Hendrick Singho v. Wanigatilldca
1958Present: H. N. G. Fernando, J.W. HENDRICK SINGHO, Appellant, andS. D. WANIGATILLEKA et al., Respondents
S. C. 913—M. C. Rakwana, 61,191
Withdrawal of charge by prosecution—“ Discharge ” of accused—Failure of Court Urrecord reasons—Effect on subsequent prosecution of accused—' Autrefoisacquit ”—Criminal Procedure Code, ss. 190, 191, 195.
Where the prosecution moved to withdraw a case and the Magistrate“ discharged ” the accused without recording any reasons—
Held, that the order of the Magistrate was not an acquittal within the meaningof section 195 of the Criminal Procedure Code and, therefore, could not be ofassistance to the accused to raise a plea of autrefois acquit in a subsequentprosecution.
1 APPEAL from an order of the Magistrate’s Court, Rakwana.
A. H. 0. de Silm, Q.C., with E. Gunaratne and K. I. de Silva for the
K. Shinya, with Nimal Senanayake, for the 2nd Accused-Respondent.
Cur. adv. milt.
ft. N. C. FERNANDO, J.—Hendrick Singho v. WanigaliUeka
November 14,1958. H. N. G. Fernando, J.—
On 14th June, 1957 a Divisional Revenue Officer filed a report in theMagistrate’s Court of Rakwana against the present second accusedrespondent and one T. P. Weerasingha in consequence of which bothpersons were on the same day charged firstly with the theft of a “ Bedi-del ” log being property in the possession of the Range Forest Officer,Rakwana, and secondly with dishonestly receiving or retaining stolenproperty to wit the same “ Bedi-del ” log.
On the same day, 14th June 1957, the present appellant filed privatecomplaint against one Wanigafcilleka (the first accused respondent) andthe second accused respondent alleging that the two accused on 30thApril, 1957 committed theft of a “ Bedi-del ” log from the possession ofthe complainant and in the alternative that they retained possession ofthe log knowing it to have been stolen property.
Both cases were taken up for hearing on 12th July, 1957. In the oneto which I have first referred the Magistrate made the following order:
“Prosecution moves to withdraw this ease. Allowed. Accuseddischarged. Mr. Edirappuli for the accused states that he is ready fortrial.
Return lorry to owner. Ambalantota Police to retain boat till
disposal of case No. 61,191. ”
It is clear that the reference in the Magistrate’s order to a boat wasintended to be a reference to what was described in the charge as a“ Bedi-del ” log. Case No. 61,191 is the second case which I have men-tioned above and with which I am now concerned. The allegation in thecharge framed by the Magistrate in that case was that the alleged stolenproperty was a “ Bedi-del ” log scooped out into the shape of a boat.This second case was also taken up by the same Magistrate on the samedate, 12th July, 1957, on which occasion the Magistrate after recordingsome evidence of the complainant assumed jurisdiction as District Judgeunder section 152 (3) of the Criminal Procedure Code (the value of the logor boat had been claimed by the complainant to be about Rs. 4,000).The accused were then charged and trial was fixed for 26th July, 1957,but the case was actually heard on 23rd August, 1957. On that occasiona plea of “ autrefois acquit ” was raised and upheld by the Magistrate inhis capacity as District Judge. I have no hesitation in allowing theappeal.
The question is whether the order of 12th July, 1957 in case No. 61,172was made under section 191 of the Code or else whether it was madeunder section 195. In the one case the Magistrate is empowered to“ dischargethe accused and in the other the Magistrate may permit acomplainant to withdraw a case and shall thereupon acquit the accused.In either event however the law requires a Magistrate to record his
H. N. G. FERNANDO, J.—Hendrick Singho r). Wanigatilleka
reasons, whether for the discharge or for the withdrawal and acquittal.One purpose which would be served by a record of reasons is that thisCourt is thus made aware of the circumstances in which proceedingsterminated and the grounds upon which the Magistrate purported to act;and such a record would be of assistance in subsequent proceedings if aplea of “ autrefois acquit” is raised. This imperative provision of thelaw has not been complied with by the Magistrate, so that there isnothing on record from which I can gather what he thought he wasdoing.
There are many decisions of this Court which establish that an orderpurporting to be merely “ a discharge ” must nevertheless be regardedas an order of acquittal made under section 190 or under section 195.Most of these cases deal with purported orders of discharge either afterthe refusal of a postponement or after the prosecution states its inabilityto lead further evidence. If it is clear that the proceedings terminatebecause the prosecution for such a reason is unable to go with the casethen the accused is placed in the same position as though he had beenacquitted after trial.
In the present case however the only legitimate inference which arisesfrom the proceedings before the Magistrate on 14th July, 1957 is that theprosecuting officer in case No. 61,172 desired that the charge in the othercase No. 61,191 should be proceeded with. The Magistrate had no powerto permit a withdrawal under section 195 unless the prosecuting officer. had adduced sufficient ground for such a step. If indeed the pro-secuting officer had informed the Magistrate that his ground of with-drawal was that the accused should by means of an order made undersection 195 be allowed the privilege of securing immunity from trial inanother case pending before the same Magistrate on the same day, theMagistrate could surely not have regarded that as a sufficient ground formaking an order under section 195.
It is important to note that in his order of discharge the Magistratedirected the Ambalantota Police to have custody of the boat until thesecond case No. 61,191 was disposed of, and that on the same day hehimself heard evidence in the latter case. In these circumstances Iwonder whether it is not absurd for him afterwards to take the view thathe intended to make an order of acquittal. If he had taken the trouble toconsider the matter for a few moments he would have realised that theproper course would have been for case No. 61,172 to belaid by pendipgconclusion of the other case.
I see no ground for regarding the order of discharge as anything otherthan what it purports on its face to be. It was a discharge and not anacquittal. I would therefore set aside the second order of dischargemade in the present case on 23rd August, 1957 and remit the case fortrial in due course under section 152 (3) of the Code.
H. W. HENDRICK SINGHO, Appellant and S. D. WANIGATILLEKA et al., Respondents