GRATIAEN J.—Seevaratnam v. Oopalasamy
1058Present : Gratlaen J.
N. SEEVARATNAM, Appellant, and K. M. P. GOPALASAMY
S. C. 677—M. G. Jaffna, 22,647
.Absence of complainant—Acquittal of accused—Power of Magistrate to cancel order—Right of appeal if cancellation is refused—Criminal Procedure Code, ss. 194,336.
An order of acquittal entered under section 194 of the Criminal ProcedureCode may be cancelled if the complainant subsequently satisfies the Magistratethat his absence was due to a genuine misunderstanding as to the date fixedfor his appearance.
An appeal can be preferred as of right against an order refusing to vacatean order of acquittal passed under section 194 of the Criminal Procedure Code.
^^.PPEAL from an order of the Magistrate’s Court, Jaffna.
M. M. Kumarakulasingham, with J. C. Thurairatnam, for the
S. Sharvananda, for the accused respondent.
Cur. adv. vult.
May 15, 1953. Gratiaen J.—
The complainant-appellant in this case instituted criminal proceedingsin the Magistrate’s Court of Jaffna charging the accused-respondent withcriminal breach of trust or in the alternative criminal misappropriation■of various sums of money, and also with falsification of accounts. Thelearned Magistrate, after recording some evidence, decided to try thecase summarily in the exercise of the discretion vested in him undersec. 152 (3) of the Criminal Procedure Code.
On 19th March, 1952, the trial was, by consent of parties, postponed—so the record reads—for 23rd April, 1952. On that date, however, thecomplainant, the accused, and their legal representatives were all absent,and the Magistrate accordingly made an order “ discharging the accused ”.This ordor must in the context be construed as an order of acquittal madein terms of sec. 194 of the Criminal Procedure Code.
On 28th April, 1952, the complainant attended the Magistrate’s Courtand learnt what had taken place on the earlier date. He promptly fileda motion and affidavit applying that the Magistrate should, in terms ofthe proviso to sec. 194, cancel the order of acquittal made on 23rd April,
The complainant’s affidavit, purports to excuse his absence in
GRATIAEN J.—Seevarainam v. Gopalasamy
Court on 23rd April, 1952, by explaining that there had been a genuinemisunderstanding on his part and on the part of his lawyers as to whichdate had been precisely fixed by the Magistrate for the continuationof the trial. Indeed, the failure of the accused himself to attend theCourt on the 23rd April seems priina facie to lend colour to the assertionthat there had been some such misunderstanding.
The learned Magistrate made an order in chambers refusing that appli-cation to restore the case to the trial-roll—because, in Iris opinion, theexplanation given in the complainant’s affidavit was “ not sufficientWith respect, 1 disagree. If the explanation offered for the complainant’sabsence be true, there were clearly good grounds for applying the provisoto sec. 194. In my opinion the loarned Magistrate should have issuednotice on the accused to show cause why the application of the complain-ant should not be allowed on the grounds set out in Iris affidavit dated28th April, 1952, and an inter partes inquiry should have been hold inorder to decide whether the explanation offered was in fact true. Thelearned Magistrate’s order refusing to vacate the previous order ofacquittal was in my opinion premature, and I allow the appeal. Therecord must now be returned to the Magistrate’s Court with a directionthat he should deal with the complainant’s application on the linespreviously indicated by me. If the learned Magistrate, after due inquiryis satisfied that the complainant’s excuse for his failure to attend theCourt on 23rd April, 1952, is true, the previous order of acquittal mustbe vacated, and the trial of the accused must proceed according to law.If, on the other hand, the complainant’s explanation is rejected, the orderof acquittal will stand.
I must refer in conclusion to a preliminary objection which was raisedon behalf of the accused regarding the constitution of this appeal.Mr. Sliarvananda argued that the appeal against the learned Magistrate’srefusal to vacate his previous order of acquittal under sec. 194 of the Codeis in effect an appeal against the acquittal itself, and therefore requires-the prior sanction of the Attorney-General in terms of sec. 336. I donot agree. Sec. 194 provides for an acquittal without trial under veryspecial circumstances, and the proviso vests jurisdiction in the Magistratehimself to cancel the order at the instance of the defaulting complainantin appropriate circumstances, A refusal to apply the proviso is a finalorder against which an appeal lies to the Supreme Court. Sec. 336applies in my opinion only to orders of acquittal made by a Magistrateafter trial under the provisions of sec. 190 of the Code, or by a DistrictJudge after trial under see. 210 or 214.
This question was considered by Soertsz J. in J unaid v. Jayawardena 1and his judgmont indicates that he was inclined to the same viow thatI have taken. He found himself embarrassed, however, by an earlierjudgment of Shaw J. in Somasunderam v. Kadiravelu Chetty2. Hetherefore suggested, without deciding the point ”, that the moreprudent course for an appellant in the position of a complainant who wasdissatisfied with a Magistrate’s refusal to vacate an order passed undersec. 194 was to obtain the sanction of the Attorney-General.
1 < 1935) 15 Law Rec. 114.* (1916) 3 G. W. R. 315.
Jamaldeen v. de Silva (S. I, Police)
As Soertsz J. points out, Shaw J.’s judgment in Somasunderam’s case(supra) was clearly made per incuriam in that he had failed to observethat the proviso to sec. 194 substantially enlarged the rights of defaultingcomplainants under the earlier Criminal Procedure Code of 1883. Thejudgment of Shaw J. in Mourant v. Seera 1 shows that the effect of theproviso to sec. 194 had subsequently been brought to his notice.
If a complainant seeks to obtain the unnecessary sanction of theAttorney-General to an appeal in a case such as the present, he mightwell be faced with the substantial objection that his appeal has beenpreferred out of time. The correct view, I think, is that an appealcan be preferred as of right against an order refusing to vacate an orderof acquittal passed under sec. 194.
N. SEEVARATNAM , Appellant, and K. M. P. GOPALASAMY,Respondent