Attorney General V. Sri Skandarajah

1952 Present: Nagalingam S.P.J., Gratiaen J. and Pulle J.

THE ATTORNEY-GENERAL; Applicant, and SRI SKANDARAJAH,
Respondent

S. C. 595-IN THE MATTER. OF AN APPLICATION FOR A WRIT OF
MANDAMUS ON P. SRI SKANDARAJAH, CHIEF MAGISTRATE, COLOMBO

Criminal Procedure Code-Non-summary inquiry-Assumption by Magistrate of summary jurisdiction-Power of Attorney-General to give instructions to Magistrate in summary, proceedings-Meaning of term " inquiry "-Sections 152 (3), 390 (2).

After a Magistrate, during a non-summary inquiry relating to an indictable offence, has assumed summary jurisdiction under section 152 (3) of the Criminal Procedure Code, the Attorney-General has no power under section 390 (2) of the Code to direct the Magistrate to discontinue the summary proceedings and take non-summary proceedings. The power of the Attorney-General to give instructions to a Magistrate is limited to non-summary inquiries under Chapter 16 of the Code and does not extend to trials either of summary offences or of non-summary offences in respect of which the Magistrate has assumed jurisdiction under section 152 (3).

THIS was an application for a writ of mandamus to compel the Chief Magistrate of Colombo to carry out certain instructions issued to him by the Attorney-General.

H. W. R. Weerasooriya, Acting Solicitor-General, with T. 8. Fernando, R. A. Kannangara and N. T. D. Kanekeratne, Crown Counsel, for the Attorney-General.-The Attorney-General took action under section 39% (2) of the Criminal Procedure Code. He had the right to intervene and give instructions as to the inquiry even though the proceedings before the Magistrate was a trial. The inquiry need not necessarily be a pending inquiry. It could be an inquiry relating to the proceedings whether pending or not. The present Code of Criminal Procedure enlarged the powers given to the Attorney-General by the earlier Code of Criminal Procedure, Ordinance, No. 3 of 1883, as amended by Ordinance No. 8 of 1896. The view of Middleton J. in Silva v. Silva 1[(1904) 7 N. L. R. 182.] sets out the correct view.

S. Nadesan, with C. Manohara, for the accused parties noticed.-The word " inquiry " in section 390 means a proceeding under Chapter XVI of the Criminal Procedure Code. One must read section 390 in the context of the other sections in the Code. The only basis on which the Attorney-General could have called for the record was that there was an " inquiry or trial ". In this case there could be no question of an inquiry that was pending. There were only certain preliminary proceedings. But these did not constitute an inquiry under Chapter XVI of the Code. There is

no doubt that in section 390 the word " inquiry " contemplated a non-summary inquiry under Chapter XVI. In section 390 (1) the words " or trial " were added, but the " inquiry " mentioned in section 390, sub-sections 1 and 2, still contemplated an inquiry under Chapter XVI.

The Attorney-General called for the record, not because there was an inquiry under Chapter XVI, but because there was a trial. It is one thing for the Attorney-General to give directions regarding an inquiry, but it is a totally different proposition to say that the Attorney-General could give instructions as to whether one is to have a trial or an inquiry. The view of Wendt J. in Re application of V. C. Vellavarayam 1[(1903) 7 N. L. R. 116.] is erroneous as it is based on the Indian Code. Further, the inquiry must be an existing inquiry, because the only record that could be called for under section 390 is in a case in which an inquiry "has been or is being held ". There is a fundamental difference in principle between instructions regarding the conduct of an inquiry and the conduct of a trial. The Attorney-General could not interfere with a matter that was essentially a function of the Magistrate. If there was an inquiry he could give instructions ; not otherwise.

H. W. R

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