Kalu Banda vs Pusumba – clr volume 2 page 001

The case between Kalu Banda and Pusumba addressed whether an order discharging an accused—issued by a Police Magistrate on the instructions of the Attorney-General’s Department—can be reversed on appeal under sections 405 and 406 of the Criminal Procedure Code. It was held that, although the right to appeal such orders exists, this discretion should generally remain with the Attorney-General unless exceptional circumstances justify judicial intervention. The principle emphasized is that prosecutorial discretion is primarily the responsibility of the Attorney-General’s Department and judicial review should be limited to instances where refusal to prosecute departs from good faith or lawful exercise of official discretion. Reference was made to the relevant sections of the Criminal Procedure