092-NLR-NLR-V-63-ATTORNEY-GENERAL-Appellant-and-PIYASENA-Respondent.pdf
Attorney-General v. Piyasena
480
I
Present: Basnayake, C.J., Gunasekara, J., andT. S. Fernando, J.ATTORNEY- GENERAL, Appellant, and PIYASENA. RespondentS. C. 545—M. C. Chilaw, 25,279
Autrefois acquit—“ Acquittal ” on the ground that charge is illegal—■Liability ofthe accused to be prosecuted again for the same offence—"Discharge"—“ Acquittal ”—Criminal Procedure Code, ss. 2, 151 (2), 187 (2), 190, 191,194, 195, 290 (5), 330, 336.
Held (Basn’AYaice, C.J., dissenting) : Where, at the close of the prosecutionin a summary trial, the Magistrate purports to acquit the accused person on theground that the charge was illegally framed, the order of the Magistrate amountsin law to a discharge of the accused under section 191 of the Criminal ProcedureCode and not to an acquittal under section 190. In such an event, the accusedmay be prosecuted again for the same offence in fresh proceedings.
In Case No. 21419 the Magistrate purported, at the close of the evidence forthe prosecution, to acquit the accused on the ground that the accused, who hadappeared before the Court otherwise than on summons or warrant when hemade his first appearance, had been charged without any evidence being led asrequired by section 187 (1) of the Criminal Procedure Code. No appeal waspreferred against this purported acquittal. Subsequently the accused wasprosecuted again in the present case for the very same offence.
Held (Basnayake, C.J., dissenting), that the accused was not entitled toraise the plea of autrefois acquit under section 330 of the Criminal ProcedureCode.
Fernando v. Excise Inspector of Wennapuwa (1958) 00 H. L. R. 227, notfollowed.
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BASNAYAKE, C.J.—Attorney-General v. Piyasena
t_PPEAL. from a judgment of the Magistrate’s Court, Chilaw.
St. C. B. Jansze, Q.C., Attorney-General, with Ananda Pereira,Senior Crown Counsel, and V. S. A. Pullenayegum, Crown Counsel, forA ttoi'ney – General.
B. WikramanayaJce, Q.C., with M. M. Kumaralculasinghaniand A. K. Premadasa, for Accused-Respondent.
Cur. adv. vult.
January 24, 1962. Basnayake, C.J.—
This is an appeal by the Attorney-General against the order of theMagistrate of Chilaw acquitting the accused-respondent on a plea of pre-vious acquittal in M. C. Chilaw case No. 21419 raised under the authorityof section 330 of the Criminal Procedure Code. The charges in theinstant case are as follows :—•
“ You are hereby charged, that you did within the jurisdiction ofthis Court at Erunwila on 25th May 1957 manufacture an excisablearticle to wit arrack without a licence from the Government Agent,Puttalam, Chilaw District, in contravention of section 14(a) of theExcise Ordinance (Cap. 42) and thereby committed an offence punish-able under section 43(6) of the Excise Ordinance (Cap. 42).
At the same time and place aforesaid did possess and use a stillfor the purpose of manufacturing an excisable article other than toddyto wit arrack without a licence from the Government Agent, Puttalam,Chilaw District, in contravention of section 14 (e) of the Excise Ordin-ance (Cap. 42) and thereby committed an offence punishable undersection 43 (/) of the Excise Ordinance.
At the same time and place aforesaid did without lawful authorityhave in your possession an excisable article to wit 20 drams of arrackwhich had been unlawfully manufactured and thereby committed anoffence punishable under section 44 of the Excise Ordinance (Cap. 42). ”
The charges in M. C. Chilaw 21419 are as follows :—
“You are hereby charged that you did within the jurisdiction of thisCourt at Nankadawara on 25.5.57 did manufacture an excisable articleto wit arrack without a licence from the Government Agent, Puttalam,Chilaw District, in contravention of section 14a of the Excise Ordinance(Chapter 42) and thereby committed an offence punishable undersection 436 of the Excise Ordinance (Chapter 42).
At the same time and place aforesaid did possess and use a stillfor the purpose of manufacturing arrack without a licence from theGovernment Agent, Puttalam, Chilaw District, in contravention ofsection 14e of the Excise Ordinance (Cap. 42) and thereby committedan offence punishable under section 43/ of the Excise Ord. (Chapter 42).
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At the same time and place aforesaid did without lawful autho-rity have in his possession about 20 drams of unlawfully manufacturedarrack and thereby committed an offence punishable under section 44of the Excise Ordinance (Chapter 42). ”
The acquittal in case No. 21419 was on the ground that the Magistratehad framed a charge against the accused without adopting the procedureprescribed under section 187 (1) of the Criminal Procedure Code. Therelevant portion of the learned Magistrate’s order is as follows :—
“ Learned counsel for the accused at the close of the case for tbe pro-secution did not call any defence but brought to my notice that pro-ceedings were illegal in that the accused who appeared otherwise thanon summons or warrant has been charged without any evidence beingled as required under section 187 (1) of the Criminal Procedure Code.
I find upon a perusal of the record that the accused did not appearbefore this Court on summons or a warrant. The accused has beencharged without any evidence being recorded. In view of a recentdecision of the Supreme Court in S. C. 1345/M. C. Colombo No. 19682the proceedings are illegal. I therefore acquit the accused. ”
The plea of autrefois acquit is founded on section 330 of the CriminalProcedure Code. The relevant portion of that section reads—
** (1) A person who has once been tried by a court of competent juris-diction for an offence and convicted or acquitted of such offence shallwhile such conviction or acquittal remains in force not be liable to betried again for the same offence nor on the same facts for any otheroffence for which a different charge from the one made against himmight have been made under section 181 or for which he might havebeen convicted under section 182. ”
The question that arises for decision is whether the accused was “ triedby a Court of competent jurisdiction for an offence and acquitted of suchoffence and the acquittal remains in force. ” To decide that question itis necessary to look at what happened at the trial. The charges were readto the accused, he pleaded not guilty, the prosecution called its witnesses,they were cross-examined by the defence and re-examined by the prose-cution, and the prosecution case was closed. When the accused was calledupon for his defence his pleader stated that he was not calling any evidenceon the accused’s bebalf and made the submission that the charge wasdefective, in that the provisions of section 187 (1) had not been compliedwith, as the requirements of section 151 (2) of the Code had not beeno bserved. The learned Magistrate upheld this contention.
In my opinion the accused had been tried by.a Court of competentjurisdiction and acquitted, and his plea of autrefois acquit has been rightlyupheld.' In Mokideen v. Inspector of Police, Pettah it was held that non-compliance with the requirements of section 151 (2) of the Criminal Proce-dure Code renders the proceedings void and that such non-compliance
– 1 (-79-57) 59 N. L. R. 217.
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GTJUASEKAIfcA, J.—Attorney-General v. Piyasena
was not curable under section 425. The fact that the proceedings arevoid does not render an order of acquittal made by a Court of competentjurisdiction not an order of acquittal, while the order remains unreversedby the Appellate Court. The cases on the meaning of <c acquittal ”and “ discharge ” in regard to other sections of the Code, such as sections191 and 336 in my opinion have no application to section 330. Myview would apply equally to a case in which an accused person is com-mitted and punished without the requirements of section 151 (2) beingobserved. While the conviction remains unreversed the accused willhave to undergo the punishment imposed by the Court and if he ischarged for the same offence while the conviction remains in force he isentitled to plead the previous conviction in bar. I understand thewords “ remains in force ” in this context to mean unreversed by anappellate Court.
I am of opinion that the appeal should be dismissed.
Gunasekaea, J.—
The facts are set out fully in the judgment of my brother Fernando.
The question for decision is whether the order terminating the pro-ceedings in Case No. 21419 was an order of acquittal or an order undersection 191 of the Criminal Procedure Code, discharging the accused.The magistrate made this order holding that the proceedings were illegalt: as the accused appeared in Court otherwise than on summons or warrantand was charged without any evidence being led against him He wenton to say “ I therefore make order acquitting the accused ”. The questionis whether, notwithstanding the use of this language, the order was anorder of discharge merely. The question is not whether it was a rightorder or a wrong order of acquittal, but whether it was an order ofacquittal at all. If it was an order of acquittal it seems to me that it isimmaterial whether it was right or wrong : it was an order that waswithin the magistrates’ jurisdiction and had not been set aside by theSupreme Court and it would therefore bar a fresh prosecution of thesame offences. If it was an order of discharge merety, the magistratewas in error when he upheld the plea of autrefois acquit in the presentcase.
As my brother has pointed out, the words in which an order has beenexpressed are not conclusive of the question whether it is an order ofacquittal or of discharge, but it must be interpreted in the light of thecontext.
The order that is in question was made after the close of the case for theprosecution. It has been contended that it was too late at that stage foran order to be made under section 191 of the Code. I do not agree.Section 190 provides for the recording of an appropriate verdict imme-diately after the magistrate arrives at a finding of not guilty or of guilty,as the case may be. In terms of section 191 it is open to the magistrate
T. S. FERNANDO, J.—Attorney-General v. Piyaeena
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to discharge the accused “ at any previous stage of the case ”, He istherefore not prevented from making such an order after the close of thecase for the prosecution, so long as he makes it before he arrivesat a verdict.
A verdict connotes a charge of an offence. A conviction or acquittalof an accused person can have no meaning except in reference to a charge.The ground of the order which terminated the proceedings in CaseNo. 21419 was that those proceedings (which purported to be a trialof a charge) were illegal for the reason that there was no valid charge.There can be no difference that is material to the present purpose betweenthe absence of a charge and the absence of a valid charge. Therefore,when the magistrate, having held in effect that there was no charge uponwhich the accused could be acquitted or convicted, declared that he wasmaking an order “ acquitting ” the accused, he must be taken to haveused this word inadvertently. Construed in the light of the context,the order was in reality an order discharging the accused, although itdid in terms purport to be an older acquitting him.
I agree with Fernando J. that the appeal must be allowed.
i
T. S. Fbbn-ajstdo, J.—
The question that arises upon this appeal is whether an order purportingto acquit an accused person at the close of the prosecution in a summarytrial in a Magistrate’s Court on the ground that the charge was illegallyframed amounts in law to an acquittal or only to a discharge of theaccused.
It is necessary to state some facts relevant to the consideration of thisquestion :—
V. Appapillai, Inspector of Excise, reported to the Magistrate’s Courton June 5, 1957 in terms of section 148 (1) (6) of the Criminal ProcedureCode that the accused G. S. Piyasena- had on or about May 25, 1957, inthe course of one and the same transaction committed three offencespunishable under sections 42,43 and 44 respectively of theExciseOrdinanceThe proceedings that commenced in the Magistrate’s Court on presen-tation of this report were numbered 21419. At the close of the evidencefor the prosecution the pleader for the accused submitted to the Magistratethat the proceedings had were illegal inasmuch as the accused who hadappeared before the court otherwise than on summons or warrant when hemade his first appearance there had been charged without any evidencebeing led as required by section 187 (1) of the Criminal Procedure Code.The Magistrate on February 5, 1958, holding that he was bound by thedecision of the Supreme Court in Jlohideen v. Inspector of Police, Pettak l,stated that the proceedings held were illegal and purported to acquit theaccused. No appeal was preferred against this purported acquittal.Instead, Inspector Appapillai on February 26, 1958, presented anotherreport, also under section 148 (1) (6) of the Code, to the same Magistrate’s
1 (19*7) 59 N. L. R. 217.
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T. S. FERNANDO, J.—Attorney-General v. Piyasena
Court in respect of the alleged commission by the accused of the very sameoffences specified in his earlier report in Case No. 21419. Proceedings hadon the subsequent report were numbered 25279.
Summons issued on the accused, and when he appeared on summonshe pleaded not guilty upon being charged by the Magistrate with thecommission of the three offences alleged in the report. The pleader forthe accused contended that his client had already been acquitted on theseidentical charges in case No. 21419., and that that acquittal was a bar tohis being prosecuted in the present case No. 25279. This plea of autrefoisacquit was tried as a preliminary issue and, after the production of certaincourt records and after he had heard argument, the learned Magistrate (whoincidentally was the same Magistrate who had made the order in caseNo. 21419) on April 27, 1959 upheld the plea. The appeal now before usis one preferred by the Attorney-General who has a right under section338 (2) of the Code to prefer an appeal to this Court against any judgmentor final order pronounced by a Magistrate’s Court.
The Attorney-General contended (1) that if the charge in case No. 21419was bad in that it was illegally framed, then there could have been novalid trial at all, and that neither a conviction nor an acquittal could havefollowed on such a charge ; and (2) that to maintain successfully a plea ofautrefois acquit there must have been a previous acquittal on the merits.
In considering the first of these contentions, it is necessary to advert tothe decision of this Court in Mohideen v. Inspector of Police, Pettah (supra).That was a decision on an appeal referred to a bench of three judges interms of section 48 of the Courts Ordinance, and, although the headnoteof the report of that case appearing in the New Law Reports summarisesthe decision as being that a charge framed in the circumstances thatexisted in that case was an irregularity that cannot be cured by applyingthe provisions of section 425 of the Code, it would be more accurate tostate that the main judgment of the majority which was delivered byDe Silva J. held that the charge was illegal. In the judgment of theChief Justice too the procedure followed was characterised as being morethan a mere irregularity and, as he expressed the opinion that the case ofVargheese v. Perera1 (where it was held that the absence of a valid chargewas not merely a curable irregularity but an illegality) was rightly decidedit would be proper to assume that he too held that the charge was illegal.I find that Pulle J. who was the dissenting judge in Mohideen's casestates that he agrees with the other two Judges that, if the Code ordains aprocedural step to be taken preliminary to the framing of a charge, thefailure to take that step would vitiate the charge. Mr. Wikramanayakesubmitted that the charge in case No. 21419 was defective only, and'notillegal. I am unable to agree. The view of the majority of the bench inMohideen's case was that the charge was illegal, and for that reason alonethe proceedings had to be quashed and the case remitted for trial upona legally framed charge.
1 {1942) 43 N. L. R. 564.
T. S. FERNANDO, J.—A.tUrmey-Qeneral v. JPiyasena
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The correctness of the decision in Mohideen v. Inspector of Police, Pettah{supra) was not raised before us, and I may say that in any event it isnot competent for us sitting as a bench of three judges to review a decisionalso of a bench of three judges. We must therefore on this appeal pro-ceed on the basis that the decision in Mohideen’s case is binding on us.It is right, however, to take note here of the fact that the courtthat decided Mohideen’s appeal ordered the accused to be tried on a validlyframed charge. If, as Mr. Wikramanayake contended before us, theonly order a Magistrate can make after the case for the prosecution hasended is one of acquittal, whether the charge has been legally framed ornot, then an examination of the facts of Mohideen s_ case will show that itwould not have been competent even for the Supreme Court, section 347of the Criminal Procedure Code notwithstanding, to have directed aretrial.
The learned Magistrate in upholding the plea of autrefois acquit felthimself bound, as indeed he was in law, by the decision of this Court inFernando v. Excise Inspector of Wennappuwa x, a case where the circum-stances were exactly the same as those in the appeal now before us.Weerasooriya J. there upheld a plea of autrefois acquit. If this last-mentioned appeal has been correctly decided, this appeal must be dis-missed. The contentions pressed before us by the learned Attorney-General were substantially the same as were considered byWeerasooriya J. With great respect to the latter, I am, however, ofopinion for reasons which I shall endeavour to set out below that thefirst contention of the Attorney-General is sound and must be upheld.
If a conviction on a particular charge cannot be sustained because thatcharge has been illegally framed, I am frankly unable to understand howan acquittal on a charge framed in similar circumstances can be upheld.
If the one is unsupportable, the other must be equally unsupportable.
I must also refer to the circumstance that the Magistrate in making hisorder in case No. 21419 purported to acquit the accused. It has beenheld by this Court in many cases spread over a long number of years thatthe phraseology used by a judge is not conclusive of the question of thenature of the order he intended to make. In all cases it is a question ofinterpreting the nature of the order made after an examination of therelevant proceedings. To take any other view could involve, among othersurprising results, depriving an accused person of the benefit of an orderof a Magistrate acquitting him merely because the Magistrate has des-cribed that order as a discharge. It is therefore competent for us toexamine the nature of the order of February 5, 1958 and to decide whetherit is an order of discharge or one of acquittal.
A view has sometimes been expressed, and this view has been sub-mitted to us by Mr. Wikramanayake as being a correct view, that afterthe prosecution evidence has been taken a verdict of guilty or not guiltyhas to be entered by the Magistrate who tried the case summarily, andthat after that stage it is not competent for him to make an order of
1 (1958) 60 N. L. R. 22?,
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T. S. FERNANDO, J.—Attorney-General v. Piyasena
discharge. This view has been based on the wording of section 191 of theCode which permits a “ discharging (of) the accused at any previousstage of the case ”, and the expression “ previous stage ” has been taken asmeaning, in the context, previous to the close of the prosecution case.One can however, for example, think of cases where some inadmissibleevidence is elicited in the course of the taking of evidence for the defence.As the Attorney-General argued, could it be said that in those circum-stances the accused has to be acquitted because it is too late to make anorder discharging him ? I am inclined to take the view that “ at any pre-vious stage of the case ” contemplates a stage previous to the entering ofthe verdict of guilty or not guilty and not merely a stage previous to theclosing of the case for the prosecution.
To return to the first contention of the Attorney-General specifiedalready, the Code has made provision for a trial taking place upon a changeframed in accordance with the procedure laid down, that is to say, upon acharge framed in accordance therewith, and not illegally framed. InAbeysekera v. Ooomewardene 1 Abrahams G. J. in quashing proceedingsthat had ended in a conviction of the accused persons, observed “ Thereis then the absence of a charge and there is ample authority that theabsence of a charge vitiates the proceedings The charge in that casewas held not to have been framed as required by the provisions of section187 (1) of the Code, and in that sense it was concluded that there was novalid charge. The trial was declared to be illegal ah initio.Weerasooriya J. in Fernando v. Excise Inspector of Wennappwwa (supra)took the view that the observations of Abrahams C. J. in that case did notimply that a trial taking place on a defectively framed charge, or withoutany charge at all, is a proceeding entirely outside the scope of the Magis-trate’s jurisdiction. With great respect, I am unable to agree. As Iunderstand it, the charge is the very foundation of a criminal case, and ourCourts have consistently taken the view that where the charge is defectivein the sense that it is illegal, and a fortiori where no charge has been framedat all, a conviction cannot be maintained. I am quite unable to see how adistinction can be made when the question to be considered is whether anorder can be maintained as an acquittal where it flows from an illegalcharge or without any charge at all. The question cannot, in my opinion,be approached one way when the validity of a conviction is underconsideration and in a different way when the validity of an acquittalis being examined.
More to the point than Abeysekera v. Goonewardene (supra) is the earliercase of Rosemcdecocq v. Kaluroa 2 which is also a decision of Abrahams C. J.where the learned Chief Justice, in setting aside a conviction because acharge was illegal on account of misjoinder of accused and charges,observed :—
“ I can no doubt order a new trial. On the other hand, if I do not
make any order for a new trial, can I prevent the prosecution of the
appellant on the same facts ? If I have the power to make an order of1 {1938) 39 N. L. R. 525.* {1936) 38 N. L. B. 373.
T. S. FERNANDO, J.—Attorney-(General v. Piyasena
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acquittal, that would prevent the appellant being put upon his trialagain. Counsel for the appellant argues that X can make an order ofacquittal. He cites to me the case of Mendis v. Kaithan Appuhamy1where Drieberg J., following MacDoneU C. J. in Marambe v. Kiriappu a,allowed an appeal and acquitted the appellant on the ground that tosend the case back for retrial in such circumstances as those whichexisted in the case in question would encourage slackness and inexacti-tude on the part of prosecutors. I have not examined either of thosecases very closely, because if the learned judges who tried those casesare to be taken to have implied that an Appellate Court would acquit ina case where a trial was void I should respectfully-differfrom them as, inmy opinion, any illegal trial is no trial at all, and, therefore, an acquittaleither by the trial Court or an Appellate Court would be ineffective ”.
This case does not appear to have been brought to the notice ofWeerasooriya J.
I might also refer to certain observations made by Gratiaen J. in Wani-gasekera v. Simon 3 which have some relevance to the contention that I amnow examining. Said that learned judge :—■** As at present advised, Itake the view that under our Code, as in England, a plea of autrefoisacquit presupposes that the indictment or accusation in the earlier pro-ceedings was sufficient in law to sustain a conviction for the offence chargedon the second trial. Similarly, an order “ discontinuing ” the proceedingsagainst an accused person on the ground that the charge is defective operatesonly as a “ discharge ” under section 191. In such an event, the purportof the Magistrate's decision is that there is no charge upon which a verdict(either of conviction or acquittal) under section 190 can properly be based ”.
I am in respectful agreement with the observations of both these learnedjudges and, rightly appreciated, they provide the correct manner in whichthe question I am now considering is to be approached. I might herealso draw attention to the definition of the expression “ discharge ” con-tained in the interpretation section (section 2) of the Criminal ProcedureCode. “ Discharge ”, with its grammatical variations and cognate ex-pressions, means the discontinuance of criminal proceedings against anaccused, but does not include an acquittal. This interpretation wasstressed by Wood Renton C.J. in the Divisional Bench decision inSenaraine v. Lenohamy4 where a majority of the Court held that thedischarge of an accused without trial under section 191 of the Code is nobar to the institution of fresh proceedings against the accused.
Then again, in the case of Perera v. Johoran 5, where after the AppealCourt had quashed a conviction of an accused person on the groundthat he had been charged under a Regulation which had been repealed,the accused was charged subsequently under the ^proper Regulation inrespect of the same act, the Supreme Court held that the plea of autrefois
* (1935) 37 N. L. R. 285.* (1956) 57 N. L. R. 377 at 381.
(1932) 2 C. L. TF. 122.4 (1917) 20 N. L. R. 44.
(1946) 47 N. L. R. 568.
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acquit was not available to the accused. Dias -J. stated that inthe earlier trial the accused was never in peril of conviction because, aswas judicially declared by Canekeratne J., it was a nullity. Therefore theaccused did not stand in jeopardy of conviction in that case He cited,apparently with approval, the observation of Abrahams C.J. in Rosemale-cocq v. Katuwa {supra) that an illegal trial is no trial at all, and, there-fore an acquittal either by the trial Court or an Appellate Court would beineffective.
In Gunaratne v. Hendrick Appuhamy1, where an accused person whohad been acquitted on the ground that the charge against him was laidtinder a repealed Ordinance was subsequently charged, upon the samefacts, with the commission of an offence under the proper enactment,Nagalingam J., in spite of the decision in Perera v. Johoran {supra), up-held a plea of autrefois acquit although he observed that Perera v. Johoranwas, having regard to its particular facts, correctly decided- He sought todistinguish that case as being inapplicable to the case he had to decidebecause the Supreme Court in Perera v. Johoran {supra) had quashed theconviction at the first trial and the authorities were left, if so advised, totake any action against the accused. In regard to the distinction sosought to be made, it seems to me that any observations of the AppellateCourt regarding what proceedings were available to the prosecution afterthe conviction at the first trial had been quashed cannot affect the inter-pretation of the nature of the order in that first trial. That order wasone of discharge and not of acquittal.
Section 330 of our Criminal Procedure Code seeks to embody theEnglish law doctrine of autrefois convict and autrefois acquit. In spite ofobservations to be found in some of the decisions of our Courts that thedoctrine so embodied in section 330 is not precisely the same as thatobtaining in England, I must confess that I do not appreciate that anyreal distinction exists. I am in agreement with the view expressed byDias J. in Perera v. Johoran {supra) that the English law principle is alsothe law of Ceylon. He there expressly rejected an argument that becausethe Magistrate in the earlier case might by amending the charge haveconvicted the appellant and because the judge in appeal might havedone the same thing, therefore the doctrine of autrefois acquit applies asa bar to the subsequent charge. Nagalingam J. in Guneratne v. HendrickAppuhamy {supra), although he approved of one part of the decisionin Perera v. Johoran {supra), does not say whether he approves or dis-approves of the rejection by Dias J. of the argument referred to above.His reference to the English decision in Hoisted v. Clark 2 appears to indi-cate that he would not have approved of the rejection of that argument.But the observations of Lawrence J. in the English case will show thatthe decision there rested on the view taken that at the earlier trial, havingregard to the evidence given for the prosecution, it was useless to haveamended the summons as no offence appeared to have been committed.
1 {1950) 52 N. L. A. 43.
• (1914) 1 A. B. A. 270.
T. S. FEBNANBO, J.—Attorney-General v. Biyasena
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Nagaiingam J. held that in bath cases the accused was charged withthe commission of the same offence. An offence is defined by our Code(section 2) as meaning any act or omission made punishable by any lawfor the time being in force in Ceylon. If this definition is kept in mind,it seems to me that, where a person is first charged with the commissionof an act or an omission constituting an offence under a repealed law,and is charged at a second trial in respect of the commission of the sameact or omission constituting an offence under the existing law, he is notcharged with the commission of the same offence.
Sir. Wikramanayake referred us to the case of Solicitor-General v.Aradiel1 where my Lord, the Chief Justice (when he was a Puisne Justice)took the view that, where at the close of the case for the prosecution theaccused called no defence but took objection to the validity of thesummons and the Magistrate “ discharged ” the accused, the orderamounted in reality to an acquittal. This view appears to have beentaken because the Magistrate made the order after the prosecution wasclosed, a stage after which, according to the learned judge, it was notopen to the Magistrate to make an order merely of discharge. I havealready indicated earlier in this judgment my opinion that at whateverstage the discovery is made, if a charge is found to be illegal, neithera conviction nor an acquittal can result in that proceeding unless thecharge is subsequently rendered legal, and do not therefore find itnecessary to add to the reasons which induce me to uphold the first of theAttorney-General's contentions.
There is, however, one other case to which I must refer, and that isAttorney-General v. Silva 2, where H. N. G. Fernando J., taking the viewthat there is no express provision in the Code empowering an order of dis-charge to be made at a stage subsequent to the closure of the case for theprosecution, upheld a plea of autrefois acquit based on an order of “ dis-charge ” made by a Magistrate who discovered at the end of theprosecution case and after the accused had stated that he was offering noevidence that no charge had been framed at all in spite of an entry in therecord that the accused was charged “ from an amended charge sheetIt must however be mentioned that the learned judge treated the case asone involving a charge of a comparatively minor nature which had beenpending against the accused for nearly two years and expressly stated thatthe question whether an order of discharge and not of acquittal couldproperly be made in circumstances such as those in the case before himmerited consideration by a fuller Bench.
In regard to the second of the Attorney-General’s contentions, that toput forward successfully a plea of aulrefois acquit there should have beenan acquittal on the merits, as it has been termed, in view of the opinion Ihave formed on the first contention that the proceedings had subsequentto the illegally framed charge are bad in law and that therefore the ordermade by the Magistrate on February 5, 1958 amounts to no more than aninconclusive order of discharge and that the appeal must be allowed on
1 {1948) 50 N. L. R. 233.
2 (1959) 61 N. L. R. 454.
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T. S. FERNANDO, J.—Attorney-General v. Piyasena
that ground, I do not feel called upon to consider at any length this secondcontention. As the matter has, however, been argued before us, it maybe useful if I set down very shortly what appears to me to be a tenableposition under our law of criminal procedure.
In Fernando v. Rajasooriya, Inspector of Police 1, Soertsz J. did observethat a decision upon the merits is essential for a valid plea of autrefoisacquit. Gratiaen J. in Wanigasekera v. Simon {supra) also remarked thatthe true test is whether (at whatever stage the decision was made) theMagistrate actually intended to record a verdict of acquittal on the merits.And quite recently, Sansoni J. in The Attorney-General v. Kiri Banda 2himself favoured the view that an acquittal to operate as one made undersection 190 of our Criminal Procedure Code must be one made on themerits and on no other ground. I am aware that certain other judgmentsof this Court have taken the view that an acquittal under our CriminalProcedure Code does not necessarily mean an acquittal on the merits.This view appears to have been influenced largely by the consideration thatsections 194 and 195 of the Code contemplate orders which are termedacquittals and which certainly are not made after the merits of the casehave been adjudicated upon by the Court. But an examination of thosetwo sections will demonstrate that the orders there termed acquittalsfollow upon (1) the absence of the complainant at the hearing of the case(section 194) and (2) the withdrawal of the charge by the complainant(section 195). In both circumstances the legislature can be said to havecontemplated a situation equivalent to an absence of merits in thecomplaint. The only other case where an acquittal otherwise than on themerits may be said to be sanctioned by the Code is to be discovered insection 290 relating to the compounding of offences. Sub-section (5) ofthat section declares that the compounding of an offence thereunder shallhave the effect of an acquittal. The compounding of an offence cannotordinarily be looked upon as an acquittal, but the law deems it an acquittalin the sense that it carries with it the consequences attaching at law to anacquittal. It is in the nature of an exception to the principle that anacquittal must involve a decision on the merits. The case of com-pounding apart, the instances of acquittals under sections 194 arid 195and even the cases in which orders, although described indiscriminatelysometimes as a discharge and at other times as an acquittal, have beenheld to operate as acquittals where the prosecution found itself unableto proceed with a case on account of its inability to secure the attendanceof necessary witnesses in spite of reasonable opportunity afforded bythe court to do so can not unfairly be described as examples of caseswhere at the time the proceedings end or are taken to have ended theprosecution has been unable to establish to the satisfaction of the courtthat there are merits in its case. I do not, however, consider it necessaryto elaborate on this idea as the opinion I have reached on the question ofthe legality of the proceedings in case No. 21419 is a sufficient answer tothe question we are here called upon to decide.
» (1944) 47 N. L. R. 399.
8 (1959) 61 N. R. R. 227 at 229.
SINNETAMBY, .T.—Noris v. Oh<tries
501
As the charge in case No. 21419 was, in my opinion, illegally framed,the order made by the Magistrate on February 5, 1958 operates merelyas a discharge and not as an acquittal. I would allow the appeal andremit case No. 25279 to the Magistrate’s Court for trial according to law.As nearly five 3*ears have elapsed since the date of the commission of theoffences alleged, and as the question of law has now been decided, theprosecution should consider whether it is necessary to go on with thisproceeding.
Appeal allowed.