Premadasa v. Assert
1959Present: H. N. G. Fernando, J.
Y. M. PREMADASA, Appellant, and T. E. R. ASSEN (Inspector of
8. C. 795—M. O. Colombo, 3,554/0
sAutrefois acquit—Ingredients necessary—Is the plea available only if the previous
acquittal was on merits ?—Criminal Procedure Code, ss. 171, 172, 190, 191,194, 330 (1).
To maintain the plea of autrefois acquit under section 330 (1) of the CriminalProcedure Code it is not always necessary that the previous acquittal should bebased on an adjudication on the merits of the case.
Where a first trial had been held up to the stage of the closure of the prose-cution case and the accused was “ discharged ” solely on the ground that thecharge was framed under a wrong statute, the plea of autrefois acquit can bemaintained if the accused is prosecuted subsequently, under the correct statute,for the same offence.
(1956) 59 N. L. R. 476.
H. N. G. FERNANDO, J.—Premadasa v. Assen
PPEAL from a judgment of the Magistrate’s Court, Colombo.
M. M. Kumarakulosingham, with Malcolm Perera, for the accused-appellant.
J. A. D. de Silva, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 19, 1959. H. N. G. Fernando, J.—
The appellant was on the 18th of November, 1958, convicted by the-Magistrate of Colombo of an offence punishable under the ExplosivesAct, No. 21 of 1956. The only point argued at the appeal is one ofautrefois acquit.
On 20th January, 1958, a report was filed in terms of Section 148 (1) (6)of the Criminal Procedure Code alleging that this appellant had been in.possession of fireworks in contravention of the Explosives Regulations,1957, and had thereby committed an offence punishable under Section27 (1) of the Explosives Act, No. 21 of 1957 ; a charge framed in corres-ponding terms was read to him by the Magistrate on the same day..The trial took place on 12th March, 1958, on which day the case for theprosecution was closed and the appellant gave evidence in his defenceand was also cross-examined. At this stage, the Magistrate noticed thatthe charge was erroneous, because the Explosives Act is Act No. 21 of 1956and not No. 21 of 1957, which is a statute upon quite a different subject.The Magistrate then made order, stating that the charge was “ absolutelywrong ” and “ should have been made under Section 27 (1) of theExplosives Act, No. 21 of 1956 ”, and discharging the appellant. Thepresent conviction was entered after a second trial which was held aftera new (and correct) report had been filed and after the correct-charge, i.e., in relation to the Act of 1956, had been framed against theappellant.
The comparatively recent decision of Nagalingam, J., in Gunaratne v.Hendrick Appuhamy1 was given in circumstances very similar to those-which existed in the present case. The accused, a pawnbroker, wasalleged to have charged an excessive amount as interest or profit upona loan made by him on the pledge of a gold ring. By error, he was inthe first instance charged with an offence punishable under Section 8 ofCap. 75 of the Legislative Enactments. At the time of the alleged offence,Cap. 75 had been repealed and the relevant new statute was OrdinanceNo. 13 of 1942. After the case for the prosecution had been closed, thiserror was pointed out to the Magistrate who thereupon discharged the-accused.
(1950) 52 X. L. R. 43.
H. ,N. Gt. FERNANDO, J.—Premadaaa v. Assen
The correct charge (i.e., under Section 17 of the new.Pawn BrokersOrdinance) was framed in a subsequent prosecution of the accused andon that occasion the plea of autrefois acquit was upheld by the Magistrate,who acquitted the accused. The order of acquittal was affirmed on anappeal to this Court taken by the Crown. Nagalingam, J., observedthat the conduct alleged did constitute an offence because it was conductprohibited by Section 17 of Ordinance 13 of 1942 and that the wrong. understanding on the part of the prosecutor of the provision of law underwhich the accused could have been punished did not have any effect onthe offence committed. In the second prosecution the act he wasalleged to have committed was the same act which was the subject of thefirst prosecution. Reference was made in the judgment to the principlesaid to be applicable under the English Law that the plea of autrefoisacquit is only available if in the earlier proeeedings’the accused had been inperil of being convicted. With respect to this matter Nagalingam, J.,referred to the observation of Basnayake, J., in Solicitor-General v.Aradiel1 that “ Section 330 (1) is self contained and the question whethera plea under that section is sound or not had to be determined on aninterpretation of that section ”.
My own view of the matter is that if in any particular situation someprovision of the Code requires an order of acquittal to be made, thenthe order has necessarily to be made. Neither the consideration thatthere has not been an adjudication on the merits, nor the circumstancethat Section 330 will apply consequent upon acquittal, can in my opinionafford any justification for construing the word “ acquit ” or “ acquittal ”to mean a discharge. For present purposes I am content to point outthat the judgments of the majority of the Court in Senaratna v. Lenohamyet al.% make no reference whatever to Section 194. The effect of thatsection is that if a Magistrate having properly declined to adjourn ahearing when the complainant does not appear makes an order ofacquittal and thereafter properly declines to cancel his order (if cancella-tion is sought), then the order of acquittal will be a bar to a subsequentprosecution. Section 194 affords to my mind a perfect example of whatmay (to use the language of Wood Renton C.J.) “ be entirely contraryto the public interest that an accused person should be absolved for everfrom all further proceedings against him in respect of the offence thatformed the subject of the original charge ”.
Nevertheless that is the law under our Criminal Procedure Code, andit would not seem strange to me to find that other situations similar tothat envisaged in Section 194 should also result in orders of acquittalhaving the effect declared by Section 330.
Nagalingam, J., thought fit to distinguish the decision in Perera v.Johoran 3. That was a case of a prosecution for a contravention of aprice control regulation. The accused had originally been charged for anoffence alleged to have been committed in breach of a regulation whichhad been repealed prior to the date of the alleged offence. Op appeal
1 (1948) 50 N. L. R. 233.
3(1946) 47 N. L. R. 868.
* (1917) 20 N-. L. R. 44.
H. N. G. FERNANDO, J.—Premaiasa». Assen
against this conviction (vide Perera v. Johoran *). Canekeratne, J., heldthat because the regulation had been repealed the proceedings were ajnullity and therefore quashed the conviction.' In doing so he said “ I quashthe conviction and leave it to the authorities, if so advised, to take anyaction against the accused”. Subsequently the accused was againcharged, on this occasion with a breach of the relevant new regulationwhich had been in force at the relevant time. The accused was again;convicted, and on appeal, Dias, J., rejected the plea of autrefois acquit,relying to some extent on the English principle that there must be anacquittal on the merits. He interpreted the earlier order of Canekeratne,J., to be mere discharge and not an acquittal. With great respect it• seems to me that the circumstances with which Dias, J., had to deal wereno different from the circumstances in the case before Nagalingam, J.In each case the error of the prosecution was to frame the charge, asunder a repealed law, and in each case a first trial had been held up to thestage of the closure of the prosecution case. In neither case could therehave been a “ discharge ” properly so called because there is no provisionin the Code which enables a Magistrate to make an order of discharge afterthe closure of the case for the prosecution. Section 190 provides for averdict either of acquittal or of guilty after the evidence for the prosecutionhas been taken, and in my opinion the accused is by law entitled to such averdict. Section 191 only preserves the right of a Magistrate, for reasonsgiven, to discharge an accused at any previous stage of the case.
Accordingly, as was pointed out by Basnayake, J., in Solicitor-Generalv. Aradiela, there is no power for a Magistrate to make an order of dis-charge simpliciter where the case for the prosecution has been closedand the defence has either called evidence or announced that no evidenceis being called.
It seems to me that, in the case of the first prosecution instituted againstthis appellant, recourse might well have been had to Section 171 or toSection 172, either to disregard or else to correct an error in the chargewhich appears to have been quite innocuous to the defence ; but sinceno attempt was made at the proper time to utilize the provisions of lawwhich might have been available, the question of their applicability doesnot now arise.
For these reasons I am of opinion that the order made at the firsttrial amounted to an order of acquittal under Section 190, despite the •fact that the Magistrate purported to “ discharge the accused ” (/. H.Wanigasekera v. K. Simon3). The plea of previous acquittal has thereforeto be upheld. I accordingly quash the conviction and acquit theaccused.
1 (1945) 46 N. L. M. 333.
2 (1941?) 50 N. L. R. 233.
(1956) 57 N. L. R. 377.
Y. M. PREMADASA, Appellant, and T. E. R. ASSEN (Inspector of Police), Responde