By this order criminal proceedings against the accused wasnot discontinued but only stayed unitl the non-settlement certificateis filed after the matter was referred to the mediation board.
Therefore it is our view that the order of the learned Magistratemade on 02.07.97 does not fall within the definition of a dischargecontemplated under section 188(3) of the Code of CriminalProcedure.60
When the case was re-opened on 13.10.97, the non-settle-ment certificate has been tendered to court – vide journal entry of13 10 97 where it stated-
The High Court of Panadura acting in revision has revised theorder of the learned Magistrate and acquitted the accused.
This application is to revise the order of the High Court.
On behalf of the state it was submitted that in the first instancewhen it was brought to the notice of court that the non-settlementcertificate has not been filed the learned Magistrate could not havedischarged the accused as the court did not have jurisdiction to 40adjudicate upon the matter.
On behalf of the accused-petitioner-respondents it was sub-mitted that according to section 2 of the Criminal Procedure Codea discharge means the discontinuance of criminal proceedingsagainst an accused and therefore the first discharge was a properdischarge as contemplated under the Criminal Procedure Code.
When one carefully examines the Order of the learned trialjudge made on 02.07.97 it is clear that the learned Magistrate hasconditionally released the accused petitioners-respondents subjectto the condition that the case be reopened when the non-settlement socertificate is available.
108Sri Lanka Law Reports[2003] 3 Sri L.R
On 26.2.98 when the case came up for trial the journal entryrecords thus:

This order of the learned Magistrate is clearly erroneous.
On 13.10.97 the certificate of settlement has been tendered toCourt. If on the 26.02.98 the Certificate was not found in the recordit is the responsibility of court. Once a document is tendered tocourt it has to be kept in the custody of court and the court cannotshift that responsibility to others.
If the certificate of non-settlement was missing from the caserecord as it seems to have happend here the court should havecalled for another copy of the non-settlement certificate and pro-ceeded to trial.
Therefore we find the discharge of the accused by the learnedMagistrate on 26.02.98 erroneous.
Hence it is our conclusion that there had been non dischargeof the accused-petitioner-respondents either on 13.10.97 or on26.02.98.
Therefore the order of the learned High Court Judge of07.11.2000 holding that there had been two discharges is set asideand we affirm the finding of the learned Magistrate that the Ordersmade on 13.10.97 and 26.02.98 do not amount to discharge undersection 188(3) of the Code of Criminal Procedure and direct thelearned Magistrate to proceed to trial in M.C. Case No. 55347against both accused.
The application for revision is accordingly allowed.
•The Registrar is directed to send copies of the Order to theHigh Court of Panadura and the Magistrate’s Court of Kesbewa.
EDIRISURIYA, J. – I agreeApplication allowed
Magistrate directed to proceed to trial in MC 55347 against bothaccused.