( 314 )
Present: Garvin S.P.J.
GABRIEL v. SOYS A et al.
70$—P. 0. Negombo, 66,300
Appeal—Acquittal of accused by Magistrate after recording complainant's-evidence—Effect of order—Appealby complainant—Sanction of '
Where, in a summary trial, the Magistrate, after hearing theevidence of Hie complainant, discharged an accused on a legalobjection raised on his behalf,—
Held, the order was tantamount to an acquittal under section lfli)of the Criminal Procedure Code and that no appeal lay from theorder without the sanction of the Attorney-General.
The Court is not bound to record the evidence offered by thedefence before entering a verdict of acquittal under section 190if the Court disbelieves the evidence for the prosecution or if thatevidence fails to establish the charge against the accused.
PPEAL by the complainant from an order of acquittal enteredby the Police Magistrate of Negombo.
V. B. Samarwiviclcrema, for complainant, appellant.
N. E. Weerasooriya (with L. A. Rajapahse), for accusedrespondents.
March 25, 1930. Garvin S.P.J.—
A preliminary objection has been taken to this appeal on the-ground that it is an appeal by the complainant from a judgmentof acquital and has not received the sanction of the Attorney -General. It is urged by Counsel for the appellant that no sanctionis necessary as the order though in form an acquittal is in effect anorder of discharge under section 191. The complainant is a Fiscal’speon who was deputed to arrest the first accused upon a warrantissued in case No. 770 of the District Court of Negombo. Thecharge he makes is that the first accused offered resistance andillegal obstruction to his apprehension on the said warrant and thatthe second accused—the wife of the first accused—rescued herhusband from custody and offered illegal obstruction to the appre-hension of her husband.
Thq persons accused were duly charged and severally pleaded" not guilty.” The complainant was examined and cross-examinedat considerable length. The Proctor for the accused then sub-mitted that the warrant was bad and was therefore not a sufficientauthority for the arrest of the first accused.
( 315 )
After argument the Magistrate delivered a judgment holding1880
that the warrant was defective and that the prosecution therefore gauvix S.P.failed. He accordingly acquitted the accused. This is not a case J‘of the inadvertent use of the word acquittal where what was meant Gabriel v.was a discharge. It is quite clear that the Magistrate intended io Soysaacquit the accused because in his view the whole prosecution failed.
If therefore the contention for the appellant is to succeed it canoqly be because the judgment of acquittal is one which it was mani-festly not in .the power of the Magistrate to have passed. It is urgedthat once a summary trial has commenced a Ma,gistarte may onlyenter a verdict of acquittal or conviction " after taking the evidencefor the prosecution and defence and such further evidence (if any)
.as he may of his own motion cause to be produced” (section 190),sand that any order terminating the proceeding at any earlier stagemust be treated as, and can only have the effect of, an order of•discharge under section 191.
Section 190 requires the Magistrate at the conclusion of a•summary trial forthwith to record a: verdict of acquittal, or if hefinds the accused guilty forthwith to record a verdict of guilty andpass sentence. There undoubtedly are cases in, which a trial isOnly concluded after “ the evidence for the prosecution and defenceand such further evidence (if any) as he (the Magistrate) may of hisown motion cause to be produced” has been taken.
The words quoted by me were not in my opinion intended to placethe Court under a duty to record the evidence offered by thedefence before entering a verdict of acquittal if disbelieves theevidence for the prosecution or f that evidence fails to establishthe charge against the accused, nor do I think they compel aMagistrate to record the evidence of every witness for the prosecu-tion no matter how numerous they may be merely because theprosecution tenders them. Such a view of the section would deprivethe Magistrate of the power to control the course of the trial.
The failure or refusal to record the evidence of a material witnessmay in certain circumstances be of itself a sufficient reason forsetting aside a judgment of acquittal* and directing a new trial,but does not entitle the complainant to treat a judgment ofacquittal as an order of discharge under section 190. He is notwithout ss remedy since the Code enables him to appeal with thesanction of the Attorney-General.
In this case the prosecutor does not even complain that he hadevidence to offer which would have influenced the judgment of theMagistrate, or which should have been considered by him before heacquitted, the accused.
The objection to this appeal is well founded and must be upheld
The appeal is dismissed.
GABRIEL v. SOYSA et al