054-NLR-NLR-V-60-GUNARATNE-Appellant-and-DEVARAJAN-Government-Agent-Puttalam-Respondent.pdf
Ounaratne v. Devarajan
233
Present: Sinnetamby, J.
GUNARATNE, Appellant, and DEYARAJAN (GovernmentAgent, Puttalam), Respondent
8. C. 462—M. G. Puttalam, 4,699
Criminal procedure—Plaint brought in name of wrong person—Amendment—Effect- ■
Autrefois acquit.—Criminal Procedure Code, ss. 147 (1) (a), 148(1) (b), 195, 330.
Where a plaint was filed by the wrong public officer and was subsequentlyamended so as to substitute the name of the proper officer as complainant—
Held, that the amendment of a plaint on the ground that it was broughtin the name of the wrong person as complainant does not amount to a with-drawal of the case and acquittal of the accused within the meaning of section195 of the Criminal Procedure Code.
1 (1935) 37 N. L. R. 165.a (1951) 53 N. L. R. 97.
SINNETAMBY, J.—Gunaratne v. Devarajan
* 234
.^V-PPEAL from a judgment of the Magistrate’s Court, Puttalam.
C. S. Barr KumaraTculasinghe, for the accused-appellant.
T. A. de S. Wijesundem, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 15, 1956. Sinnetamby, J.—
The accused in this case was charged with Criminal Intimidationunder section 486 of the Penal Code and with voluntarily obstructinga public servant, to wit, the Colonisation Officer, under section 183of the Penal Code. The latter charge required either the sanction ofthe Attorney-General or that the plaint should have been institutedby the public officer concerned or by someone to whom he is subordinate.The original plaint was filed on 21/11/55 the written report to Courtbeing made by the Divisional Revenue Officer. The accused appearedin Court on the same day and was charged. He pleaded “ not guilty ”and the trial was fixed for 12/12/55. On 12/12/55 at the request of thePolice a date was given for an amended plaint which was filed, however,on the same day. The written report on this occasion was made bythe Office Assistant to the Government Agent. The case was dueto be called on 19/12/55 but on the 15th November yet another amendedplaint was filed by the Government Agent. On 19/12/55 the accusedwas charged on the written report made to Court by the GovernmentAgent. After trial he was convicted and sentenced to four weeks’rigorous imprisonment on the first count and six weeks’ rigorous imprison-ment on the second count. The appeal is against this conviction andsentence.
The only question argued was that the various steps taken in thecase of “ amending ” the plaint filed under section 148 (1) (b) amountedto withdrawals of the case under section 195 of the Criminal ProcedureCode and that the magistrate should have entered an order of acquittalinstead of proceeding to charge the accused as he did finally on 19/12/55on the fresh plaint filed by the Government Agent. The offence of whichthe accused was convicted was one which under the provisions of section147 of the Criminal Procedure Code could not be instituted “ withoutthe previous sanction of the Attorney-General or on the complaint ofthe public servant concerned or of some public servant to whom he issubordinate.”
This requirement of the law accounted for the various steps adoptedby the prosecution in seeking to amend the plaints filed. Presumablythey were unable to decide whether the Colonisation Officer who wasthe public officer concerned was subordinate to the Divisional RevenueOfficer, the Office Assistant or to the Government Agent within themeaning of section 147 (1) (a). The sanction of the Attorney.Generalhad not been obtained.
SWNETAMBY, J.—Ounaratne v. Devarajan
235.
It was contended for the appellant that the learned magistrate couldnot have accepted amended plaints without first permitting the plaintsalready filed to be withdrawn under section 195 of the Criminal ProcedureCode. Although no formal order was made it was contended thatthe magistrate should have acquitted the accused on each of the earlierplaints and that although in fact he had not done so the accused wasentitled on the basis of an acquittal to plead “ autrefois acquit ” undersection 330 of the Criminal Procedure Code.
The question that arises for decision is whether the amendment of aplaint amounts in law to a withdrawal of the charge contained in theplaint sought to be amended within the meaning of section 195. InDon Abraham v. Christojfdsz1 cited with approval in Edwin Singho v.Nanayakkara 2 the Supreme Court held that when on a date of trial theprosecution offered no evidence in support of the charge as the chiefwitness for the prosecution was absent an order of “discharge”amounted to an acquittal. It was held that such an order precludedthe prosecution from filing a fresh plaint.
In a sense the filing of an amended plaint may be said to amountto a withdrawal of the original plaint but what the Court has to consideris whether it is a withdrawal within the meaning of section 195. Heame,
J., in discussing this aspect of the matter in The King v. K. William*made the following observations:—
“ Again, under section 195, notwithstanding the fact that no trialtakes place, the accused is in law deemed to have been tried andacquitted within the meaning and for the purpose of section 330.An attempt, however, is made to preserve the idea of an acquittalon the merits by the use of the words “ if the complainant ….satisfies the magistrate ….”
An order of acquittal under section 195 which follows the withdrawalof the complaint implies that the magistrate has addressed himselfto the merits of the case and has satisfied himself that the com*plainant should be permitted to withdraw for the reason that,the accused cannot be proved to be guilty.”
Heame, J., had earlier in the case of Dias v. Iyasamy * held that a with*drawal of a case, having regard to the facts established in that case,did not amount to an acquittal. Pi that case the plaint was withdrawnbecause of some defect in the charge. The accused was dischargedand a fresh plaint filed in respect of the same charge and the learnedjudge held that the order of discharge did not amount to an acquittalwithin the meaning of section 195 of the Criminal Procedure Code.Healing with the matter the learned Appeal Judge states :
" The construction that has been placed on the section which, inother Codes, corresponds to section 195 has been largely influencedby the word “ satisfies ”. A complainant who initiates a prosecutionis ordinarily expected (I am not now dealing with the compounding.
1(1953) 55 N. L. R. 92.
(1956) 53 C. L. W. 95.
(1942) 44 N. L. R. 73.
* (1940) 42 N. L. R. 260.
236
Abdul Manaff v. La Brooy
of offences) to continue with it till the accused has been convictedor acquitted. If he withdraws the accused is entitled to an acquittaland not an inconclusive discharge. But before he is permitted towithdraw he must satisfy the magistrate that there are sufficientgrounds for permitting him to withdraw finally from the prosecutionof the accused. I stress the word finally. By it I mean once andfor all time on the facts alleged. For an order of acquittal whichfollows the withdrawal of the complainant implies that, althoughthere has been no trial, the magistrate has addressed his mind to themerits of the case and has satisfied himself that the complainantshould be permitted to withdraw.”
With these views I most respectfully agree. The amendment of the-plaint due to the fact that it was brought in the name of the wrongperson as complainant does not in my view amount to a withdrawalof the case within the meaning of section 195 of the Criminal Procedure■Code. The accused was accordingly properly convicted and sentencedand the plea of “ autrefois acquit ” fails. The appeal is accordinglydismissed.
Appeal dismissed.