Attorney General V. Kanagaratnam Et Al.,

1950 Present : Nagalingam J. and Pulle J.

ATTORNEY-GENERAL, Applicant, and KANAGARATNAM et al.,

Respondents

S. C. 239-Application in Revision in

 M. C. Nuwara Eliya, 4,944

Revision-Power of Supreme Court to revise orders of Magistrate in a non-summary inquiry-Criminal Procedure Code (Cap. 16), ss. 5, 356, 357, 358-Effect of words " whether already tried or pending trial "-Courts Ordinance (Cap. 6), ss. 19 (b), 36, 73.

Non-summary inquiry-Duties and obligations of Magistrate vis a vis the Attorney-General-Scope of power of Attorney-General to issue instructions to Magistrate- Criminal Procedure Code (Cap. 16), s. 390 (2).

The powers of revision given to the Supreme Court by section 356 of the Criminal Procedure Code should be read with section 19 (b) of the Courts Ordinance and section 5 of the Criminal Procedure Code and extend, therefore, to the revision of orders made by a Magistrate in the course of non-summary proceedings, whether such orders were made prior to or subsequent to the presentation of the indictment against the accused.

In a non-summary inquiry, the Magistrate cannot question the validity of an order or instruction issued to him by the Attorney-General under section 390 (2) of the Criminal Procedure Code.

Where, in a non-summary inquiry, the Magistrate directs the prosecution to furnish particulars in order to amplify certain charges, the Attorney-General has the power to direct the Magistrate to proceed with the charges in the form In which they "were read out to the accused and without further particulars being supplied by the prosecution. It is not open then to the Magistrate to do anything but carry out the instructions of the Attorney-General.

APPLICATION by the Attorney-General to revise an order of the Magistrate's Court, Nuwara Eliya.

In the course of a non-summary inquiry the Magistrate was of opinion that some of the charges which had been read over to the accused under section 156 of the Criminal Procedure Code did not contain sufficient particulars. He therefore directed the prosecution to furnish further particulars and, on the application of Crown Counsel, the inquiry was postponed. Before the inquiry was resumed the Attorney-General called for the record of the case and acting under the provisions of Section 390 (2) of the Criminal Procedure Code, sent instructions to the Magistrate to proceed with the inquiry on the charges which had already been read over by the Magistrate to the accused.

When the inquiry was resumed it was contended on behalf of the 1st accused (a) that the Magistrate had no power to vacate the order which he had already made for further particulars of the charges, (b) that if the Magistrate did not have the power, the Attorney-General could not confer that power on the Magistrate by means of instructions. The learned Magistrate then made order that he could not give effect to the instructions of the Attorney General and that the inquiry should proceed

in respect of the remaining charges. The legality of this order was,, thereupon, challenged by the Attorney-General by the present application in revision.

Colvin R. de Silva, with H. W. Tambiah and J. C. Thurairatnam, for the-1st accused respondent took a preliminary objection to the hearing of the application by way of revision.-There is no " order" in this case-capable of revision. What is before the Court are the contents of a transaction which took place between the Magistrate and the Attorney-General. The Magistrate has given to his reasons for not complying; with the Attorney-General's instructions the form only of an order. The Supreme Court can only intervene in respect of the consequences in Court of the compliance or non-compliance by the Magistrate of the Attorney General's instructions.

Assuming there is an " order ", revision does not lie in respect of case not " already tried or pending trial ". Vide sect

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