Vander Poorten V. Vander Poorten.

1946 Present: Soertsz S. P. J.

VANDER POORTEN, Petitioner, and VANDER POORTEN,
Respondent.

Application in Revision, M. C. Kandy, 14,960.

Abetment-Private prosecution for abetment of forgery and of fabrication of false evidence-Sanction of Attorney-General not necessary-Order of discharge wrongly entered for want of Attorney-General?s sanction-Remedy is by way of revision- Penal Code, ss. 454/109, 190/190.

Although the sanction of the Attorney- General is necessary to enable a private party to prosecute the alleged offender in a prosecution for forgery, under section 454 of the Penal Code, or for fabrication of false evidence, under section 190 of the Penal Code, the abetment of those offences is not subject to the same requirement.

The remedy of a complainant against an order wrongly entered by Court discharging the accused on the ground that sanction of the Attorney- General had not been obtained by the complaint is by way of application in revision and not by way of appeal.

THIS was an application to revise an order of discharge entered by the Magistrate of Kandy.
   
                  N.  Nadarajah, K. D. (with him N. Gunasekere and G. T. Samarawickreme), for the petitioner.

                 H. V. Perera, K. C. (with him A. Muttusamy ), for the respondent.

Cur. adv. vult.

February 1, 1946. SOERTSZ S. P. J.
   
The petitioner lodged a complaint in the Magistrate?s Court at Kandy alleging that the two respondents named in his complaint had, in or about the month of December, 1934, abetted one Antoine Joseph Vander Poorten to commit the offence of forgery by instigating him to fabricate a document bearing a date in the year 1920, an offence which he alleges was punishable under section 109 of the Penal Code read with section 454 of that Code. In support of the complaint he gave evidence stating that the intention of the respondents when they instigated Antoine Joseph Vander Poorten was to use that document in certain judicial proceedings then pending between the petitioner and the respondent. On this complaint the Magistrate issued summonses on the respondents and therefore fixed the inquiry into the complaint on November 1, 1944. On that date the petitioner was examined-in-chief and was cross examined. Two witnesses were then examined and cross-examined and, thereafter, Counsel for the respondents took the objection that ?the case cannot proceed without the sanction of the Attorney- General.?
   
This question was fixed for argument and after Counsel on both sides were heard on it the Magistrate made order upholding the objection and directing that ?the case be called on October 27, 1945, for the complainant to produce the necessary sanction of the Attorney- General?. He added, ?If this sanction is not forthcoming, I shall make order in due course discharging the accused.? The petitioner prays that this order of the Magistrate be dealt with in the exercise of the reversionary powers of this Court. When the matter came up before me Counsel for the respondents took a preliminary objection contending that an appeal lay from the order made by the Magistrate and that, therefore, I ought not to deal with the order by way of revision. I am clearly of the opinion that this was not a final order, and that therefore, no appeal lay and that revision was the proper course.
   
The question then that arises for determination is whether the sanction of the Attorney- General is necessary for the prosecution of the offence or offences foreshadowed by the petitioner?s case as it stood at the stage at which the Magistrate made his order. Those offences appear to be the offence charged in the petitioner?s complaint of forgery and for the offence that the Magistrate thought would be the offence if the facts adumbrated were established, that is to say, the abetment of the fabrication of evidence for the purpose of being used at any stage of a judici

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