Present : Mr. Justice Wood Renton.

THE KING v. NOORDEEN et al.

D. C. (Grim.), Negombo, 2,779.

Acquittal-Refusal of Attorney-General to sanction an appeal -Application for revision-Powers of Supreme Court-Criminal Procedure Code, ss. 356 and 357.

The Supreme Court has full powers of revision in all criminal cases. That power is not limited to those cases in which either no appeal lies, or for some reason or other an appeal has not been taken; it extends, as a matter of law, to cases in which the Attorney-General has refused to sanction an appeal from an acquittal, provided proper materials have been laid before the Court to call for its exercise.

IN this case the accused, who belonged to the Ceylon Police Force, were indicted before the District Court of Negombo on five counts: (1) Being members of an unlawful assembly, the common object whereof was to cause hurt to Carry; (2) using force; (3) criminal trespass; (4) grievous hurt to Carry; (5) voluntarily causing hurt to Planson.

The learned District Judge convicted all, except the 1st, 3rd, and 7th to the 11th accused. Carry petitioned the Attorney-General to appeal against the acquittal of the accused. The Attorney-General refused to appeal. Carry then moved the Supreme Court to exercise its powers of revision under section 356, Criminal Procedure Code. The Supreme Court issued notice on the accused.

Van Langenberg, Acting S.-G.; for the Crown, intervened with His Lordship's permission.-The Attorney-General desires to say

nothing on the merits of the case; but he desires to bring a matter of principle before Your Lordship as regards the exercise of the right of revision. The Legislature has vested in the Attorney-General the first right of asking Your Lordship to say whether the decision of acquittal is right or wrong. He has exercised his discretion. Will Your Lordship, under the circumstances, entertain an application to revise, practically, his decision in the matter? [Wood Renton J.: It would involve two questions: first, the power of the Court to entertain applications of this nature.] No. I cannot question that power at all. It is a pure question of expediency. Under section 357 of the Criminal Procedure Code, sub-section (3) enacts that the Supreme Court cannot in revision convert a finding of acquittal into one of conviction. The only order the Supreme Court can make, if it disapproves of the acquittal, is to order a new trial. An awkward situation may arise if the Attorney-General exercises his right to enter a nolli prosequi when the Supreme Court orders a new trial. Under the old Code of 1883 there was an appeal from orders of discharge in non-summary cases. In an appeal against an order in a non-summary case discharging an accused on the instructions of the Attorney-General, Burnside C.J. said: " That we have a right to reverse this order I do not doubt, but the question is, except under exceptional circumstances, should we exercise that right. I think not. Unless, indeed, the circumstances were such as would justify the Court in interfering, it is better to leave these questions to be dealt with by the Attorney-General's Department."

Bawa, for the 1st accused, who was acquitted.-Under section 202, Criminal Procedure Code, the Attorney-General can nullify the effect of any order the Supreme Court may make by entering a nolli prosequi. The Supreme Court has in many cases refused to interfere with an order discharging an accused (see usoof v. Bharat Shing [1 (1896) 6 Tam. 96. ]). The Supreme Court should not exercise its powers of revision except in exceptional cases. [Wood Renton J.: It is clear that the power must not be exercised so as to admit, by a side wind, an appeal.] The prosecutor in this case is the Attorney-General. He had a right to appeal. He has decided not to appeal. Where there is a remedy by appeal no revision is allowed. Mr. C