AKBAR J.—Gonagasingham v. Meyadin Bawa.
1931Present : Akbar J.
CANAGASINGHAM v, MEYADIN BAWA..
702—P. G. Trincomalee, 5,257.
Autre foi? acquit—Charge of theft and receiving stolen property—Acquittal—Reservation of right to prosecution—Fresh charge of criminal mis-appropriation—Bar—Criminal Procedure Code, 88. 181 and 830.
Where the accused was charged with theft and inthe .alternative
with receiving stolenproperty,andtheMagistrateacquittedhimofthe
charges, reserving tothe prosecutortheright to charge theaccused*for
criminal' misappropriation on the same facts,—
Held, that the acquittal oftheaccused was abar tothefurther
prosecution for criminal misappropriation.
. The Magistrate hasno powertotakeaway theeffect. ofthebarby
reserving rights in the judgment.
A PPEAL from a conviction by the Police Magistrate of Trincomalee.
N. E. Weerasooria, for accused, appeallant.
September 3, 1931. Akbar J.—
The accused was charged in the alternative with two charges, viz.,with committing the theft of a she-buffalo in or about December, 1928,and then he was charged alternatively with receiving or retaining thisstolen buffalo knowing, or having reason to believe it was stolen inFebruary, 1931. After evidence was led at very great length to provethat the buffalo was most probably the property of one Mohammadu Ismail,the Judge acquitted the accused on the charges laid, because the evidenceplaced before him was not sufficient for such a conviction, Hut he addedthat there was clear evidence to prove that the accused misappropriatedthis man's property for his own use and instead of charging the accused
AKBAB J .—Canagastngham v. Meyadin Bawa.
with criminal misappropriation because he thought that the accusedwould be prejudiced by such a charge at that stage of the case, whilstacquitting the accused he reserved to the prosecutor the right to chargethe accused for criminal misappropriation' in a separate case, and heordered that the buffalo should be given over to the alleged owner.Mohammadu Ismail, reserving to him the right to charge the accusedunder section 386-of the Ceylon Penal Code, if so advised.
It will be seen from section 330 of the Criminal Procedure Code that anacquittal acts as a bar to a further prosecution, not only in regard tothe offence for which the accused is acquitted on the same facts, butalso that it acts us a bar on the same facts for any other offence, forwhich a different charge from the one named might have been madeagainst the accused under section 181 of the Criminal Procedure Code,or for which he might have been acquitted under section 182. Section181 of the Criminal Procedure Code states, “ that if a series of facts isof such a nature that it is doubtful which of several offences the factswhich can be proved will constitute, the accused may be charged wifhall or any one or more of such pffences so that it is quite clear thatthe accused on those facts could have been charged not only with com-mitting theft or receiving stolen property, but also with criminal breachof trust or criminal misappropriation. Although the illustration doesnot specifically mention criminal misappropriation, yet the offence ofcriminal misappropriation is of sueh a type that sometimes there is adoubt whether the facts amount to criminal misappropriation or theftor criminal breach-of trust. In my opinion the offence of criminal mis-appropriation is clearly one of the offences contemplated in section 181.
Under section 182 it was open to the Police Magistrate to have con-victed the accused for the offence of criminal misappropriation althoughhe was not charged with it.
I cannot understand how the Magistrate can reserve to the prosecutorany rights which he is precluded from claiming under the terms ofsection 330 of the Criminal Procedure Code. Either the acquittal couldbe pleaded as a bar to a subsequent prosecution on the same facts forother offences or it cannot be. If it can be pleaded, the Police Magistratecannot proceed to take away the effect of the- bar by reserving suchrights in his judgment of acquittal.
As I have stated, it my opinion this acquittal of the accused on bothcharges of.theft and receiving stolen property is a bar to a subsequentprosecution on the charge of criminal misappropriation on the samefacts. The Magistrate could not take away the effect of this bar byreserving to the complainant his right to so proceed. That being so,he had no jurisdiction to make the order disposing of the propertyproduced and giving it over to the alleged owner, Mohammadu Ismail.
The order of the Police Magistrate will be varied to this extent—thatportion of his judgment reserving to the complainant the right to proceedunder section 386 will be deleted and also that portion of the ordergiving over the buffalo to the witness, Mohammadu Ismail. The buffalowill remain in the possession of the accused, and Mohammadu Ismail, ifso advised, may proceed in a Civil Court to assert any right he may have.
CANAGASINGHAM v. MEYADIN BAWA