Per era v. Johor an.
1946Present : Dias J.
PERERA, Appellant, and JOHOR AN (S. I., Police), Respondent.1,203—M. C. Panadure, 34,759a.
Autrefois acquit—Accused charged under repealed Regulation—Convictionquashed in appeal—Inability to be prosecuted again under the properRegulation—Criminal Procedure- Code, ss. 330, 331.
A conviction was quashed by the Appeal Court on the ground thatthe accused had been charged under a Regulation which had been repealed.The accused was subsequently prosecuted again under the properRegulation in respect of the same act.
Held, that the plea of autrefois acquit could not be raisod.
1 (1901) 2 Browne 230.* (1919) 6 C. W. R. 319.
4 (1942) 20 Cey. L. Rec. Iviii., 2 C. L. W. 418.* (1934) 12 T. L. R. 22.
6 (1930) 32 N. L. R. 115.
DIAS J.—Per era v. .Tohoran.
PPEAL against a conviction from the Magistrate’s Court, Panadure.
N.Nadarajah, K.C. (with him V. ArulamhaZam), for the accused,appellant.
A. C. M. Ameer, C.C., for the Attorney-General.
Cur. adv. vult.
November 12, 1946. Dias J.—
In M. C., Panadure No. 34,759 this appellant was charged with preciselythe same offence with which he was charged and convicted in thepresent case.
In the earlier case the accused appealed against his conviction and thejudgment of the Supreme Court is reported in 46 N. L. R. 333. Caneke-ratne J. held that the accused had been charged under a Regulationwhich had been repealed and that the effect of that repeal was to obliteratethe Regulation as completely as if it had never been brought into force.He said : “ The accused, Perera, has not been properly charged and the•proceedings are a nullity. I quash the conviction and leave it to theauthorities, if so advised, to take any action against the accused.”
Thereupon, in the present case, the appellant was again charged underthe proper Regulation published in Government Gazette No. 9,274, datedMay 26, 1944. The charge is that the appellant on December 6, 1944,at Wadduwa did sell half a pound of dried sprats (“ Haal-messas ”) atfifty cents whereas the controlled price of a pound of this comestible wasonly forty-nine cents.
Both at the trial as well as in this appeal, the appellant raised the pleaof autrefois acquit under sections 330 and 331 of the Criminal ProcedureCode.
Counsel for the appellant takes his stand on the judgment of Reading
C.J. in R. v. Barron ».“ The principle on which this plea depends has
often been stated. It is this, that the law does not permit a man tobe twice in peril of being convicted of the same offence. If, therefore,he has been acquitted, i.e., found to be not guilty of the offence by a Courtcompetent to try him, such acquittal is a bar to a second indictmentfor the same offence. This rule applies not only to the offences actuallycharged, but to any offence of which he could have been properly con-victed on the trial of the first indictment.” If I may say so with respect,that ruling is also • the law of Ceylon. The language of section 330 ofthe Criminal Procedure Code and the illustrations appended to it indicatethat our law is precisely the same as indicated by Lord Reading. Icannot, however, agree with the extended application which counselfor the appellant endeavours to give to the language of the Lord Chief
(1914) 10 Crim. App. R. a' p. 87.
DIAS J.—Perera v. Johoran.
Justice of England. His submission is that because the Magistrate inthe earlier case might by amending the charge have convicted theappellant, and because the Judge in appeal might have done the samething, therefore the doctrine of autrefois acquit applies as a bar to thesubsequent charge. I am unahle to agree with that contention.
In the earlier trial the accused was never in peril of conviction because,as was judicially declared by Canekeratne J., it was a nullity. Thereforethe accused did not stand in jeopardy of conviction in that case. In747 M. C. Colombo, No. 23,921 (S. C. Min., October 15, 1919) the accusedwas charged under the wrong section of an Ordinance and was acquitted.The Supreme Court held that the earlier acquittal did not bar a subsequentcharge under the correct section. The principle is that he was never inperil at the first trial. In Rosemalecocq v. Kaluvoa1 Abrahams C.J. said :“ In my opinion any illegal trial is no trial at all, and, therefore, anacquittal either by the trial Court or an Appellate Court would be in-effective.” The learned Chief Justice in that case set aside the convictionand ordered that appellant to be discharged. An accused who is dis-charged and not acquitted cannot raise the plea of autrefois acquit whenhe is recharged. See Senaratne v. Lenohamy 2 and R. v. William 3. Inmy opinion the order of Canekeratne J. in the earlier case amounted toa discharge and was not an acquittal. Therefore the subsequent Chargeis not barred.
The case of R. v. McMinn * cited by the appellant is distinguishablefrom the facts of the present case. There the accused was charged withlarceny at the Petty Sessions. He consented to be tried summarily (Cf.section 166 of the Criminal Procedure Code) and was convicted. Theaccused then asked “ that an outstanding offence for obtaining a chequeby false pretences in respect of which he had signed the usual * otheroffences1 form should be taken into consideration.” The Justicesagreed and passed a sentence of six months’ imprisonment. The accusedappealed to the Quarter Sessions against the conviction for larceny andthe appeal was allowed and the conviction was quashed. The accusedwas then committed to the Assizes for the offence of false pretences. Ona plea of autrefois convict having been raised, the trial Judge upheld it.This decision rested on the direction of the trial Judge that the earlierproceeding amounted to a conviction of the accused for the offence offalse pretences. That is not the case here. This appellant has not beenconvicted or acquitted in the earlier proceedings. He was merelydischarged, and in such circumstances, a subsequent prosecution is notbarred. I hold that the plea fails.
I see no reason to differ from the finding of fact as found by the Magis-trate. The question of sentence has been pressed. I am unable to holdthat the sentence is excessive. The appeal is dismissed.
1(1936) 38 N. L. II. at p. 373.
2(1917) 20 N. L. R. 44 (Div. Cl.).
* (1942) 44 N. L. R. 73 (C.C.A.).*(1945) 30 Crim. App. R. 138.
PERERA, Appellant, and JOHORAN (S. I. Police), Respondent