Attorney-General v Ratnayake and Another
RATNAYAKE AND ANOTHERCOURT OF APPEALFERNANDO, J.
C.A.(PHC) 20/2001PHC PANADURA 52/99M.C.PANADURA 55347OCTOBER 4 and 31,2002
Penal Code – S. 316 – Certificate of Non-settlement from Mediation Board nottendered – Accused discharged – Referred to Mediation Board – Non settlementcertificate missing from Record – Discharged – Fresh action instituted – CriminalProcedure Code S. 2, 3, S. 188(3) – Does this amount to an acquittal? – Appealnot lodged – Should the Court of Appeal act in Revision ?
The two accused respondents were charged in case No. 4419, M.C.Kesbewaunder s. 316 Penal Code, on 2.7.97, it was found that the Certificate of non set-tlement from the Mediation Board had not been tendered, and the court madeorder to refer to the Mediation Board, "till then the accused being discharged”. Thecase was reopened after the certificate had been tendered. When it was calledon 25.12.95, for trial, the accused were discharged again, as the non-settlementcertificate couid not be found in the Record.
Subsequently the prosecution filed case No. 55347. The accused objected stat-ing that they had been discharged twice and therefore it amounted to an acquit-tal. The Magistrate rejected this objection. The High Court acting in Revision, setaside the order.
The Attorney-General moved in Revision.
It is clear that, the trial court has conditionally released the two accused, sub-ject to the condition that the case be re-opened when the non settlement cer-tificate is available. It is not a discharge under S. 188(3).
The second discharge is also erroneous – Court should have called foranother copy of the certificate.
Importance of the issue and the injustice caused to the virtual complainantwarrant intervention by Revision.
APPLICATION in Revision against the Order of the High Court of Panadura.
P.P. Surasena S.C., for petitioner
Saliya Peiris with Upul Kumarapperuma for respondent.
Sri Lanka Law Reports
(2003) 3 Sri L.R
June 17, 2003RAJA FERNANDO, J.
This is an application for revision filed by the Attorney-Generalto set aside the order of the learned High Court Judge dated07.11.2000 wherein the High Court Judge acting in revision has setaside the order of the Magistrate.
When the application for revision was taken up learned coun-sel for the respondents took up a preliminary objection that the peti-tioners have failed to exercise their right of appeal against the orderand therefore unless exceptional grounds are shown the Court ofAppeal should not exercise their powers of revision. Having con-sidered the importance of the issue raised by the petitioners andthe injustice caused to the virtual complainant we think this is a fitcase in which the revisionary jurisdiction of this court should beexercised.
The 1st and 2nd accused petitioners-respondents werecharged in the Magistrate’s Court of Kesbewa in case No. 44119under section 316 of the Penal Code.
When the case came up for trial on 02.07.97 it transpired thatthe certificate of non-settlement from he mediation board was nottendered to court and accordingly the accused were discharged.The journal entry of 02.07.97 reads “Ordered to refer to the media-tion board, till then the accused are discharged.”
Journal entry of 13.11.97 indicates that the case wasreopened after the non-settlement certificate has been tendered.
When the case was called on 25.12.98 for trial the accusedhave been again discharged as the non-settlement certificate couldnot be found in the record.
Subsequently the prosecution has filed case No. 55347against the accuseds. Counsel for the accuseds then raised theobjection that there had been two discharges earlier and thereforein terms of section 188(3) of the Code of Criminal Procedure Act itamounted to an acquittal. The learned Magistrate has rejected thesubmission of the accuseds and the accuseds have moved torevise this order in the High Court.
Attorney-General v Ratnayake and Another
(Raia Fernando. J.)
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 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.