Pyndia v Mohamed (Cr. App. 32/1931.) [1931] EACA 24 (1 January 1931)

APPELLATE CRIMINAL.

Before SIR J. W. BARTH, C. J., and DICKINSON, J.

J. M. A. KARIM PYNDIA (Appellant) (Original Accused) $2)$

FAQIR MOHAMED (Respondent) (Original Prosecutor). Cr. App. 32/1931.

Case stated by Resident Magistrate, Nakuru.

- Prosecution before Resident Magistrate for offence under section 135 (a) Bankruptcy Ordinance, 1925-" bankruptcy jurisdiction "-section 141 Bankruptcy Ordinance. an enabling section. - Held (14-7-31): —That the trial of offences created by the Bankruptcy<br>Ordinance is not an exercise of jurisdiction in bankruptcy but an<br>exercise of criminal jurisdiction over such offences. Further held < that section 141 of the Bankruptcy Ordinance is merely an enabling<br>section and does not deprive an injured complainant from pro-<br>ceeding by complaint, save in regard to those offences where the<br>Ordinance provides that a pr except by order of the court.

Mangat for Appellant.

Abbott, Crown Counsel, for Crown.

The appellant, a bankrupt, on being prosecuted before the Resident Magistrate, Nakuru, for an offence under section 135 (a) Bankruptcy Ordinance, 1930; submitted through his counsel (1) that no prosecution under the Bankruptcy Ordinance, 1930, can be instituted until an order has been obtained from the Supreme Court; (2) that the Resident Magistrate's Court had no jurisdiction in Bankruptcy; and (3) that proceedings should have been had under the 1925 Ordinance (this point was abandoned). After arguments the Resident Magistrate, at the appellant's request, stated a case.

Judgment delivered by Sir J. W. Barth, Chief Justice.

$JUDGMENT\_It$ is clear that the only Court having jurisdiction in bankruptcy is, at present, the Supreme Court under section 94 of the Ordinance, there having been no delegation of jurisdiction under that section. But the trial of offences created by the Bankruptcy Ordinance is not in my opinion an exercise of jurisdiction in bankruptcy but an exercise of criminal jurisdiction over such offences and, within the provisions of section $5(2)$ and of Schedule I (Offences under other Laws) of the Criminal Procedure Code, such jurisdiction can be exercised by a subordinate Court. With regard to the ground of appeal that the

order of this Court is necessary for the prosecution of any offence under the Bankruptcy Ordinance, the appellant relies on section 141 of the Ordinance. This section is in my view merely an enabling section and does not deprive an injured complainant from proceeding by complaint, save in regard to those offences where the Ordinance provides that a prosecution shall not be instituted except by order of the Court, cf. sections 137 and 138. These sections imply that there is power to institute the prosecution of offences under the Ordinance in proper cases, without the prior order of the Supreme Court; such an order carries with it an obligation on the Attorney General to institute such prosecutions, vide section 145, and otherwise its effect would be to make the estate liable for costs. cf. Rex v. Graham (1868) 18 L. T.184. But in this case the compainant does not come within any of the classes of persons set out in section 141 who are enabled to report to the Supreme Court or make representations to it regarding an alleged offence.

In my judgment the appeal should be dismissed and the Magistrate directed to complete the proceedings.

DICKINSON, J., concurred.