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Present : Wood Eenton C.J. and Ennis and De Sampayo JJ.SENARATNA v. LENOHAMY et al.
724—P. C. Negombo, 10,757
Criminal Procedure Code, e.191—Summarytrial—Discharge—Isit a
bar to fresh proceedings 1
Per Wood BentonC.J.and Db Sampayo J.(EnnisJ. dissen-
tients).—The discharge ol an accused without trial under section 191of the Criminal Procedure Code, is no bar to the institution of freshproceedings in the same case:Where, therefore, in a summary
case, the accused, after he had pleaded to the charge, was dis-charged, as the complainant's witnesses were absent on the dayfixed for the hearing,andas he was not readyto goon without
Held, that the discharge was not a bar to fresh proceedings.
Ennis J.—An orderofdischarge after theaccusedhas been
called upon to pleadmustbe deemed to be anorder of acquittal,
from which the Attorney-General is entitled to appeal withintwenty-eight days, and the absence of the appeal makes the orderconclusive.
N this case the accused were charged with the theft of threeheaps of unthreshed paddy, which had been seized and
advertised for sale under the provisions of the Police Ordinance,1865, and with having voluntarily obstructed the complainant,who is a Vidane Arachchi, in the discharge of his public functions.The Police Magistrate discharged them without trial, on the groundthat they had already been charged for the same offence in P. C.Negombo, 10,045, and had been discharged under section 191 ofthe Criminal Procedure Code. The Solicitor-General appealed.The case was reserved for argument before a Bench of three Judgesby Ennis J. by the following judgment: —
September 17, 1917. Ennis J.—
In case No. 10,045 of the Police Court of Negombo proceedingswere instituted against the present respondents and another, by theVidane Arachchi of Udugampola, by presenting a complaint to theCourt (section 148 (b), Criminal Procedure Code). A summons wasissueid, and on April 30, 1917, on the appearance of the accused, astatement from the summons (deemed to be the charge, section 187(2) was read to the accused, to which the present respondents
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pleaded not guilty. The complainant was not ready to proceedwith the trial, and the Magistrate, acting under section 289 (5).,refused an adjournment, as he was not satisfied that reasonableefforts had been made to secure the attendance of witnesses) and hedischarged the present respondents by an order under section 191.An order under section 191 is an appealable order (Oooneratne V-Bamado,1 and the present appeal is an instance), but no appealwas presented.
On July 30, 1917, the Vidane Arachchi presented a new complaintof the same offence, and summons issued in a new case, No. 10,757.At the hearing the previous proceedings were brought to the noticeof the Court, which thereupon discharged the accused, holding thatnew proceedings could not be instituted, as they were virtuallya revival of the old proceedings which had been finally closed by anorder under section 191, from which no appeal had been taken.The Solicitor-General appeals on the ground that a discharge undersection 191 did not amount to an acquittal, and was, therefore, nobar to fresh proceedings. In support of the appeal the oases ofDavidson v. Appuhamy2 and Vellavarayam’s ease 3 were cited.Neither of these cases is a direct authority for the appellants’contention. Davidson v. Appuhamy 3 decided that the old proceed-ings could not be re-opened, while Vellavarayam’s case 3 was anapplication for a writ of prohibition. Both cases, however, suggestedthe possibility of fresh proceedings on a fresh complaint in a newcase with a new number. The point, however, did not arise in eithercase. It seems to me to be highly technical, and that the learnedMagistrate in the present case is right in saying that such freshproceedings are virtually a revival of the old.
The word “ discharge ” is defined in the Code to mean " thediscontinuance of criminal proceedings against an accused, but doesnot include an acquittal,” and the argument is that, inasmuch as it isnot an acquittal, an accused cannot in a new trial avail himself ofthe provisions of section 330, by which the rule, that no person isto be tried twice for the same offence, is enunciated. That sectionrefers only to cases where an accused has been convicted or acquitted,and makes no mention of a discharge. A discharge is the properorder to make when the Magistrate stops the proceedings withoutmaking any order of acquittal or conviction (section 196). It mayhave the effect of an acquittal, as when an accused is dischargedfrom custody on an offence being compounded (section 290 (5)),and it does not have that effect when the discharge is ordered inthe course of an inquiry held by a Magistrate preliminary to trial bya higher Court (section 157 (2) ). Section 191, which provides fororders of discharge during the trial, i.e., after the charge has beenframed, is silent as to the effect of the order.
12 Bal. 32.3 (1916) 19 N. L. R. 57.
»(1903) 7 N. L. R. 116.
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It is to be observed that the meaning assigned to “ discharge *’in the definition does not apply when a different intention appearso’from the subject or context. The subject of section 330 is the rulethat no person is to be tried twice for the same offence. It seems to■me that where a person has been discharged before trial, i.e., at anyStage before the framing of a charge as in section 151, the subjectof section 330, i.e., a second trial, does not arise, as there has been nofirst trial. But when a person has been put on his trial and has beencalled upon to answer a charge, the position is one which falls withinthe subject of section 330, and, but for the definition of discharge,the words are wide enough to cover any order finally stoppingproceedings after an accused has been put on his trial. (It is to beobserved that the Indian equivalent to section 330 has an explana-tion as to when an order of discharge is not an acquittal for thepurposes of the section.) The intention of the section must belooked for in the express provisions of the Code for relief againstwrong orders. The first is appeal, and there is an appeal from anyfinal order. Whenever there is an intention to do away with thenecessity of an appeal or to bar an appeal, express provision isfound in the Code. For instance, section 391 enacts that whenevera Police Court discharges an accused under the provisions of section157 the Attorney-General may direct the Magistrate to commit theaccused for trial, or may order him to re-open an inquiry. It is tobe observed that this remedy is available only when the Magistratehas discharged the accused under section 157, i.e., when the Magis-trate is making an inquiry preliminary to trial by a higher Court.Further, we find, in an explanation to section 338, that a dischargeunder section 157 is not a final order and is therefore not appealable.
I find it difficult to believe that there was an intention to allow anappeal from a discharge under section 191 and to allow the appellanton a failure of the appeal to re-open the case by presenting it again on. a fresh piece of paper. The provisions for appeal and the provisionsfor intervention by the Attorney-General when there is no appeal,in my opinion, go to show a contrary intention.
To me the definition of “ discharge " is peculiar. The wordsmight cover a conviction which is a final order stopping proceedings(as defined). The word " discharge ” is not found in section 330,which uses the words ‘ ‘ conviction * ’ and “acquittal." There isnothing to prevent the word acquittal including an order of discharge,,even if an order of discharge does not include an acquittal. Inview, however, of the finding in Rex v. Podi Singho,1 I wouldrefer this case for the decision of three Judges.
Obeyeaekere, C.C., for the appellant.—A “ discharge " is not anacquittal; see definition of the term, section 3, Criminal ProcedureCode. If in this case fresh proceedings cannot be taken againstthe accused, the discharge will have the same effect as an acquittal
1 (1907) 3 Bal. 20$.
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When an accused is discharged under section 191 of the CriminalProcedure Code, though the same case cannot be re-opened, freshproceedings may be instituted. See Bex v, Podi Singho.1 Counselalso referred to Davidson v. Appuhamy*
A. St. V. Jayewardene, for the respondent.—Under the circum-stances of this case the discharge is a bar to further prosecution,whether in the former case or in a fresh proceeding. Counselreferred to 7 N. L. B. 116, 2 Bal. 20.
If the order of discharge in the former case was wrong, the properprocedure was to have appealed against that order. See 2 Bed. 32.If it be held that fresh proceedings may be taken for the same offence,it may happen that the complainant may, even after he hasfailed in an appeal, against an order of discharge, institute freshproceedings.
Cut. adv. vult.
October 2, 1917. Ennis J.—
On the re-hearing of this appeal before the Full Court, the onlyargument which impressed me was the fact that the Ceylon Codeallows of an accused being called upon to plead to a charge in certainsummary cases before any evidence whatever has been led, i.e., asummons may be issued on a complaint (section 149 (2) ) by a policeofficer, and section 187 (2) provides that, in certain cases, a statementof the offence may be read from the summons and the accusedasked to plead. In such a case there is no sworn evidence, andthe question as to whether or not an order for discharge can bedeemed to be an acquittal seems to me to turn on the questionwhether or not the accused is entitled to an acquittal. Section 194prescribes the proper order to be made on failure of a complainant,other than a police officer, to appear. In such a case section 149prescribes that the complaint must be heard on oath before summonsissued, and section 194 prescribes that the order must be one ofacquittal. Sections 190, 191, and 196 seem to be the only sectionsprescribing the order to be made when the complainant is a policeofficer, and summons has issued possibly without any swornstatement. Under section 196 the Magistrate may discharge theaccused with the previous sanction of the Attorney-General. In- the present case, however, the order of discharge does not comeunder that section. It has not been made with the previoussanction of the Attorney-General, but consequent upon the Magis-trate being of opinion that reasonable efforts had not been made tosecure the attendance of witnesses (section 289 .(5). One witness,namely, the complainant Police Vidane, was present, and could havebeen examined, but was not, as he was not ready to proceed withthe trial. In my opinion the proper order for the Magistrate to
1 (1907) 3 Bal. 306.* (1916) 19 N. L. B. 67 and 31 Mad. 643.
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have made in such circumstances was an order of acquittal, as if thecomplainant’s evidence had been recorded and there were no moreevidence forthcoming. The fact that the complainant’s sworn state-ment is dispensed with before the issue of a summons, in the case ofa police officer being the complainant, practically substitutes thereport for the sworn statement, and it must further be rememberedthat even a statement sworn to before the issue of summons is notevidence against an accused until it has been read over to the'Witness in the presence of the accused.
-Section 289 (5) is imperative. “ No inquiry or trial in a PoliceCourt shall be postponed or adjourned on the ground of theabsence of a witness, unless the Magistrate has first satisfied himselfthat the evidence of such witness is material to the inquiry, andthat reasonable efforts have been made to secure his attendance.”It is clear that the intention of the Legislature was that inquiriesand trials should be conducted without undue delay. No PoliceMagistrate can remand an accused for more than fourteen days inthe event of a postponement being granted, yet it is urged that theAttorney-General can obtain what is in effect an indefinite post-ponement by an order for discharge. In the present case a newcomplaint was filed three months after the original complaint. Inmy opinion an order of discharge after the accused has been calledupon to plead must be deemed to be an order of acquittal, fromwhich the Attorney-General is entitled to appeal within twenty-eight days (section 338), and the absence of appeal makes the orderconclusive.
I am strongly of opinion that once an accused is called upon toplead there is a trial; in the present case one of the accused pleadedguilty at that trial and was convicted, and an accused is entitledto an order of acquittal if the prosecution fail to adduce evidence tosecure a conviction. The only exceptions to this, in my opinion,are to be found in sections 196 and (possibly) 388, when an orderfor discharge can be made with the consent, of by direction, of theAttorney-General.
The terms of section 191, in my opinion, support this view.“ Nothing hereinbefore contained shall be deemed to prevent aPolice Magistrate from discharging the accused at any previousstage of the case. ” The stage of the case ” as to which the section-
speaks is clearly “ the trialwhere a Police Court has power
to try summarily.” Sections 187 to 190 deal with the trial, and-“ the previous stage of the case ” must refer to proceedings beforetrial, i.e., before the accused has been called upon to plead.
In my opinion the proper order for the Magistrate to have madein the original case was an ordSr of acquittal, that the order mademust be deemed to be an order of acquittal, and that the appellantis entitled to the benefit of section 330.
I would dismiss the appeal.
Wood Bbnton C.J.—
The accused in this case were charged (i.) with the theft of threeheaps of unthreshed paddy which had been seized and advertisedfor sale under the provisions of the Police Ordinance, 1865,1 and(ii.) with having voluntarily obstructed the complainant, who is aVidane Arachchi, in the discharge of his public functions. Thelearned Police Magistrate discharged them without trial, on theground that they had already been charged with the same offencein P. C. Negombo, No. 10,045, and had been “ discharged,” as thecomplainant’s witnesses were not present on the day fixed for thehearing, and he was not ready to go on without them. TheSolicitor-General appeals against this order, contending that adischarge of an accused person without trial under section 191of the Criminal Procedure Code is not an “ acquittal ” and istherefore, no bar to the institution of fresh proceedings in the samecase. The question referred by my brother Ennis for considerationby a Bench of three Judges is whether or not that contention iscorrect. In my opinion it is. In section 3 (1) of the CriminalProcedure Code “ discharge ” is defined as meaning “ a discontinu-ance of criminal proceedings against an accused,” but as notincluding " on acquittal.” Sections 190 and 191 indicate thecourse to be followed by a Police Magistrate in summary cases.He has to hear the evidence on both sides, and such further evidence,if any, as he may think fit of his own motion to cause to be produced,and thereafter either acquit or convict the accused (section 190).But express power is given to him ” at any previous stage of thecase ” to ” discharge ” the accused on recording his reasons fordoing so. The Criminal Procedure Code no doubt presents difficul-ties of construction in this as in other matters. It was basedpartly on the old Criminal Procedure Code of 1883 and partly uponIndian legislation, and its adaption of the provisions of theseenactments is not always either clear or happy. But I cannot thinkthat the meaning of sections 190 and 191 is really obscure. Theterm ” discharge” in the latter section has to be interpreted in thelight of its definition in section 3 (1). It imports a final discontinu-ance of the proceedings from which the accused is discharged, but” does not include an acquittal,” and is no bar to the institution offresh proceedings if this should be considered available. I am notgreatly impressed by the argument of the respondent’s counsel thatif the order of discharge is wrong, the proper machinery for therectification of the error is an appeal. The order of discharge maybe right, and yet, at the same time, it may be entirely contrary tothe public interest that an accused person should be absolved forever from all further proceedings against him in respect of theoffence that formed the subject of the original charge. In my
'No. 16 of 1865.
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Rbhtozt 0. J.
opinion the preponderating weight of authority is in favour of thisview of the law. In In re Vellavarayam,l Wendt J., withwhose judgment Sir John Middleton concurred, stated that it hadbeen admitted at the Bar in argument that a discharge underflection 191 could not have the same effect as an acquittal inbarring a fresh prosecution, although so long as it stood unreversedit would prevent the Magistrate himself from re-opening theprosecution. It appears to me, in spite of the fact that at thedose of his judgment Wendt J. said that '* apparently M an orderof discharge under section 191 would prevent a Magistrate fromtaking fresh proceedings without the express direction of theAttorney-General, that the rule that he intended to lay down wasthat the old proceedings cannot be continued till the order ofdischarge had been set aside, but that the institution of freshindependent proceedings was competent. In Bex v. Podi Singho 9Hutchinson C.J., after an exhaustive examination of the relevantprovisions of the Criminal Procedure Code and* of the authorities,held that a discharge under section 191 of the Criminal ProcedureCode is no bar to a fresh prosecution for the same offence. So faras my recollection goes, that decision has been followed ever since,and it is impliedly recognized as good law in the recent judgmentof my brother De Sampayo in Davidson v. Appuhamy * In myopinion it should be upheld.
On these grounds I would set aside the order against which theSolicitor-General appeals, and send the case back to be proceededwith in the Police Court in due course.
De Sampayo J.—
I think that Rex v. Podi Singho 2 was rightly decided, and that forthe reasons stated in that decision a discharge under section 191 ofthe Criminal Procedure Code will not prevent the' accused personfrom being legally charged again for the same offence in fresh pro-ceedings. The mere use of the word “ discharge ", however, will notnecessarily amount to an order under that section. Where, forinstance, the proceedings are such as to require the Magistrate torecord a verdict of acquittal under section 190, an order purportingto be a discharge will in effect be a verdict of acquittal, and willbar further prosecution for the same offence. It will be noticedthat section 191 provides that the Magistrate shall record hisreasons for discharging the accused, and this, I take it, means thatthe Magistrate should give his reasons for not deciding on theevidence and arriving at a definite verdict. The words 44 at anyprevious stage of the case ” to my mind import that all theevidence for the prosecution, as contemplated by section 190, have
2 (.1907) 3 Bal. 20$.
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not been taken. But if the prosecutor has put before the Courtall the evidence which is available to him, or which he is alloweda reasonable opportunity to produce, the accused will be entitledto demand a verdict at the hands of the Magistrate instead ofan inconclusive order of discharge, so that he may not be vexedagain.
SENARATNA v. LENOHAMY et al