[1948] EACA 73

### **APPELLATE CRIMINAL**

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

#### REX, Respondent (Original Prosecutor)

## PIARA SINGH. GOKALDAS S/O RAVJI, GOPAL KRISHAN S/O AMICHAND BIJ, Appellants (Original Accused)

#### Criminal Appeals Nos. 304, 306 and 307 of 1948 (Consolidated)

Criminal Procedure-Whether an appeal lies against an order to execute a bond to keep the peace—Criminal Procedure Code, sections 42, 47, 53, 60, 347 and $348$ .

The complainant informed the Resident Magistrate, Nairobi (under section 42, Criminal Procedure Code), that the appellants were likely to commit a breach of the peace, and the Magistrate issued summonses for them to appear to show cause why they should not furnish security in their own bonds of Sh. 1,000, with one surety, to keep the peace for one year.

Each appellant declined to enter into a bond, and after hearing evidence, on the 3rd May, 1948, the Magistrate ordered each one to be bound over to keep the peace until the 31st December, 1948, under section 53 of the Criminal Procedure Code.

Held (9-9-48).—That whilst section 53 (2) of the Criminal Procedure Code specifically grants the right of appeal in cases of bonds where good behaviour is a prerequisite, no appeal lies against an order to execute a bond to keep the peace under section 53 of the Criminal Procedure Code.

Appeals dismissed.

Bhanji Virji v. Akbaralli Jamal Gangji 16 K. L. R. 124 and 17 K. L. R. 44 referred to.

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

Todd Crown Counsel, for the Crown.

JUDGMENT.—At the outset of the hearing of these appeals, which have been consolidated, learned Counsel for the appellants were invited to argue as to whether an appeal lies to this Court in its appellate capacity from the order of a Magistrate made under section 53 of the Criminal Procedure Code.

Our attention was immediately drawn to the case of Bhanji Virji v. Akbaralli Jamal Ganji reported in Vol. XVII, Part 1, Law Reports of Kenya, page 44. This case discloses that in previous criminal proceedings Bhanji Virji had been summoned under the then section 47, Criminal Procedure Code, to show cause why he should not be bound over to keep the peace and had been ordered by the Resident Magistrate to enter into a bond to keep the peace and that upon appeal this Court had discharged that order. We have now had the opportunity of perusing the criminal proceedings in question as recorded in Criminal Appeal 82 of 34 (Bhanji Virji v. Akbaralli Jamal Gangi). This was an appeal to this Court on its appellate side from Criminal Case 3875/34 of the Resident Magistrate's Court at Nairobi. In this appeal neither the advocate for the respondent nor the Court took the point that no appeal lay and the point was in fact neither raised nor decided.

Beyond the cases just referred to neither learned Counsel for the appellants nor learned Counsel for the Crown has been able to assist in the matter of authority.

A right of appeal must be definitely conferred by statute: and such rights as are conferred upon this Court are embodied in the Criminal Procedure Code.

Whilst section 53 (2) specifically grants the right to appeal in cases of bonds where "good behaviour" is a prerequisite, the section is silent in regard to bonds demanding "the keeping of the peace".

It has been urged that sections 347 and 348 of the Criminal Procedure Code are overriding sections, but those sections visualize convictions after trial and sentences following upon such convictions. Furthermore the second proviso to section 348 would not seem to support the appellants' argument.

There is for our consideration section 60 of the Criminal Procedure Code which allows the Court to cancel any bond for keeping the peace or for good behaviour in circumstances as prescribed in the section, but no power is there given to reverse the decision of a Court ordering the execution of such bonds.

It has further been urged that as this appeal has been admitted to hearing we should accept the proposition that an appeal lies of right: we are unable to accept this contention.

Nor are we prepared to accept the argument that because in bygone days an appeal was accepted and heard and determined by this Court there has been conferred upon this Court powers which the Legislature has not conferred. more especially as the particular point was neither adjudicated upon nor even mentioned.

In the result we feel constrained to hold that no appeal lies to this Court. against an order to execute a bond to keep the peace made by virtue of section 53, Criminal Procedure Code, and these appeals now before us must accordingly be dismissed.