[1950] EACA 140

## 140

#### MISCELLANEOUS CRIMINAL

### Before WINDHAM, J.

# IN THE MATTER OF CRIMINAL CASE No. 190 OF 1951 IN THE SUPREME COURT OF KENYA AT NAIROBI ENTITLED.

# REX v. HIRJI RAMJI SHAH AND NAVINCHANDRA AMBALAL PATEL Miscellaneous Criminal Application No. 13 of 1951

Revision—Order returning Sh. 5,000 to an accused—Original payment to Inspector (in a police trap) unchallenged-Whether Court had jurisdiction to make the order—Criminal Procedure Code, sections 177 and 178—Section 3 (3) section 8 (a), Criminal Appeal Act, 1907. $\frac{1}{2}$

The accused had been charged with paying Sh. 5,000 to an Inspector for the return of certain books seized and retained by the C. I. D. He was acquitted on the ground that the Inspector was not legally entitled to seize the books. The Court ordered the Sh. 5,000 to be returned.

*Held* $(6-12-51)$ .—(1) If a Court of superior jurisdiction has a power in the same sessions to alter a sentence passed in error, it must also have the power to alter during the same<br>sessions an order for restoration of property if made not in conformity with the law.

(2) The fact that the Crown agreed to the former order can neither validate the order nor stop the Crown from seeking to have it declared bad.

(3) This Court has no inherent jurisdiction apart from Statute to make orders affecting possessory titles in a Criminal Case; the applicable statute in the Criminal Procedure Code is section 177 and section 178.

(4) Section 177 is not applicable as the Sh. 500 had been handed to the Inspector<br>before the accused was apprehended; it therefore conferred no jurisdiction on the Court.

(5) Since section 177 and section 178 deal with restitution orders, i.e. subject matters covered by the Criminal Procedure Code, the Criminal Appeal Act does not apply.

(6) In the result the order was vacated and the accused was left to his civil remedy (if any).

Cases referred to: Rex v. Price (1805) 102 E. R. 1310; De Haber v. Queen of Portugal (1851) 17 Q. B. 171; Rex v. D'Eyncourt (1888) 21 Q. B. D. 109; Arnell v. Harris (1945) 1 K. B. 62; Elias v. Passmore (1934) 2 K. B. 164.

Somerhough, Deputy Public Prosecutor, for Crown (applicant).

#### O'Brien Kelly for respondent.

$\overline{a}$

DECISION.—This is an application by the Attorney General, appearing by the Deputy Public Prosecutor, praying that an order of this Court purporting to be an order for the restoration of property to the persons appearing entitled to the possession of it, should be varied. The order was made by this Court sitting in Criminal Sessions, immediately after the acquittal of two accused persons who had been charged with official corruption contrary to section 93 of the Penal Code, upon a ruling that the prosecution evidence had failed to prove a material element in the charge. The accused had been charged with paying over to an Inspector of the C. I. D. Sh. 5,000 as an inducement for him to return to them certain books of account which the Inspector had seized from them in purported exercise of his legal powers which he was retaining for the purposes of the C. I. D. The accused were acquitted on the ground that the Inspector was not under any official duty to retain the books since he had not been legally entitled to seize them in the first place. The payment over of the Sh. 5,000 bribe by the second accused to the Inspector (who was playing his part in a police trap) was not challenged by the accused in evidence, and the Sh. 5,000 in notes, was

produced as an exhibit by Superintendent Gribble of the C. I. D., to whom the Inspector had handed it over. The account books were produced by this same witness. After acquitting the two accused, this Court made the following order, at the request of counsel for the accused and with the consent of Crown Counsel: "The Sh. 5,000 exhibit (7) will be returned to second accused. The books, exhibits (6) and (A) will be returned to the C. I. D.".

The Crown now asks this Court to set aside that part of the order directing the return of the Sh. 5,000 to the second accused, who appears as respondent through his advocate, Mr. O'Brien Kelly.

Now this Court must first be satisfied by the Crown of two things; whether it has power to vacate its own order, and if so whether it ought to do so.

On the first point, I have been referred by the learned Deputy Public Prosecutor to the inherent power of a Judge sitting in assize or sessions to alter a sentence, either by reducing it or increasing it, at any time before the termination of that assize or sessions, where the sentence originally pronounced was not in conformity with the law: R. v. Price (1805) 102 E. R. 1310, and see Archbold, 32nd ed. at pp. 217, 218. It seems to me, and learned counsel for the respondents has not argued otherwise, that if a Court of superior jurisdiction possesses, as it does, such a power to alter at a later date during the same sessions a sentence passed in error, it must also have the power to alter an order for the restoration of property if such was not in conformity with the law; both the restoration order and the sentence being on the same footing, namely pronouncements consequent upon the judgment. To the judgment itself, different considerations apply. I hold therefore that if this Court's order for the return of the Sh. 5,000 to the second accused was one which this Court was under the law not empowered to make then this Court can during the current sessions (and the sessions have not yet terminated) vacate that order.

That brings us to the second point, namely whether this Court had jurisdiction. to make the order that it did. For if it had no jurisdiction, then the fact that the Crown (in the person of Crown Counsel who conducted the prosecution) agreed to the making of the order can neither validate the order nor estop the Crown from now seeking to have it declared bad: for it is settled law that consent cannot create jurisdiction: de Haber v. Queen of Portugal (1851) 17 O. B. 171.

Another point which has not been contested on behalf of the respondent is that this Court has no inherent jurisdiction to make an order affecting possessory title in a criminal case, such as the order now in dispute: the jurisdiction can be conferred by statute only: R. v. D'Evncourt (1888) 21 O. B. D. 109; Arnell v. Harris (1945) 1 K. B. 62. And in this Colony the only statutory provisions empowering a Court to make an order for restitution of property in a criminal case are sections 177 and 178 of the Criminal Procedure Code. It is conceded by learned counsel for the respondents that neither of these sections was applicable. Section 178 was inapplicable both because the accused were not convicted and because the charge was not one of those to which the section refers. Section 177 was inapplicable because it applies only where "Upon the apprehension of a person charged with any offence, any property is taken from him". In the present case the Sh. 5,000 in notes had already been handed by the second accused to the C. I. D. Inspector before he was apprehended, and therefore it was not taken from him upon his apprehension. Thus section 177 did not apply. It may be stated here and now that this point escaped the attention of this Court (and no doubt of learned Crown Counsel) when it made its order of restitution, and that the Court purported to be acting under the powers conferred by section 177.

Section 177, however, conferred no jurisdiction; and I have been referred to no other statutory provision which did confer it. Learned counsel for the respondent argued that the necessary jurisdiction was conferred through section 3 (3) of the Criminal Procedure Code, which provides as follows: -

"3. (3) Provided however, and notwithstanding anything in this code contained the Supreme Court may, subject to the provisions of any law for the time being in force in the Colony, in exercising its criminal jurisdiction in respect of any matter or thing to which the procedure prescribed by this Code is inapplicable, exercise such jurisdiction according to the course of procedure and practice observed by and before His Majesty's High Court of Justice in England at the date of the coming into operation of this Code."

This, he contends, imports the provisions of rule 8 $(a)$ of the Criminal Appeal Rules, 1908, made under the Criminal Appeal Act, 1907. That rule provides as follows:-

"8. (a) The Judge of the Court of Trial may make any order he thinks fit for the custody, disposal or production of any exhibits in the case, but unless he makes any such order, exhibits shall be returned to the custody of the person producing the same or of the Solicitor for the prosecution or defence respectively. Such person or Solicitor shall retain the same pending any appeal and shall, on notice from the Registrar or Director of Public Prosecutions produce or forward the same as and when required so to do."

This contention cannot in my view prevail. In the first place section $3.(3)$ of the Criminal Procedure Code is expressed to apply "in respect of any matter or thing to which the procedure prescribed by this Code is inapplicable". I take these words to mean that the English practice and procedure will be imported only in respect of subject-matter not covered by the Criminal Procedure Code; so that if sections 177 and 178 deal with restitution orders in criminal cases. had not existed, the English procedure might have been applied. But since they do exist, and contain specific provisions on the subject, they cannot be varied (as the effect of section 177 would be varied) by the importation of English statutory legislation. Secondly, rule 8 (a) of the Criminal Appeal Rules, 1908, can, in my view, in any case not be imported: for as has been pointed out for the Crown the term "exhibits" in that rule is defined in rule 2 of the same rules as including all books, papers, etc., connected with proceedings against persons entitled to appeal under the Criminal Appeal Act, 1907. Rule 8 $(a)$ is clearly a statutory rule of procedure peculiar to the hearing of appeals under that Act, and cannot properly be imported into the criminal procedure of Kenya where that Act has no application.

For these reasons I hold that the order of this Court requiring the return of the Sh. 5,000 to the second accused was made without jurisdiction, and that this Court during the still current sessions has power to, and ought to, vacate it. It is vacated and rescinded accordingly. Nothing in this order, of course, will preclude the second accused respondent from instituting, if he so desires, civil proceedings for the recovery of that money. This indeed is the proper procedure for its recovery in a case such as this, see Elias v. Passmore (1934) 2 K. B. 164.