CRIMINAL PROCEEDINGS AND ARTICLE 199 OF THE CONSTITUTION -- A CASE FOR JUDICIAL RESTRAINT

LIST OF NOTIFICATIONS REPRODUCED IN THE <!--[if gte mso 9]> CRIMINAL PROCEEDINGS AND ARTICLE 199 OF THE CONSTITUTION -- A CASE FOR JUDICIAL RESTRAINT [Case: Muhammad Nasir Hussain v Pakistan Atomic Energy Commission (PLD 2002 Lahore 345)] by Ch. Irshad Ahmad Consultant, President's Secretariat (Former Federal Law Secretary). Section 5 (1) of the Pakistan Essential Services (Maintenance) Act 1952 (the Act) provides that any person engaged in any employment or class of employment to which the Act applies who disobeys any lawful order given to him in the course of such employment ...or without reasonable excuse abandons such employment or absents himself from work or refuses to work etc. shall be guilty of an offence. Section 7(1) of the Act provides that any person found guilty of an offence under the Act shall be punishable with imprisonment for a term which may extend to one year etc. Section 7(3) and (4) of the Act provides that no Court shall take cognizance of any offence under the Act except upon a complaint in writing made by a servant of any Government in Pakistan authorised in this behalf by the Federal Government, and an offence under the Act shall be cognizable. 2. An authorised officer of the Federal Government filed a complaint against a person who had abandoned the employment of the Pakistan Atomic Energy Commission, a corporate body established by the Pakistan Atomic Energy Commission Ordinance 1965 (the Commission) in the Court of Magistrate. The Magistrate took cognizance of the complaint and started proceedings against the said person under the Code of Criminal Procedure. The said person made an application under Article 199 of the Constitution (commonly known as writ petition) in the High Court to contend that he has not committed any offence punishable under the 1952 Act. The High Court has quashed criminal proceedings before the Court of the Magistrate. The decision of the High Court is reported Muhammad Nasir Hussain v Pakistan Atomic Energy Commission PLD 2002 Lahore 345. It appears to be a common ground that the Act applies to the employment in the Commission. 3. Article 199 of the Constitution so for relevant provides that "...a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any aggrieved party, make an order...". It is obvious that the High Court's jurisdiction to make an order under Article 199 depends upon its satisfaction that no other adequate remedy is provided by law in the matter. 4. Section 249-A of the Code of Criminal Procedure (the Code) provides that nothing in the chapter of the Code relating to trial of cases by Magistrates shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and reasons to be recorded, he considers that the charge is groundless and there is no probability of the accused being convicted of any offence. Section 408 of the Code provides that any person convicted on trial held by a Magistrate may appeal to the Court of Sessions. A revision petition before the High Court and ultimately an, appeal to the Supreme Court can also be pursued by a person against whom criminal proceedings are pending before a Magistrate, or who has been convicted by him and his appeal has been dismissed by the Court of Sessions. The High Court may also under section 561-A of the Code make an order as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice and an unfavourable decision made by the High Court under section 561-A of the Code may be appealed in the Supreme Court. The High Court's satisfaction that no other adequate remedy is provided by law is not private satisfaction of the Judge but a satisfaction as a public act based on objective material supported either by statute or established precedent. 5. Thus, before a High Court proceeds to exercise jurisdiction under Article 199 of the Construction in respect of a case pending before, or decided by, a Magistrate, it has to demonstrate by giving reasons that the relevant provisions of the Code do not provide adequate remedy to the applicant in the matter. 6. The decision of the High Court does not indicate how it addressed to the question of its jurisdiction to make the order under Article 199 of the Constitution. There is a general recognition in the law that it is desirable for Judges to give reasons for their decisions. Quite recently Henry LJ in giving the judgement of the Court of Appeal (England) in Flunnery v. Halifax Estate Agencies Ltd [2001] 1 All ER 373 at 377-378 made the following comments on the general duties to give reasons: "The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties -- especially the losing party -- should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in R v Crown Court at Horrow Ex p Dave [19941 1 All ER 315) whether the Court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not. (2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the Judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the Court entertains an appeal based on the lack of reasons itself. (3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the Judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the Judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases. (4) This is not to suggest that there is one rule for cases concerning the witnesses' truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the Judge must explain why he has reached his decision. The question is always, what is required of the Judge to do so; and that will differ from case to case. Transparency should be the watchword." Lord Phillips M.R. in English v Emery Reinfold [2002] 3 All ER 385 after surveying the common law jurisdictions and the Strasbourg jurisprudence (the jurisdiction developed by the European Human Rights Court) has concluded: "We would' put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost". Lord Phillip M.R. has also recognized the importance of judgements of superior Courts in the context of "setting precedents for future". He said: "The function that judgments play under the common law in setting precedents for the future has also been identified as one the justifications for the requirement to give reason". He cited the observations of Mahoney JA of New Zealand who in Soutemezis v. Dudley (Holdings) Pvt. Ltd. (1987) 10 NSWLR 247 stated: "The Court's order is a public act. The judgement given for it is a professional document, directed to the parties and to their professional advisers. It may, in a particular instance, delineate, develop or even decorate the law but..." I may not be understood saying that in each and every case wherein a declaration regarding unlawfulness of proceedings before a Court or tribunal of inferior jurisdiction is sought under Article 199 of the Constitution the High Court has to write an essay that the relevant provisions of the Law governing the proceedings do not provide adequate remedy. Where in an earlier case it has been decided that the relevant provisions of law do not provide adequate remedy to the applicant for the assumption of jurisdiction in a subsequent identical or like case only reference to earlier precedent shall be enough. But, where there is a new case the High Court cannot shirk its responsibility on the ground that to give reasons would be a cumbersome job. The Judges have to perform their legal duty even if its performance involves cumbersome job. It establishes their neutrality. 7. The report of the case does not refer to any precedent from which it could be inferred that it was a case in which exercise of the power under Article 199 of the Constitution was an accepted and well established rule. It is an established judicial rule and norm that in cases where the question of lack of jurisdiction of the inferior Court is not raised the High Court, in exercising its supervisory jurisdiction under Article 199 of the Constitution, shall show judicial restraint. In Imtiaz Ahmad v Government of Pakistan 1994 SCMR 2142 the Supreme Court has emphasized that judicial restraint in exercise of the powers under Article 199 of the Constitution is essential for the continuance of rule of law and for the continued public confidence regarding the neutrality and impartiality of judiciary. The observations of the Supreme Court are so comprehensive and substantial that it is worth to reproduce them. The Supreme Court said:‑ "The power under Article 199 of the Constitution is the power of judicial review. That power, "is a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts". (Lord Scarman in Nottinghamshire C.C. v Secretary of State (1986) (All ER 199, 204). Judicial review must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. As was succinctly put by Hamoodur Rahman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313, 324), under a Constitutional system which provides for judicial review of executive actions:-‑ It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency'. This, we should think, is trite law. Viewed in this light, the judgements of the learned Judges in the High Court appear to us to be instances of that judicial restraint which is so essential to the continuance of rule of law', 'for the continued public confidence in the political impartiality of the judiciary' and the voluntary respect for the law as laid down and applied by the Courts." 8. It appears that at the hearing of the case the High Court was not referred to the above observations of the Supreme Court. I take an opportunity to state the views of the English judiciary with regard to exercising the powers of judicial review in criminal matters, "The English Courts have often focused upon the legal source of a body's power, rather than the functions it is performing, in order to determine whether the decision is subject to judicial review" (write De. Smith, Woolf & Jowell in Principles of Judicial Review (1999) (page 60). They have also observed (p.61): "While decisions of the inferior Courts, such as Magistrates Courts, are notionally subject to judicial review, in practice statutes so often provide for appeals against their determinations that judicial review is an exception rather than the rule; the High Court does not exercise its supervisory jurisdiction where an alternative remedy exists." In Imperial Tobacco Ltd v. A.G [1980] 1 All ER 866 criminal proceedings were instituted in a Magistrate's Court against a tobacco company on the ground that the sale promotion scheme launched by the company contravened the Lotteries and Amusements Act, 1976, a criminal law provision. The company sought a declaration from the High Court that its scheme was lawful and did not contravene the 1976 Act, in other words, a declaration that they were not guilty of criminal offences. Donaldson J., in the High Court, held that the company's scheme was an unlawful lottery. The Court of Appeal held that the scheme was lawful and granted the declaration. The Attorney General appealed against the decision of the Court of Appeal. The House of Lords held that the scheme was a lottery and allowed the appeal. The House however noted that the appeal raised a very important question regarding proper exercise of discretion by the High Court in granting the declaration. Viscount Dilhore said: "I now turn to what I think is the most important question in this appeal. Could the Court in the proper exercise of its discretion grant .the declaration sought? Donaldson J thought it could but did not grant it as he thought that the scheme was a lottery and an unlawful competition. The Court of Appeal, holding that it was neither, granted it. That decision, if it stands, will form a precedent for the Commercial Court and other civil Courts usurping the functions of the criminal Courts. Such a declaration is no bar to a criminal prosecution, no matter the authority of the Court which grants it. Such a declaration in a case such as the present one, made after the commencement of the prosecution, and in effect a finding of guilt or innocence of the offence charged, cannot found a plea of autrefois acquit or autrefois convict, though it may well prejudice the criminal proceedings, the result of which will depend on the facts proved and may not depend solely on admissions made by the accused. If a civil Court of great authority declares on admissions made by the accused that no crime has been committed, one can foresee the use that might be made of that at the criminal trial. The justification for the Court of Appeal taking this unusual and unprecedented course (no case was cited to us where a civil Court had after the commencement of a prosecution, granted a declaration that no offence had been committed) was said to be the length of time it would have taken for the matter to be determined in the criminal Courts. I can well see the advantages of persons being able to obtain rulings on whether or not certain conduct on which they propose to embark will be criminal and it may be a defect in our present system that it does not provide for that. Here, I wish to emphasise, it was not a question whether future conduct would be permissible but whether acts done were criminal. It was said that the administration of justice would belie its name if civil Courts refused to answer reasonable questions on whether certain conduct was or was not lawful. I do not agree. I think that the administration of justice be obtained form a civil Court. What was the urgency in the present case? The operation of the scheme began in October 1978. It was to end on 31st March 1979. It may be that far too much time elapses nowadays before accused persons are tried on indictment but why should these respondents be singled out for special treatment? I do not see that there was any particular urgency or that there was any special reason for the respondents to be treated differently from other accused. If the case had been tried summarily in the Magistrates' Court at Nottingham, I doubt if it would have taken longer, or an appreciable time longer to reach this House. All the cases on lotteries to which I have referred were, with one exception, tried in the Magistrates' Courts. The 'exception is R. v Harris where the trial was on indictment. In my opinion a Magistrates' Court is the best Court for the determination of the `question, where there is a genuine dispute, whether or not a scheme is an unlawful lottery or unlawful competition, for whatever the result, there can be no appeal by way of case stated on facts found by the Magistrate. My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil Court. In my opinion it would be a very exceptional case in which it would be right to do so. In my opinion it cannot be right to grant a declaration that an accused is innocent after a prosecution has started." Lord Lane said: "Counsel appearing before your Lordships' House were unable to find any case in which a defendant in criminal proceedings already properly and not vexatiously instituted had applied for a declaration that the criminal proceedings were unfounded or based on a misapprehension as to the true meaning of the criminal statute. I do not find that dearth of authority surprising. It would be strange if a defendant to proper criminal proceedings were able to pre-empt those proceedings by application to a Judge of the High Court whether sitting in the Commercial Court or elsewhere. What effect in law on the criminal proceedings would any pronouncement from the High Court in these circumstances have? The criminal Court would not be bound by the decision. In practical terms it would simply have the inevitable effect of prejudicing the criminal trial one way or the other. Where there are concurrent proceedings in different Courts between parties who for practical purposes are the same in each, and the same issue will have to be determined in each, the Court has jurisdiction to stay one set of proceedings if it is just and convenient to do so or if the circumstances are such that one set of proceedings is vexatious and an abuse of the process of the Court. Where, however, criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the Court it is not a proper exercise of the Court's discretion to grant to the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged." In England quite recently a Divisional Court in Reg v Peterborough Magistrates' Court ex p. Dowler [1997] 2WLR 843 has reviewed the authorities how the Courts have been approaching the question of appropriateness of exercising judicial review power in cases where other remedies particularly the remedy in the form of appeal has been provided to the applicant. The review made by the Divisional Court is extensive, and it will be highly instructive to take note of it. The Court said: "So far as we are aware [R v Mid-Woreestashire Justices, Ex P. Hart [1989] C.O.O. 397] is the first reported case where an application for judicial review of a conviction before the Magistrates was refused on the basis that judicial review is a discretionary remedy: 'certiorari will go only where there is no other equally effective and convenient remedy.' Per Lord Widgery C.J. in Reg. v. Hillingdon London Borough Council. Ex Parte Royco Homes Ltd. [1974] Q.B 720, 728. However, there are many authorities where other Divisional Courts have granted judicial review of convictions obtained in the Magistrates' Court on grounds of procedural irregularity or unfairness without apparently considering whether the applicant should not pursue his grievance by way of appeal. Where judicial review was successful in those cases, it seems that the matter was generally remitted to the Magistrates' Court for a retrial (though the reports do not always made this clear). Reg. v. Leyland Justices, Exp parte Hawthorn [1979] Q.B. 283 a case on facts very similar to these facts is chronologically the first such authority to be drawn to our attention after the new Order 53 judicial review regime came into force. There, unusually in the reported cases, counsel for the Crown submitted that relief should be refused and the applicant be given leave to appeal to the. Crown Court out of time, but submission was not referred to in the judgements. And since then Miss Dakyns's (counsel for the applicant) researches revealed roughly a dozen authorities where convictions before the justices have been quashed on grounds of procedural unfairness. In none of these was the point as to discretion apparently taken. Meanwhile a formidable body of authority was being built up as to the correct approach of a Court to judicial review where, as here, a statutory appeal procedure had not been exhausted. In Reg. v. Inland Revenue Commissioners, Ex parte Preston [1985] A.C. 835,862 Lord Scarman said: "My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the Courts will allow the collateral process of judicial review to be used to attack an appealable decision.... But cases for judicial review can arise even where appeal procedures are provided by Parliament." To like effect Sir John Donaldson M.R. said in Reg. v. Epping and Harlow General Commissioner. Ex parte Goldstraw [1983] 3 All E.R. 257, 262: "But it is a cardinal principle that, save in the most exceptional circumstances, [the judicial review] jurisdiction will 'not be exercised where other remedies were available and have not been used." In Reg. v. Chief Constable of the Merseyside Police, Ex parte Calveley [1986] Q. B.424, 433 Sir Jhon Donaldson M.R., after citing that passage, said: "This, like other judicial pronouncements on the inter-relationship between remedies by way of judicial review on the one hand and appeal procedures on the other, is not to be regarded or construed as a. statute. It does not support the proposition that judicial review is not available where there is an alternative remedy by way of appeal. It asserts simply that the Court, in the exercise of its discretion, will very rarely make this remedy available in these circumstances." In Ex parte Waldron [1986] Q.B. 824,825 Glidewell L.J. said, as to the exercise of that discretion: "Whether the alternative statutory remedy' will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a Court should take into account when deciding whether to grant relief by way of judicial review when an alternative remedy is available." That line of authority was questioned in Wade, Administrative Law, 6th ed. (1988), pp.712-716, but those criticisms were rejected by' Taylor L.J. in the Court of Appeal in Reg. v. Birmingham City Council, Ex parte Ferrero Ltd. [1993] 1 All E.R. 530, 537 where he reasserted the principle that: "where Parliament has provided a statutory appeal procedure it is only exceptionally that judicial review should be granted." However, the criticism remains, in Wade & Forsyth, Administrative Law: 7th Ed. (1994), p.723: "Recently the case law has produced a crop of judicial statements which conflict with the rule just explained. It has been said that, where there is some right of appeal, judicial review will not be granted 'save in the most exceptional circumstances:' and that the normal rule is that the applicant 'should first exhaust whatever other rights he has by way of appeal.' This novel attitude, which does not appear to be based on authority, may be due to the increasing pressure of applications for judicial review, which are now so numerous. It has not, as yet, in practice led to denial of judicial review, where eligible grounds for it are shown, merely because a right of appeal has not been exercised. But that may occur before long if these formidable dicta are taken at face value." That passage in its turn has been criticised by Popplewell J. in Reg. v. Special Needs Tribuanl, Ex parte Fairpo [1996] C.O.D. 180. We see ever reason to take these formidable' dicta at face value, and none to reject them. But the remarkable fact is that before 1994 none of those authorities was cited in any case dealing with an application for judicial review to quash a conviction by justices on grounds of procedural unfairness where there was an effective statutory right of appeal under section 108. The answer may be that the point was always taken at the leave stage, but the authorities show a nil return on this until Reg. v. Bristol Magistrates' Court, Ex parte Rowles [1994] R.T.R. 40 which it will be necessary to consider. The point with which we are concerned apparently was argued for the first time in Reg. V. Bradford Justices, Ex pane Wilkinson [1990] 1 W.L.R 692. There the applicant was charged with driving with excess alcohol. He obtained witness summonses which were served on two witnesses. The witnesses failed to attend. The applicant applied for warrants for their arrest, alternatively for an adjournment. The justices decided not to issue the warrants and proceeded with the trial, and the applicant was convicted. The applicant challenged the decision by way of judicial review. As a second point, they submitted that, because there was a right of appeal to the Crown Court, so the Divisional Court should not interfere by way of judicial review. None of the authorities so far mentioned in this judgement were cited to the Court. Three cases were cited: Leary v. National Union of Vehicle Builders [1971] Ch. 34, 49, where Megarry J. said: "a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body." This was said in connection with an appeal from one domestic tribunal to an appellate domestic tribunal, and in the second case cited, Calvin v. Carr [1980] A.C. 574, 593, Lord Wilberforce delivering the advice of the Board stated that that dictum was "too broadly stated." The third case was Lloyd v. McMahon [1987] A.C. 625, and in particular Lord Bridge of Harwich's speech. As the Divisional Court noted in the Bradford Justices case [1990] 1 W.L.R.692, 695, in both Lloyd v. McMahon [19871 A.C. 625 and Calvin v. Carr [1980] A.C. 574 the remarks were confined to domestic and administrative proceedings, which are "a long way from judicial proceedings." However, despite having said this, Mann L.J., without giving reasons, went on to say: "I believe that a defendant is entitled to have a proper trial and a proper appeal. If he does not have a proper trial, he may, if he wishes, seek leave to come to this Court and that is what here occurred." The position he there advanced is only supported by the dicta already distinguished by him as referring to domestic and administrative proceedings. Rose J. agreed and. added, at p.696: "In my judgement where there is an identifiable breach of natural justice in criminal proceedings before justices it may well be appropriate to grant judicial review even though there exists a right of appeal to the Crown Court against the justices' decision. No authority to the contrary has been cited to this Court." This Court finds no difficulty with that proposition it is a question of discretion in every case, the proper exercise of which, will not always lead to the grant of the remedy. Reg. v. Bradford Justices, Ex parte Wilkinson was considered in Reg. v. Bristol Magistrates' Court, Ex parte Rowles [1994] R.T.R. 40. The applicant there was charged with driving a motor vehicle when his breath alcohol level was over the statutory limit. His defence was that it was the drink he had drunk after he had stopped driving that cut him over the limit, and to support this he wished to call witnesses. The case was adjourned twice at his request. When it came on for the third time, his witnesses did not attend, and his request for an adjournment was refused: He was convicted, and he applied for an order of certiorari to quash the conviction. He had originally appealed against that conviction, but he subsequently abandoned his appeal and sought judicial review. Late in the day, in change of counsel, the Crown took the point that the application for judicial review was misconceived as the applicant had not exhausted his existing right of appeal. In response, Ex parte Wilkinson was cited to the Court. The Crown contended that it had been decided per incuriam, in that Ewf. V. Chief Constable of the Merseyside Police, Ex parte Calveley [1986] Q.B. 424 and the line of authorities already summarised were not cited to the Court. Farquharson L.J., in giving the lead judgement, summarised Ex parte Calveley and identified the principle that where application is made for judicial review, but an alternative remedy is available, the applicant should normally be left to pursue that remedy: see Glidewell L.J., in Ex parte Calveley. However, Farquharson L.J. went on to say [1994] R.T.R. 40, 47-48: "In practice, there have over the years, been a considerable number of cases where Magistrates have in the past been made subject to procedures for judicial review because of complaints of a denial of natural justice" -- and he gives various examples. -- "The feature of the cases upon which counsel relies is that each of them were again the subject of applications for judicial review, seeking to review the decisions of justices without pursuing an appeal to the Crown Court first. In the result, for my part, I am not prepared to hold that the decision in Reg. v. Bradford Justices, Ex parte Wilkinson [1990] 1 W.L.R. 692 was made per incuriam. I think it has been made in accordance with what has become the practice in cases involving denial of natural justice and that the present proceedings therefore were properly launched." He accordingly allowed the application and with that judgment Wright J. agreed. We make two comments in relation to that case. First, counsel for the Crown, in that case, was putting it too high when he submitted that the applicant had "no right to make an application for judicial review ... unless he has exhausted the existing rights of appeal:" see p. 45. The applicant clearly had such a right, tough it was for the Court in the exercise of its discretion whether to grant it or not. Second, the Court seemed to base itself on the "practice" rather than on principle. That review of the authorities, incomplete though it still may be, is more comprehensive than he has been undertaken by any of the Division Courts that have recently reconsidered this problem." When an impression was gathering from Ex p Dowler that where the statute provides a right of appeal against the decision of the Magistrate the High Court cannot exercise its jurisdiction of judicial review, three applications for judicial review to challenge the decision of Magistrate on the grounds of procedural impropriety, unfairness and bias where the applicant had a right to claim retrial before the higher Court came before another Divisional Court. The judgement of the second Divisional Court was handed down by Lord Bingham C.J. in Reg. v. Hereford Magistrates' Court Ex p. Rowlands [1997]2 WLR 854 who, after reviewing the authorities, said: "While we do not doubt that Ex parte Dowler was correctly decided, it should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the Magistrates' Court should be denied leave to move for judicial , review and left to whatever rights he may have in higher Court." The said Court however concluded that two notes of caution should be sounded. First, leave to appeal for judicial review should not be granted to the complaining party unless it advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the Magistrates' Court... the [high] Court should be respectful of discretionary decision of the Magistrates' Courts as of all other Courts. The [high] Court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown. Secondly, the decision whether or not to grant relief by way of judicial review is always, in the end, a discretionary one. 9. The report of the High Court decision shows that only the Commission was respondent in the petition. Neither the Magistrate before whom criminal proceedings were pending nor the authorised servant of the Federal Government who had made the complaint were parties in the petition, but by its ultimate decision the High Court has quashed criminal proceedings pending before the Court of the Magistrate filed by an authorized officer of the Federal Government. The Commission, it appears, was functus officio in the matter and the proper parties i.e. the Magistrate and the authorized officers of the Federal Government were not before the Court. 10. The report also indicates that the complaint before the Magistrate was treated proceedings for the conferment of civil liability rather than a criminal liability of the applicant. The report does not demonstrate how the question regarding the enforcement of civil liability in complaint before the Magistrate was involved. 11. The cases as of Muhammad Nasir Hussain in which the question of lack of jurisdiction (Imtiaz Ahmad v. Government of Pakistan), procedural impropriety, unfairness or bias (Ex p. Rowlands) is not raised are the cases for judicial restraint in exercising discretionary jurisdiction of judicial review by the High Court under Article 199 of the Constitution.