", is really directed to the intending prosecutor and not to the Court, it is "acted upon" when the prosecutor has done all that he can do, i.e. applied for the issue of process, even though the Court has not done its part by issuing or directing issue of process upon that application."

The necessary sanction to prosecute was granted by the Deputy Public Prosecutor on the 11th November, 1950. On the 11th December, 1950, the Police applied for a summons, but the Magistrate did not give his direction that the summons should issue until the 2nd January, 1951. Sub-section (v) of section 129 of the Criminal Procedure Code provides that no sanction given under the provisions of sub-section (i) of that section shall remain in force unless acted upon within one month from the date on which it was given, and the appellant's counsel argued that a sanction is not "acted upon" until the Court directs that the summons should issue. With that contention we are unable to agree. In our opinion, the sanction is acted upon when the Public Prosecutor applies to the Court for the issue of process, and in this case that was done within the required period. It follows, therefore, that the case was properly before the Court.

The record of the criminal proceedings referred to in the charge in this case was produced and admitted in evidence, without formal proof, a procedure sanctioned by section 80 of the Evidence Ordinance, 1950, but no evidence was offered by the prosecution identifying the appellant as the person who gave the evidence which formed one part of the subject matter of the charge. At the close of the case for the prosecution in the Court below, the appellant's counsel submitted that there was no case to answer, but that submission was over-ruled and the appellant gave evidence on affirmation, during the course of which he admitted that the statement as shown in the record of the criminal proceedings referred to above "is the statement that I made there on oath".

In the case of Soo Sing v Public Prosecutor (1951) MLJ 143; 2 MLR 122 the Court of Appeal held that paragraph (f) of section 173 of the Criminal Procedure Code requires a Magistrate at the close of the case for the prosecution to determine whether or not the evidence tendered on behalf of the prosecution, if un-rebutted, has established the case against the prisoner beyond all reasonable doubt, and that the case of The King v Power (1919) 1 KB 572 is not applicable to the Magistrate's Courts of the Federation of Malaya.

In our opinion, the combined effect of