( & )Present: De Sampayo J.
DAVIDSON v. APPUHAMY.
245—P. G. Badvlla-HaXdtimmuUa, 8,290.
Order of discharge under Criminal Procedure Code, s. 191—May Magis-trate re-open proceedings t—Autrefois acquit.
A discharge under section 191 pf . the Criminal Procedure Codedoes not amount to an acquittal. 'Although the order- of dischargecannot, be availed of for the plea of autre fois acquit in the event ofa fresh prosecution, it is final, and determines the prosecution inwhich it is made; the Magistrate has no power to re-open theproceedings in the same case.
facts are set out in the judgment.
E. W. Jayewardene, for accused, appellant.
Dias, C.Ch, for the Crown.
February 10, 1916. De Sampayo J.—
In view of the order which I am obliged to make on this -appeal,it is not desirable that I should express any opinion on the merits-of the case. The appellant, Punchi Appuhamy, and one CalderaBaas, |Were arrested and produced before the Court on a charge oftheft of three corrugated iron sheets belonging to the Badulla Bail'way Extension. These sheets, together with fa number of others-,
( 58 )
were found in the possession of the appellant, who stated that hegot them from Caldera Baas. The Police Magistrate examinedAppu Singho, the town arachchi of Haputale, who had acted in thematter on the complaint of the Bailway authorities, and upon thatevidence a charge of theft was framed against both the appellantand Caldera Baas. The latter, in answer to the charge, pleaded44 not guilty, ” but stated:“ I lent these corrugated sheets to
M. Punchi Appu (the appellant), to be returned to me. Thesheets were, purchased from Messrs. Walker & Greig, at Haputale.They were not railway Sheets ”. Thereupon the Magistrate thoughtthere was no reason to proceed against the appellant, and dischargedhim, and postponed the case against Caldera Baas. The case nextcame before another Magistrate, who., after examining the ^ResidentEngineer of the Bail way, thought that the appellant should bebrought before the Court again. Accordingly summons was issuedon the appellant, and he having appeared on the day appointed,the case proceeded against himself and Caldera Baas. The Magis-trate heard further evidence, and at the conclusion of the trial heheld that Caldera Baas in his original statement had meant to referto some sheets which were not the subject of the charge, andacquitted him, but he convicted the appellant and sentenced him tothree months’ rigorous imprisonment.
The order of discharge of the appellant by the previous Magistrate■must be taken to have been under section 191. of the CriminalProcedure Code. Section 190 provides for the entry of a verdict■of acquittal if, after taking the evidence for the prosecution and thedefence, the Magistrate finds the. accused not guilty, and thensection 191 enacts :“ Nothing hereinbefore contained shall be
deemed to prevent a Police Magistrate from discharging the accusedat any previous stage of the case ”.
All the authorities are agreed that a discharge under section 191does not amount to an acquittal. (In re V. C. Vellavarayan,1K. V. Podi Singho.2) But these . authorities are also agreed that^although the order of discharge cannot be availed of for the plea■of autrefois ■ acquit' in the event of a fresh prosecution, it is final,and determines the prosecution in which it is < made, and that theMagistrate has no power to re-open the proceedings in the same case.I concur in this view, 'and I think that the conviction in this caseIs irregular and cannot stand.
The. conviction is therefore set aside. I must'add that, in theevent of a fresh prosecution, it is only fair that the case should comebefore another Magistrate.
1 (1903) 2 Bal. 20.
2 (1907) 3 Bal. 200.
DAVIDSON v. APPUHAMY