094-NLR-NLR-V-57-J.-H.-WANIGASEKARA-Food-and-Price-Control-Inspector-Appellant-and-K.-SIMON-.pdf
1956Present: Gratiaen, J.
J.H. ‘ WANIGASEKARA (Food and'Price Control Inspector)',Appellant, and K. SIMON, Respondent
S. C. 93d—31. O. Matugama, 21,356
“ Acquittal ”—“ Discharge "—Right of appeal—Criminal Procedure Code, ss. 2,390, 191, 330, 336—Control of Prices Act, JYo. 29 of 1250, s. S (1)..
_Tlie inadvertent use by a Magistrate of the word “ discharge ” in describingan'acquittal cannot deprive the accused person of the protection of sections■330' and 33G of the Criminal Procedure Code. ' '-'
A Magistrate may in. certain situations enter a verdict of acquittal undersection 190. of the Criminal Procedure Code even before the case for the prose-cution has been closed—provided that the Magistrate is satisfied that anyfurther evidence which the complainant proposes to lend would not suffice toestablish a prima facie case of guilt against the accused.
The accused was charged with contravening o prico order made under theControl of Prices Act." The Magistrate, without calling for a defence and whenthe case for the prosecution had been virtually closed, upheld wrongly (butwithin the scope of his jurisdiction) an objection raised by the defence that theprice order was bad in law as it had not received the necessary Ministerialapproval. Accordingly, he made order “ clisclw-.rging ” tho accused.
Held, that the Magistrate recorded in fact a verdict of acquittal on themerits. Xo appeal could therefore be entertained except upon compliancewith the requirements of section 336 of the Criminal Procedure Code.
Held further, that if a prosecuting officer, by making incorrect concessionson the law, has contributed towards an erroneous verdict of acquittal, theaccused person should not, as a general rule, be placed in jeopardy a secondt imc.
•/^LPPEAL from a judgment of the Magistrate's Court. Matugama.
A. G. Alle-s, Crown Counsel, with V. S. A. P idle-net yeg inn, Crown Counsel,for the complainant-appellant.
//. llr. Jayeicardene, Q.C. with G. P. J. Knruladasuriya, for theaccused-respondent.
Cur. adv. vull.
January 16, 1936. Gratiaf.x, J.—
This is an appeal by the complainant (a Food and Price ControlInspector) against an order purporting to “ discharge ” the accused whowas tried for an alleged contravention of section 8 (1) of the Control ofPi-ices Act, !o. 29 of 1950. Mr. Jayawardene raised a preliminaryobjection to the maintainability of the appeal, his argument being that theso-called order of “ discharge ” was in reality “ a verdict of acquittal ”under section 190 of the Criminal Procedure Code, and that no appealcould be preferred against it except at the instance or with the writtensanction of the Attorney-General. The inadvertent use bj- a Magistrateof the word “ discharge ” in describing an “ acquittal ” admittedlycannot deprive an accused person of the protection of section 336.
The charge framed against the accused was to the effect that he hadon March 1st, 1955, sold 2 lbs of wheat flour to a bogus customer at aprice in ex-cess of the maximum retail price fixed for that commodityin terms of a statutory “ price order ” applicable to the area in"whichthe transaction took place. This “ price order ” (P4) had been dulypublished _in the Government Gazette Xo. 10,510 of 20th March, 1953,and was described in the charge with sufficient particularity .to complywith the requirements of Chapter 17 of the Code.
The accused having pleaded not guilty, the proseciition led evidenceat the trial to prove the alleged sale (for 56 cents) of 2 lbs. of a commodityxvhich the Government Analyst had certified in his report P6 to be wheat
flour. The controlled price was 4S cents, and all that remained to es-tablish prinia facie tlic commission of the offence was proof that- thewheat flour referred to in the Government Anaij-st’s report was theidentical sample taken to him for analysis by a Police constable on theorders of the Magistrate. This witness was not available in Court,however, and a postponement of the trial was asked for in order to leadhis evidence on another date. – The appellant expressly stated that heMould then close the case for the prosecution.
Under normal circumstances a postponement for this limited purposewould probably not have been refused. The defence.objected, however,that no useful purpose would be served by putting the trial off for anotherdate in order to record evidence of a fact which (for the pui poses of theargument) might be regarded as conceded by the accused. The defencesubmitted that in any event the case for the prosecution must necessarilyfail because (1) food price orders become operative only after they havebeen approved by the Minister of Agriculture and Food, and (2) theappellant’s omission to lead evidence of such approval was thereforefatal to his case ; in other words, a verdict of acquittal, without callingfor a defence, would inevitably have resulted at the close of the case forthe prosecution even if the identification of the sample referred to in theAnalyst’s certificate was established.
Tn reply to this submission the appellant conceded that “ price ordersbecome valid only after they are approved by the Minister ”. Heclaimed, however, that he had in fact sufficiently established the Minister’s-approval of the price order Pd and, presumably for that reason, offeredno further evidence on that particular issue. The learned Magistrate(in my opinion vr0ngl3') upheld the objection raised by the defence andmade an order “ discharging the accused at this stage ”.
Mr. Alles cited an unreported decision of this Court in Food and PriceControl Inspector v. Piyasena S. C. Minutes of 22.11. 55 (59-1—M. C.Ma tale, 4,316) where Weerasooriya J. pointed out that “once a priceorder has been made and signed (and also perhaps duly published) itbecomes fully operative independently of any further efficacy it mayreceive from the subsequent notification of its approval by the Minister ”.Mr. Jayewardcnc did not challenge the correctness of this riding, and wasalso prepared to concede that the prosecution had already satisfactorilyestablished by admissible evidence the fact- that P4 had received Minis-terial approval. Nevertheless, he submitted, the order in his client’sfavour, right or wrong, was a “ verdict of acquittal ” against which noappeal could be entertained except upon compliance with the require-ments of section 336.■
It is not alwa3-3 eas3' to distinguish between an “ acquittal ” under-section 190 and a “ discharge” under section 191, and the apparentconflict of authority in some earlier ridings of this Court has perhapsadded to the confusion. We are bound by the majority decision of the.Full Bench in Senaratne v. Lenohamy 2 to the effect that a “ discharge ”
(1917) 20 X. i. It. 41.•
tinder section 191 signifies “ the discontinuance of criminal proceedingsbut “ docs not include an acquittal”. (Section 2). In other words, adischarge under section 191 connotes an “inconclusive order” whichfalls short of a decision resulting in “ a definite verdict ” (per BoSampaj-o J.). The distinction between a judgment upon the evidencein a civil action and the vexatious “non-suit” sanctioned by theprocedure of former times seems to suggest a helpful analogy.
In Silva v. Bahiman 1 Jayawardene J. held that an order abruptlyterminating a summary trial “ without allowing the prosecution to leadany evidence ” amounted only to an order of “ discharge ”. In Gabriel v.Soysa2 Garvin J. decided, by way of contrast, that an accused personwho was charged with unlawful^ obstructing arrest under a warranthad in truth been “ acquitted ” when the Magistrate, without calling for adefence, upheld an objection that (in view of the evidence led by theprosecution) the warrant was bad in law. Garvin J. explained that“ the Magistrate intended to acquit because in his view the whole prose-cution failed ” with the result that the continuation of the trial waspurposeless.
Some of the dicta in Gabriel v. Soysa (supra) were later criticised bySocrtsz J. in Sumangala Thero v. Piyalissa Thcro 3 but, with great respectto the doubts expressed on that occasion, I would adopt Garvin J.’s rulingthat it is unobjectionable in certain situations to enter a verdict of acquit-tal under section 190 even before the case for the prosecution has beenclosed—provided that the Magistrate is satisfied that any further evi-dence which the complainant proposes to lead would not suffice to estab-lish a prima facie case of guilt against the accused person. In such anevent, the verdict is based on a judicial decision (be it right or wrong)that the case for the prosecution has (for one reason or another) alreadycollapsed irreparabljr—so much so that, as in the well-known precedentof HumphJ Dumpty’s case, no amount of ingenuity could “ put it togethcragain ”. Indeed, Socrtsz, J. himself agreed in Fernando v. Raja-sooriar 4-that an “ acquittal ” at this earlier stage would be justified where, inthe view taken by the Magistrate, any further evidence would be of noavail ; see also the more recent judgments of Xagalingam A.C.J. inDon Abraham v. Chrisloffelsz 3 and Dias v. Wcerasingham G. It stands toreason, however, that premature acquittals of this kind are generallyinadvisable : if based on misdirection,-they might well result- in a re-trialbeing ordered oh appeal, thereby putting the accused person to furtherexpense and anxiety.
Much confusion is likely to arise if the issue “ acquittal or discharge ? ”is allowed to be complicated by irrelevant considerations as to whether,upon the merits of the particular case, the Magistrate’s decision waswrong or premature. The true test is whether (at whatever stage thedecision was made) the Magistrate actually-intended to record a verdict ofacquittal on the merits. If that was clearly the intention, no appeal lies-
„1 (1024) 26 .Y. L. R. 463.*{1946)17xY. L. R. 300.
* (1030) 31 S. L. R. 314.1{1953)55-Y. L. R. 02.
3 (1037) 39 -Y. L. R. 265.'c(J053) 55 -Y. L. R. 135.
except at the instance or with tlie written sanction of Hie Attorney-General, and the acquittal, unless reversed, is a bar to a fresh prosecutionto the extent indicated in section 330.
It has been suggested in Solicitor-General v. Aradicl1 that our Codemakes “ no distinction between an acquittal on the merits and an acquit-tal on any other ground. ” On the other hand, Socrtsz J. in Fernando v.Itajasooriar (supra) held that, as far as section 190 is concerned, a verdicton the merits is essential to support a plea of autrefois acquit; see alsothe judgment of the Court of Criminal Appeal in The Kitty v. WilliamAs at present advised, I take the view that under oxir Code, as in Kngland,a plea of autrefois acquit presupposes that the indictment or accusationin the earlier proceedings was sufficient in law to sustain a convictionfor the offence charged on the second trial. Archbold (Edn. 33rd.) p. 133.Similarly, an order “ discontinuing ” the proceedings against an accusedperson on the ground that the charge is defective operates only as a‘■'discharge” under section 191. In such an event, the purport of theMagistrate's decision is that there is no charge upon which a verdict(cither of conviction or of acquittal) under section 190 can properly bobased.
We arc now in aposition to analyse the order which the learned Magis-trate intended to make in the present case. The charge itself was un-exceptionable and was admittedly sufficient in form and content tosustain a conviction. When the case for the prosecution was virtuallyclosed, the Magistrate decided wrongly (but within the scope of hisjurisdiction) that the prosecution had failed to establish one of theassumed elements of the offence charged—namely, that the “ priceoidcr ” alleged to have been contravened had come into operation at therelevant date by virtue of Ministerial approval. Accordingly, he upheldthe submission raised by the defence that the only additional evidencewhich the prosecution proposed to lead (for the purpose of establishing adifferent element of the defence) would be of no avad. It is thereforeclear that the learned Magistrate intended to record a verdict of acquittalon the merits, and not merely to make “ an inconclusive order of dis-di.-charge ” which would expose the respondent to the risk of a freshtrial (for the same offence) at which the prosecution would be givenanother opportunity to supply the assumed gaps in the earlier evidence.
For these reasons, I reject the petition of appeal for non-compliance,with the requirements of section 336. Although the order of acquittalwas wrong, I am not disposed to quash it- in the exercise of my revisionarypowers. If a prosecuting officer, by making incorrect concessions on thelaw, lias contributed towards an erroneous verdict of acquittal, the accusedperson should not, as a general rule, be placed in jeopardy a second time.
(to IS) SO -V. L. li. 233.
{1012) 11 M. L. 11. 73.
. Appeal rejected.