CPC - Transfer, Transmission, Private Prosecution, Impeachment

Transfers

  • Three main areas to cover:

    • Transfer of cases

    • Impeachment proceedings

    • Initiation of proceedings (private prosecution)

Types of Transfers

  • Two main types:

    • Lateral Transfer: Transfer between courts of coordinate jurisdiction.

      • Sessions to Sessions

      • High Court to High Court

      • Magistrate to Magistrate

    • Vertical Transfer: Transfer to a higher court.

      • Magistrate to Sessions

      • Sessions to High Court

      • Also includes downward transfers (High Court to Sessions or Magistrate)

Key Elements to Consider for Transfers

  • CPC Section: Identify the relevant section.

  • Who Can Transfer: Determine who has the authority.

  • Stage: Identify at which stage the transfer can occur.

  • Court to Court: Determine the courts involved: from which court to which court.

Section 177 CPC - Transfer by Magistrate or Sessions Judge

  • Who Can Transfer:

    • Magistrate

    • Sessions Court Judge (includes magistrate)

    • Public Prosecutor (PP)

  • Stage:

    • At any stage of the proceeding (before or during trial).

    • Application can be made by the prosecution.

  • Transfer:

    • Vertical transfer: Magistrate to Sessions, or Sessions to High Court.

Case: Mansu Omar v PP

  • Year: 2004/2005

  • Details:

    • Prosecution applied for transfer from Sessions Court in Kuala Lumpur to Sessions Court in Ampang for corruption charge.

    • Accused objected using territorial jurisdiction grounds.

    • Accused argued prosecution should have applied to High Court under Section 417 instead of 177.

  • High Court Decision:

    • Dismissed the revision application.

    • Referred to Section 59(2) of Subordinate Courts Act: Jurisdiction of a Session's court covers the whole federation.

    • Referred to Section 104 of Subordinate Courts Act: Power to President/Magistrate to transfer cases in the interest of justice.

    • Referred to Section 99A, Schedule, I.C.A 3 sub 2 of subordinate courts act gives subordinate court power to make lateral transfer of any proceedings.

Case: Raja Petra Kamaruddin

  • Appellant argued that Section 177 breaches Article 8(1) of the Federal Constitution.

  • Court held that transfer to Sessions Court doesn't necessarily mean harsher punishment.

  • Mentioned that the judge in Sessions Court is an experienced judge.

Section 177A CPC - Transmission of Case by High Court

  • Involves transmission of a case to and trial by the High Court.

  • PP's consent is required to institute prosecution in the High Court, but not for arrest and warrant of arrest.

  • Magistrate must transmit the case to the High Court after the charge has been explained.

  • Who Can Transfer:

    • Magistrate

    • PP can apply for transfer

  • Stage:

    • Once charge is read and explained.

  • Transfer:

    • Vertical transfer: Magistrate to High Court.

  • Common Cases: Murder, DDA (Dangerous Drugs Act).

Case: Umaru

  • Court stated PP must consent before Magistrate can transfer the case to High Court.

Issue: Accused Charged Under DDA (Section 39B) Brought Before Sessions Court

  • Section 3 of CJA 1964 defines subordinate court to include both Sessions and Magistrate courts.

  • Case: PP v Darkayasi.

  • Procedure for transmission of offenses under DDA is governed by Section 41A of DDA.

  • Sometimes, Section 177A does not apply if a specific provision exists within the specific statute - generalibus specilia derogant

Section 417 CPC - High Court's Power to Transfer Cases

  • Accused is allowed to make a transfer.

  • High Court has power to transfer cases.

  • When to Transfer: Any stage of the proceeding.

  • Application is to be made to the High Court.

  • Who can transfer?: Accused, p p, magistrate, sessions, and high court judge.All can make the transfer

Grounds for Transfer (Section 417(1))

  • Fair and impartial trial cannot be held in the subordinate court.

  • In the interest of justice.

  • Question of unusual difficulty.
    Cases: PP against. Need to determine name

Orders

  • Orders must come from the High Court.

  • Can make a lateral or vertical transfer.

  • After the order is made, the case is transferred from subordinate court to the High Court.

  • Accused is called to attend or be brought before the High Court.

  • High Court fixes a date for the trial.

Section 418 - Notice of Motion

  • Application is done pursuant to Section 418 (Notice of Motion).

  • Supported by affidavit.

  • If the transfer is by the PP, it must be by his own motion.

  • If it is by the accused, the motion must be supported by affidavit.

  • Wong Hong Toy (related to 417)

Transfer from Subordinate Court to High Court by Prosecution

  • Divided by:

    • Before trial

    • Under trial

    • During trial

  • Closely examine Section 177, 148A of the CPC, and 1418A.

  • PP must exercise powers personally (Section 418A).

  • PP must personally do it before the commencement.

  • Transfer is from Magistrate to High Court and Sessions to High Court.

Application for Transfer

  • Generally supported by affidavit.

  • If by PP, must be motioned by the accused and supported by affidavit.

Transfer of Cases from Sub Court to High Court by Prosecution

  • Prosecution can transfer under Section 177.

  • Apply to the sub court.

  • PP's consent must be obtained.

  • Subordinate court will remit or transmit (read and explain charge to A, not ask to plead) the case to the High Court and direct the accused to be brought before the High Court.

  • High Court will fix a date for the trial.

  • Under Section 418A and 418B, the PP must personally issue a certificate to transfer the case.

Accused's Application to Transfer

  • Can apply to transfer the case before or during the trial.

  • Under Section 417.

  • Complete the forms and apply to the High Court.

  • High Court will determine if grounds are sufficient under Section 417(1).

  • High Court will then make an order to transfer.

  • Subordinate court must cause the accused to appear and be brought before the higher court.

Transfer Under Specific Statutes

  • DDA (Section 41A): Provides two types of offenses related to dangerous drugs, exclusively tried by the High Court.

  • Firearm offenses (Section 11).

Initiation of Proceedings (Private Prosecution)

  • Interchangeable terms: private summons, institution of proceedings by a private person.

  • Starts when there is an offense.

  • One Zero Seven: Information report.

  • Police decide if it's a seasonable or nonseasonable offense.

  • Seasonable: One zero nine and one one zero.

  • Nonseasonable: Procedure falls under Section 108.

Nonseasonable Offense

  • Two situations:

    • Police don't want to investigate.

    • Police will investigate (requires an order to investigate).

  • Private prosecution focuses on when police do not want to investigate.

  • Police officer refers the informant or complainant to the magistrate.

  • Complainant brings the matter before the magistrate.

  • Procedure is given under Section 128(1), where magistrate takes cognizance.

  • Look at Section 133(1), where magistrate has power to examine the complainant under oath.

Details of Private Prosecution

  • Refer to Section 128.

  • Magistrate takes cognizance of the matter.

  • Examine under oath (Section 133).

  • Provision Sections: 128 up to 132.

  • Few case laws; rely on the statute itself.

  • One Two Eight: Magistrate may take cognizance of the offense when they receive a complaint or have suspicion.

Complaints

  • Allegation made verbally or in writing to the magistrate to take action under the CPC.

  • Words to look out for are complain and complainant

Magistrate procedure once complaint has been launched

  • The magistrate must take cognizance

  • Examine one three three

  • One three three: Examination of the complainant, magistrate needs to take cognizance: 133 sub one sub d. The magistrate shall examine the complainant under oath which must be in writing and signed by the complainant and magistrate.

  • The examination may lead to a setting of a date or serving to the p p and return notice

  • PP Can:

    • At any stage of the examination direct the police investigation to commence. If so magistrate must stop and not proceed with the complainant examination

  • Section 133(2) shall not apply to a complaint of an offense where a summons, is applied for in a summons case.

Object of Examination:

  • Ascertain the Facts.

  • Distinguish unfounded facts.

  • Prevent arresting innocent persons from police custody.

  • See grounds for investigation to prevent arrest of individual.
    *Refer to section one thirty four. Deals with the court power as to what he can do.

Section 134

  • Allows for postponement.

  • Can postpone to compel the attendance of the accused and make an inquiry.

Section 135

  • Can dismiss the complaint if there are insufficient grounds (does not apply to public officers).

  • If they are satisfied then continue the process through Section one thirty six and Thirty 137.
    One thirty seven says the personal attendance of the accused may be dispensed with depending one the facts of the case and charges of the the offense committed

Impeachment

  • When a witness has turned hostile, their credibility can be impeached.

  • Section 155 and 145 of Evidence Act.

  • Impeachment of credit of witness under Section 155.

Section 155

  • Credit of a witness can be impeached by the other party with the court' consent.

  • Three Methods:

    • Evidence of person who testified.

    • Proof that the witness has been bribed.

    • Proof of a formal statement inconsistent with the witness's evidence (most popular).

Section 145 of Evidence Act

  • Subsection 1: Previous return statement.

  • Subsection 2: Previous oral statement.

  • Subsection 1 Witness can be cross examined as to his previous statement without proven but if there is an inconsistencies than attention must be made to draw emphasis but be proved otherwise.
    *Subsection two talks about oral agreement of the witness to either denying the agreement and the contradiction must be material

  • Who decides whether it is material or not?

    • The court will decide after highlighting.

Procedure to Impeach

  • Inform the court of intention to impeach due to material contradiction.

  • Mark the discrepancy in the statement.

  • Court decides if there is material discrepancy to proceed

  • Mutsumi Case: Only allow for material discrepancy, not minor.

  • Do we need leave of court?

    • Required under Section 155, especially for a party's own witness.

  • Witness will be asked if they made the statement. If denies, the matter is dropped. If they admitted that the prosecution must prove that the witness made the statement

  • If admitted, Court gives to explain.

  • The order can only be given at the end.

  • After the prosecution's case, the court decides whether to disregard the witness's evidence.
    *Doctor mukhashim
    What happens when if police give you an order to impeach can not be given
    Witness can be examined under evidence act

One one three sub two. Right? One one three sub two of your CPC. Right?

  • This is a statement of a witness.

  • Statements by witness to police during investigation can be used to impeach the credit

  • Specific acts such as DDA has impeachment proceeding that governs it.

  • For your exam it comes out as specific acts
    Cases to refer to includes

  • Old cases such as HUSD

  • PP again Teng Chen Chori

  • PP agains Wong Yi Sen

Specific thing about the dangerous drugs act when there is some inconsistency can that be related back even if it goes against of one one one three two two of CP C

  • If the action is govern by the specific act for example like dangerous drug. Refer also to section 38 a one of your DDA what is to be done

  • Refer to cases of HUSD and power who is on