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Present : Maartensz A.J.
DYSON w. KHAN.
297—P. C. Anuradhajiuro, 66,295.
Acquittal—Order of dischargeafterclose of caseforprosecution—Sum-
mary trial—Tantamount to acquittal—Plea of autrefois acquit—Criminal Procedure Code, s. 330.
Where, in a summarytrial,the Magistrateatthe close of the
case for the prosecutionmadeorder dischargingthe accused, as
the evidence failed to establish the charge,—
Held, that the orderwastantamount toanacquittal under
section 190 of the Criminal Procedure Code.
Where a person is charged under section 210 of the Penal Codewith Accepting a gratification for screening an offender frompunishment and acquitted, he cannot be charged again on thesame facts under section158,with acceptinga gratification as a
motive or reward for rendering a service with a public servant.
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PPEAL from an acquittal by the Police Magistrate ofAnuradhapura.
Schokman, C.C., for the appellant.
H, V. Per era, for the respondent.
September 18, 1929. Maartensz A.J.—
The accused in this case, a Police Sergeant, was charged in caseNo. 65,177 of the same Court with accepting for himself a gratifica-tion, to wit, Bs. 100, from one Vegodapola in consideration of hisscreening the said Vegodapola from legal punishment for certainoffences specified in the said charge and thereby committing anoffence punishable under section 210 of the Penal Code.
At the close of the case for the prosecution accused’s Counsel citedcertain authorities and the Magistrate made the following order: —
" The Advocate for the defence argues at thi& stage that aprosecution under section 210, C. P. C., is inapplicable in the presentcase. He quotes 2 N. L. B. 48 and 8 N. L. B. 114. In thecases quoted the charge was under section 211, C. P. C., but Iagree with him that both sections have at least this in common,namely, that they apply only in the case of charges brought inrespect of gratifications offered or accepted with the intentionof escaping the legal consequences of offences actually committed.The ‘ offence ’ in the present case is one of obstruction and insultand it is still pending. It is uncertain at this stage whether theaccused in that case is guilty or indeed whether any offence hasbeen committed at all. In view of this I consider the prosecu-tion in the present case premature. I discharge the accused.It is open to the complainant to reopen the case after the chargeof obstruction, &o., is disposed of, assuming there is'no legal barto such reopening.”
As far as I can make out, Vegodapola was not prosecuted andno application was made to reopen the case.
In the present case the- accused was charged with the sameoffence and with the offence of accepting for himself a gratificationother than legal remuneration, to wit, Bs- 100 from Vegodapola asa motive or reward for rendering a service to him with the Sub-Inspector of Police of Anuradhapura, a public servant, an offencepunishable under section 158 of the Penal Code.*
The learned Police Magistrate upheld the plea of autrefois acquitand the appeal is taken from that order.
It was contended in appeal (1) that the order made in caseNo. 65,177 was an order made under section 191' of the CriminalProcedure Code and that it did not amount to an acquittal undersection 190, (2) that in any event the plea was not a good oneagainst the charge made under section 158 of the Penal Code.
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Sections 190' and 191 enact as follows: —
Section 190.-—“ If the Magistrate, after taking the evidencefor the prosecution and defence and such further evidence (ifany) as he may of his own motion cause to be produced finds theaccused not guilty, he shall forthwith record a verdict of acquittal.If he finds the accused guilty he shall forthwith record a verdictof guilty and pass sentence upon him according to law and shallrecord such sentence.”
Section 191.—“ Nothing hereinbefore contained shall be deemedto prevent a Police Magistrate from discharging the accused at.any previous stage of the case, but he shall record his reasons fordoing so.”
It was argued in support of the first contention that a Magistratewas entitled to make an order under section 191 if no evidencewas called for the defence.
I am unable to accept that contention. I am of opinion that anaccused is entitled to an order of acquittal if at the close of the'case for the .prosecution the Magistrate is of opinion the accusedis not guilty of the offence with which he is charged.
It would be grossly unfair to an accused to place him in jeopardyof being tried again just because a Magistrate considers the evidencefor the prosecution so unreliable that he does not call upon theaccused for his. defence.
My opinion is confirmed by the dicta of Pereira J. and deSampayo J. in the cases of Eliyatamby v. Sinnatamby1 and Senaratnev. Lenohamy.2
Tin the former case it was h«>ld that “ where a Magistrate in asummary trial after hearing evidence for the prosecution makesan order discharging the accused, because he disbelieves theevidence, the order of discharge is tantamount to an acquittal undersection 190 of the Criminal Procedure Code.” It was furtherheld that ‘‘the discharge of an accused referred to in section191 is a discharge as authorized by law, e.g., a discharge in thecircumstances mentioned in section 196, or in section 151 (1),or- a discharge consequent on acquittal under section 194 or 195.”
In the latter case, de Sampayo J. said (at page 50): “ Themere use • of the word ‘ discharge,’, however, will not necessarily•amount to an order under that section. Where, for instance,the proceedings are such as to require the Magistrate to record averdict of acquittal under section 190, an order purporting to be adischarge will in effect be a verdict of acquittal, and will bar furtherprosecution-ifor the same offence. It will be noticed that section.191 provides, that the Magistrate shall record his reasons for dis-charging the accused, and this, I take it, means that the Magistrateshould give his reasons for not deciding on the evidence and arriving» (1905) 2 Bal. Reports 20.! (1917) 20 N L. R. 44.
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at a definite verdict. The words * at any previous stage of the case '1929.
to my mind import that all the evidence for the prosecution’, as MAA^Tj^a4contemplated by section 190, have not been taken. But if the A.J.prosecutor has put before the Court all the evidence which isavailable to him, or which he is allowed a reasonable opportunity Khanto produce, the accused will be entitled to demand a verdict atthe hands of the Magistrate instead of an inconclusive order ofdischarge, so that he may not- be vexed again.
I therefore hold that the order made in case No. 65,177 was ineffect an order of acquittal. The Magistrate rightly or wronglywas of opinion that the evidence led by the prosecution did not inlaw establish that the accused committed the offence with whichhe was charged. He was therefore entitled to demand a verdictof acquittal at the hands of the Magistrate instead of an order ofdischarge.
The next question is whether the accused is liable .to be tried onthe charge of committing an offence under section 158 of the PenalCode.
This question is a difficult one. Section 330 of the CriminalProcedure Code enacts that—
“A person who has once been tried by a Court of competent-jurisdiction for an offence and convicted or acquitted ofsuch offence shall while such conviction or acquittalremains in force not be liable to be tried again for thesame offence nor on the same facts for any other offencefor which a different charge from the one made againsthim might have been made under section 181 or for whichhe might have been conv:cted under section 182. ”
(2}i “A person acquitted or convicted of any offence may be*,afterwards tried for any distinct offence for which aseparate charge might have been, made against him onthe former trial under sub-section (1) of section 180.M
Section 181 deals with an act or a series of acts constituting oneoffence, but it is doubtful which of several sections is applicable.
Sub-section (1) of section 180 applies to cases where on some ofthe facts so connected together as to form the same transaction -one offence may be charged against an accused person, and onother facts being part of the series of acts another offence may be-charged against him.
Sub-section (2) of section 330 does not extend the exception to6ub-section (2) of section 180, which deals with acts constituting anoffence falling within two or more separate definitions of any law:in force by which offences are defined and punished.
Section 330 prohibits a second trial not merely for the same-offence but also on the same facts for another offence. It hasbeen held in India that where on the same facts a person has been
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laried and acquitted under section 182 of the Indian Penal Code hecannot be tried again on a charge under section 211 of the PenalCode after obtaining a fresh sanction. [86 Madras 808.]
So long as the previous order is in force, irregularity of proceed-ings is of no consequence.
'* It is not necessary that the judgment of acquittal should be,in fact, correct and proper, for, while unreversed, it will supporta plea of autrefois acquit in bar of a second trial. Thus a judgmentfor the defendant, though consequent on a misdirection or erro-neously given on a special verdict, or on an insufficient indictment,60 long as it stands unreserved, is a bar to a new indictment.(Russell on Crimes, p. 1983.) If the offence is the same, theformer conviction or acquittal is a bar to the second trial, whetherthe second Court considers that the former conviction or acquittalwas warranted by the evidence given in the first trial or not.(7 W. R. 15.) Even if the judgment of acquittal was passed undera misapprehension of the law, it would still operate as a bar. Whena Sessions , Judge considering that two charges under sections 302and 201, I. P. C., could not be combined, separated the charges andtried the accused on a charge of murder only and acquitted her,it was held that the accused could not be tried again for the offenceunder section 201, I.. P. C. as the two charges might have beencombined in the former trial and though he clearly intended thatthe accused should thereafter be tried on a charge under section201, 4 S. L. R. 174; 11 Cr. L.J. *131. See also 9 N. L. R. 26; 14 Cr.
J. 135, where the accused was acquitted of a charge under section203, I. P. C., on a withdrawal of the case under a misapprehension,and it was held he could not be tried again under section 177,
P. C., on the same facts. Even if the acquittal had been obtainedby a trick on the part of the accused, the acquittal would operateas a bar/* [Sohoni, pages 970, 971.]
It was contended that the evidence necessary to establish theoffences was different, as under section 210 the offender need notbe a public servant and it must be proved that the person screenedcommitted an offence, whereas under section 158 it must be provedtha]b the accused was a public servant, that he received a'gratifica-tion other than legal remuneration and that he received it for thepurpose set out in the section.,
This contention is fallacious for the facts are the same, thedifference of offence results from looking at the facts throughdifferent aspects.
I accordingly dismiss the appeal.
DYSON v. KHAN