(delivering judgment of the Board): On the 11th May 1971 the respondent was convicted before Raja Azlan Shah J. of an offence under section 4(1)(c) of the Sedition Act 1948 (Revised 1969) and fined $ 2,000 and in default six months imprisonment. He appealed to the Federal Court against his conviction and sentence. That court by a majority (Azmi L.P., Ong C.J., Suffian and Ong Hock Sim F.JJ.; Ali F.J., dissenting) allowed the appeal against conviction, declaring the trial to have been a nullity. From that decision the Public Prosecutor now appeals to this Board.

The respondent had originally been charged before the President of the Sessions Court; but on the 16th March 1971 he successfully applied under section 417(b) of the Criminal Procedure Code to Abdul Hamid J. for the transfer of his trial to the High Court.

The respondent on his appeal to the Federal Court relied on two points to support his contention that his trial had been a nullity.

1. That section 138 of the Criminal Procedure Code enacted that no person

could be tried before the High Court unless previously committed for trial

after a preliminary inquiry under the provisions of Chapter XVII of the Code,

and that no such committal had taken place; and

2. That if an order for transfer of a trial were made under section 417(b),

only the judge who made the order had any power to try the case, and that

the judge who made the order of transfer, namely Abdul Hamid J., did not try

the case.

Section 138 of the Code reads as follows:

"138. The following procedure shall be adopted in inquiries before a

Magistrate where he inquiry is held with a view to committal for

trial before the High Court and no person shall be tried before

such Court unless he shall have been committed for trial after a

preliminary inquiry under the provisions of this Chapter."

Section 417 of the Code reads as follows:

"417. Whenever it is made to appear to a Judge--

(a) that a fair and impartial inquiry or trial cannot be had in any

criminal Court subordinate to him; or

(b) that some question of law of unusual difficulty is likely to

arise; or

...

(d) that an order under this section with tend to the general

convenience of the parties or witnesses; or

(e) that such an order is expedient for the ends of justice, or is

required by any provision of this Code;

he may order--

that any offence be inquired into or tried by any Court not empowered

under sections 121 to 126 but in other respects competent to inquire

into or try such offence; or that any particular criminal case be

transferred to and tried before himself;

..."

Their Lordships will first consider the respondents second point which can speedily be disposed of. It failed in the Federal Court; but the respondents counsel has sought to rely on it before this Board in order to support the Federal Courts decision that the trial had been a nullity. Section 417 is not felicitously drafted, as it is impossible to give each of its words its strict literal meaning and at the same time make any sense of the section. For example, the words in paragraph (a) "any criminal court subordinate to him cannot have their strictly literal meaning but must mean any particular criminal court subordinate to him. Yet later on when the Legislature intends to refer to any particular criminal case it uses the word "particular". It is, however, impossible to suppose that the Legislature contemplated that a transfer should only be ordered under paragraph (a) in the unlikely event that a fair and impartial inquiry or trial could not be had in any subordinate court whatever. Clearly it intended to deal with a fair and impartial inquiry or trial being impossible in a particular inferior court, and went on to make provision for the inquiry or trial to be held in