Wahid v Naranjee and Another (Criminal Revision Case No. 225 of 1947) [1947] EACA 58 (1 January 1947)

# **CRIMINAL REVISION**

#### Before BOURKE, J.

#### ABDUL WAHID, Complainant

#### v.

# (1) KANJEE NARANJEE, (2) DWARKADAS KANJI, Accused

## Criminal Revision Case No. 225 of 1947

Criminal Procedure—Application for revision of trial pending before subordinate Court—Discretion of Supreme Court—Observations on practice—S. 363, $C. P. C.$

The accused being dissatisfied with an order made by a magistrate in the course of a criminal trial applied to a Judge of the Supreme Court in Chambers by notice of motion to revise the magistrate's order. Without-a Judge's permission the motion was listed for hearing before him.

Held $(2-8-47)$ .—(1) Revision is a matter of discretion and the Court does not recognize that it is under any obligation to proceed to revision or that it can be forced to consider a case in revision.

(2) It is within the discretion of the Supreme Court whether, in a case in which it decides to revise, the matter should be listed for hearing of the parties concerned or their advocates.

No order in revision made.

Application not heard.

ORDER.—This matter has come to the knowledge of this Court through an application styled a "Notice of Motion" which commences, "Let all parties con-<br>cerned attend the Judge in Chambers on Tuesday the 5th day of August, 1947, at 9.30 in the forenoon $\ldots$ ." It is then prayed on behalf of the accused that this Court should interfere with the course of a criminal trial still pending before the Court of the Resident Magistrate, Nairobi. Exception is apparently taken to an order made before plea in amendment of or substitution for the charges originally laid against the accused. Revision is a matter of discretion and this Court does not recognize that it is under any obligation to proceed to revision or that it can be forced to consider a case in revision upon the filing of such an application as is now put before me together with the record of the lower court. Even if there be jurisdiction under section 363, Criminal Procedure Code, which I greatly doubt, to enter into revision of criminal proceedings which have not been concluded before a subordinate court, I would be very reluctant and slow indeed to interfere with an order such as that to which objection is taken in this case. I make no order in revision in this matter and the record should be returned to the court for trial. A further comment: it is within the discretion of this Court whether, in a case in which it decides to revise, the matter should be listed for hearing of the parties concerned or their advocates. (I do not here refer to the circumstances provided for by section 363 (2), Criminal Procedure Code.) Such a hearing is not to be regarded as a matter of right to be exercised by the filing and service of an application such as now before me. Assuming that the section does give the power to interfere with an order of a subordinate court made in the course of a trial that is still pending, I do not think that this Court would be inclined to interfere in revision unless it is flagrantly apparent that the order is illegal and will do injustice. I may say that I am anyway far from being satisfied on a perusal of the papers that such is the case in the instant matter, though in saying that I am not to be taken as pronouncing one way or the other upon the validity of an order that may come up for consideration on appeal.

I do not find it necessary to instruct the Registrar to set the matter down for hearing of the advocates for the parties. The Registrar will cause the advocates to be informed of the terms of this order.

## RULES OF COURT, 1946 AND 1947

#### 1946

- The Personal Tax (Appeal) Rules, 1946—Page 31/1946, Proclamations, Rules and Regulations. - East African Court of Appeal (Amendment No. 1) Rules, 1946—Page 161/1946, Proclamations, Rules and Regulations. - The Rules of Court (Legal Practitioners) (Amendment) No. 2 of 1946—Page 233/1946, Proclamations, Rules and Regulations. $\cdot \cdots$ - The Civil Procedure (Amendment No. 1) Rules, 1946—Page 109/1946, Proclamations, Rules and Regulations.

## 1947

The Rules of Court (Destruction of Court Records) (Amendment) No. 1 of 1947-Page 92/1947, Proclamations, Rules and Regulations.

# **CIRCULARS TO MAGISTRATES, 1946**

Sixty-one Circulars to Magistrates were issued during 1946, of which eighteen have been published in the form of a report in Part I of this Volume as follows:—

| Circular No. 14 | | | | | 22 $(1)$ K. L. R. 17 | |------------------------|--|----------------|---------------------------|----------------------------|----------------------------| | Circular No. 22 | | $\sim$ | $\ldots\quad\ldots$ | | 22 (1) K. L. R. $19$ | | Circular No. 23 | | $\overline{a}$ | $\cdots \cdots$ | | 22 (1) K. L. R. 21 | | Circular No. 24 | | $\cdot$ | $\ldots \cdots$ | | 22 (1) K. L. R. 23 | | Circular No. 29 | | $\cdot\cdot$ | $\cdots \cdots$ | | 22 (1) K. L. R. $25^{\circ}$ | | Circular No. 31 | | $\cdot$ | $\cdots\cdots$ | | 22 (1) K. L. R. $33$ | | Circular No. 33 | | $\cdot$ | $\cdot$ | $\ldots$ | 22 (1) K. L. R. $30$ . | | Circular No. 35 | | . . | $\cdot$ | $\ddot{\phantom{0}}$ | 22 (1) K. L. R. 31 - | | Circular No. 37 | | $\cdot$ | $\cdot$ | $\cdot$ | 22 (i) K:L. R. 54 | | Circular No. 42 | | . . | $\cdot$ | $\cdot$ | 22 (1) K. L. R. 14 | | Circular No. 47 | | $\cdot$ | $\cdots$ | $\cdot$ | 22 $(1)$ K. L. R. 36 | | Circular No. 48 | | $\cdot$ | $\cdot$ | . . | 22 (1) K. L. R. $38$ | | Circular No. 49 | | $\cdot$ | $\cdot$ | $\ddot{\phantom{0}}$ | 22 (1) K. L. R. $39$ | | Circular No. 51 | | $\cdot$ | $\mathcal{L} \mathcal{L}$ | $\overline{a}$ | 22 (1) K. L. R. 43 | | Circular No. 52 | | $\cdot$ | $\cdot$ | $\cdot$ | 22 (1) K. L. R. 41 | | ✓Circular No. 54 | | . . | $\cdot\cdot$ | $\mathcal{L}(\mathcal{L})$ | 22 (1) K. L. R. $45$ | | $\sim$ Circular No. 55 | | $\cdot$ | | | 22 (1) K. L. R. 47 | | Circular No. 60 | | | $\sim$ $\sim$ | | 22 (1) K. L. R. 27 |

Twenty-two Circulars to Magistrates were issued during 1947.

$\mathcal{L} \subset \mathcal{L}$

$\omega_{\rm{max}}(x)$