Peter v. Gotelingam
1962Present : T. S. Fernando, J.
M. A. PETER and another, Appellants, avd E. D. COTELINGAM
(Range Forest Officer), Respondent
S. C. 200-202 of 1962, with Application in Revision—
M. C. Chilaw, 41769
Criminal Procedure Code—Sections 190 and 191—Stage or point of lime at which
accused may be acquitted.
Where, in a summary trial, the prosecutor fails, without excuso, to lead anyevidence after ho lias been allowed a reasonable opportunity to do so. the properorder which the Magistrate should make *n rospect of the accused is one ofacquittal and not discharge. In such a case, the accused is not liable to beprosecuted again for the same offence.
The trial of a summary case was postponed three times and, on the fourth“ specially fixed ” date of trial, neither the prosecuting officer nor thn witnessesfor the prosecution were present. No e'planation was given for their absence.In the circumstances the Magistrate “ discharged ” the accused.
Held, that the order of the Magistrate was, in fact, one of acquittal and thatthe accused were not liable to be tried again, in a subsequent case, for thesame offence.
Appeal, with application in revision, from a judgment of theMagistrate’s Court, Chilaw.
A. H. C. de Silva, Q.C., with K.. Ratnesar, for the accused-appellants<*nd petitioners.
V. S. A. Pvllenayegum, Crown Counsel, -with F. C. Perera, CrownCounsel, for the Attorney-General.
Cur. adv. vult.
T. S. FERNANDO, J.—Peter v. Cotelingam
May 14, 1962. T. S. Fernando, J.—
This is yet another of those appeals which have in recent years raisedthe question of the stage at which an accused person in this countrycan maintain he has boon acquitted of an offence in respect of which asummary trial has commenced or has taken place.
On 3rd September 1960 a public officer reported to court in terms ofsection 148 (1) (b) of the Criminal Procedure Code that tho two appellantshad committed an offence punishable under the Forest Ordinance.The report was entertained by the court and the proceedings worenumbered 38595. The appellants were charged and their trial wasfixed for 31st Octobor 1960. The trial was not taken up on tho day sofixed and was re-fixod for 12th December 1960. It was again not takenup even on this latter date, ror even on 25th January 1961 which wasa new date of trial fixed. The trial was then re-fixed for 15th March1961 on which day it was again postponed as a result of the 1st appellantbeirg urable to appear in court. Eventually tbe trial was fixed for 14thJune 1961, the Magistrate recording that it was “specially fixed”for that date.
On 14th June 1961 neither the prosecuting officer of the Departmentinterested nor tho witnesses for the prosecution were present. TheMagistrate recording that fact, and also that this was a specially fixedcase, made order “ discharging ” the appellants.
Nothirg daunted, the same public officer who had made the report tocourt in case No. 38595 presented on the same day (viz., on 14th June1961) another report in identical terms as the first against the appellantsalleging the commission of the identical offence. The proceedings soinitiated were numbered 41769. No explanation has been made orattempted even up to today for the refusal or failure of the prosecutorard his witnesses to appear on 14th June 1961 in case No. 38595.When the appellants appeared on summons in connection with caseNo. 41769, their proctor raised the plea—very property, so it seems tome—that they were not liable to be tried again as they had been acquittedin the former proceedings. The Magistrate, after hearing argumentin the course of which a number of cases of this Court w ere cited beforehim, ruled on 18th January 1962 that the order of 14th June 1961 incase No. 38595 amounted only to a discharge of the appellants and there-fore v^as no bar to their being tried in case No. 41769. It is this rulingof 18th January 1962 that is being canvassed before this Court. Notbeing a final order I do not think an app al is competent and I wouldpro forma make order rejecting it. A case has however been made outjustifying the exercise of the powers of this Court in revision and I shalltherefore now proceed to examine the ruling in question.
The learned Magistrate, in reaching the conclusion he did, followedthe decision of Sansoni, J. in The Attorney-General v. Kiri Banda1where he stated that the Court of Criminal Appeal in the case of The
1 (1959) 61 N. L. B. 227.
470T. S. FERNANDO, J.—Peter v. Cotelingam
King v. William1 enunciated two distinct and unequivocal propositions,(1) that an order of acquittal cannot be made at a trial until the case forthe prosecution has been closed and (2) that an order of acquittal whichpurports to have been made under section 190 must be made on themerits ard on no other ground. I do not think one can possibly dis-agree with the learned judge’s statement as to what propositions wereenunciated in the case of The King v. William (supra), but the statementappears to leave unexplored the question as to the stage or point atwhich it can bo said that the case for the prosecution has been closed.In the case of The Attorney-General v. Gunasekera 2, I ventured to pointout that decisions of our Court show that the end of the case for theprosecution can be reached not only when the prosecutor formallycloses his case or states that he has led all the evidence he wishes to leadbut also at an earlier stage of the proceedings, and instanced by way ofexample other situations which would show that the end of the case forthe prof elution can be reached when the prosecution has no furthermaterial evidence to offer.
T have called for and examined the proceedings in M. C. Anuradhapuracase No. 8232 referred to in the decision of Sansoni J. in The Attorney-General v. Kiri Banda (supra). The accused in that case were chargedwith the unlawful possession of parts of a hemp plant, an offence incontravention of the Poisons, Opium and Dangerous Drugs Ordinance.They were charged on 4th July 1957 and the trial was then fixed for16th October 1957. On the 13th August 1957 at the instance of theprosecution the Magistrate forwarded to the Government Analyst aspecimen of the substance produced before him for examination andreport as to whether the specimen belongs to the variety of the hempplant known as Cannabis Saliva L. For the reason that the GovernmentAnalyst had not reported to Court the results of his examination oranalysis the trial was postponed from 16th October to 27th November,then to 22nd January 1958 and again to 12th March 1958. On thislast mentioned date—the report of the Government Analyst not havingbeen received by the court even then—the Magistrate, observing that“ four dates of trial are enough punishment to the accused who arehusband and wife and who have to come a distance of 14 miles to court ”made order “ discharging ” the accused. It is this order that Sansoni J.held to be a discharge only and not amounting to an acquittal, and Iwould like to say that I am in respectful agreement with his decision.The forwarding of substances produced in court to the Government Analystor other public officer for examination or analysis and report is contem-plated by the Code, and where as in Kiri Banda's case the Magistratehad agreed to and did in fact forward a specimen of the production him-self there was some duty in him to secure the obtaining of the reportand/or the evidence of the Government Analyst. The prosecution wasnot responsible for the failure of the Analyst to send the report to court,a report which was called for by the Magistrate, although at the instanceof the prosecution. In the circumstances of that case I do not think1 (1942) 44 N. L. R. 73.* (1968) 60 N. L, R. at 335.
T. S. FERNANDO, J.—Peter v. Cotelingam
it could seriously have been contended that the end of the prosecutioncase had been reached. The Magistrate had not even called upon theprosecution to lead its other evidence, i.e., evidence in regard to posses-sion on the part of the accused. The delay in obtaining reports from theDepartment of the Government Analyst is well known, but the causes ofthat are often beyond the control of the staff of that Department. Iventure to express the suggestion that, as these reports are consideredessential for the purposes of a prosecution, it would not be against theinterests of justice to fix the date of trial only after the report has beenreceived by the court.
The rule to be applied in circumstances similar to those met with inKiri Banda’s case in deciding whether a particular order is a dischargeunder section 191 or an acquittal under section 190 appears to me to bewell expressed in the words of De Sampayo, J. in Benaratne v,Lenohamy1:—
“ The words ‘ at any previous stage of the case ’ (in section 191)to my mind import that all the evidence for the prosecution, as con-templated by section 190, had not been taken. But if the prosecutorhas put before the court all the evidence which is available to him, or,which he is allowed a reasonable opportunity to produce, the accusedwill be entitled to demand a verdict at the hands of the Magistrateinstead of an inconclusive order of discharge, so that he may not bevexed again.”
The observations I have reproduced above were cited with approval byNagalirgsm, A.C.J. in Adrian Dias v. Weerasingham 2, a summarycase where the prosecutor was not ready to proceed with his case on thedate of trial even aftor he had been given ample opportunity to placehis evidence. In principle, the case of Don Abraham v. Christoffelsz 3,a decision by the same judge, is no different. Gunasekara, J. in EdwinSingho v. Nanayakkara4, in following these last-mentioned two cases,observed in the course of his judgment that “ the end of the case for theprosecution ” referred to in The King v. William (supra) may, then, bereached without any evidence being taken, in a case where the prosecu-tion informs the court that it offers no evidence. He found no conflictbetween the decision of the Court of Criminal Appeal and the decisionsof Nagalirgam, A.C.J. in the two cases he followed, a view with whichI respectfully agree.
The case before me is a stronger one than any of the reported cases.Here on the fourth date of trial, a specially fixed date, by which is ordi-narily meant a date on which the case will be given priority over othercases in the order of hearing, the prosecuting officer and the witnessesfor the prosecution all chose to be absent w ithout any attempt at excuse orexplanation for their conduct. In these circumstances the prosecutorcan not unfairly be said to have been given reasonable opportunity to
(T917) 20 N. L. R. at 50.» (7953) 55 N. L. R. 92.
(1953) 55 N. L. R. 135.* (1956) 61 N. L. R. 22.
Bank of Ceylon v. Liverpool Marine and General Insurance Go., Ltd.
produce liis evidence and had failed to do so. If so, there is no reasonwhy the appellants should be precluded from maintaining that they arenot liable to be vexed again.
Learned Crown Counsel contended that an order of acquittal within themearirg of section 190 can be recorded only after taking the evidencefor the prosecution and the defence (if any evidence is tendered by thedefence). While I am free to concur in the proposition contended for,I must add that when the section refers to taking the evidence for theprosecution it must moan taking such evidence as is tendered by theprosecution.
T do not think it is necessary to enter on this judgment into a dis-cussion as to whether an acquittal to form the basis of a successful pleaof “ autrefois acquit ” must be an acquittal on the morits. In a recentcase, Attorney-General v. Piyasena 1 I made some observations obiter onthat question, but it is right to add that Mr. De Silva in this caso wascontent to assume for the purpose of his argument here that an acquittalimplies an acquittal on the merits. The question can bo left to be autho-ritatively decidod, if it arises, on a suitable occasion in the future.
In my opinion the order of 14th June 1961 made in case No. 38595amounted to an acquittal of the accused. Acting in revision, I setaside the order made on 18tb January 1962 and direct that the plea of“ autrefois acquit ” raised be upheld.
Order set aside.
M. A. PETER and another, Appellants, and E. D. COTELINGAM (Range Forest Office