JUDGMENTBY: SURIYADI J

The High Court received a letter dated 28 March 1998 requesting me to call up Jasin Magistrates Court Summons Case No 83-36-97 for revision. In brief, the letter stated that the accused was charged under s 41(1) of the Road Transport Act 1987 (Act 333/87) and the matter had come up for hearing a couple of times but adjourned on the ground that the police did not supply the accused with the relevant documents. On 23 March 1998, when the case came up again before the learned magistrate, the accused requested for a discharge not amounting to an acquittal on the specific ground that the police had not supplied him the documents as ordered by the court. The learned magistrate acquiesced to that request.

Having detected a probable mistake committed by the learned magistrate I ordered the file to be placed before me and on 20 April 1998 enquired into the matter in open court. Having perused the notes of the proceeding, I concluded that on one occasion the case was postponed as the court was without an interpreter, twice by reason of the default of the accuseds counsel, and twice due to the inability of the prosecution to supply the documents to the accused as ordered by the court. In brief, everyone had a hand in the delay and the postponements which eventually led to the order. This order was pronounced inspite of the explanation of the prosecuting officer that the inability to supply the documents was due to administrative problems which was at that moment besetting the local constabulary.

With the facts clarified, what is left is the legal issue at hand, ie whether under the Criminal Procedure Code (FMS Cap 6), or under any prevailing law, the magistrate may discharge an accused person not amounting to an acquittal, in response to the non-adherence of the courts specific instruction by the prosecution, even though there was no indication by the latter of not being interested in pursuing the matter further.

The Federal Constitution which is the supreme law of this land, and of which, statutory law must yield to, is enshrined art 145(3) which provides the Attorney General with power exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court martial. Lord Suffian LP in Long bin Samat & Ors v PP [1974] 2 MLJ 152 had occasion to say when touching on this article at p 158 para A (right):

In our view, this clause from the supreme law clearly gives the

Attorney General very wide discretion over the control and direction of

all criminal prosecutions. Not only may he institute and conduct any

proceedings for an offence, he may also discontinue criminal

proceedings that he has instituted, and the courts cannot compel him to

institute any criminal proceedings which he does not wish to institute

or to go on with any criminal proceedings which he has decided to

discontinue.

Under s 376 of the Criminal Procedure Code (FMS Cap 6) is contained the provision which reads that the Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code. Magistrates who are partners in the machinery of justice are similarly clothed with the relevant powers and authority, for purposes of carrying out their duties, in particular under the Subordinate Courts Act 1948 (see s 76). For the conduct of criminal cases, the magistrate observes the procedures laid down in the Criminal Procedure Code (FMS Cap 6). The Code which deals with the law of procedure, and which is required to be adhered to in every matter pertaining the general administration of criminal law in this country, provides the machinery for the punishment of offences against substantive criminal law. The machinery devised within the Code is created for justice and anything that derogates from it must be rejected. Putting the two inst