T. S. FERNANDO, J.—The Attorney-General v. Gunasekera
1958Present: T. S. Fernando, J.THE ATTORNEY-GENERAL, Appellant, and L. GUNASEKERA andanother, Respondents8. C. 1,184—M. G. Kandy, 2,517
Autrefois acquit—Summary trial—Discharge of accused—Fresh prosecution—Canthe earlier case operate as bar t—Criminal Procedure Code, ss. 190, 330.
An order abruptly terminating a summary trial without allowing the com-plainant to lead any evidence is an order of discharge, and not one of acquittal,of the accused. In such a case, when a fresh prosecution is instituted theaccused is not entitled to raise a plea of autrefois acquit under section 330 of theCriminal Procedure Code.
Appeal from a judgment of the Magistrate’s Court, Kandy.
Ananda Pereira, Crown Counsel, for the Attorney-General.
P. Somatillekam, for the accused-respondents.
Our. adv. vult.
June 16,1958. T. S. Fernando, J.—
The two accused-respondents and three others were charged in theMagistrate’s Court of Kandy in ease No. 69—on a complaint made bythe Police—with committing the offences of house-trespass (section 434),using criminal force (section 343) and mischief (section 410). On theirpleading not guilty, the evidence of a doctor was recorded and the trialwas put off for another day. On the day for which the trial had beenadjourned the learned Magistrate, without recording any further evidence,made an order which he has described as an order “ acquitting and dis-charging ” the accused. It would appear from the record of the pro-ceedings that the Magistrate listened to certain submissions addressed tohim by counsel for the parties. There is no record of the nature of thesesubmissions, but they appear to have related to the facts. In spite of anexpress request by counsel for the complainant that he be permitted tocall his evidence, the Magistrate refused to permit any evidence to be led,but permitted himself the observation that to allow the complainant tolead evidence would amount to granting of the court’s assistance to thefurtherance of a family dispute. Counsel have not shown nor have Ibeen able to discover any provision of our law of criminal procedurewhich sanctions the course of action which appealed to the Magistrate.The proceedings taken in the Magistrate’s court on the adjourned date areirregular, and the order itself appears to be quite arbitrary. The evi-dence of the doctor recorded on the first day only tended to show thatthe virtual complainant did in fact bear injuries on her person. Inregard to this the Magistrate has observed that “ what was done on the
T. S. FERNANDO, J.—The Attorney-General v. Gunasekera
day in question may very well have been done under considerable provoca-tion ”. This observation probably resulted from paying heed to a sub-mission of counsel devoid of any evidence to support it at the stage itwas made.
Nearly two months afterwards, the Police instituted case No. 2,517charging the two accused-respondents with committing the offences ofcriminal trespass (section 433), mischief (section 410) and causing hurt(section 314) in respect of the same incident as that which had been thesubject of proceedings in case No. 69. In spite of certain slight differencesin the charges, it may be assumed for the purposes of this appeal that thecharges in case No. 2,517 are for all practical purposes the same as thosethat were the subject of case No. 69. After the accused-respondents hadpleaded not guilty, a plea of autrefois acquit was raised on their behalfby counsel appearing for them, and the learned Magistrate—not theMagistrate who had taken proceedings in case No. 69—holding thatthe order made in the earlier case amounted to an acquittal made orderon November 1st, 1957 declaring that by virtue of section 330 (1) ofthe Criminal Procedure Code the respondents are not liable to be triedagain.
The Attorney-General has appealed against this order of November 1st,and the appeal must depend on the correct interpretation of the ordermade by the Magistrate who heard case No. 69. A Magistrate’s descrip-tion of his order as a “ discharge ” or an “ acquittal ” is, of course,not conclusive of the matter which necessitates an examination of theproceedings taken up to the moment of the order. The Magistrate whoheard case No. 2,517 has stated that the remedy any person aggrievedby the order made in case No. 69 had was to have appealed therefrom asthat order unless reversed must stand. This statement appears to me—with respect—to beg the real question that has to be answered, viz.whether the order was in law an order of discharge or one of acquittal.If it is tantamount to an acquittal, no doubt a fresh prosecution is barredso long as that order has not been reversed. On the other hand, if thatorder amounted to no more than a discharge of the present accused-respondents, they cannot invoke in their aid the principle embodiedin section 330 of the Criminal Procedure Code.
In the case of King v. William1 the Court of Criminal Appeal observedthat the wording of section 190 of the Criminal Procedure Code meansthat a Magistrate is precluded from making an order of acquittal underthat section till the end of the case for the prosecution. Certain fairlyrecent decisions of the Supreme Court have tended to emphasize that by“ the end of the case for the prosecution ” is meant not the formal ortechnical end of the prosecution but the virtual end of the prosecutionwhich may be brought about, for instance, (a) by calling the main wit-nesses for the prosecution or (b) by the proseoution finding itself unableto lead its evidence on the trial date by reason of its failure to secure theattendance of its witnesses. Counsel for the respondents tried to findsupport for the order made in case No. 2,517 in some of these recent
1 (1942) 44 N. L. R. 73.
T. S. FERNANDO, J.—The Attorney-General v. Gunasehera
decisions like Solicitor-General v. Aradiel1 and Adrian Dias v. Weera-singham a. These authorities are clearly inapplicable to the case beforeme as in the first of them the prosecution had closed its case at the timethe Magistrate made his order, while in the second the order was madeafter the prosecution found itself unable to go on with the case in theabsence of certain witnesses whose presence the prosecution had failedto secure in spite of reasonable opportunity afforded to it for the purpose.Nor do I think that another case relied on by the respondents—Waniga-selcera v. Simon 3 is of any assistance to them hero. In that case theprosecution had virtually closed its case at the time the Magistrate madehis order which was held by the Supreme Court to be an order of acquittal.It is true that Gratiaen J. observes that a verdict of acquittal in terms ofsection 190 of the Criminal Procedure Code could be entered even beforethe prosecution has been closed, but it is important to note that he ob-serves also that in order to render the order an acquittal the Magistrateshould be satisfied that any further evidence which the complainantproposes to lead would not suffice to establish a prima facie case of guiltagainst the accused. In case No. 69 the Magistrate in express wordsrefused to hear the complainant’s evidence in spite of every appeal of hercounsel. This was not unlike the situation in Silva v. Rahiman 4 whereJayewardene J. observed that an order abruptly terminating a summarytrial without allowing the complainant to lead any evidence amountedonly to an order of discharge. I am therefore of opinion that the ordermade in case No. 69 amounted to nothing more than an “ inconclusive ”order of discharge which is insufficient to form the foundation of a plea ofautrefois acquit. I would accordingly allow the appeal and remit caseNo. 2,517 back to the Magistrate’s Court for the trial to be held at anearly date.
1 (1948) SO N. L. R. 233.’ (1953) 55 N. L. R. 135.
* (1950) 57 N. L. R. 378.‘ (1924) 20 N. L. R. 103.
THE ATTORNEYGENERAL, Appellant, and L. GUNASEKERA and another, Respondents