[1948] EACA 59

#### APPELLATE CRIMINAL $\mathcal{L}_{\text{max}}$

### Before BOURKE, J. and COFFEY, Ag. J. .

# THE ATTORNEY GENERAL, Appellant (Original Complainant)

## (1) MOHAMED ANWA SANDHU, (2) SIRI RAM KAURA, Respondents (Original Accused)

### Criminal Appeal No. 563 of 1947. Case Stated

Criminal Procedure—Costs against the Crown—Frivolous or yexatious charge.

The Resident Magistrate found that the charge brought against the respondents was "frivolous and vexatious" and awarded them costs, as well as compensation, against the Crown.

Held (1-3-48).—That compensation, but not costs, may be awarded against the Crown.

Cases referred to: R. v. Nadu Gurham 13 K. L. R. 72; R. v. Harrison Muini 18 K. L. R. 51.

Todd, Crown Counsel, for the Appellant.

Morgan (A. R. Kapila with him) for the Respondents.

BOURKE, J.—The question arises by way of a case stated by the Resident Magistrate, Nyeri, at the instance of the Attorney General. The short point is whether the learned Magistrate, having formed the opinion that the charge was frivolous and vexatious, was empowered under section 173 of the Criminal Procedure Code to award costs in favour of the accused and against the Crown. It is conceded that unless there be express statutory provision costs cannot be awarded against the Crown; nor is it disputed, and I think could not well be disputed, that "complainant" in section 173 includes the Crown. In fact the Magistrate awarded compensation as well as costs against the Crown and exception has only been taken to the order for payment of costs. The difficulty has arisen through the inclusion of the words "in addition to his costs" appearing at the end of the section, which reads as follows: -

"If on the dismissal of any case any Court'shall be of opinion that the charge was frivolous or vexatious, such Court may order the complainant to pay to the accused person a reasonable sum as compensation for the trouble and expense to which such person may have been put by reason of such charge in addition to his costs."

Looking at the words "any case" in the first line the argument for the respondents would at first sight appear to be an attractive one and reference has been made to R. v. Nadu Gurham 13 K. L. R. 72, as being in support.

Now section 171 deals expressly with the matter of costs and provides for the awarding of costs in favour of public or private prosecutor against an accused who has been convicted; and for the awarding of costs in favour of an accused who has been acquitted or discharged against a private prosecutor. Particular notice must be taken of section 171 (3) as follows: $-$

"(3) The costs awarded under this section may be awarded in addition to any compensation awarded under section 173."

By section 172 provision is made for appeal against an order for payment of costs made under section 171; whereas, if costs may legally be given under section 173, there is no provision for appeal against such an order. It is not to be overlooked, as providing some indication of the draftsman's intention, that the marginal note to section 173 makes no reference to costs but reads: "Compensation in case of frivolous or vexatious charge". It is also as well to set out section 174:-

"Sums allowed for costs or compensation awarded under section 171 or section 173 of this Code shall in all cases be specified in the conviction or order. If the person who has been ordered to pay such costs or compensation fails so to pay, he shall, in default of distress levied in accordance with section 331 of this Code, be liable to imprisonment in accordance with the scale laid down in section 29 of the Penal Code, unless such costs or compensation shall be sooner paid: Provided that in no case shall the period of imprisonment imposed under this section exceed three months."

It is argued that this section was never intended to apply to the public prosecutor prosecuting for or on behalf of the Crown either in regard to costs or compensation, while the answer made on behalf of the respondent is that it was never contemplated that a default could arise where costs or compensation were validly awarded against the Crown. To my mind the important words are-"Sums allowed for costs or compensation awarded under section 171 or section 173... "It is contended for the respondents that in the absence of the word "respectively" after the digits "173" it must be taken that the provisions of the section relate to costs or compensation awarded under 173, and to costs awarded under section 171, and so provide at least an indication that it was intended to provide for the award of costs as well as compensation under section 173. I think this argument is somewhat strained and reading section 171 (3) with section 174 I am led to conclude that the reference to "costs" in section 174 relates to section 171 and the reference to compensation in section 174 relates to section 173. In my opinion the words "in addition to his costs" appearing in section 173 were intended not to be read as a substantive and separate provision for the award of costs but were added for the sake of clarity, and mean that where an accused person is awarded compensation for his trouble and *expense* such order does not preclude the obtaining of costs also under the section providing for the award of costs, namely section 171; and such costs could only be costs against a private prosecutor. In other words the accused may have an order for compensation under section 173 as well as an order for costs if he be so entitled apart from that section. I have considered $R$ . $v$ . Nadu Gurham (sup.) but it does not appear to me that it was decided in that case that section 168 of the earlier Code (equivalent to the present section 173) provided for a separate award of costs together with compensation; I think that so far as that case is concerned the construction which I would put upon section 173 is left open. What was there decided is that section 168 (read section 173 of present Code) authorizes the making of an order for payment of compensation although an order for costs has not been made. Indeed it does not seem to me that even by implication the Court held or expressed the view that costs plus compensation could be awarded under section 168. The inquiry seems to have been limited to this: Whether compensation could be awarded under section 168 where there was no additional order for costs under section 166 (2) (equivalent to section 171 (2) of the existing Code), and the decision was expressed in the following words (at p. 73)-"The award of costs under section 166 $(2)$ is not a condition precedent to the award of compensation under section 168". The Court was, in my opinion, looking to an order for costs under section 166 (2) and not to such an order under section 168, which on my reading of the judgment was regarded as providing solely for the payment of compensation in the particular circumstances provided. I would accordingly answer the question in the negative and I would set aside the order for payment of costs made by the subordinate Court.

COFFEY, Ag. J.-I have had the advantage of reading the judgment of the learned President with which I am in full agreement and to which there is nothing to add.

$\overline{a}$