Dias v. Iyasamy.
1940Present: Hearne J.
DIAS v. IYASAMY.
293—M. C. Panadure, 5,447.
Order of discharge—Defective charge—Withdrawal of complainant—Dischargeof accused—Plea of Autrefois acquit—Criminal Procedure Code,ss. 191,195.
The accused was charged with being in “ possession ” of certainweights and measures which had not been stamped in breach of section16 of the Weights and Measures Ordinance, while the section requiresthat such unstamped weights and measures shall be proved to have beenfound in premises used for trading.
HEARNE J.—Dias v. lyasamy.
On the day of trial the complainant realizing that the charge wasdefective withdrew and the accused was discharged.
Held, that the order made by the Magistrate was an order of dischargeunder section 191 of the Criminal Procedure Code and that it was notopen to the accused to plead autrefois acquit.
The scope of section 195 of the Criminal Procedure Code explained.
^ PPEAL from a conviction by the Magistrate of Panadure.
C. V. Ranawake, for accused, appellant.
A. C. Z. Wijeratne, for complainant, respondent.
Cur. adv. vult.
November 26, 1940. Hearne J.—~
The complainant, the Examiner of Weights and Measures of theUrban Council, Panadure, purported to charge the appellant with anoffence under section 16 of the Weights and Measures Ordinance (Cap.127). I use the word “ purported ” advisedly, for while he allegedthat the appellant had contravened the provisions of section 16, thefacts disclosed did not amount to a breach of that section. The plaintstated that the appellant was “ in possession ” of certain weights andmeasures which had not been stamped as provided by law, while section16 requires that such unstamped weights and measures shall be provedto have been found in premises used for trading. The appellant pleadednot guilty and on the day fixed for trial the complainant, who had by thenrealized the defectiveness of the charge, withdrew and the appellant wasdischarged. Thereafter the complainant filed a fresh plaint in whichthe facts necessary to constitute the offence were set out and, after trial,the appellant was convicted. The short point for decision is whetherthe plea of autrefois acquit which was raised in the latter proceedingsshould have been sustained.
Under section 330 of the Criminal Procedure Code “ a person who hasonce been tried by a court of competent jurisdiction for an offence andconvicted or acquitted of such offence shall while such conviction oracquittal remains in force not be liable to be tried again for the sameoffence …. ” Was the appellant tried a second time for an
offence of which he had been previously tried and acquitted ?
“ Under English law unless an acquittal is on the merits, i.e., byverdict on the trial, or in summary cases by dismissal on the meritsfollowed by a judgment of acquittal, it does not operate as a bar. ”
The position is different under our Code in which acquittal is given anartificially wide meaning. For instance, under section 194 if the com-plainant does not appear on the day fixed for trial the Magistrate shallacquit the accused, unless he thinks proper to adjourn the hearing of thecase. If he acquits then, subject to the proviso in the section, theaccused is entitled to the benefit of section 330. He is deemed to havebeen tried and acquitted, although no trial in any sense of the wordhad taken place. So strictly has this section been construed that evenwhere the accused, against whom'process had been issued, was alsoabsent, an order of acquittal was held to entitle him to raise the plea ofautrefois acquit
* id Mad. 253.
HEARNE J.—Dias v. Iyasamy.
Again under section 195, if the complainant satisfies the Magistratethat there are sufficient grounds for permitting him to 'withdraw, theMagistrate may permit him to do so and shall thereupon acquit theaccused. Notwithstanding the fact that no trial takes place the accusedin law has been tried and acquitted with the meaning and for thepurposes of section 330.
If, therefore, the Magistrate’s order in the present case was madeunder section 195, it is in effect an order of acquittal and must be soconstrued, even though he has used the word “ discharge
A source of much confusion and not a little trouble in Ceylon is section191. Under the Indian Code, when an accused person is tried summarily,if a Magistrate does not find him guilty he must record an order ofacquittal. No order of discharge can Be made. Section 191 of ourCode, however, gives the . Magistrate the power to “ discharge theaccused ”. It happens, therefore, that when a Magistrate makes anorder of discharge under section 191, the point is frequently taken onappeal that he acted under section 194 or section 195 and should haveentered an acquittal.
The position in this appeal ultimately comes to this—Did the Magistrateproperly discharge the appellant under section 191 or did he in effectmake an order of acquittal under section 195 which he improperly calleda discharge ? An order under the former section is not a bar to furtherproceedings : an^ order under the latter section is.
The construction that has been placed on the section which, in otherCodes, corresponds to section 195 has been largely influenced by theword “ satisfies ”. A complainant who initiates a prosecution is ordi-narily expected (I am not now dealing with the compounding of offences)to continue with it till the accused has been convicted or acquitted.If he withdraws the accused is entitled to an acquittal and not aninconclusive discharge. But before he is permitted to withdraw hemust satisfy the Magistrate that there are sufficient grounds for permittinghim to withdraw finally from the prosecution of the accused. I stressthe word finally. By it I mean once and for all time on the facts alleged.For an order of acquittal which follows the withdrawal of the com-plainant implies that, although there has been no trial, the Magistratehas addressed his mind to the merits of the case and has satisfied himselfthat the complainant should be permitted to withdraw.
That was not the position in the present case. No attempt was madeto satisfy the Magistrate, that either because the appellant had beenwrongly charged or because of any other sufficient reason, e.g., aninadequacy of available proof of the charge, he should Be permitted towithdraw. As the subsequent trial proved the complainant had noreason to think the appellant had not, or could not be proved to have,committed an offence under section 16 (Cap. 127). What happened wasthat the complainant belatedly realized that the facts necessary to obtaina conviction had not been set out, this was also no doubt apparent to theMagistrate, and the latter properly and competently made an order ofdischarge under section 191. The fact that the appellant had pleadedto the charge does not in itself necessarily mean—contrary to the
HOWARD C.J.—Zahir v. Cooray.
argument of his Counsel—that he was entitled to be regarded as havingbeen acquitted, Senaratne v. Lenohamy'. The circumstances of thecase entitled him to no more than an order of discharge, and such an orderdoes not bar the institution of fresh proceedings.
The appeal is dismissed.
DIAS v. IYASAMY