L. I. C. DE SILVA, Appellant, and V. M. P. JAYATILLAKE (Inspector of Police), Re

042-NLR-NLR-V-67-L.-I.-C.-DE-SILVA-Appellant-and-V.-M.-P.-JAYATILLAKE-Inspector-of-Police-Re.pdf


Present: T. S. Fernando, Sri Skanda Rajah and G. P. A. Silva, JJ.
L. I. C. DE SILVA, Appellant, and V. M. P. JAYATILLAKE (Inspector
of Police), Respondent
S. C. 746 of 1961—J. M. G. Colombo, 21053
Criminal procedure—Summary trial—Stages at which the accused person may be
convicted or acquitted or discharged—Acquittal ”—Plea of autrefois acquit—
Criminal Procedure Code, ss.190. 191, 191,19 j, 299, 330.
On 25th January 1960, which was the date fixed for the retrial of a summarycase, a material witness for the prosecution was absent, and the Magistratedirected that the “ case be called ” on 9th February I960. On the latter datethe Magistrate made order discharging the accused when he was informedby the complainant that the witness would not be available for another yearfor his evidence to be taken. On 19th February 1961 the same complainantinstituted the present case against the samo accused for the same offence.
Held, that the accused was not entitled to raise the plea of autrefois acquit.
The earliest stage at which a Magistrate can convict an accused in a summarytrial is after he has taken the evidence for the prosecution, the evidence for thedefence (where tendered) and the evidence (if any) which he (the Magistrate)may of his own motion cause to be produced.
The earliest stage at which a Magistrate can acquit an accused in terms ofsection 190 is the same stage at which he can convict hin .
While it is open to a Magistrate for reasons stated to discharge an accusedin terms of section 191, such discharge can amount only to a discontinuanceof the proceedings against that accused and does not have the effeot of anacquittal.
An acquittal under section 190 means an aoquittal on the merits.
Don Abraham v. Christoffelsz (55 N. L. R. 92), Adrian Dias v. Weerasingham(56 N. 1., R. 135), Edwin Singho v. Nanayakkara (61 N. L. R. 22) and Peter v.Cotelingam (66 N. L. R. 468) overruled.
Appeal from a judgment of the Joint Magistrate’s Court, Colombo.
Colvin R. de Silva, with M. L. de Silva, Miss Manouri de Silva andT. Edirisuriya, for the acoused-appellant.
V. S. A. PuUenayejum, Crown Counsel, with R. Abeysuriya, CrownCounsel, for the Attorney-General.
Cur. adv. wit.
May 11,1965. T. S. Fernando, J.—
The interpretation of sections 190 and 191 of the Criminal ProcedureCode has received the attention of this Court on several occasions inrecent years and, on the appeal now before us, our attention ha3 bee*
lxvti—8
2—» 7430—1,865 (7/06)
170
invited to a number o£ decisions which seem to take different views onthe question a3 to the stage when a prosecution in a summary trial underthe Code can be said to have ended.
Before examining these decisions, it is necessary to set down thefollowing material facts :—
The accused-appellant was charged in case No. 14038 with attemptingto cheat, an offence punishable under section 403 read with section 490of the Penal Code. He was convicted in the Magistrate’s Court but,on an appeal preferred by him, the Supreme Court quashed thatconviction and remitted the case to the Magistrate’s Court for retrial.The retrial was fixed by the Magistrate for 25.1.1960. On this datea material witness for the prosecution was absent, and the Magistratedirected that the “ case be called ” on 9.2.1960. On this latter date,the complainant informed the Magistrate that the witness will not beavailable for another year for his evidence to be taken. The Magistrate,recording that it would not be fair to keep the charge hanging over theaccused for another year made an order discharging him.
The same complainant on 19.2.1961 presented to the Magistrate’sCourt a report in terms of section 148 (1) (b) of the Criminal ProcedureCode alleging the commission by the accused of the same charge aswas the subject of case No. 14038. This was the commencement ofthe proceedings in case No. 21053 from which the present appealarises. When the accused appeared on summons, his proctor raiseda plea of autrefois acquit. The learned Magistrate, after hearingargument, made order rejecting the plea. The accused filed this appealagainst that order, and the Magistrate directed that the trial do awaitthe decision of the appeal.
Counsel for the appellant relied on the decisions of this Court in DonAbraham, v. ChristoffeUz1, Adrian Dias v. Weerasingham2 and EdwinSingho v. Nanayakkara3. Crown Counsel argued that the old DivisionalBench case of Senaratna v. Lenohamy4 was applicable to the facts of theoase we were called upon to decide and that the recent decision in TheAttorney-General v. Kiri Banda5 in which the first two of the three casesrelied on for the appellant were not followed sets out the correct inter-pretation to be placed on section 190. In this last named case, Sansoni, J.(as he then was), analysing the deoision of the Court of Criminal Appealin R. v. William6, stated that two distinct and unequivocal propositionswere there enunciated—viz. (1) that an order of acquittal cannot be madeat a trial until the case for the prosecution has been closed and (2) thatan order of acquittal which purports to have been made under section 190must be made on the merits and on no other ground.
1 (1953) 55 N. L. B. 92.* {1917) 20 N. L. B. 44.
(1953) 55 N. L. B. 135,' (1959) 61 N. L. B. 227.
(.1966) §1 if. L. B. 22,• (1942) *4 N. L. B. 73.
In the oourse of an able and very helpful argument, Crown Counselcontended for the correctness of four propositions which he enunciatedas follows:—
The earliest stage at which a Magistrate can convict an accused
in a summary trial is after he has taken the evidence for theprosecution, the evidence for the defence (where tendered)and the evidence (if any) which he (the Magistrate) may of hisown motion cause to be produced ;
The earliest stage at which a Magistrate can acquit an accused
in terms of section 190 is the same stage at which he can convicthim;
While it is open to a Magistrate for reasons stated to discharge
an accused in terms of section 191, such discharge can amountonly to a discontinuance of the proceedings against that accusedand does not have the effect of an acquittal;
An acquittal under section 190 means an acquittal on the merits.
In regard to contentions (i), (ii) and (iii) above, on a considerationof the numerous authorities cited to us and of the arguments of counsel,I am satisfied of their soundness for reasons which I shall now proceedto discuss.
In Senaratna v. Lenohamy (supra), Wood Renton C.J. andDo Sampayo J. (with Ennis J. dissenting) held that the discharge ofan accused without trial under section 191 in no bar to the institutionof fresh proceedings against that accused in respect of the same charge.In that case the discharge had been made a3 the complainant’s witnesseswere absent on the day fixed for the trial and the complainant was notready to go on without them. The discharge of the present appellantin case No. 14038 referred to earlier by me took place, therefore, on aground substantially similar to that which the Divisional Bench inSenaratna’s case held could not give rise to a successful plea of autrefoisacquit. Although it is a decision only of the majority of the Benchconstituting the Court, it has to be regarded by us as the decision ofthe Bench of three Judges, and, constituted as we are, we have no powerto review it even if we had disagreed with it. It is right to add here,however, that on an analysis of the facts of that case and of the reasoningin the judgments of the majority and after considering subsequent casesin which reference has been made thereto I am in respectful agreementwith the reasoning of the majority.
The decision in Senaratna t>. Lenonamy (supra) appears to have beenfollowed for over a third of a century by this Court until 1953 whenNagalingam A.C.J. in Don Abraham v. Ghristoffelsz (supra) and AdrianDias v. Weerasingnam (supra) expressed views which appear to bedifferent from those that formed the ratio decidendi in Senaratna’s case.In the first of these two cases, i.e. Don Abraham’s case,Nagalingam A.C. J.’s
attention does not appear to have been drawn either to Senaratna’scase or to two other cases where a similar view had been taken bySoertsz J. In the second case, i.e. Adrian Dias's case, the attention ofthe Court had been invited to Senaratna's case, but Nagalingam A.C.J.observed that the majority of the Court there took the view that theorder was one of discharge because “ the facts tend to show that theprosecutor had not been given a fair opportunity of placing his evidencebefore Court This observation has been criticized by learned CrownCounsel as one not borne out by an analysis of the judgments of the twojudges who formed the majority of the Court. The question before theCourt in Senaratna's case was whether the discharge of an accused personwithout trial under section 191 can amount to an acquittal. It appearsto me that the majority of the Court held the order there in questionto be one merely of discharge because the stage at which the order wasmade was a “ previous stage of the case ” within the meaning of section191, that is to say, the stage when all the prosecution evidence ascontemplated by section 190 has been taken had not been reached.That being the ratio decidendi of Senaratna's case, it is apposite to quotethe words of Lord Devlin in Jones v. Director of Public Prosecutions1that “ it is well established that what is binding in an authority is theratio decidendi and a court that is bound by the decision cannot escapethe ratio by discovering some new factor mentioned in the judgmentand using it to justify the result.” It will be seen from a perusal ofAdrian Dias’s case that, having made the observation which CrownCounsel criticized, the learned judge went on to found his own decisionon the appeal before him on an obiter dictum of De Sampayo J.
Gunasekara J. in Edwin Singho v. NanayaJckara (supra) followedDon Abraham's case and Adrian Dias's case, and thought there was noconflict between these two decisions and that of the Court of CriminalAppeal in R. v. William (supra). Quite recently, in Peter v. Cotelingam 2,I myself agreed with this view of Gunasekara J. that there was no suchconflict. On reconsideration, however, of the judgments in The Attorney-General v. Kiri Banda and R. v. William, I am free to say thatI respectfully agree with the opinion of Sansoni J. that the viewtaken by Nagalingam A.C.J. in the two cases already referred tocannot be reconciled with the decision of R. v. William. I amfortified in the view I now take by a consideration also of the twojudgments of Soertsz J. adverted to already. That learned judgein Sumangala Tnera v. Piyatissa Thera3 stated that (a) he could notagree that it is open to a Magistrate to acquit an accused undersection 190 at any stage of the proceedings and (6) the end of thecase for the prosecution is the earliest stage at which an order of acquittalmay be entered. This judgment was impliedly approved by the Courtof Criminal Appeal in R. v. William. In the later case of Fernando v.R'ljasooriya4, where a Magistrate had discharged an accused personbecause the prosecuting officer had not led any evidence at the trial
1 (1962) A. C. 635 at 705.* (1937) 39 N. L. R. 265.
1 (1962) 66 N. L. R. 468.* (1946) 47 N. L. R. 399.
owing to the absence of the principal witness, the Court held that therewas merely a discontinuance of the proceedings against the accusedand not any adjudication upon the merits, and therefore the order didnot amount to an acquittal.
In regard to contentions (ii) and (iii), I agree with Crown Counselthat section 191 does not confer on the Magistrate a power to dischargean accused but merely recognizes a right to discharge, a right which isinherent in the Court. As he put it, where a power to hear is given,there is an implied power to discontinue hearing. Therefore, while“ at any previous stage ” (section 191), i.e. at a stage previous to thatat which all the prosecution evidence can be said to have been taken,a Magistrate can discharge an accused, the earliest stage at which hecan aoquit is the stage when the prosecution case has ended.
It remains now only to consider contention (iv) of Crown Counsel.The Court of Criminal Appeal decision in R. v. William (supra) is directauthority for the proposition that in section 190 the word “ acquittal ”has no artificial meaning and that it means an acquittal on the merits.A similar view has been expressed by Soertsz J. in Fernando v. Rajasooriya(supra), by Gratiaen J. in Wanigasekera v. Simon1, by Sansoni J. inThe Attorney-Genral v. Kiri Banda (supra) and, by way of an obiterdictum, by me in The Attorney-General v. Piyasena2. The propositionmay therefore be now taken as fairly well settled. There are, of course,acquittals other than on the merits that are recognized by the Code,i.e. those referred to in sections 194,195 and 290. These, to use a phrasesuggested to us by Crown Counsel, may be conveniently referred to as“ statutory ” acquittals, the term “ acquittal ” being employed in thosethree sections in order to attract the provisions of section 330 of theCode and thereby avoid a person accused being twice vexed. In regardto the decision in Edwin Singho v. Nanayakkara (supra), our attentionwas further drawn to the circumstances that Gunasekara J. had madean attempt to reconcile the decisions in Don Abraham's and AdrianDias's cases only with one of the rationes decidendi in R v. William(supra). Crown Counsel pointed out that the learned judge had notaddressed his mind to the decision that an acquittal under section 190must be made on the merits of the case. This criticism, I must add,is now available in respect of the decision in Peter v. Cotelingam (supra)as well. He invoked in support of his criticism the observations of LordSimonds in Jacobs v. London County Council 3 that “ there is no justifica-tion for regarding as obiter dictum a reason given by a judge for hisdecision because he has given another reason also. If it were a propertest to ask whether the decision would have been the same apart fromthe proposition alleged to be obiter, then a case which ex facie decidedtwo things would decide nothing.” I am of opinion that Crown Counsel’scriticism is well founded and that his contention (iv) is also sound.
1 (1956) 57 N. L. R. 377.* (1962) 63 N. L. R. 489.
• (1950) A. O. at 369.
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In view of all that I have stated above, I am of opinion that the casesof Don Abraham v. Ghristoffelsz (supra), Adrian Dias v. Weerasingham(supra), Edwin Singho v. Nanayakkara (supra) and Peter v. Cotelingam(supra) have been wrongly decided and should be overruled.
The learned Magistrate was, in my opinion, right in rejecting the pleaof autrefois acquit. This appeal is accordingly dismissed.
Sbi Skanda Rajah, J.—I agree.
G. P. A. Silva, J.—I agree.
Appeal dismissed.