005-NLR-NLR-V-61-EDWIN-SINGHO-Appellant-and-NANAYAKKARA-P.-S.-2112-Respondent.pdf
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JSdurin Singho v. Nanaykkara
1956Present : Gunasekara, J.EDWIN SINGHO, Appellant, and NANAYAKKARA (P.S. 2112),RespondentS. €. 1571—M. G. Hatton, 7,096
Antrefois acquit—Summary trial—No evidence led by prosecution—Right of accused
to an order of acquittal—Criminal Procedure Code, ss.152 (3), 190, 191,195,330.
In. a summary trial, the prosecuting officer stated to the Court that he was“ unable to proceed to trial ” on account of the absence of a witness and offeredno evidence. Is or did he ask for a postponement of the trial. . The Courtthereupon made an order purporting to “discharge” the accused. Sub-sequently, a fresh prosecution was instituted in respect of the same offenceand the accused was convicted.
Held, that the order made by the Magistrate in the first case must be regardedas an order of acquittal made under section 19lf of the Criminal Procedure Code.Therefore, a plea of autrefois acquit could be taken.in the second case.
1 {1927) 23 N. Tj. 72. 4X3.2 (1859) 3 Lorensz Reports. 303.
GTJjJTASEKARA, J.—Edwin Singho v. Nanayaklcara
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A'
xA-PPEAXi from a judgment of the Magistrates Court, Hatton.Jl. M. Kumar akutasingham, for accused-appellant.
Daya Pereray Grown Counsel, for Attorney-General.
Cur. adv. vuU.
August 21, 1956. GmTASEKARA, J.—
The appellant was convicted, after a summary trial under theprovisions of section 152 (3) of the Criminal Procedure Code, on chargesof housebreaking by night and theft, and was sentenced to rigorousimprisonment for 18 months. The conviction was based on the clearestpossible evidence and the only ground on which the appeal was pressedwas that a plea of autrefois acquit that the appellant had taken at thetrial should have been upheld.
The proceedings in the present case began with the filing of a reportin terms of section 148 (1) (6) of the Criminal Procedure Code on the29th August 1955, and the charge upon which the appellant has beenconvicted was framed by the magistrate on the 19th September 1955.A charge alleging the same offences had been framed against firm on the31st January 1955 in Case No. 5557 of the same court, in which too themagistrate assumed jurisdiction under section 152 (3) of the CriminalProcedure Code. The appellant pleaded not guilty to the charge and thetrial was fixed for the 14th February 1955. He did not appear on thatday but submitted to the magistrate a certificate from the district medicalofficer to the effect that he was too ill to attend court, and the magistrate,being satisfied that his absence was due to illness, postponed the trialto the 28th March 1955. The appellant appeared on that day but awitness for the prosecution was absent, having left for England, and theprosecuting officer stated to the court that he was “ unable to proceedto trial ” without that witness and he offered no evidence. The learnedmagistrate thereupon made an order purporting to “ discharge ” theappellant. It is contended for the appellant that in view of the pro-visions of section 190 of the Criminal Procedure Code this order amountedto an order acquitting him of the offences charged against him in thatcase and he was therefore not liable to he tried again for the sameoffences.
Section 190 of the Criminal Procedure Code, which occurs in the chapterprescribing the procedure for summary trials, provides that if the magis-trate after taking the evidence for the prosecution and the defence andsuch further evidence (if any) as he may of his own motion cause to heproduced finds the accused not guilty, he shall forthwith record a verdictof acquittal, and that if he finds the accused guilty he shall forthwithrecord a verdict of guilty ; and section 191 provides that nothing therein-before contained shall be deemed to prevent a magistrate from dischargingthe accused at any previous stage of the case. It is contended that theprovisions of section 190 require the magistrate to acquit the accused andnot merely discharge him if the prosecution offers no evidence against-
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GrTOiTASEKABA, J".—Edwin Singho v. Ncmayakkara
him at the trial, and that therefore in the present ease the magistratemust be taken to have intended to make an order of acquittal and notmerely one of discharge. There is support for this view in the decisionsjof this court in DonAbraham v. Christoffelsz1 and Adrian Dias v. Weera-singham2, In each of these cases, too, the prosecution offered no evidenceat the trial because the prosecuting police officer found that owing to theabsence of a witness he could not proceed with the ease, and the magistratethereupon purported to “ discharge39 the accused. It was held byHagai ingam A. C. J. that the order made by the magistrate must beregarded as an order of acquittal made under section 190 of the CriminalProcedure Code.
It has been held by the Court of Criminal Appeal that i: the wordingof section 190 means that a Magistrate is precluded from making anorder of acquittal under that section till the end of the case for theprosecution ” : It. v. William3. It appears to be implied in this viewthat such an order may be made even though evidence for the defencehas not been taken. The reason why that can be done must be that therequirement in section 190 as regards the taking of evidence for thedefence is subject to the unexpressed condition that such evidence istendered. It seems to follow that the requirement as regards the takingof evidence for the prosecution must be understood as being subject to asimilar condition. The end of the case for the prosecution55 may,then, be reached without any evidence being taken, in a case where theprosecution informs the court that it offers no evidence. It seems to me,therefore, that there is no conflict between the decision of the Court ofCriminal Appeal and the view taken by Nagalingam A. C. J. I there-fore hold, following the decisions in Don Abraham v. Christoffelsz1 andAdrian Dias v. Weerasingham2, that the plea of autrefois acquit shouldhave been upheld.
A possible view of the effect of the proceedings of the 28th March 1955is that the complainant, who did not ask for a postponement of the trialbut contented himself with stating that he was unable to proceed totrial1 without the absent witness and offering no evidence, had satisfiedthe magistrate that there were sufficient grounds for permitting him towithdraw the case and the magistrate virtually permitted him towithdraw it. 3ri that view, too, the order must be regarded as an orderof acquittal; for section 195 of the Code provides that when the magistratepermits a complainant to withdraw a case he shall acquit the accused.
I set aside the conviction of the appellant and the sentence passed onhim.
Appeal allowed.
1.
(JAM) 55 N. E. B. 92.
3 {1942) 44 N. L. B. 73.
– {1953) 55N. Ii. B. 135.