Powers of the Attorney General during Pre-Trial Stage
Under Section 393 (2) and (3) of the Code of Criminal Procedure Act, No. 15 of 1979 (CCPA), the Attorney General is entitled to on application or on his own initiative to give such advice which is necessary to State Departments, public officers, the officers of the police in any criminal matter and to summon any officer of the State or of a corporation or of the police to attend his office with any books and documents to initiate any criminal proceedings or to give any advice on any criminal matter. The police shall take serious note of the advice given by the Attorney General regarding the insufficiency of the material or any other advice given by the Attorney General.
The Attorney General also in certain instances acts as an arbitrator of facts and decides as to whether a particular suspect should be prosecuted or not on the available evidence. Such decisions of the Attorney General to discontinue the prosecution is communicated via a ‘Discharge Paper’. In order to show that the Attorney General has given such advice to the police, a copy of the said document is dispatched to the Magistrate.
Power to Initiate Non-Summary Inquiries
According to Section 154(b) of the CCPA, if the Attorney General is of the opinion that collection of evidence is necessary before deciding to indict, the Attorney General has the power to direct the Magistrate to conduct a Non-Summary Inquiry with regard to any offence. (In addition to the list of offences in which the Magistrate is mandatorily required to conduct a Non-Summary Inquiry under Section 145(a) of the CCPA.)
The Attorney General also has the discretion in directing conduct of a Non-Summary Inquiry even if that offence does not fall within the Second Schedule of the Judicature Act.
In addition to the above, Section 3 of the CCPA (Special Provisions) Act, No. 2 of 2013, authorizes the Attorney General to directly send out an Indictment without a Non-Summary Inquiry having being held taking into consideration any aggravating circumstances that has given rise to public disquiet in connection with the commission of an offence specified in the Second Schedule of the Judicature Act the Attorney General gives effect to this exception under Section 3 of the CCPA (Special Provisions) Act, No. 2 of 2013.
Moreover, the Attorney General may consider the circumstances and request for a Trial-at-bar from His Lordship the Chief Justice.
Powers upon the conclusion of the Non-Summary
At the conclusion of the Non-Summary Inquiry, if the Magistrate commits the accused to be tried in the High Court, as per Section 159(2) (b), it shall be the duty of the Magistrate to send the copies of the Non-Summary Proceedings along with relevant documents to the Attorney General. While the Magistrate is not required to forward the copies of the Non-Summary Proceedings in the event it is decided to discharge the suspect, under Section 398(1) of the CCPA, the Attorney General would be empowered to call for the case record even if the accused has been discharged. Therefore, it is customary for Magistrates to forward to the Attorney General Non-Summary Proceeding where the Accused has been discharged.
According to Section 396 of the CCPA, if the Attorney General is of the opinion that there is insufficient evidence for the committal of the Accused to High Court, he is empowered to quash such committal and direct the Magistrate to discharge the accused. In addition, the Attorney General is empowered to give such other directions too. This would include having a Summary Trial against the accused if the evidence led at the Non-Summary Inquiry reveals such offence. On the other hand, in instances where the Magistrate has discharged the accused, if the Attorney General is of the opinion that the Accused should be indicted in the High Court, he may direct the Magistrate to commit the accused and thereafter indict him in the High Court.
Power of the Attorney General to conduct Prosecutions in Non-Summary Cases
According to Section 400 (1) of the CCPA, Non-Summary Prosecutions should be conducted only by the Attorney General or Attorneys-at- Law authorized by the Attorney General. However, if the Attorney General or his authorized Attorney-at-Law is not available, the Magistrate shall conduct the prosecution. In such a situation if the Magistrate considers it to be desirable, he may get the assistance of an Attorney-at-Law or any public officer to conduct the prosecution.
Power of the Attorney General in the conduct of Prosecutions in Summary Cases in the Magistrate Court
According to Section 191 (1) of the CCPA, prosecutions in Summary Trials should be conducted only by the Attorney General or an Attorney-at-Law authorized by the Attorney General. However, in the absence of the Attorney General or the Attorney-at-Law authorized by him, any other Lawyer representing a government department or local government may conduct the prosecution. In addition, if there is no Attorney-at-Law for the complainant, then the Magistrate may permit any other Attorney-at-Law to conduct the prosecution.
However, the Attorney General will not have a right to appear in a case that was initiated by the filing of a complaint under Section 136(1) of the CCPA (commonly referred to as a ‘Private Plaint’). But, if the complaint was filed against a public officer relating to the discharge of his official duty, then the Attorney General would be entitled to conduct the prosecution although a private party had filed the case.
Intervention of the Attorney General in Summary Cases in the Magistrate Court
In Summary offences, if the Magistrate finds that the court has no jurisdiction to try the offence, then he shall stay proceedings and seek advice of Attorney General. As per Section 187 of CCPA the Magistrate is bound by the instructions of the Attorney General.
Power of Attorney General to send out an Indictment to the High Court
It is the authority of the Attorney General to send out an Indictment to the High Court. The Attorney General can exercise this authority through a State Counsel of his Department as per Section 12 of the CCPA (except for offences contained in the Bribery Act, No. 02 of 1965. The Attorney General also has the power to indict in Summary Offences as per Section 393(7) of the CCPA. Similarly, upon conclusion of the Non-Summary Inquiry too, the Attorney General may forward an Indictment containing offences that were inquired into at the Non-Summary Inquiry as per Section 160(1). the Attorney General also has the authority to include in the Indictment any other offence that was not inquired into at the Non-Summary Inquiry. The amendment to the Judicature Act, of No. 27 of 1998 now envisages that in rape, if the victim is below 16 years, no Non-Summary Inquiry need be held. In such instances, the Attorney General has the power to forward an Indictment directly to the High Court.
Section 3 of the CCPA (Special Provisions) Act, No. 2 of 2013, now vests with the Attorney General the power of sending out direct Indictments to the High Court without a Non-Summary Inquiry with regard to the offences referred to in the Second Schedule of the Judicature Act. This scheme has now come to be known as sending out a ‘Direct Indictment’.
While the discretion in appointing a trial-at-bar is vested with the Chief Justice, the Attorney General has the power to request a trial in the High Court to be heard by three Judges. This is referred to as a Trial-at-Bar as per Sections 450 and 451 of CCPA as Amended by Act No. 21 of 1988.
With regard to the offences in the Second Schedule to the Judicature Act, the Attorney General has the power to move for a Trial-at-Bar without proceeding for a Non-Summary Inquiry.
Power of Attorney General to conduct prosecutions in the High Court
Every prosecution before the High Court shall be conducted by the Attorney General or any member of the Attorney General’s Department. However, if the Attorney General so desires, he can authorize any Attorney-at-Law to conduct such prosecution as per Section 193 of the CCPA. Such authority is granted under Section 393(4) of the CCPA. The Counsel appointed under these provisions are referred to as ‘Counsel on Fiat’. A ‘Fiat’ can be given to any Attorney-at-Law to conduct a prosecution in a particular court or in a particular case. The Attorney General can specify the scope of the appearance of such Counsel. Generally, appointing a Counsel on Fiat to conduct a prosecution in the High Court is very rare. If the Attorney General finds a conflict of interest, he may hand over the prosecution to a Counsel in the private bar on ‘Fiat’.