However, before the Court of Appeal can hear R Ashok Kumar’s grievances, he has to obtain leave from the court.

This is because a litigant has no automatic right to appeal when the case originates before a magistrate or a magistrates’ court.

This ruling is not applicable, however, if the appeal is made by the public prosecutor.

Ashok, who filed the application last week, wants a declaration that Section 50 of the Courts of Judicature was discriminatory and in violation of the principle of equality under the Federal Constitution.

In his affidavit, Ashok said he and his employee, an Indian national, were arrested and detained by police on Dec 11 last year for purchasing stainless steel chairs and tables, said to be stolen items.

The 44-year-old businessman said he paid RM1,012 to one Leow Wei Ming and the transaction was recorded in a book, as required under the Second Hand Dealers Act.

Ashok said a magistrate on Dec 12 allowed police to detain him for another two days for investigation. However, he was released about 3.30pm on Dec 12.

He said the magistrate’s order to allow police to hold him for two days was unnecessary as he was only a witness and that the judicial officer did not conduct due inquiry.

Ashok said the High Court had dismissed his revision application on the magistrate’s failure to comply with provisions in the Criminal Procedure Code.

His lawyer, A Srimurugan, said there were serious questions of law to be determined by the Court of Appeal on functions of magistrates in remand proceedings.

“Unfortunately, we have to first challenge Section 50 to obtain leave of the court to have our client’s complaint heard,” he said.

Lawyer Shamsher Singh Thind, who is assisting Srimurugan, said this case was important as many second hand dealers were at the mercy of the police who detain them arbitrarily on the pretext of conducting investigations.

“Arrest becomes compulsory only if, in the course of investigation, there is incriminating evidence that the dealer is involved in the crime,” he said.