Rex v Beliram (Cr. App. 9/1930.) [1930] EACA 150 (1 January 1930)

### APPELLATE CRIMINAL.

Before THOMAS, J. and DICKINSON, J.

#### REX

(Appellant) (Original Prosecutor)

### 1).

## RAMCHAND BELIRAM

# (Respondent) (Original Accused).

### Cr. App. 9/1930.

The Bankruptcy Ordinance, 1925—order to prosecute fraudulent debtor.

$Held$ : That to exhaust an order there must h ve been a compliance with that order. An ineffective charge by some person who had no power to institute such proceedings is not a compliance with the order.

Schwartze for Crown.

Mangat for respondent.

JUDGMENT.—This appeal comes before the Court by way of a case stated under section 447 of Chapter 7 of the Laws of Kenya.

On the 30th of August, 1929, an order was made by THOMAS, J., in the following terms:

" And it is further hereby ordered that the debtor Ramchand Beliram be prosecuted under section 134 (1) and section 141 of the Bankruptev Ordinance, 1925, for the offence of not fully discovering to the Trustee all his property in that he failed to discover certain ornaments imported by him from India to the value of Sh. $2,000$ ."

Proceedings were then commenced against the respondent, Ramchand Beliram, and this appeal is in connexion with those proceedings.

Counsel for the appellant and respondent have stated to the Court that they have no objection to THOMAS J., being a member of the Court hearing this appeal.

On the order set out above one Budh Singh filed an information on the 3rd of September, 1929, and on the 26th of November, 1929. the accused was discharged by the Magistrate before whom the case was taken on the ground that under section 145 the proceedings had not been instituted by the Attorney General.

A prosecution was then instituted with the consent and approval of the Attorney General. Objection was taken that the order of the 30th August, 1929, had been exhausted when the accused had been discharged on the 26th November, 1929, and that no further charge could be made without a new order being obtained. The Magistrate approved of that contention and discharged the accused. The Attorney General being dissatisfied has lodged this appeal.

Objection has been taken that counsel appearing has not the authority of the Attorney General and cannot be heard. Counsel has stated that he has such authority and that he does in fact appear on behalf of the Attorney General. In view of the multifarious duties of the Attorney General I can see no reason why he should not be represented in Court by counsel, and no authority to the contrary having been cited this objection is over-ruled. The question raised by the appeal is really a very simple one. viz., whether the order of THOMAS, J. has been exhausted by the abortive proceedings which terminated on the 26th of November, 1929.

It has been argued by counsel for the respondent on the analogy of a sanction that such is the case. Several of the notes in Sohoni's Code of Criminal Procedure have been cited to show that a sanction is an Order of the Court. That such is the case would seem hardly open to argument.

Counsel also referred to Sohoni's 12th Edition, p. 483, note 196, where it is stated that where once a sanction to prosecute is availed of and a complaint instituted on its strength proves infructuous, a fresh complaint on the same sanction is incompetent.

An order giving a sanction to prosecute seems to be a very different order from an order to prosecute.

But apart from this an order sanctioning A to prosecute could hardly be said to have been carried out by the interposition of a prosecution by B who has not been sanctioned. And similarly an order to prosecute under the Bankruptcy Ordinance, which as the Magistrate seems to have held, can only be effectively carried out by the Attorney General himself instituting proceedings, can hardly be said to have been carried out by the institution of proceedings by some person who had no power to institute such proceedings and on whom presumably no power had been conferred.

To exhaust an order there must have been a compliance with the terms of that order. An order for the payment of money would not be complied with by handing over a number of forged notes; an order for the delivery of specific property would not be complied with by the handing over of other property.

In this case there has been a prosecution which has been objected to as not complying with the order and that objection has been upheld. There would therefore seem to have been no prosecution within the terms of the order. But apart from any such special conditions implied by section 145 of the Bankruptcy Ordinance the order was that the accused should be prosecuted. It would be reducing the order of the Court to an absurdity to say that an ineffective charge would be a compliance with that order.

The appeal must be allowed and the prosecution of the Attorney General must be heard and determined.