052-NLR-NLR-V-60-FERNANDO-Appellant-and-EXCISE-INSPECTOR-OF-WENNAPPUWA-Respondent.pdf
WEERASOORIYA, J.—Fernanda v. Excise Inspector of Wennappmoa227'
1958Present: Weerasooriya, J.
FERNANDO, Appellant, and EXCISE INSPECTOR OF WENNAP-
PUWA, Respondent
G. 305—Application in revision in M. G. Ghilaw 25,355
Autrefois acquit—Elements necessary for such plea—Acquittal on the ground thatcharge is defective—Does it bar a subsequent prosecution ?—Criminal Pro-cedure Code, ss. 187, 190, 191, 194, 195, 330.
Where, after the case for the prosecution is closed, the accused is acquittedsolely on his submission that the charge is defective, the acquittal is a bar to-a subsequent prosecution for the same offence,
A plea of autrefois acquit may be taken in respeot of an order of acquittal-made otherwise than on the merits of a ca&.
Application to revise an order of the Magistrate’s Court, Chilaw..
A. H. G. de Silva, Q.C., with A. K. Premadasa, for the petitioner.
G. Gimatilaka, Crown Counsel, for the Attorney-General.
Cur. adv. milt.
November 6, 1958. Weerasooriya, J.—
The accused-petitioner was charged in M. C. Chilaw Case No. 16,925with the commission of certain offences punishable under the ExciseOrdinance (Cap. 42). After the prosecution had adduced evidence atthe trial and closed its case, the accused was called upon his defence.His proctor thereupon stated that he was not adducing any evidence, buthe took the objection that the proceedings at the trial were renderedillegal by reason of the fact that although the accused was produced inCourt otherwise than on a summons or warrant the Magistrate hadomitted to conduct the examination as required by section 187 (1) of theCriminal Procedure Code before framing the charge against the accused.He relied on the decision in MoMdeen v. Inspector of Police, Pettah 1..The Magistrate upheld the objection and made order aoquitting the aocused.From the terms of the order it is clear that although the Magis-trate acquitted the accused he did not do so on a consideration of theevidence but because he regarded that to be the appropriate orderinasmuch as the case for the prosecution as well as for the defence hadbeen closed.
Thereafter in respect of the same offences a second prosecution waslaunched against the accused in M. C. Chilaw Case No. 25,355. Onbeing charged in this case the accused took the plea of autrefois acquit
111957) 59 N. L. B. 217.
■228WEERASOORIYA, J.—Fernando v. Excise Inspector of Wennappuwa
relying on his acquittal in the previous case. The plea was rejected bythe Magistrate, and the present application is made to revise that orderof the Magistrate on the ground that it is wrong in law.
Two submissions against this application were made by Crown Counsel.One of them is that in view of the failure to frame a proper charge in theearlier case the trial in that case, including the order of acquittal, was acomplete nullity with the result that there is no acquittal in respectof which the plea of autrefois acquit could be taken by the accused.This submission was based on certain observations made by Abrahams,C.J., in Abeyesekera v. Ooonewardene 1 that the absence of a chargevitiates the proceedings and renders the trial illegal ab initio. I do notthink, however, that those,observations were intended by that learned-Judge to imply that a trial taking place on a defectively framed charge,or without any charge at all, is a proceeding entirely outside the scope of ^■ the Magistrate’s jurisdiction. It is only in such a case that the purportedorder of acquittal may be said to be a nullity in the sense contended forI)y Crown Counsel, in that the order is to be regarded as never havingheen made and as one which need not even be set aside by this Court inthe exercise of its appellate or revisionary powers. In my opinion thissubmission, therefore, fails.
The other submission of learned Crown Counsel was that a plea of■autrefois acquit lies only in respect of an acquittal on the merits,and that as the acquittal in the earlier case clearly did not proceed onthat basis the accused’s plea was rightly rejected. Crown Counsel citedin this connection Fernando v. Rajasooriya * and Wanigasekera (Foodand Price Control Inspector) v. Simon3. While the judgments in thesecases contain dicta which support the submission of Crown Counsel,it is to be noted that in our Criminal Procedure Code there are at leasttwo instances, namely, sections 194 and 195, where an order of aquittalmay be made otherwise than on the merits of the case and, as pointedout in The King v. William 4, the acquittal of an accused under either■of these sections is sufficient to sustain a plea of autrefois acquit in asubsequent prosecution of him for the same offence. Learned CrownCounsel relied on a passage in the judgment of the Court of CriminalAppeal in that case that in section 190 the word “ acquittal” has noartificial meaning but means an acquittal on the merits. But section190 deals only with the recording of the verdict where, after the close ofthe case for the prosecution and of the defence, the Magistrate finds theaccused either guilty or not guilty (i.e. on the merits). Section 190 isnot exhaustive of the instances where a verdict of acquittal may berecorded after the close of the ease for the prosecution and the defence.
In my opinion the Magistrate adopted the correct course in M. C.■Chilaw Case No. 16,925 when he acquitted the accused instead of dis–charging him. The only provision in the Criminal Procedure Code for adischarge of an accused in a summary trial is section 191, and that section
* {1956) 57 N. L. R. 377.
«(1942) 44 N. L. R. 73.
* (1938) 39 N. L. R. 525.8 (1946) 47 N. L. R. 399.
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Marshal Pet era v. Elizabeth Fernando
clearly contemplates a stage prior to the close of the case for the prose-cution and the defence. The proceedings in M. C. Chilaw CaseNo. 16,925 had advanced beyond that stage when the Magistrate decided,though without arriving at a definite finding whether the accused wasguilty or not guilty, that they should be terminated on the ground of thedefect in the charge. In the circumstances it was not open to him to makeany other order than one of acquittal, and while that order stood un-reversed the plea of autrefois acquit was available to the accused in thepresent case, Solicitor-General v. Aradiel1.
I therefore uphold the plea of autrefois acquit and discharge the accused.
Appeal allowed.