SINNETAMBY, J,—Hendrick Singho v. WantyatifleJca
1958Present: Sinnetamby, J.
HENDRICK SINGHO, Appellant, and WANIGATILLEKA et al,
8. C. 913—M. C. Bakwana, 61,191
Appeal—Order upholding a plea of autrefois acquit—“ Final order ”—CriminalProcedure Code, ss. 187, 188 (2), 190, 191, 330, 331, 338 (1).
An order upholding a plea of autrefois acquit is a final order within the meaningof section 338 (1) of the Criminal Procedure Code and an appeal therefrom doesnot require the sanction of the Attomey-Geheral.
.^t-PPEAL from an order of the Magistrate’s Court, Rakwana.
A. H. C. de Silva, Q.C., with E. Ghmaratne and N. U. Wirasekera, forComplainant-Appellant.
K. Shinya, foij Accused-Respondents.
Cur. adv. vuU.
July 17, 1958. Sinnetamby, J.—•
This is an appeal by the complainant against an “ acquittal ” by theMagistrate of the respondents who were charged in this case with theftor, in the alternative, with retention of stolen property knowing or havingreason to believe that the property was stolen. It would appear that inan earlier case, viz., M. C. Rakwana Case No. 61,172, the second respondentand another person were charged by the Divisional Revenue Officeras complainant with committing the same offences in the alternativein respect of the same property. The learned Magistrate upheld a pleaof “ autrefois acquit ” which the accused preferred in this case and theappeal is against that order.
A preliminary objection was taken by learned Counsel for the respon-dents at the hearing of the appeal and it was agreed that this objectionshould first be decided before the arguments were heard on the main case.The objection is that the appeal being against an acquittal should bewith the sanction of the Attorney-General and, inasmuch as no sanctionhad been obtained, this Court is precluded from entertaining it. Hielearned Magistrate himself has used the word “ discharge ” in his order. but, as has been frequently pointed out. it is not the word used by thelearned Magistrate that determines the question.
Much argument was addressed to me on the meaning to be attachedto the words “ discharge ” and “ acquittal ” and it was sought tp bringthe order of the learned Magistrate under one or the other of thesecategories. If it amounted to an order of “ acquittal ” within themeaning of section 190 of the Criminal Procedure Code the sanction of theAttorney-General was necessary but if it amounted to a “ discharge ”
STNNETAMBY, J.—Hendrick Singho v. Wanigatilleka
within the meaning of section 191 an appeal would lie without suchsanction—Sumangala Them v. Piyatissa Thero 1. It seems to me,however, that an order made on a plea under sections 330 and 331 of theCriminal Procedure Code amounts neither to an acquittal under section1Q0 nor a discharge under section 191 of the Code. Section 190 dealswith a situation that arises after an accused person has been chargedunder section 187. A “ Trial ” as the term implies involves an adjudi-cation on the matters in respect of which the parties are at issue. Itseems to me that' this point is reached only when the accused is charged.If he pleads guilty the questions in issue are resolved immediately infavour of the prosecution: if he does not the trial of these issuescommences. Indeed section 188 of the Code supports this view. Sub-paragraph (2) is in the following terms :
“ If the accused does not make such statement (i.e. admission of
guilt) the Magistrate shall ask him if he is ready for trial and,
. (a) if the accused replies that he is ready for trial proceed to trythe com in the manner hereinafter provided.
Section 191 of the Code empowers a Magistrate to discharge an accusedat any previous stage of the case, i. e. before a verdict is given of convictionor acquittal or perhaps even before a charge is framed. In other wordssection 190 is applicable only to situations in which a trial has commenced,i.e. after a plea has been recorded and not to an earlier stage of the pro-ceedings. A ‘ ‘ discharge ’ ’ prior to the framing of the charge may or may notbe. a discharge within the meaning of section 191 but would certainly be a‘final order within the meaning of section 338 (1) of the Code in respectof which an accused is entitled to prefer an appeal without the sanctionof the Attorney-General. Section 330 (1) of the Code provides, in respectof a previous conviction or acquittal, that an accused person shall “ notbe liable to be tried again ”. An order of discharge on such a plea wouldtherefore not amount to an order of acquittal under section 190 but wouldbe a discharge in the nature of a final order to which section 338 (1)would apply. The preliminary objection to the hearing of this appealmust in my view fail.
I accordingly make order that the appeal be listed for hearing in duecourse on the main question, viz. whether the learned Magistrate cameto a right decision on the plea of “ autrefois acquit
Preliminary objection overruled-
1 (1937) 39 N. L. B. 263.
HENDRICK SINGHO, Appellant, and WANIGATILLEKA et al., Respondents