Principles

·   CRIMINAL LAW— Entering Special Military Area — Penal Code, s. l04A — Conviction quashed since no prior publication of area in the Gazette.

·  CRIMINAL PROCEDURE — Sanctions required for initiation of presecution for offences against the State — Conviction under Penal Code, s. 104A Illegal for want of prior sanction by Government Represeniative.

In order to constitute a Special Military Area within the meaning of Penal Code, s. 104A. the order of the Kaid declaring the area to be a Special Military Area must be published in the Gazette. The conviction of one who entered without lawful authority is quashed for want of this prior publication.
No person may be tried under Penal Code. s.l04A without the previous sanction of the Government representative. Code of Criminal Procedure, s. 131

Judgment

S. M. A. Attig  . P.J., October 29, 1962:— It is evident that the incident took place in the Barracks. Barracks become a Military area when it has been so demarcated and declared to be such by notice published in the Gazette. In spite of the fact that it has been so declared, the public can have to access to it. it is a well settled principle of law that the rights of an individual should not be lightly interfered with. Interference is only allowed when there is a lawful justification.

Penal Code, s. 104A does not refer to any Military area but to a certain type of it. It is that area which is called a Special Military Area.

Special Military Area is that area which is not in the interest of Military Authorities and the defence of the Sudan to be open to the public, and declared to be such by the Kaid with the consent of the Minister of Interior by notice published in the Gazette.

It is not necessary to prove before the Court by evidence that it is a Special Military Area, but the Court is bound to take judicial notice of it.

I cannot trace such order in the Gazette and my inquiries from the Southern Troops Headquarters confirm that there is no such notice.

Moreover, Code of Criminal Procedure, s. 131, provides that no person shall be brought to trial for any offence punishable under Penal Code, Chapter IX and X, without the previous sanction of the Government Representation

Sentences of flogging or whipping should be passed in lieu of any term of imprisonment and not in addition thereto.

As the accused have already been imprisoned, fined and whipped. I have no alternative but to confirm findings in respect of charges under Code of Criminal Procedure, ss.127, 299, 364 and 390, quash charges under Penal Code, s. 104A and order fines paid by accused No. 1, accused No. 2

and accused No. 6 to be refunded to them.