Apel was charged for an offence contrary to Section 302 of the Penal Code. After the charge is read and explained to him in the Magistrate’s Court, the Deputy Public Prosecutor refused to transfer the case to the High court. Is there any ground to question the DPP’s decision?
An offence contrary to Section 302 of the Penal Code (PC) is triable only by the High Court. Section 177A of the Criminal Procedure Code (CPC) regulates the transmission and further prosecution of the case in the High Court.
In PP v Marwan Ismail  3 CLJ 164, the court discussed Section 41A of the Dangerous Drugs Act (DDA). When a case is triable exclusively by the High Court, then once the accused is produced before it and the necessary procedure followed, that Magistrate Court is under a mandatory obligation pursuant to Section 41A of the DDA to order a transmission of the case to the High Court and cause the accused to be brought before the High Court as soon as is practicable.
The discussion then went on to Section 39B(3) of the DDA which specifically provides that the consent of the Public Prosecutor must be obtained before prosecution commences. The court held that prosecution of the case begins in the High Court, when the charge is read and the accused is asked to plea to it. Thus, the court formed the view that the giving of consent or the withholding of it, being a prosecutorial power, may be exercised even when the case has been transmitted to the High Court.
That being the case, the exercise of the power by the Public Prosecutor in Section 39B(3) is, in the court’s view unconnected with the special procedure for transmission under Section 41A of the DDA. Therefore, although the prosecution of the accused has not been consented to by the Public Prosecutor, the Magistrate Court is not stopped from transmitting the case to the High Court.
It is notable that the case mentioned above dealt specifically with the provisions in the DDA. However, the provision in Section 41A of the DDA is materially similar with that in Section 177A(2) of the CPC. Section 39B(3) of the DDA meanwhile is also materially similar to that of Section 177A(1) of the CPC. On that token, Section 177A(1) and (2) of the CPC should be interpreted in the like manner as Sections 41A and 39B(3) of the DDA were interpreted.
Applying The Law
Back to the given situation, Apel was charged for an offence contrary to Section 302. As the offence carries a mandatory sentence of death penalty, it follows that only the High Court has the jurisdiction to try Apel for that offence.
Nevertheless, the withholding of the Public Prosecutor’s consent to prosecute should not be a ground to refuse Apel’s case to be transmitted to the High Court. Even though Apel’s case is transmitted to the High Court, the prosecution of his case has yet to commence; it commences only when the charge for an offence under Section 302 of the PC is read to him and he is called to plead on it. That being the case, since the prosecution in the High Court has not commenced, the Public Prosecutor still retains the discretion under Section 177A(1) of the CPC to give or withhold his consent to prosecute Apel.
As the law stands now, the refusal to transmit Apel’s case to the High Court is not in accordance with the law.