Principles

·  Criminal Procedure _Nolle prosequi—Must take place after investigation—Code of Criminal Procedure 1925. s. 231A

·  Criminal Procedure—..Nolle prosequi—Attorney. General’s order must comply in form with Code of criminal Procedure 1925, s 231A, and be made to magistrate

·  Constitutional law—Nolle prosequi—Quasi-judicial order reviewable by writ of certiorari

·  Constitutional Law—Certiorari—Nolle prosequi—Quasi.judicial order of Attorney- General reviewable by High Court on certiorari

·  Constitutional Law—Bias of judge— showing of likehood of bias, not bias in fact necessary to vitiate proceedings

(i) An order of nolle prosequi by the Attorney General before completion of a criminal investigation is not in compliance with Code of Criminal Procedure 1925, s. 231A, and is therefore void.
(ii) An order of nolle prosequi not made to the magistrate concerned in compliance with the form prescribed in Code of Criminal Procedure 1925,s. 231A, is void and may be disregarded by the magistrate.
(iii) An order of nolle prosequi by the Attorney-General is a quasi-judicial order and is therefore subject to review by the High Court on writ of certiorari,
(iii) An order of nolle prosequi by the Attorney-General is a quasi-judicial order and is therefore subject to review by the High Court on writ of certiorari,
(iv) Proceedings before a magistrate are void when there is a “likelihood of bias” in the magistrate: “the question is not whether the (magistrate was) really biased or in fact decided partially, but whether there was real likelihood of bias.”

Judgment

Abdel Mageed Imam J. July 1, 1962: ——The following are the chronological steps leading up to the giving of’ the ruling given by you on June 22, 1962, concerning the legality of the letter dated June 20, 1962, received from the Public Prosecutor, Khartoum Circuit, purporting to act on behalf of the Attorney-General in conveying the latter’s order of stay of proceedings in connection with the investigation in question

 

On May 21, 1962, information was opened in Omdurman North Police Station under Sudan Penal Code, s. 310 at the instance of one Um Salama Eisa Abu Anga against a certain Zahra Adam Omer and a relative of hers, by name Dumia Anbak Abdulla, to the effect that they traffic in minors for purpose of prostitution.

 

The investigation was carried out by the police. Statements of the complainant, the accused and witnesses were recorded. At the same stage the statements of the girls, the alleged victims of the offence, were taken by the magistrate. These interrogations by the magistrate led to the disclosure of more houses allegedly run for the same illicit purpose and to the disclosure of more accused persons charged under Sudan Penal Code, s. 317, and kindred offences. Some of those houses were situated outside the local jurisdiction of the magistrate. On June 25, 1962, the said magistrate verbally asked for the transfer to his jurisdiction of any similar case. He was directed to put in an application in writing. No mention was made that he was conducting the investigation in person. The application was forwarded on the next day. It contained a request for leave to continue the investigation. When the magistrate was asked to explain this, as he is empowered by Code of Criminal Procedure, s. 318, he replied that it was just for information. Leave for the transfer was, however, granted under Code of Criminal Procedure, s. 127.

 

The product of the magistrate’s investigation led to the discovery of more accused persons some of whom gave confessions until on May 30, 1962, a veteran ex-politician of some standing was arrested. On June4, 1962, three more ex-politicians and persons of great social distinction were arrested. The situation became delicate, and tense with an air of importance. The magistrate disclosed that there were more persons in his “list” and more arrests of the same nature would follow. The above- mentioned arrested persons were released on bail after a thorough examination of the record. It was thought that the evidence was not sufficient to give rise to reasonable suspicion justifying the arrest. The magistrate thought differently. He was entitled to that. However, because of the nature of the offences alleged to have been committed, the positions of the persons involved, the possibility of doing irreparable damage resulting from any new arrest, the magistrate was directed to seek advice before affecting any future arrest. He abided by that. On June 7, 1962, he appeared and disclosed that he was desirous to affect the arrest of the Minister of Foreign Affairs whom he had already charged with an offence under Sudan Penal Code, s. 318. The papers were called for and after consultation with the Chief Justice it was thought fit to approach the Government. Meanwhile the investigation was stayed.

On June 11, 1962, the record of the proceedings was sent to the Attorney-General upon his request who on June 20, 1962, seems to have asked the Public Prosecutor, Khartoum Circuit, to send his letter above alluded to containing an order for stay of proceedings. Prior to the receipt of the said letter, the Attorney General had caused to be broadcast a statement of his decision and his reasons for that decision.

After he received the above-mentioned letters, the magistrate appeared in person and stated that he was not satisfied with that decision. He disclosed that he intended to disregard it and resume the investigation. Because the legality of the Attorney-General’s decision was not as yet clear, the magistrate was directed to send in his ruling in this respect, but meanwhile he was to release all the accused persons on bail on the ground that it was the Attorney-General’s right to keep them in, which right he had now forfeited. He was also directed not to take any further action in respect of the resumption of the investigation.

  It was brought to my notice that, contrary to the said instructions, on June 21, 1962, the said magistrate attempted by unusual and improper means to effect the arrest of the Minister of Foreign Affairs. The attempt was abortive.

The question now is whether the Attorney General’s order dated June 20, 1962, can be questioned. It is assumed that he has acted under Code of Criminal Procedure, s. 231A. This section reads as follows:

  Stay of Proceedings by the Advocate-General:

  “At any time after the completion of an investigation under this Code into any alleged offence and before the commencement of any inquiry or trial resulting therefrom, the Advocate-General may by Writing under his hand inform the magistrate who has taken cognisance of such offences, intend to prosecute the persons or any one or more of the persons accused; and at any stage in any inquiry or at any stage before the finding in any trial under this Code the Advocate- General may by similar writing or in person inform the magistrate or court conducting such inquiry or trial that he does not in respect of all or any of the offences alleged or charged intend to prosecute or further to prosecute the person or any or more of the persons accused; and thereupon in every such case all proceedings in respect of any such offence alleged or charged shall be stayed and the person or persons accused shall be discharged of and from the same.”

 

  The above-mentioned section, as can be seen, gives the Attorney- General the right or discretion, after compliance to a definite formal procedure and without showing any reason whatever, automatically to terminate such proceedings and thus bring them to an end. Whether the result of such act is a discharge or acquittal will not be discussed as it is here irrelevant.

This right is given to the Advocate-General (now the Attorney-General) to terminate the proceedings under the following circumstances:

(a). at any stage after the completion of an investigation and before the commencement of any inquiry or trial.

 (b) At any stage in any inquiry;

(c) At any stage before the finding in any trial;

 (d) That these proceedings should have been conducted under the Code.

 

 For the best determination of the question it can be presented as follows:

 

 (i) Is the said Attorney-General’s order contrary to law in respect of:

  (a) The form required by the law, and (b) the substance of the law, and

(ii) If so can it be declared illegal, and

(iv)              If so by who?

(v)                If the answer to (i) above is in the negative and it is found that the said order was passed within and in compliance with the law, can the discretion or power of the Attorney-General in issuing such order be questioned; in other words, is this power absolute Or in the nature of judicial discretion?

(v)                If the answer to (iv) is that the power is judicial in nature, can such discretion be controlled, and

(vi)              If so to what extent, and

(vii)             If so by whom?

 

 Before proceeding to answer these questions. it is proper to determine the following two points.

            It may be argued: (a) that the Attorney-General is empowered to conduct investigations as well as to conduct prosecutions and that in this particular case he took over the investigation and having completed it he thereafter, duly exercised his power as required by Code of Criminal Procedure, s. 231A, and (b) that because the letter does not refer to any law and because of the statement made in his broadcast the Attorney- General has ordered the closing of the investigation for lack of sufficient evidence.

 

  I am afraid the Attorney-General could do neither.

 

 As for (a) there is nothing in the Code of Criminal Procedure extending such power to the Attorney-General. His right is to conduct prosecutions in judicial proceedings proper, whether in an inquiry or trial; the word prosecute itself signifies this meaning and it is so used in the Code Even if it is admitted that the word prosecution include investigation, the fact remains that the Attorney-General does not claim to have so completed the said investigation.

 

 As for (b) again there is nothing in the Code giving the Attorney- General such power. The investigator alone, be it magistrate or police officer, can do so. The investigation can only be brought to an end, i.e., completed, by the magistrate taking cognisance by forming an opinion after carefully weighing the evidence in respect of the same either by re fusing to proceed for insufficiency of evidence, in which case he may pass an order closing the investigation under Code of Criminal Procedure, or by proceeding to hold an inquiry or trial under Code of Criminal Procedure, s. 140, if he thinks there is a prima facie case which may be inquired into or tried.

The Attorney-General’s course in respect to (a) above is either to wait until the magistrate has formed his opinion and closes the investigation under Code of Criminal Procedure, s. in which case this will be the end of it or, on the other hand, if the magistrate decides to proceed to hold inquiry or trial, the Attorney-General’s remedy is to apply to the competent court for the revision of the magistrate’s decision, or he may exercise his power and stay proceedings under Code of Criminal Procedure, S. 231A, as he is entitled to do in a proper case. It also seems possible for the Attorney-General to apply to the competent court to call for the papers under Code of Criminal Procedure, s. 257 (2), even before an investigation is complete, on grounds of insufficiency of evidence under circumstances giving rise to reasonable probability that no other evidence is forthcoming, provided that the Attorney-General should have applied first to the magistrate, and that his application should have been refused.

 

 The above-mentioned statement is an application of the principle that it is the court alone that can weigh and decide on the evidence in a case before it. It does not lie within the province of the Attorney-General to do that on the court’s behalf. Even the revisioning authority cannot do that in the two instances mentioned above if the magistrate has not as yet given his decision, i.e., before and after completion of the investigation, for then it would be substituting its own judgment in place of a finding of fact reached by an inferior court. The revision authority may, however, alter such finding where there is a clear miscarriage, or perhaps when the case from the record is apparently hopeless.

  “If the law contemplates that the inferior tribunal must adjudicate conclusively upon the existence or otherwise of the state of facts on which its power to decide a certain matter depends, its decision on the preliminary matter cannot be questioned as being erroneous. ‘An objection that the judge has erroneously found a fact which though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter he properly entered upon the inquiry, but miscarried in the course of it. The Superior Court cannot quash an adjudication upon such an objection without assuming the function of the Court of Appeal, and the power to retry a question which the judge was competent to decide.’ If the fact in question be not collateral, but a part of the very issue which the court has to inquire into, certiorari will not be granted. although the lower court may have arrived at an erroneous conclusion with regard to it. If the legislature has entrusted the authority with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, in such cases even if the authority makes a wrong decision either of fact or law, it can be corrected by an appellate tribunal if there is any but not by a writ of certiorari, as every authority if: it acts within jurisdiction is competent to decide both rightly or wrongly.” Chaudhri, Constitutional Rights and Limitations 2040—2041 (1958)

 

 Now to pass to the original question referred to above under para. (2) (i), (ii) and (iii). Let them be restated first:

  (2) (i) Is the said Attorney-General’s order contrary to law in respect of: (a) the form required by the law, and (b) the substance of the law, and

  (ii) If so, can it be declared illegal, and

  (iii) By whom?

 

  By the elementary but cardinal general principles of law courts are bound to apply the law. This signifies that they cannot bind themselves to enforcing any act which is clearly contrary and which constitutes a breach of it.

 

“Claims made by the Crown cannot be supported by mere pretence of prerogative, since the courts have power to determine the extent and the legality or otherwise of any alleged prerogative; nor may illegal acts be rendered justifiable by the plea of the King’s commands, or state necessity. The Crown is bound to observe the law both by statute and by the terms of the coronation oath, which embodies the contract between the Crown and people upon which the title to the Crown originally depended, and still in large measure depends. Upon any doubtful points of prerogative the Crown and its Ministers must, therefore, bow to the decision of the legal tribunals.” 6 Halsbury, Laws of England 455 (2nd ed., Hailsham, 1932).

 

  “It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it, per Sir George Farwell in Eastern Trust Co. v. McKenzie, Mann & Co. Ltd.” 6 Halsbury, Laws of England 455, n (d) (2nd ed., Hailsham, I932).

 

 The High Court by its power of certiorari can vitiate any act of the Executive purported to be done under a quasi-judicial power. “Certiorari will thus lie where the action of the authority is in contravention of express constitutional provisions” 3 Chaudhri, Constitutional Rights and Limitations 2020 (1958). “A quasi-judicial authority must strictly- conform to the limits laid down in the statute under which it is functioning.” Chaudhri, Constitutional Rights and ‘Limitations 2007 (1958).

 

 From the above it can clearly be seen that the Attorney-General’s act of asking for stay of proceedings was illegal because it was contrary to the express provision of Code of Criminal Procedure, s. 231A, which gives him the right to do so at any stage after completion of the investigation and before the commencement of an inquiry. it is also bad in form as it does not refer to any law giving it that right, and even if it was done under the above-mentioned section as indeed it is thought to be, it is also bad in law, as it does not conform with the manner prescribed for bringing it to the notice of the magistrate concerned. The said magistrate was therefore entitled to reject it and treat it as devoid of any force or effect.

 

 It should be remembered that the above principles apply to the acts in quest even if it were to be acceded that his said power is absolute, i.e., in the nature of a pure ministerial or administrative character; for even in such case he must act within the law.

 

“We must again point out that in certain special cases the courts are powerless to control the intra vires use of discretions, even though the elementary principles of natural justice have been disregarded. Some matters which other systems of law might place within the province of civil liberties and thus specially protect are like this. Thus, if the Home Secretary expels an alien from this country without giving him an opportunity to plead his case, the deportation cannot be questioned in the courts on the ground that the Home Secretary has neglected to follow the rules of natural justice. He is entrusted by Parliament with a discretionary power that is absolute in the matter, and the only control is political or diplomatic (R. v. Lemon Street Police Station Inspector, Ex parte Venicoff [1920] 2 K.B. 72).” Lawson and Bentley, Constitutional and Administrative Law 351 (1961).

 

The words intra vires mentioned in the extract are significant.

Now I pass to the last part of the original question stated above. It is reproduced:

  2.  (iv) If the answer to (i) above is in the negative and it is found that the said order was passed within and in compliance with the law, can the discretion or power of the Attorney-General in issuing such order be questioned; in other words is this power (a) absolute, or (b) is it in the nature of a judicial discretion?

  (v) If the answer to (iv) (b) above is in the affirmative, can such discretion be controlled?

  (vi) If so, to what extent, and

  (vii) If so, by whom??

 

As the answer to question (i) above was in the affirmative, this could have put an end to the discussion concerning the legality of the order in question. But as the issue is one of great interest, I hereby proceed to discuss and decide on the matter.

 

 In order to conceive a clearer opinion about the nature of this power one should trace it back and tap its very origin, the doctrine of nolle pro as known to English law.

  Before going into this question, and for the purpose of determining it, it is appropriate first to look into the quality and classification of these powers or discretions in general. Having done so, it is also appropriate to give an account of the court’s prerogative of certiorari in controlling them.

 

  Before going deeply into the question, in very general terms it can be stated that these powers are often classified as ministerial or administrative on the one hand or judicial or quasi-judicial on the other. In the former case the power is absolute, i.e., uncontrollable, provided its use was intra vires. In the latter case the power is not absolute but is subject to judicial control by the courts.

“In Regina v. Dublin Corporation May C.J. again observed:   ‘The term judicial does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law but for the purpose of this question judicial act seems to be an act done by competent authority upon consideration of facts and circumstances, and imposing liability or affecting the rights of others.’” 3 Chaudhri, Constitutional Rights and Limitations 1962 (1958).

  Chaudhri describes quasi-judicial discretion as follows:

  “These decisions point out that a quasi-judicial decision is a determination affecting rights and liabilities of subject arrived at after consideration of facts and circumstances by a competent authority.

  “There must, however, be in addition a duty upon such authority to act judicially.

  “‘In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects. There must be superadded to that characteristic that the body has to act judicially.’” Chaudhri, op. cit., at 1992—1993.

  As for the nature of a purely administrative discretion we find the following same authority.

  “Where a matter is left under the law to the absolute, subjective opinion of an authority the decision of such authority will administrative. Thus the decision about expediency or necessity of requisitioning any land under the Bombay Requisition Ordinance, 1947, is on the express language of the enactment left to the absolute unfettered and subjective opinion of the Government and hence constituted a purely administrative decision. The decision was not capable of being examined by any objective standards. In short the decision of an authority which is intended to be only the subjective opinion of such authority and which is not capable of being examined by a objective standard is an administrative decision.” Chaudhri, op. cit., at 1999-2000.

  As for the writ of certiorari, Lawson and Bentley, Constitutional and Administrative Law 344 (1961), states: “The name implies that the procedure is a means of ‘certifying’ or informing the court.” As Scrutton L.J. said of the process in its old form:

 

  “Certiorari is a very old and high prerogative Writ drawn up for the purpose of enabling the (High) Court . . . to control the action of inferior courts and to make it certain that they shall not exceed their Jurisdiction; and therefore the writ of certiorari is intended to bring into the High Court-the decision of the inferior tribunal, in order that the High Court may be certified whether, the decision is within the jurisdiction of the inferior court.” R. v. London County Council, Ex parte Entertainments Protection Association Ltd. [1931] 2 K.B. 215, 233.

            This right of review of the High Court is so extensive that it may take place even before the inferior tribunal has come to its decision.

            The purpose of this remedy falls under the following heads:

  (a).  to make better provision for the fair conduct of a case;

(b) to quash a decision that goes beyond the competence of the inferior tribunal;

(c) to ensure observance of the requirements of natural justice. Lawson and Bentley, Constitutional and Administrative Law 344-345 (1961). 2 Anson, Law and Custom of the Constitution 348 (4th ed., Keith, 1935).Dicey, Law of the Constitution 522 (9th ed. Wade, 1950). See generally Prem, Law of Writs, Part I (2nd ed. 1963)

 

  “This writ does not issue to correct purely executive acts, but on the other hand its application is not narrowly limited to inferior ‘court’ in the strict sense. Broadly speaking. it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy in point of principle is derived from the superintending authority which the Sovereign’s Superior Courts, and in particular the Courts of King’s Bench, possess and exercise over inferior jurisdiction.” 3 Chaudhri, op. cit., at 1979.

 

 From the above it can be stated that certiorari will issue only to judicial or quasi-judicial bodies and not to purely administrative bodies.

 

  It now becomes appropriate to examine the origin of the Attorney- General’s power of stay of proceedings under Code of Criminal Procedure, s. 231A, which as has already been said may be found in the doctrine of nolle prosequi.

  Archbold defines this process in the following words:

 

  “A nolle prosequi to stay proceedings upon an indictment or information pending in any court may be entered, by leave of the Attorney-General, at the instance of either the prosecutor or the defendant, at any time after the bill of indictment is signed, and before judgment but not before the indictment has been preferred.... ‘This power of the Attorney-General is not subject to any control by the courts; but does not interfere with the right of a judge to allow a case to be withdrawn on the application of a private prosecutor.’ R. v. Comptroller of Patents [1899] I Q.B. 909, 914, per Smith L.J.”

Archbold, Pleading, Evidence and Practice in Criminal Cases 109 (32nd ed., Butler and Garsia, 1949)

 

  Before granting a nolle prosequi, leave must be obtained. “Leave is never given except upon good cause shown, and is never refused when the interests of justice require it.” Archbold, loc. cit.

  “The usual occasion for granting a nolle prosequi is either where, in cases of misdemeanour, a civil action is depending for the same cause . . . or when any improper and vexatious attempts are made to oppress the defendant, as by repeatedly preferring defective indictments for the same supposed offence . . . or, if it is clear that an indictment is not sustainable against the defendant.” Archbold, op. cit., at 110.

 

  He, the Attorney-General, exercises this power by formal document known as fiat or warrant which has now become statutory by the Criminal Justice Act, 1925, as amended by the Post Office Amendment Act, 1935.

 

 In R. v. Comptroller of Patents [1899] I Q.B. 909 913—914, the facts of which need not be reproduced, Smith L.J. had this to say about the position of the Attorney-General in England:

  “Everybody knows that he is the head of the English Bar. We know that he has had from the earliest times to perform high judicial functions which are left to his discretion to decide. For example, where a man who is tried for his life and convicted alleged that there is error on the record, he cannot take advantage of that error unless he obtains the fiat of the Attorney-General, and no court in the kingdom has any controlling jurisdiction over him. That perhaps is the strongest case that can be put as to the position of the Attorney-General in exercising judicial functions. Another case in which the Attorney- General is pre-eminent is the power to enter a nolle prosequi in a criminal case. I do not say that when a case is before a judge a prosecutor may not ask the judge to allow the case to be withdrawn, and the judge may do so if he is satisfied that there is no case; but the Attorney-General alone has power to enter a nolle prosequi, and that power is not subject to any control. . . . In Van Gelder’s Patent the position of the Attorney-General in these matters is stated in the Judgments in the Divisional Court and in the Court of Appeal. I will read a passage from the ‘judgment of Bowen L.J.: ‘At common law, the Attorney is, when he is exercising his functions as an officer of the Crown, in no case that I know of a court in the ordinary sense.’ It follows that his decisions, when exercising such functions, were not subject to review by the Court of Queen’s Bench, and are not now subject to review by the Queen’s Bench Division or this Court.”

           

From the above statements some observations can be made. First, the Attorney-General’s discretion in England is a creature of the common law. Secondly, from the express statement made by Smith L.J. this discretion is a judicial discretion or at least a quasi-judicial discretion, as can be understood by implication from the words borrowed from Bowen L.J. that the Attorney-General is “in no case that I know of a court in the ordinary sense.”

 

 It seems, therefore, that this discretion is a grand exception to the general principle that judicial or quasi-judicial bodies are subject to control by the courts. No reason is given, It may be said that this is because the Attorney-General holds high office equal in status to that of the Superior Courts; for it is the law that certiorari will not issue by a superior court against another equally superior court. Or it may be because his office is coloured with grave political responsibilities that warrant the treatment of his discretion as being ministerial. However, and whatever be the reasons, the law fetters his action by asking him never to give leave except upon good cause shown and never to refuse it when the interests of justice require it. If he does not, the courts have no say and the remedy, as in the case of pure administrative discretions, may be had in diplomatic or political channels.

That, I think, is the situation in England. In America, which has adopted the common law, it seems the position is the same. 2 Bouvier, Law Dictionary 2352 (8th ed., Rawle, 1914).

 

 In India and the Sudan the position is different, for here the power is the creature of statute. Indian Code of Criminal Procedure, s 494 and 333 are relevant. Under section 494, the discretion is clearly judicial and is subject to consent being given by the magistrate’s court. Section 333 applies to proceedings in the High Court. No consent is required. In this respect it is similar to Sudan Code of Criminal Procedure, s. 231A. In order to determine the nature and scope of this statutory power we should first fall upon the statute itself and try to interpret in accordance with the rules of interpretation and construction. If these are not of much help, then we can look back and examine its origin. Both the Indian and Sudan statutes (section 33 and 23 respectively) are silent as to whether this power is a judicial or a quasi-judicial power or whether it is an administrative power. Sohoni calls to his aid the English case law in an endeavour to interpret Indian statute law. 2 Sohoni, Code of Criminal Procedure 1790 (15th ed., Malik and Sastry, 1962). With respect I think Sohoni is wrong. From their origin, these powers under Sudan and Indian laws should be regarded as judicial or quasi-judicial, and as such they are subject to control by the courts. It would be putting into the statutes something which they did not provide for. The door for argument would have been shut if these statutes had been enacted as follows: “That such discretion of the Attorney-General is absolute and is there fore not subject to any control by the courts “; or better still, “that such discretion is of a subjective ministerial nature, is absolute, and shall not therefore be subject to any control by the courts.” But before passing such a piece of legislation, any legislature would give it a deep thought, since absolute discretion is a weapon with two edges, open to abuse, may germinate antagonistic public opinion, and may give rise to repulsion and disgust if improperly used.

 

 As for Sudan law concerning this question in particular one finds oneself in a wilderness for want of precedents. Luckily access was made possible by a member of the reporting staff to Sudan Government v. Idris Adam Abakar, AC-CP-220-1043, and Sudan Government v. Yousif Abdulla El Atabani and Ibrahim El Feki Babiker, AC-CP-221-1943. But unluckily the records of these two trials are missing. What could be found is some correspondence and the record of the case diary. But of importance is a letter Sent by the Acting Chief Justice to the judge of the High Court Blue Nile Circuit in the former case. From the record of the police investigation the case seemed to be a tribal fight in which one man met his death. Many persons were accused under Sudan Penal Code, ss 253, 253/84 and 275. It is only a conjecture, arrived at from what appears on the face of the above-mentioned letter, that these trials proceeded and came to a finish in spite of an attempt which seems to have been made by the Attorney-General to stay proceedings at some stage of the magisterial inquiry. This letter is reproduced in its entirely:

 

 “The Legal Secretary by order of His Excellency the Governor-General has confirmed the finding and sentence.

 

 The Confirming Authority has also considered your note accompanying the Charge Sheet affecting the remaining Fur. In his view Code of Criminal Procedure, s. 231A is not the proper section to apply in this case as the following extract from the Explanatory Note Written when the amendment was submitted to council will show:

 

 ‘In England the Attorney-General and in India the Advocate- General are empowered in criminal cases to enter what is called a nolle prosequi. There are certain cases where it is desirable that the proceedings against an accused person should be stayed either with or without acquittal. Such cases arise either in the interest of justice, as for instance where a civil action is pending for the same cause or where improper and vexatious attempts are made to oppress an accused person by repeated complaints for the same supposed offence, or, in the higher interests of the state, as, for instance, where an immediate trial or perhaps any prosecution of one person for one offence may prejudice a successful prosecution for or the prevention of another and more important offence, or to enable one of two or more persons charged jointly to give evidence for the prosecution against the other accused where the circumstances are such as to make it inexpedient to follow the procedure laid down in Code of Criminal Procedure, s. 238. No such power at present exists, and it is suggested that, as in the case of England and India, the power should be vested in the Advocate-General. It is not intended that this power should be exercised to enable the prosecution to over ride the court’s estimate of the strength of the evidence against an accused person and the fact that the proposed new section 231A requires that the power should be exercised by the Advocate-General personally, is a sufficient safeguard against any abuse of the powers thereby granted.’

 

  “In his view the proper course for reversing a magistrate’s order which has been wrongly made is to invoke section 257 (2A) (1938 Amendment. Let a magistrate’s order, if wrong, be overruled by the proper appellate authority, and not by the Attorney-General stretching the use of Code of Criminal Procedure, s. 231, beyond its intended use. The order for committal has been annulled.”

             The above document is signed by Mr. Justice Fleming Sands for and on behalf of the Chief Justice.

 

  Two vital points appear on the face of this document:

  (a) It declares the intention of the drafters of the statute in outlining the scope and fixing the nature of the power to be a judicial power, and that it should be used in promoting the interests of justice.

  (b) It rules that the Attorney-General’s power has no overriding effect over a magistrate’s right to weigh the evidence and reach a decision even at the stage of a magisterial inquiry.

Now, therefore, whereas the Attorney-General’s discretion to stay proceedings under Code of Criminal Procedure, s. 231A, is from its origin and nature judicial, and whereas it is a creature of statute and not the common law, and whereas the said statute did not say it is to be absolute, it should therefore be subject to the supervisory power and control by this court; and whereas the letter dated June 20, 1962, signed by the Public Prosecutor Khartoum Circuit purportedly on behalf of the Attorney General, did not disclose any law, and whereas the manner in which it was sent was contrary to that provided by Code of Criminal Procedure, s. 23 and whereas the Attorney-General has acted ultra vires by exercising his discretion before completion of the investigation, and whereas the said investigation was not complete in fact and in law, and whereas the Attorney-General is under a duty to exercise this discretion for the interests of justice, and whereas this fact does not appear from the record nor from the broadcast made by him and whereas the Attorney-General is not entitled to substitute his own judgment in weighing the evidence in place of that of the magistrate having jurisdiction to do so, I hereby hold that the Attorney-General’s letter dated June 20, 1962, is illegal and is without force or effect.

 

  Now to turn to the acts and activities displayed by the magistrate which grasped my attention at some later and closing stages of this investigation it should initially be pointed out that this court has power to vitiate any proceedings which do not accord with natural justice. This it can do by the use of its prerogative power of certiorari. The point has been touched upon in the preceding -pages; now it will receive ample treatment.

 

 It is established law that whenever an inferior court or body having judicial or quasi-judicial functions disregards the fundamental principles or natural justice in conducting such proceedings, the High Court can, of its own motion, call for these proceedings, and if satisfied that such was the case, order that the acts of the body be vitiated.

 

 The application of the rule of natural justice may be found in the tribunal adjudicating without giving the parties a chance to appear and be heard, in the tribunal having pecuniary or any collateral or extraneous interest whatever, in the tribunal acting maliciously and with an improper motive, in the tribunal being actuated by fraud, etc.

  “Lastly, the Orders (Prerogative) will lie for failure to observe the rules of ‘natural justice,’ roughly the essentials of a fair hearing.  Indeed, an outstanding and extreme example of the control involved the Lord Chancellor himself, whose decision in favour of a company was set aside because he happened as a shareholder to have a personal interest in the company (Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L. Cas. 759). The appeal succeeded, not because the decision ‘on the merits’ would have been better the other way, but because the Lord Chancellor, in making any decision at all, had broken one of the fundamental principles of natural justice. That breach served to vitiate his decision, and a review on the merits would have been superfluous.” Lawson and Bentley, Constitutional and Administrative Law 348 (1961).

 

  “Finally, natural justice requires judicial or quasi-judicial activities to be carried out in good faith, and the court will quash a decision which has clearly already been arrived at maliciously, i.e., from some unworthy or improper motive or for some purpose other than that for which the discretion was conferred (see Marshall v. Blackpool Corporation [1935] A.C. 16).” Lawson and Bentley, op. cit.

 

 In The King v. Justices of Sunderland [1901] 2 K.B. 357 371-373 it was held, that there being a “real likelihood” of bias on the part of tie before- mentioned justices with regard to the subject-matter of the application to the confirming authority, the writ of certiorari must be issued.

 

  It is difficult however to lay down hard and fast rules about principles of natural justice.

 

 It is impossible to lay down the requirements of natural justice’ but the phrase is actually employed to denote certain elementary principles which according to English ideas must be followed by all who discharge judicial functions.” 3 Chaudhri, Constitution Rights and Limitations 2025 (1958).

 

  “The first principle is that no man can be a judge in his own cause. There is another principle equally well recognised that no party ought to have his case decided without being offered in opportunity of knowing the case which he is to meet as well as sating his own case.” Chaudhri, op. Cit., at 2026.

 

  “If there is one principle which forms an integral part d English law it is this that every member of a body engaged in judicial proceedings must be able to act judicially; and it has been held over and over again that, if a member of such body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. this rule has been asserted, not only in the case of Courts of Justice aid other judicial tribunals, but in the case of authorities which, though in no sense to be called courts, have to act as judges of the rights of others….” Chaudhri, op. cit., at 2027—2028.

 

  “What is bias is, however, not easy to define. In Queen y. Rand, Blackburn J. refers to the objection of bias as in the nature of ‘a challenge to the favour,’ a phrase which was adopted and repeated in the Court of Appeal in The King v. Sunderland Justices. In Franklin v. Minister of Town Planning, Lord Thankerton: aid that the proper significance of the word ‘bias’ is ‘to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator.

 

 “The smallest pecuniary interest will disqualify him from acting.

  “Where the interest of the person adjudicating is not pecuniary or otherwise substantial certiorari will not be granted unless it is shown that his interest is of such a character that it is likely to give a reasonable suspicion of bias….

 

 “Where objection is taken on the score of bias, the question is not whether the justices were really biased, or in fact decided partially, but whether there was real likelihood of bias. Actual bias on the part of the authority need not be proved, nor need it be proved that the actual decision is biased. But all the same mere possibility of bias is not enough. There must be actual apprehension of bias. Where there is a real likelihood that the judge would from kindred or any other cause have a bias in favour of one of the parties, it would be very wrong for him to act.

  “Moreover it is an admitted principle that justice should not only be done but should manifestly and undoubtedly be seen to be done. Even if a magistrate having interest sat along with others but took no part in the proceedings they must be quashed.” Chaudhri, op. cit., at 2028—2029.

 

  From the above it is clear that the criterion is actual or the likelihood of bias. One single fact or factor may or may not be enough.

The fact that he holds strong views on the subject-matter of the offence in respect of which he adjudicates does not establish bias. It is not enough that he was a subscriber to a society for the prevention of offences of the same character.” Chaudhri, op. cit., at 2031.

 

  It is contended, however, that in respect of both these cases, i.e., actual or likelihood of bias, all facts and circumstances must be taken into consideration in order to reach a fair decision.

Now to come to the point: It has been revealed at the late stages of the investigation, that the magistrate conducting the same was a subscriber to a certain party known for both its political and sectarian views. This party has been, like others, dissolved by statute. It should be recollected from the opening pages of this decision, that several of the accused persons used to belong to some party antagonistic or potentially antagonistic to the one referred to above

 

 Bearing these facts in mind, and the fact that though the magistrate who was conducting the investigation was doing it in person as it was h ‘ to do under Code of Criminal Procedure, s. 318, he did not disclose this fact to this court when he first appeared and applied to have any similar information outside his jurisdiction to be transferred to him; and that he was instructed to put that application in writing, and when his letter was- received it contained another application to allow him to resume the investigation in person; that when he was to that that was the first time this court took notice of the fact that he was carrying on the investigation in person and that it was within his power to do so without sanction, he said that he had inserted the said request in his letter just for information; that the investigation itself was conducted in a crusading manner; that the girls, the supposed victims of these offences, were closely questioned. and at late hours in the night; and that they did not disclose the names of the accused persons mentioned above until after a considerable time after the opening of the investigation; that he showed a fanatical desire to bring a case forward; that the manner in which the arrests were carried out was persistent and abnormal; that his persistence and abnormality were such as to make him act in direct disobedience to explicit directions from this court; and that he attempted to arrest the Minister of Foreign Affairs by abnormal and improper means, which conduct has caused him to stand his trial in a Court of Discipline.

 

 It is true that the mere holding of certain views should not be enough to establish bias. But when these views affect overtly the conduct of a magistrate while he is discharging his judicial functions, it should be a different thing.

 

  I do not doubt the egoistic integrity of the magistrate concerned. But from his acts, activities, demeanour, beliefs and views as can be collected from the above-mentioned statement, I cannot rule out the likelihood of bias. Accordingly, I vitiate all the proceedings of the investigation in question, and direct that the accused, all of them, be discharged.

 

  In the present condition of this case I do not see it appropriate to order a fresh investigation.

 

 To conclude: It must be emphasized that the law should not be allowed to be used for collateral or extraneous purposes, nor should it be allowed to be used as an instrument of political or any kind of oppression. In a civilized community its sole purpose is the preservation of peace and order.