137-NLR-NLR-V-47-FERNANDO-Petitioner-and-RAJASOORIYA-INSPECTOR-OF-POLICE-Respondent.pdf
Fernando v. Rajasooriya, Inspector of Police.
399
1946Present ; Soertsz A.C.J.FERNANDO, Petitioner, and RAJASOORIYA, INSPECTOROF POLICE, Respondent.
Application for revision in M. G. Colombo, 14,240 {185).
Plea of autrefois acquit—Requirement of a decision upon merits—CriminalProcedure Code, s. 330.
The accused had been discharged by Court because the prosecutingofficer had not led any evidence ac the trial owing to the absence of theprincipal witness. He was subsequently prosecuted again by the sameofficer for the same offence and on the same facts'.
Held, that the plea of autrefois acquit was not available to the accused.A decision upon the merits is essential for a valid plea of autrefoisacquit.
A
PPLICATION for the revision of an order of the Magistrate s Court,Colombo.
400
SOERTSZ A.C. J.—Fernando■ v. Rajasooriya, Inspector oj Police.
Proceedings were instituted under section 148 (1) (6) of the CriminalProcedure Code against the accused in case No. 9,546 charging himunder section 158 of the Penal Code with accepting illegal gratification.On the trial date the prosecution moved for a postponement on theground that the principal witness for the prosecution was absent. TheMagistrate refused to grant a postponement and called upon the prose-cuting officer to proceed with the case with the available evidence. Theprosecuting officer stated that he could not proceed with the case. TheMagistrate thereupon discharged the accused.
The same prosecuting officer subsequently filed the present caseNo. 14,240 against the accused charging him with the same offenceand on the same facts. The accused raised the plea of autrefois acquit.The learned Magistrate made order that the order of discharge entered incase No. 9,546 could not support the plea of autrefois acquit and thatthe case should proceed to trial on its merits.
H. V. Perera, K.G. (with him U. A. Jayasundera and L. G. Weera-mantry), for the accused, petitioner.
E. L. W. de Zoysa, C.G., for the Attorney-General.
Cur. adv. vult.
August 1, 1946. Soertsz A.C.J.—
This application for revision raises a question with which we havehad to deal before. To mention two cases, there was Gabriel v. Soysa 1 inwhich Garvin J. appears to have taken the view obiter that a Magistratemay enter a verdict of acquittal before hearing all the evidence theprosecution may have to offer in support of its case. He said of a con-tention to the contrary that “ such a view of the section would deprivethe Magistrate of the power to control the course of the trial ”, because,he observed, the words of section 190 do not “ compel- a Magistrate torecord the evidence of every witness for the prosecution no matter hownumerous they may be merely because the prosecution tenders them.”In regard to the first of these observations, I ventured to point out in thecase of Sumangala Thero v. Piyatissa Thero 2 that the Magistrate has thepower to control the trial by discharging the accused if he is of the opinionthat it would serve no useful purpose to proceed any further with the caseor, if he prefers to make an order of acquittal, he should be able to ruleout any other evidence available to the prosecution for some goodreason pertaining to the admissibility or relevancy of evidence. Insuch a case, there is a decision upon the merits and such a decision isessential for a valid plea of autrefois acquit. This view is supported bygood authority. Spencer Bower relying upon many decisions of theEnglish Courts, to which he makes reference, observes as follows in histreatise “ The Doctrine of Res Judicata ” at pages 32 and 33 : “ Thusthe dismissal of a summons, complaint or charge by a Court of summaryjurisdiction, if expressly stated by the Court, or shown by evidenceproperly receivable to have proceeded upon a consideration of the merits,is a judicial decision of the innocence of the alleged offender ..
» (1937) 39 N. L. R. 265.
(1930) 31 N. L. R. 314.
Price Control Inspector, Puttalam v. Abaynrafne.
401
But where the dismissal did not purport to have been or, was not in fact,founded upon a consideration of c the merits ’ even in the largest andmost liberal sense of that somewhat elastic expression, it is not deemedto involve, or necessarily to involve, any adjudication of the innocenceof the acoused. Thus, when the complainant deliberately absentedhimself from the Court on the hearing of the summons …. andthe defendant attended at the hearing and made a statement and obtaineda dismissal of the summons …. it was held that the dismissaldid not have the effect of a judicial decision that no assaulthad been committed.”
In this case too, there was no adjudication upon-“ the merits ” of thecharge. The Magistrate expressly discharged the accused and, in reality,there was no more than a discharge of the accused, that is to say, a dis-continuance of the proceedings against him. I should wish to make itclear,however, that, if I may respectfully say so, the decision of Garvin J.in Gabriel v. Soysa (supra) is unexceptionable, ft r there was in that case adecision upon the meritB for the reason that, the warrant being held to havebeen defective, no amount of evidence led by the prosecution to show thatthere was resistance could have been of any avail to the complainant.The accused were, in law, entitled to resist an unlawful arrest. Mydisagreement is with some of the observations made by Garvin J. Irefuse the application for the revision of the Magistrate’s order.
Application refused.