003-NLR-NLR-V-52-GUNARATNE-Inspector-of-Police-Horana-Appellant-and-HENDRICK-APPUHAMY-Res.pdf
1950Present: Nagalingam J. .1
GUNARATNE (Inspector of Police, Horana), Appellant, andHENDRICK APPIJHAMY, Respolndent
S. C. 705—M. C. Horana, 8,899.
Autrefois acquit—First charge framed under repealed Ordinance—Plea of previousacquittal to second charge—Meaning of “ same offence ”—-Criminal■■ Pro-cedure Code, Section 330 (1).
Where the accused, who had been acquitted on the ground that thecharge against him was laid under a repealed Ordinance, was subsequently
charged again, upon the same facts, under* the proper enactment '
Held, that the plea Of autrefois acquit was entitled tp' succeed. ..
1 (1949) 33 Cr. App. R. at p. 195..
44
PPEAlLi against an order of acquittal from the Magistrate's Court,hlor&na.-
T.S. F'ei'nando, Crown Counsel, with. A. C. Alles, Crown Counsel,for the complainant appellant.
N. E. Weo-rasooria, K.C.. with Tissa Gooneratna, for accused respondent.
.Cur. adv. vuli.
October 18, 1950, Nagalingam J.—*
A plea of autrefois acquit raised by the- accused-respondent in thiscase and upheld by the learned Magistt&te is challenged by the Attorney-General on this appeal. The facts are not in dispute. The accused-respondent was charged in Case No. 7,851, which will sometimes herein-after be referred to as the former case, on the following charge : —
‘ ‘ You are" hereby charged, that you did, within the jurisdiction of. this Court, at Pokiinuwita, on 21. 8. 1949, being a licensed PawnBroker take as profit a sum of 24 cts. in respect of a loan of Es. 8on a pledge of a gold ring, a sum exceeding the amount specified inSchedule 2, to -wit, 16 cts. and thereby committed an offence punish-able under section 8 (2) of Chapter 75 N.L.E.”.
To this charge the accused-respondent pleaded “ not guilty ”. Thecase went to trial and after the case for the prosecution had been closedCounsel for the accused contended that Chapter 75 of the LegislativeEnactments had been repealed more than seven years anterior to thedate of the commission of the offence by Ordinance 13 of 1942. There-upon the learned Magistrate entered a verdict of acquittal against therespondent..'
The complainant thereafter filed the present case against the re-spondent upon the following charge :—•■
”* That you did within the jurisdiction of this Court at Pokunuwiraon the 21st August, 1949, being an area in which Ordinance No. 13of 194-2 is in operation as proclaimed in Government Gazette No. 8,918of 22. 4. 1942, beingthe licensedPawnBrokerin anareacharge
24 cts. in respect of a loan of Us. 8on a pledge ofa gtoldringfor one
month which rate is exceeding the amount specified in Schedule 3 ofOrdinance No. 13 of 1942, to wit, 8 cts. as for the said period for thesaid amount in breach of section 17 of the said Ordinance and therebycommitted an .offence punishable under section 41 of Ordinance No. 13of 1942.”
«
The accused pleaded ” not guilty ” to this charge and at the trial hisCounsel raised the pleaof autrefoisacquitand producedin evidence
a certified copy of theproceedingsin theformercase.Thelearned
Magistrate upheld this plea and the Attorney-General appeals there-from.
The question for decision if? whether the plea of autrefois acquit or,as the Criminal Procedure Code says, the plea of previous acquittal, isentitled to succeed. It is concecfed by learned Crcfwn Counsel who
appeared, in support of the appeal that the present charge is based uponthe same facts as those upon which the former charge was based. Thesection of the Criminal Procedure Code which deals with this questionis section 330, sub-section (1) of which runs as follows:—•
A person who has once been tried by a court of competent juris-diction for an offence and convicted or aoquited of such offence shallwhile such conviction or acquittal remains in force not be liable to be
. tried again for the same offence nor on the same facts for any o.theroffence for which a different charge from the one made against himmight have been made under section 181 or for which he might havebeen convicted under section 182*
It is argued on behalf of the respondent that the offence with whiehthe accused is now charged is the same offence as that with which hewas charged in the former case. Learned Crown Counsel contends thatthough the facts are the same in the two cases, the offence in the former-ease was laid under section 8 (2) of Cap. 75 L.E. while in the present thecharge is laid under section 41 of Ordinance No. 13 of 1942, and theoffences are therefore not the same.
The term “ offence ” is defined in the Criminal Procedure Code itself,in-section 2 thereof, as meaning any act or omission made punishableby any law for the time being in force in this Island, The act whichthe accused is alleged to have committed is that he charged a sum byway of interest in excess of that permitted by law. This act of the accusedat the date he committed it was a breach of section 17 of the PawnBrokers Ordinance, No. 13 of 1942, and was made punishable by section41 of the same Ordinance; so that when the former charge was framedagainst the accused, it was in respect of an act committed by him inviolation of and made punishable by law, and constituted the offence.
Does the fact that the prosecutor lays the – charge under an incorrector inapplicable provision of the law as that which has been violated orspecifies a wrong penal section of the law as that under which the offenderis liable to be punished have a bearing on the question whether theaccused has committed the offence if in fact the act constitutes in reality-a breach of a law in force at the'date of its commission ? Can it be saidthat the wrong understanding on the part of the prosecutor of the•provisions of the law under which the accused could be punished hasthe slightest effect on the offence committed by the accused person ?The answer to both these questions, I have little doubt, should be in■the negative.'•
The offence consists in the act of the accused* constituting a breachof the law and has no reference to and is independent of any idea- or viewentertained by the prosecutor in regard to the correctness or otherwise-of the provision of the law of whieh there has been a breach. I thinkit is fallacious to regard an offence as made up not only of the act of theoffender but also of the proper appreciation on the part of the prosecutorof the true provision of the law constituting the offence. The offencecommitted stands by itself unaffected by any understanding of theprosecutor in regard to the law contravened.
In this view of the true meaning to be attached to the term ‘ ‘ offence "in section 330 (1) of the Criminal Procedure Code, there can be littledoubt that the respondent is charged in the present case with havingcommitted the same act which he was alleged to have committed onthe former charge. The section, therefore, debars the trial of theaccused again on the present charge as it is the same offence as the oneof which he was previously acquitted.
Learned Counsel for the Crown, however, has pressed upon me thecase of "Perera v. Johoran 1. That cast>, if I may say so with respect,was properly decided having regard to its facts and is distinguishable fromthe present case. In that ease, the, conviction in the earlier case wasquashed by this Court and the authorities were left, if so advised, " totake any action against the accused”. My brother Lias J. made' thefollowing very opposite observation in refusing to uphold the plea ofautrefois acquit in that case: —
“ This appellant has not been convicted or acquitted in the earlierproceedings. He was merely discharged, and in such circumstancesa subsequent prosecution is not barred.”
It will be seen that in the case before me the accused was not dischargedin the former case but acquitted in the strict sense of the term as usedin the Code.
An unreported case too was relied upon by Mr. Fernando 2. Inthat case too, that eminent Judge, de Sampayo J., held: —
“ At the outside the Magistrate’s order (the earlier order) amountsto a discharge of the accused for a defect in the plaint which was neverinquired into,”
and refused to uphold the plea of autrefois acquit.
Based on certain principles of common law recognised by the EnglishCourts and which are- to be found set out in the cases of Q. v. John Druryet al 3, Regina, v. Green. 4, R. v. Marshan 5 and epitomised in thefollowing words by Heading L.C.J. in R. v. Baron 6 that the “ lawdoes not permit a man to be twice in peril of being convicted of the same■ offence"”, Mr. Fernando contended that the respondent was never inperil of being convicted in the former case as the charge that was laidagainst him was under a non-existent statute and therefore the proceed^ings must be regarded as a nullity and the present case cannot thereforebe regarded as one in respect of the same offence for, according to him,there was no previous offence in respect of which the accused was put inperil of being convicted. But I do not think very much assistance canbe derived from the principles underlying the English common law and,if I may say so, I agree respectfully with the dictum of my brotherBasnayake J. in the ease of Solicitor-General v. Aradiel 7: —
‘ ‘ Section 330 (1) is self-contained and the question whether a. pleaunder that section is sound or not has to be determined on an inter-pretation of its language.”
* {1856) 7 Cox 186.
{1912) 2 K. B. 362.
(1914) 10 C. A. R. at 87.
(1948) 50 N. L. R. 233.
1 {194:6) 47 N. L. R. 568.
3 747 M. C. Colombo 23,921 S. C.
Min. October 15, 1919.
3 {1849) 18 L. J., M. C. 189.
For one reason, I do not think the question whether the respondent-was in peril of being convicted in the former case arises at all under ourlaw, for the question to be determined' for a proper decision of the pleais whether the respondent was charged in the former case with the same-offence as in the present case or not. For another, even applying the■test whether the respondent had been in jeopardy in the former case,I must unhesitatingly say that he was in peril of being convicted in theformer case. The fact that had he been convicted the conviction wouldhave been illegal makes little difference to the answer to the questionwhether the respondent was or was not in peril afe .the former trial.Besides, there was nothing to prevent the prosecutor when he became aware,.as undoubtedly he would have wh^n the new provision was referred toby Counsel for the accused, from having made- an application to Court;under section 172 of the Criminal Procedure Code to alter the chargebefore conviction. Sad he done so and had the Court acceded to the-application, the accused may very well have been properly convicted.
The position under the English Law is not dissimilar; said Lawrence J.in Halsted v. Glarh 1 where, after the case for the prosecution had been'dosed and on the defence taking the plea that the charge was defective,the prosecutor moved to amend the charge but was disallowed by theMagistrates who thereupon acquitted the accused, and the prosecutorthereafter filed a second information on the same facts but rectifyingthe defect contained in the first information: —
“ In my opinion, upon the facts as stated in this case, it is clearthat the magistrates really refused leave to amend the summons onthe ground which had been argued before them, namely, that it wasuseless to amend the summons having regard to the evidence whichhad been given for the prosecution which did not satisfy them thatany offence had been committed. If that is the true view of theMagistrates’ decision on the first information, it follows that therespondent had been in peril, because the Magistrates might havetaken the opposite view and have held that there was evidence thatthe respondent had recklessly made a false statement in connectionwith these rubber tyres."
For these reasons, I am of opinion that the order of the Magistrate isTight and should be affirmed.,
Appeal dismissed.