JUDGMENT

Hashim Yeop A Sani J:

I have called for the charge sheets and records in Sessions Court, Seremban, Arrest Case No. 4 of 1971 because in the Notice of Motion No. 15 of 1974 the statement of application for leave to apply for an order of prohibition directed to Encik Abdul Murad bin Sheikh Ismail (to prohibit him from further proceeding in that case) refers to a certain order of "trial de novo" made by Encik Wan Abdul Aziz bin Wan Daud on 29 January 1974 in that case.

From what can be gathered from the records the following seem to be the position todate. One R Kulasingam was charged in the Sessions Court, Seremban under s. 409 of the Penal Code and the prosecution case commenced on 15 June 1971. After a protracted hearing of 27 prosecution witnesses who produced 98 exhibits the defence was called on 20 September 1972. On 26 January 1973 the three alternatives were explained to the accused. On the same date the first defence witness was called to give evidence. From then on no progress was made on this case except that the records show that on a number of sittings of the Court postponements were granted firstly on 19 April 1973, where Encik Abdul Murad indicated that he had received instructions not to proceed in the case as he had been appointed a Deputy Public Prosecutor and secondly on 21 September 1973, where the succeeding President, Encik Mohamed Noor bin Haji Abdullah, ordered a trialde novo. On 29 January 1974 the case was mentioned again before Encik Wan Abdul Aziz bin Wan Daud at which proceeding the Deputy Public Prosecutor suggested that the case be continued under s. 261 of the Criminal Procedure Code. Also recorded is the objection of the defence Counsel who requested that the case be heard de novo on the basis of the previous order of the President. Again on 4 March 1974 the case was put before the original President, Encik Abdul Murad bin Sheikh Ismail, and at that proceeding the defence Counsel submitted that since an order of trial de novo had already been made the case could not be continued under s. 261 of the Criminal Procedure Code. It is also recorded that at that proceeding the defence Counsel asked for an adjournment to study the papers for the purpose of getting a proper ruling from the High Court on this matter. Finally on 5 March 1974 defence Counsel informed Encik Abdul Murad bin Sheikh Ismail, that he was filing an application for an order of prohibition prohibiting him from further proceeding in the matter. This has now resulted in Notice of Motion No. 15 of 1974. The case was therefore further adjourned.

The problem involved in this case is not infrequently encountered in the administration of justice in the lower courts of this country. The reason is simple and that is the Judicial and Legal Service of the Federation is divided into two main departments, namely, the Judicial Department and the Legal Department. Officers serving in the Judicial Department are appointed and gazetted as Presidents of Sessions Courts and Magistrates and officers serving in the Legal Department are appointed and gazetted as Federal Counsel or Deputy Public Prosecutors. Because all these officers belong to the same parent service they are transferable from one Department to the other more often than not with short notice thereby requiring them to exercise entirely different functions in the administration of the law. My view has always been that it would be perfectly proper for a President or Magistrate who has since been transferred to the Legal Department to assume functions as Federal Counsel or Deputy Public Prosecutor to complete any part-heard cases originally heard by him in the Court where he was previously stationed. But of course this must be subject to an overriding condition that there must not be any possible miscarriage of justice or any contravention of rules of natural justice as for example in a case where the officer concerned was previously a President or Magistrate in the same State but h