096-NLR-NLR-V-58-DAHANAYAKE-Appellant-and-P.-B.-RATNAYAKE-Inspector-of-Police-Respondent.pdf
1957Present ; Sinnetamby, J.
D AH AN A YAK B, Appellant, and P. B. llATXAYAKIi(Inspector of Police), Respondent
S. C. 1155—31. C. Colombo South. 75,1 SI
Autrefois acquit—“ Discharyc"—“ Acsjuillnl ”—Criminal 1‘roccdurc Code, ss. 100,
101, ZZO.-
In easo No. 72,S35 tho accused was charged with certain offences. On. tholast date of hearing tho prosecuting Inspector applied for a postponementand, when it was refused, ashed for a warrant on an absent witness. Thoaccused was thereupon “ discharged ”. I To was subsequently charged in thopresent ease in respect of tho sumo oilences.
Held, that tho order of discharge in easo No. 72S35 must bo regarded nsan order mado under section 100 of the Criminal J’roccduro Codo and onowhich amounted to an order of acquittal. The accused was therefore entitled' to plead “ aulrejois acquit ” in tho present case.
jAlPPEAL from a judgment'of tho Magistrate's Court, Colombo South.
Neville Wijeraine, for the accused-appellant-.
S. Pas upal i, Crown Counsel, for the Attorney-General.
Cur. adv. vuU.
February 20, 1057. Sisnktamby, J.—
The accused in this case was charged with committing certain offencesmade punishable under the Motor Traffic Act. When tho case was takenup for trial on 13/9/50 the accused-appellant pleaded "autrefoisacquit ” in as much as he had earlier been charged in respect of thosame offences in M. C. Case No. 72S35 and discharged. The learnedmagistrate held that the provisions of section 330 of the Criminal Pro-cedure Code did not apply to the facts of this case and that tho pleafailed. The accused was tried and convicted and ho appeals against(lie order of the learned magistrate.
The question that arises for consideration is whether on the facts ofthis case the order of discharge made by the learned magistrate in M. C.Case No. 72,S35 is an order under section 190 of the Criminal ProcedureCode and therefore amounts to an acquittal although the word usedis " discharged The fact that the magistrate used the word£- discharged ” is not conclusive of the matter and does not per semake it an order under section 191. One has to consider the facts todecide whether the order is made under section 190 in which event theplea of “autrefois acquit ” is available irrespective of the word used interminating the proceedings or whether it comes under section 191 inwhich event the plea is not available.
A distinction was sought to bo drawn by learned Crown Counselbetween the present ease and the cases of Don Abraham v. Chrisloffelsz 1,Adrian Dias v. Weerasingham2 and K. Edwin Singho v.P.S. Nanayakkara?.In all these eases on the magistrate refusing a postponement the prose-cuting officer stated that ho could nob go on with the case or made astatement to that effect. In tho present case the inspector askedfor a date and when it was refused askccl for a warrant on an absentwitness. Twice previously the case had been postjionecl because of theabsence of this same witness who was a sergeant in the Police Force andthe magistrate refused the application, but there is nothing on recordto indicate that the prosecuting inspector had stated that he was unableto proceed without the evidence of the absent witness.
* {1953) 55 Ar. T,. 11. 135.
1 {1953) 55 Ar. L. Tt. b2.
{1956) 53 C. h. II'. 95.
In my view it makes no difference whether the record contains anentry to the effect that the prosecution offers no evidence in supportof the charge or not. If from the facts it is clear that the prosecutionis unable to go on with the case tho order terminating the proceedingsmust be deemed to be an order of acquittal.
If the prosecuting inspector was able to go,.on I have no doubt howould have expressed his willingness to do so and the magistrate wouldthen have been obliged to hear the evidence : the fact that he evenapplied for a warrant on the absent witness who was a member of thePolice Force shows what importance ho placed on this witness’s evidence.On the facts it is reasonable to infer that the proceedings on the last^late of hearing in M. C. Case No. 72,S35 were terminated because theprosecution had no evidence to offer or felt that the evidence availablewas insufficient to substantiate the charge. The order of discharge musttherefore be regarded as an order made under section. 190 of the CriminalProcedure Code and one which amounts to an order of acquittal. Theplea of “ autrefois acquit ” should therefore be upheld. I sot aside theorder of the learned magistrate and acquit the accused.
Appeal allowed.