Paramalingam V. Attorney General

1959 Present : Weerasooriya, J.

A. PARAMALINGAM, Petitioner, and THE ATTORNEY-GENERAL
and another, Respondents

S. C. 383-Application for the Re-transfer of M. C. Kayts, Case
No. 7,677 from the Magistrate's Court, Colombo, to the
Magistrate's Court, Kayts

Fiat issued by Attorney-General transferring a case from one court to another-Application for re-transfer by an aggrieved party-Meaning of expression "any party considering himself aggrieved ''-Power of Supreme Court to examine matter fully- Courts Ordinance (Cap. 6), ss. 42, 43-Criminal Procedure Code, ss. 135, 338.

In an application under the proviso to section 43 of the Courts Ordinance for the re-transfer to the Magistrate's Court, Kayts, of a case the trial of which the Attorney-General, acting under the main provisions of that section, had by his fiat transferred to the Magistrate's Court, Colombo-

Held, (i) that the expression " any party considering himself aggrieved " in the proviso to section 43 of the Courts Ordinance is not restricted to a party on record, that is to say, either the accused or the person -ho is formally the complainant. Accordingly, where the Police have filed a prosecution on a complaint made by a person, the latter (though not a party on the record) is a party within the meaning of the provisio and is entitled to move the Supreme Court for the re-transfer of the case.

(ii) that a re-transfer would be ordered by the Supreme Court if the Attorney- General adopts an attitude of silence in regard to the reasons that moved him to issue his fiat.

APPLICATION for the re-transfer of M. C. Kayts, Case No. 7,677 from the Magistrate's Court, Colombo, to the Magistrate's Court, Kayts.

C. Thiagalingam, Q.C., with S. Sharvananda, for the petitioner.

Ananda Pereira, Crown Counsel, with V. S. A. Pulienayegam, Crown. Counsel, for the Attorney-General.

Cur. adv. vult.

December 21, 1959. WEERASOORIYA, J.-

This is an application under the proviso to section 43 of the Courts Ordinance (Cap. 6) for a re-transfer in M. C. Kayts, Case No. 7,677 the trial of which the Attorney-General, acting under the main provisions of that section, had by his fiat transferred to the Magistrate's Court of Colombo.

The case is one in which the Assistant Superintendent of Police, Jaffna, who is the 2nd respondent, acting on a complaint made by the petitioner, filed a report under section 148 (1) (6) of the Criminal Procedure Code charging Sub-Inspector Palipanai of the Kayts Police Station with voluntarily causing hurt to the petitioner, assault and using criminal force intending thereby to dishonour him, offences said to have been committed on the 27th June, 1958, and punishable under sections 314, 343 and 346 of the Penal Code. After trial the accused was found guilty of all the charges and sentenced to terms of imprisonment but in appeal the convictions and sentences were set aside by my brother Sinnetamby and he ordered a re-trial before another Magistrate.

The Attorney-General's fiat issued after the case had been sent back for re-trial. Mr. Thiagalingam, who appeared for the petitioner, submitted > that in terms of the order of this Court the re-trial must be held in the Magistrate's Court of Kayts and the Attorney-General had no power, therefore, to transfer the trial to the Magistrate's Court of Colombo. I am unable, however, to see anything in the provisions of section 43 of the Courts Ordinance which expressly or by necessary implication takes away from the Attorney-General the power to issue a fiat of transfer after an order has been made in appeal by this Court that a re-trial should be held.

The proviso to section 43 allows " any party considering himself aggrieved " by the Attorney-General's fiat of transfer to apply to this Court for, inter alia, a re-transfer, and the substantial question that arises is whether such an application can be made by the petitioner. Learned Crown Co

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