[1948] EACA 58

## APPELLATE CRIMINAL

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

$\mathcal{L}(\mathcal{L},\mathcal{L})$

## THE HONOURABLE THE ATTORNEY GENERAL, Appellant $\nu$ .

## $\mathcal{L}_{\text{max}} \sim 10^{-3}$ MERVYN G. F. S. HILL & THE NAKURU PRESS LIMITED, Respondents Criminal Appeal (Case Stated) No. 16 of 1948 $\mathcal{L} \times \mathcal{L}$

Criminal Procedure—Case stated—Section 367, Criminal Procedure Code. $\mathcal{F}_1\mathcal{F}_{1,2}$

The respondents were accused of sedition and the Magistrate refused to commit to the Supreme Court for trial. The Attorney General applied for a case to be stated under section 367, Criminal Procedure Code. $\{A_{\alpha_1}A_{\alpha_2}\}=\{A_{\alpha_1}A_{\alpha_2}\}$

Held (27-2-48) — That where a Magistrate has refused to commit for trial it is very doubtful whether the procedure by way of case stated is then available to a prosecutor.

Application refused.

$\cdot \cdot$ $\mathcal{O}(\mathcal{O}_\mathcal{O})$

$\ldots$ Foss v. Best (1906) 2 K. B. D. 105; Reg. v. London (County) Justices 25 Q. B. D. 357 referred to.

Hobson, Solicitor General, for the Appellant.

Salter for the Respondents.

BOURKE, Ag. C. J.—An application was made by the Attorney General under section 367 of the Criminal Procedure Code to the First Class Subordinate Court. Naivasha, to state a case for the opinion of this Court. The application is before us and is in the following terms: --

"WHEREAS a complaint wherein the Crown was complainant and Geoffrey Dunderdale, Mervyn George Frederick Sayone Hill and the Nakuru Press Limited were defendants, was determined by yourself sitting in the Court of the First Class Magistrate at Naivasha on the 15th day of December, 1947:

NOW, I the undersigned, being dissatisfied with your determination that there was no case to answer against the said Mervyn George Frederick Sayone Hill and the Nakuru Press Limited and ordering their discharge upon the hearing of the said complaint as being erroneous in point of law, hereby, pursuant to the provisions of section 367 of the Criminal Procedure Code apply to you to state and sign a case setting forth the facts and the grounds of such your determination for the opinion thereon of the Supreme Court of Kenya."

The Magistrate did purport to state a case but it is evident that he has neglected to follow the provisions of section 375 Criminal Procedure Code as to the necessary contents of a case stated. A case stated should be complete in itself and contain a full statement of the matter required by the section. It is not, for instance, a compliance with paragraphs (c) and (d) of section 375 to stay—"Full details given in my. judgment dated 15th December, 1947, copy attached". No question of law is set out in the case for the opinion of this Court; instead, where the question should appear there occurs the word "Nil". There is accordingly no proper case stated before this Court and the question now is whether this Court should exercise the power given under section 372 (a) Criminal Procedure Code to send the case back for re-statement. At the outset I queried whether at all the remedy by way of case stated lay where a Magistrate holding a preliminary enquiry into a charge has declined to commit the person charged for trial, and the point has been strongly argued by learned counsel appearing for the respondents. The learned Solicitor General, appearing for the Crown, submits that there has been a "determination" within the meaning of sections 367 and 371 and that the procedure by case stated is available and open in all the circumstances. Apparently, as I am made to understand it, some doubt is felt as to whether the Attorney

General is empowered to prefer an information for the offence charged where the examining Magistrate has declined to commit the accused person upon such charge into which he inquired. It is surprising if there be no such power but that is not a question upon which I need express any opinion for the purposes of this matter.

No authority directly in point was referred to in argument but I have found the case of Foss v. Best (1906) 2 K. B. D. 105, which is of the greatest assistance, and which so far as I can discover is the latest case bearing upon the point. In that case the justices inquired into a charge of embezzlement and came to the conclusion, as a matter of law, that there was no ground for committing the accused for trial which accordingly they refused to do. There was a case stated and thereon it was contended for the appellant, as it is now contended before this Court, that although the justices had given a decision in favour of a person charged with felony they could state a case upon the application of the prosecutor as being a person aggrieved. The case of *Ferens v. O'Brien* (1883) 11 Q. B. D. 21 was distinguished by the Court on the ground that the point as to the power of the justices to state a case was not taken. It is to be observed that the word "determination" also occurs in the Summary Jurisdictions Acts, 1857 and 1879 where power is given to the justices in England to state a case. It is as well to quote extensively from the judgments in *Foss* v. Best. At page 108 (supra) Darling, J. is reported as saying this:-

"Another case has been brought to our notice by Mr. Macmorran as amicus curiae—the case of Reg. v. London (County) Justices 25 Q. B. D. 357. The statute under consideration in that case was not the same as that with which we are dealing here, but for the present purpose its language, to my mind, is indistinguishable. Ferens v. O'Brien does not seem to have been cited in that case; but the reasoning of the judgments in Reg. v. London (County) Justices covers the present case, and disposes of the appellant's contention. In the course of his judgment Lord Coleridge, C. J., said: 'We must decide this case on principle, for no case has been brought before us by the learned counsel on either side in which the point has been directly or even indirectly decided. The question arises on the Act of 1835, and a claim to have an appeal after acquittal is now for the first time made, although there must have been thousands of instances of acquittals which have dissatisfied the prosecutors'. That observation applies even more forcibly here, for if there have been thousands of cases upon the Highway Act, 1835, there must have been very many more at common law. The Lord Chief Justice then proceeded: 'The reason why no case has ever arisen before must, in my judgment, be that, on scanning section 105, prosecutors who might otherwise have desired to appeal against an acquittal have felt that the language of the section was against them. I do not deny that this is "determination made" by the Justice, and may be "a matter or thing done by the Justice in pursuance of the Act"; and, therefore, if it were enough to find a word or two in a section of this kind which would carry an appeal, the argument for the appellant would be entitled to succeed, for there are words capable of the meaning contended for'. In the present case the appellant's counsel cannot put his contention higher than that there are words in the section we are considering capable of the meaning contended for by him. Lord-Coleridge continued: 'But that is not quite the way in which the section should be regarded when we are asked to hold that there is an appeal after acquittal, which is, prima facie, not given by law. A person is prosecuted for some breach of the law which is to be proved in a particular way. The general principle of law is that, if acquitted, he is not to be a second time vexed'. Later in the same judgment he said: 'Our decision must be governed by broad and well-recognized principles of construction. One of those is that a man acquitted is not to be again proceeded against with respect to the same matter; another principle is that an appeal is never given except by statute. That brings us to the consideration of section 105. My opinion, on full consideration, is that this section does not give an appeal except in cases of conviction'. That learned and painstaking Judge, Wills, J., in giving judgment to the like effect, said: 'No instance can be found in the books of an appeal successfully prosecuted, or even attempted to be brought, after an acquittal. I have looked with some care into the books where such an instance would, if it existed, be likely to be found, and I have not discovered any, and so far as appears in every work I have consulted which throws light on the subject the appellant is always treated as a person who has been convicted or suffered something analogous to conviction'. In this case we have had no case cited to us which goes the length contended for on behalf of the appellant.

In my opinion we cannot entertain this appeal because of the want of service to which I have referred, and upon the other point the inclination of my opinion is that no such appeal can lie."

And per Channel J. (at p. $110$ ): —

"Assuming, however, that we had a discretion in the matter, this is not a case in which we ought to exercise our discretion to hear the appeal, because there is the gravest possible doubt as to whether a case can be stated upon an acquittal. To begin with, a case can only be stated in respect of a 'conviction, order, determination, or other proceeding of a Court of summary jurisdiction', and I think that Justices who are taking depositions for the purpose of committing a prisoner for trial have not this power to state a case, as they are not exercising summary jurisdiction. Here the Justices were not proceeding to deal with the case summarily. Even if it had appeared that they were sitting as a Court of summary jurisdiction, either by reason of the respondent electing to be dealt with summarily or otherwise, the difficulty remains whether the prosecutor would be a person aggrieved who could require a case to be stated. There is much in the judgment of Lord Coleridge, C. J., in Reg. v. London (County) Justices to shew that in ordinary cases a prosecutor is not a person aggrieved, and in my opinion it is extremely doubtful whether in a case of a purely criminal character—as distinct from one of a quasi-criminal nature, as, for example, in a prosecution for a breach of by-laws—a case can be stated under this procedure where the defendant has been acquitted.

In view of our judgment upon the first point, I am not giving any final decision as to the power of Justices to state a case under such circumstances, but, as I have said, I have the greatest possible doubt as to whether there is any such jurisdiction. I may point out that we are not depriving the prosecutor of any remedy, for he may, if he thinks fit, prefer an indictment against the respondent."

No case has been brought to our notice in which a case stated has been applied for or adjudicated upon where the submission was that the Magistrate conducting a preliminary inquiry erred in law in holding that the evidence did not justify an order of committal for trial. If there be power to state a case in such circumstances it occurs that a person who has been committed for trial might equally well move by way of case stated in the endeavour to establish that the evidence was insufficient to found the order for committal. There are, of course, differences between section 33, sub-section 1 of the Summary Jurisdiction Act, 1879 (42 and 43 Victoria c. 49), under which the case was stated in *Foss v. Best*. and section 367 of the Criminal Procedure Code. The material part of the former section is as follows: -

"Any person aggrieved, who desires to question a conviction, order." determination, or other proceeding of a Court of summary jurisdiction, on the ground that it is erroneous in point of law, or is in excess of jurisdiction, may apply to the Court to state a special case setting forth the facts of the case and the grounds on which the proceeding is questioned ...."

Section 367 of our Code reads as follows: —

"After the hearing and determination by any subordinate Court of any summons, charge, information or complaint, either partly in the proceedings before the said subordinate Court may, if dissatisfied with the said determination as being erroneous in point of law, or as being in excess of jurisdiction, apply in writing within thirty days after the said determination to the said subordinate Court to state and sign a case setting forth the facts and the grounds of such determination ....

I am unable to discern any vital difference in the contexts between the words "aggrieved" and "dissatisfied". I think that there can be little doubt that there has been a judicial "determination" by the Magistrate and one must not lose sight of the word "inquiry" occurring in paragraphs (c) and (d) of section 375. It may also be in favour of the appellant's contention that the words "of a Court of summary jurisdiction" are employed in the section quoted of the English Act whereas the words "subordinate Court" are to be found in section 367, though, of course, a subordinate Court is a Court of summary jurisdiction. It is of interest to note that in R. v. Maula Dad 17 K. L. R. 70, it was considered by this Court on revision whether an order of a Magistrate refusing to commit for trial should not be set aside. In the event the Court declined to interfere with the decision of the Magistrate. The point does not appear to have been raised in that case whether there is any power under the revisional jurisdiction to review and alter or reverse such an order.

Now whether a case should be sent back for re-statement under section 372 (a) clearly lies within the discretion of this Court. I am naturally strongly influenced by the case of *Foss y*, *Best*, and I have anxiously combed through the relevant sections of the Criminal Procedure Code in the endeavour to resolve the doubts which I felt and indeed voiced at the outset of the hearing. I nevertheless find myself left with considerable doubt as to whether in the circumstances the procedure by way of case stated is properly available for resort by the prosecutor and whether the Magistrate has jurisdiction. Since that is the state of my mind I would in the exercise of the discretion decline to send back the case for re-statement, and since there is no proper case stated before this Court I would dismiss the proceedings.

COFFEY, Ag. J.—I agree and have nothing to add.