( 487 )
Present: Akbar J.
DIAS v. PEIRIS.791—P. C. Kalutara, 39,754.
accused—Right to reopen inquiry—Criminal ■' Procedure Code,ss. 157 (3) and 3'Jl.
Where, in a non-summary inquiry, an accused person wasdischarged by the Polity Magistrate after the> examination andcross-examination of , certain witnesses but before .the close of thecase for the prosecution,—''
Held, that the Solicitor-General had power to direct , the Magis-trate to re-open the inquiry.
PPLICATION to revise an order made by the Solicitor-General, directing the Police Magistrate of Kalutara to
re-open a non-summary inquiry, in which the Magistrate had •discharged the accused.
Hayley, K.C. (with Rajapakse), for accused, appellant.
Ilangalcoon, G.C., for the Crown.
B. F. de Silva, tor the complainant, respondent.
May 16, 1930. Akbar J.—
The accused was charged non-summarily on February 8, 1929,with the offence of criminal breach of trust, under section 389of the Penal Code. After the examination of two witnesses be was,on March 12, 1929, re-charged with committing an offence under
( 488 )
: Dias v.
section 466a of the Penal Code. These two witnesses were cross-examined and the Police Magistrate discharged the accused onApril 27. 1929, because he was of opinion that the prosecution hadrushed into Court prematurely, without, questioning two persons ofthe name of Marimuttu and Appaswamy, and that there was no usein pursuing the inquiry further. On February 12, 1929, com-plainant’s proctor filed & list of five witnesses, and on March. 27,1929, a list of documents. A further list was filed on April 3,containing the names of Marimuttu and Appaswamy. OnSeptember 16, 1929, the Solicitor-General reopened the inquiryunder section 391 of the Criminal Procedure Code, and this appealand the revision proceedings have been filed by the accused againstthis order of the Solicitor-General, reopening these proceedings.The point put forward by Mr. Hayley js that under section 391of the Criminal Procedure Code an inquiry could only be reopened• ift an accused has been discharged under section 157 of the CriminalProcedure Code, and not when he has been discharged under section156 of the Criminal Procedure Code. The short point I have todecide is whether the accused was discharged under section 156or 157 of the Criminal Procedure Code. It will be seen that undersection 156 (1) after the Magistrate has read over all the evidence,previously recorded, to the accused on his first appearancehe is to record “ all such further evidence as may be givenin support of the prosecution, whether called by the prosecutoror the Magistrate.” It is only after this has been done, when“ such evidence does not establish a pvima facie case of guilt ”that the Magistrate is authorized) t.o discharge an accused. Clearlvthis is not what happened in this case, for the Magistrate did nothear all the evidence which the prosecutor was prepared to tender,but cut the inquiry short as he thought that it was of no use. topursue the inquiry further. The order of discharge was thereforenot made under section 156. Was it. made under section 157' ?Section 157 (1) provides for the order to be made when the wholeinquiry has been concluded, that is to say, the Magistrate mayhimself discharge the accused or forward the record to the Attorney-General for committal of the accused to stand his trial before ahigher Court. And then by sub-section (3) of section 157 nothingis to prevent a Magistrate from discharging the accused ” at anyprevious 6tage of the case if for reasons (to be recorded by him)he considers the complaint to be groundless. ” In my opinionthe discharge in this case was made by the Magistrate undersection 157 (3) and therefore the Solicitor-General had power undersections 391 "and 393 to reopen the inquiry. The application isrefused.