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UKKURALA v. DAVID SINHO.
P. (]., Chilaiv, 8,973.
Ordinance No. 22 of 1890, s. 228—Discharge of accused upon absence ofcomplainant—Illegality of subsequent trial and conviction.
In a case triable summarily, after once discharging the accused owingto the absence of the complainant, it is not competent for the PoliceMagistrate, under section 228 of Ordinance No. 22 of 1890, to re-summon him, and after evidence heard to convict him.
The original discharge should be treated as an acquittal, and onceacquitted he could not be tried again.
N appeal against a conviction, under the circumstances fullyset forth in the judgment of the Supreme Court,—
Van Langenbore/ (with Jai/anardena) appeared for appellant.9th December, 1895. Withers, J.—
The conviction of the appellant of the offence of criminaltrespass and theft of a bull must be quashed not because theverdict is wrong, but because the trial is fatally irregular.
The prosecution charges the appellant with these offences onthe 23rd August last, in a written complaint, which the Magistrateentertained.
The accused was before the Court when the complaint wasreceived and the particulars were explained to him. He deniedthe charge, made an explanation, and claimed to be tried.
The 19th of the month following was appointed the day oftrial, and the accused entered into a recognizance to appear onthat day. He appeared"on that day, but the complainant did not.
The entry in the journal on that day, as signed by the Magistrate,is as follows:—“Complainant absent; accused present. Accused“ discharged ; complainant fined Rs. 5, Crown costs, for not“proceeding with case. For October 7th.”
December 4and 0.
December 4and 9.
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Next day, it seems, the complainant came forward and excusedhis absence on the previous day, for the Magistrate remitted thefine and directed summons to the accused requiring his attendanceat the trial deferred to the 17th October.
Now this, being a case on complaint of an offence summarilytriable by the Magistrate, came strictly within the purview ofsection 228 of Ordinance No. 22 of 1890, which enacts : “ If the“summons has been issued on complaint, and upon the date“ appointed for the appearance of the accused, or any day subse-quent thereto, to which the hearing may be adjourned, the“ complainant does not appear, the Police Magistrate shall, notwith-“ standing anything hereinbefore contained, acquit the accused,“ unless for some reason he thinks proper to adjourn the hearing“ of the case to some other day.”
The Magistrate had only the alternative open to him of acquit-ting the accused, or adjourning the hearing of the case to someother day for some reason he thought proper.
He did not adjourn the case that day, but discharged the accused,seeing no reason to adjourn the hearing of the case to some otherday. He should have acquitted the accused, and I am bound to actas. if the. order which the law required had been made, and totreat the discharge as an acquittal. Once acquitted, the appellantcould not be tried again, and hence this conviction cannot stand.
UKKURALA v. DAVID SINHO