1951 Present: Dias S.P.J.

In re AGNES NONA

S. C. 459 In Revision, M. C. Colombo South, 29,720
 

Criminal Procedure Code-Sections 328, 350 (2), 356-Interference by the Executive with the Judiciary-Jurisdiction of the Supreme Court to revise proceedings in such a case-Subjection of executive officers to jurisdiction of the Courts- Administrative law-" Court "-Judges of " Minor Courts ", when acting judicially, only subject to Supreme Court, Privy Council and provisions of Statute Law-Judicial v. Administrative functions of a Court-Rule of Law.

A Magistrate's Court convicted an accused and sentenced her to imprisonment and fine. She appealed to the Supreme Court which affirmed the conviction and sentence ; and the order of the Supreme Court, duly certified under the seal of the Court, was transmitted to the Magistrate's Court for execution in terms of section 350 (1) of the Criminal Procedure Code. In the meantime, the convict had petitioned the Governor-General for the remission of her sentence. The Governor-General intimated to her and the Minister of Justice that he was pleased to order her sentence to be remitted on the condition that she entered into a bond in a certain sum to be of good behaviour for a certain period.

Before the Magistrate's Court could carry out the order of the Supreme Court in terms of section 350 (2) of the Criminal Procedure Code, the Ministry of Justice addressed a communication to the Magistrate forwarding a copy of the order of the Governor-General (a) for the favour of " necessary action " and (6) requested the Magistrate to inform the Minister when the bond had been executed.

Held, (i) that this action by the Minister was irregular, and could be revised by the Supreme Court under section' 356 of the Criminal Procedure Code.

(ii) that the word " Court" in section 350 (2) does not mean " Judge ", and that a " Court " when exercising powers under section 350 (2) can only act judicially and not administratively.

(iii) that, unless a Statute provides to the contrary, every executive officer who acts unlawfully is subject to the jurisdiction of the Courts of law which have power to determine what is the extent of his lawful power, and whether the orders under which he purported to act are legal and valid.

(iv) that there is no distinction between a " slight " interference by the executive with the judiciary, and a " major " interference. In either case the independence of the judiciary would be affected, and the interference must be condemned.

(v) that the " Minor Courts " in the performance of their judicial duties are subject only to the Supreme Court, the Privy Council, and the provisions of the Statute law.

(vi) that as the Governor-General's order had been communicated to the accused there was no need for the Minister to take any action in the matter.

T HIS was a matter which was dealt with in revision under section 356 of the Criminal Procedure Code.

R. R. Crossette-Thambiah, K.C., Solicitor-General, with T. S. Fernando and A. Mahendrarajah, Crown Counsel, as amicus curiae.

M. M. Kumarakulasingham, with M. A. M. Hussein, for the accused.

Cur. adv. vult.

September 13, 1951. DIAS S.P.J.-

The accused, D. M. Agnes Nona, was convicted by the Magistrate of Colombo South on November 22, 1950, under section 354 of the Penal Code with kidnapping a child from lawful guardianship. The Magistrate, being of the view that " girls of tender age require protection from such enticement " and that an " adequate penalty should be imposed ", sentenced the accused to undergo 5 months' rigorous imprisonment and to pay a fine of Rs. 100, and in default of payment of the fine to undergo rigorous imprisonment for one month more.

The accused appealed against her conviction, and on April 24, 1951, the Supreme Court dismissed the appeal. The order of the Supreme Court, duly certified under the seal of the Court, was transmitted to the Magistr