Don Abraham v. Christoffelsz
1953Present: Nagalingam A.C.J.R. A, DON ABRAHAM, Petitioner, and T. H. CHRISTOFFELSZ(Inspector of Police), Respondent
S. G. 171—Application in Revision in M. C., Kanadulla, 524
Autrefois acquit—Failure of prosecutor to lead evidence—tc Discharge 3' of accused—
Right of prosecutor to institute fresh proceedings—Criminal Procedure' Code,.
ss. 190, 330.
On the date of trial of a summary case the chief witness for the prosecutionwas. absent although summons had been served on him. ,The prosecuting:officer did not apply for a warrant on the witness, but stated that he was notprepared to go on with the ease. Thereupon, the Court “ discharged ” theaccused.
Held, that the order of discharge was tantamount to an acquittal under-section 190 Vif the Criminal Procedure Code and that the accused could not be-prosecuted again in respect of the same charge.
NAGAX.INGAM A.C.J.— Don Abraham v. Ghristoffelsz
PPLI CATION to revise a judgment of the Magistrate’s Court,Kaftadulla.
W. D. Gunasekera, for the accused petitioner.
A. Mahendrarajah, Crown Counsel, for the Attorney-General.
September 15, 1953. Nagaxjngam A.C.J.—
This is an application in revision by the accused who has been convictedof having committed criminal breach of trust of estate tools valued atRs. 188*50. He was found guilty and ordered to enter into a personalbond to be of good behaviour for a period of one year in a sum of Rs. 100and to pay Rs. 50 as Crown costs. The point taken on his behalf is thatan earlier prosecution against bim operates as autrefois acquit. In fact,there were two earlier prosecutions against the same accused person.In case No. 8889 of the Magistrate’s Court of Kanadulla the accused wascharged with having committed criminal breach of trust in respect ofmachinery, &c., valued at Rs. 3,528*50. The machinery, &c., as statedin the charge were all deposed to by the witness Sugden and includeditems of tools which form the subject-matter of the present case and thepresent application. After the principal witness had given evidence, itwas discovered that a number of articles enumerated by him and whichformed the subject-matter of the plaint had not in fact been entrustedto the accused. The prosecution, therefore, at that stage moved towithdraw the case and the learned Magistrate allowed the applicationand discharged the accused. Following on the heels of that dischargeanother case bearing No. 9598 of the same court was filed against theaccused person in relation to the identical tools that formed the subject-matter of the present proceedings. That case was fixed for trial on the14th of July, 1952. The accused was present in court ; the prosecutingPolice Officer was present in court, but the chief witness, Sugden, wasabsent in spite of summons having been served on him. The prosecutingofficer did not apply for a warrant on the witness who was absent butstated that “ the Police are not prepared to go on without him (Sugden).”
“ Accused discharged
The question is, what is the effect of this order. Is it an order ofdischarge as specifically laid down in the Code, or does it amount to anorder of acquittal. It has been contended on behalf of the accused thatit is an order of acquittal while the contrary is contended for by learnedCrown Counsel.
I do not think that where a prosecution is unable on the day fixed fortrial to adduce evidence in court and states that it is not prepared to goon with the case, the order is one which must be treated as an order ofdischarge. I should say that it partakes of the character of an orderunder section 190 of the Criminal Procedure Code whereunder if aMagistrate after taking the evidence for the prosecution jfinds that theaccused is not guilty he must enter an order of acquittal. There was noevidence before the Magistrate to show that the accused was guilty. In
GtRATIAEN J.—Wijesundera v. Public Service Commission
these circumstances the order of discharge was improperly made andmust he regarded as an order of acquittal. In that view pf the matterthe present prosecution is completely barred. I, therefore, set aside theorder of the learned Magistrate and the order directing the accused toenter into a bond and to pay Crown costs.
The accused would appear to have been noticed to produce the tools,the subject-matter of the prosecution, in Court. They will be returnedto him in view of the order of acquittal, or even otherwise, for even if theMagistrate’s order stood, under section 413 of the Criminal ProcedureCode the Magistrate had no jurisdiction to make an order directing theaccused to return the fools. The articles will be returned to the accusedperson.
R. A. DON ABRAHAM, Petitioner, and T. H. CHRISTOFFELSZ (Inspector of Police),