Perera v. Officer in Charge, SCIB, Kalutara
OFFICER IN CHARGE, SCIB, KALUTARA
COURT OF APPEAL.
U. DE Z. GUNAWARDANA, J„
CA (PHC) NO. 18/97.
HC KALUTARA NO. 26/97.
MC KALUTARA NO. 64677/95.
OCTOBER 1, 1998.
Supreme Court Rules – Rule 3 – Consequence of Non-compliance – Affidavitnot in order – Technical objection – Code of Criminal Procedure Act, No. 15 of1979 – SS. 185, 186, 314, Discharge or Acquittal – Autrefois acquit – Dischargeor Acquittal – When could the plea be taken – Does withdrawal amount to acquittal?
The petitioner was first charged in case No. 6195 with committing the offencesof Cheating, Criminal Breach of Trust and Criminal Misappropriation. At a sub-sequent stage of the case, the 1st respondent informed Court that Police werenot proceeding with the case. The accused then was discharged. However, laterthe respondent instituted proceedings 64677/95 for the same offence based onthe same facts and the case was fixed for trial. On the trial date, the accused-petitioner took up the position that it was not possible to proceed with the casewithout setting aside the earlier order of discharge and further that the court hadno jurisdiction. These objections were overruled. The accused-petitioner thereaftersought to revise the said order and the High Court holding that, the Affidavit filedby the accused-petitioner was defective rejected the Application.
The objection that was upheld by the High Court was of a very technicalnature without considering the merits. In the circumstances the Court ofAppeal could go into the merits of the case.
A close examination of s. 189 of the Code of Criminal Procedure Act makesit clear that there should be sufficient grounds for permitting the withdrawalof the case, and the Magistrate thereafter would be in a position to acquitthe accused after recording reasons.
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In the present case, it is seen that the case has not been withdrawn andfurther the Court had not recorded any reason to show that the case hadbeen so withdrawn.
“the contention that when the Police stated that they were not willing toproceed with the case, the police by such conduct were withdrawing thecase is unaccepted."
The order of discharge that was made by Court was made without goinginto the merits of the case for the reason that no evidence had been ledby that stage.
Per Yapa, J.
It is to be observed that for an accused person to be able to sufficientlyraise the plea of autrefois acquit as provided by s. 314 the accused shouldhave been freed and acquitted in the instituted proceedings or trial."
APPLICATION in Revision from the Order of the High Court of Kalutara.
Cases referred to:
Kiriwantha and Another v. Navaratne –  2 Sri L.R. 393.
De Silva and Others v. L. B. Finance Co., Ltd. –  1 SriL.R.371.
Fernando v. Excise Inspector, Wennappuwa – 60 NLR 227.
Y. M. Premadasa v. J. E. A. Assen – (Inspector of Police) – 60NLR451.
Solicitor-General v. Aradiel – 50 NLR 233.
Gunaratne v. Hendrick Appuhamy – 52 NLR 43.
Fernando v. Inspector of Police – 47 NLR 399.
De Silva v. Jayatilake – 67 NLR 169.
Veerappan v. Attorney-General – 72 NLR 361.
Dhammika Jayanethi for petitioner.
Jayantha Jayasuriya, SSC for respondents.
Cur. adv. vult.
Perera v. Officer in Charge, SCIB, Kalutara (Hector Yapa, J.)409
August 16, 1999.
HECTOR YAPA, J.
In this application accused-petitioner (hereinafter referred to as thepetitioner) is seeking to revise the order of the learned High CourtJudge dated 03.12.1997. The petitioner was first charged in Mag-istrate's Court of Kalutara, in case No. 6195 by the complainant-respondent (hereinafter referred to as the respondent) with committingthe offences of cheating, criminal breach of trust and criminal mis-appropriation of tube valves worth Rs. 200,000 on 27.07.1987. At asubsequent stage of the case, namely on 11.12.1995, the respondentinformed court that the police were not proceeding with the case andthereafter the learned Magistrate discharged the petitioner. However,on 01.01.1996 the respondent instituted proceedings against thepetitioner in case No. 64677/95 for the same offences based on thesame facts and the case was fixed for trial. On the trial date learnedcounsel who appeared for the petitioner raised two preliminaryobjections. First objection was that, it was not possible to proceedwith the case without setting aside earlier order of discharge and thesecond objection was that the court had no jurisdiction to proceedwith the trial, since the petitioner had already being discharged bythe Magistrate. The learned Magistrate overruled the said objectionson 21.07.1997 and decided to proceed with the trial. The petitionerthereafter made an application to the High Court of Kalutara seekingrevision of the said order dated 21.07.1997. Learned High Court Judgeafter hearing the petitioner's revision application, by his order dated
dismissed the said application.
It would appear from the High Court Judge's order that thepetitioner's application had been dismissed in limine upholding atechnical objection raised by learned State counsel, that the affidavitfiled by the petitioner was defective and therefore there was a failureby the petitioner to comply with Rule 3 of the Court of Appeal(Appellate Procedure) Rules 1990. The present application of thepetitioner is to revise the said order of the learned High Court Judgedated 03.12.1997.
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At the hearing of this application, it was submitted by learnedcounsel for the petitioner that the learned High Court Judge failedto consider the merits of the case, but decided it on a mere technicality,holding that the petitioner had failed to comply with the rules of courtby not submitting a proper affidavit. Learned counsel contended thatthe defect in the affidavit filed by the petitioner, namely that he affirmedto the facts, instead of taking an oath as he was bound to do asa Catholic, was factually correct. However, he submitted that it didnot warrant the dismissal of the application, for the reason that inthe present case all the documents that were required by rule 3 ofthe Court of Appeal (Appellate Procedure) Rules 1990 were submittedto Court by the petitioner. Therefore, there was no default on the partof the petitioner which would deprive the High Court Judge fromproperly adjudicating the issues involved. Counsel further submittedthat it was unnecessary for the High Court Judge to have recourseto the affidavit to adjudicate on the merits of the application, sincethe affidavit did not introduce any fresh material. Therefore, counselcontended that the High Court Judge should have exercised hisdiscretion by adjudicating on the merits of the application rather thandismissing it on a mere technicality.
In support of his submission the learned counsel cited the caseof Kiriwanthe and Another v. Navaratne and Another where JusticeFernando in the course of his judgment had stated as follows: “theweight of authority thus favours the view that all rules (Rules 46, 47,49, 35) must be complied with, the Law does not require or permitan automatic dismissal of the application or appeal of the party indefault. The consequence of non-compliance (by reason of impossi-bility or for any other reason) is a matter falling within the discretionof the court, to be exercised after considering the nature of the defaultas well as the excuses or explanation thereof, in the context of theobject of the particular rule". Learned counsel also referred to the caseof De Silva and Others v. L. B. Finance Ltd.12'1. In that case one of' the points raised was that the affidavit was invalid for the reason thatthe "jurat" did not contain the fact of affirmation. It was also contendedin that case that strict compliance with the provisions of section 438of the Civil Procedure Code was essential and that the wording insection 438 of the Civil Procedure Code brings in Form 75 in the
CA Perera v. Officer in Charge, SCIB, Kalutara (Hector Yapa, J.)411
first schedule to the Civil Procedure Code, that the affidavit must bein accord with form 75. In that case Chief Justice G. P. S. de Silvahas held that an affidavit was valid in spite of the fact the "jurat" didnot contain the fact of affirmation and further that the compliance withform 75 in the schedule to the Civil Procedure Code was not essential.The Chief Justice in the course of his judgment further stated asfollows: "on a fair reading of the entirety of the impugned affidavitit seems to me that the preliminary objection taken was of a technicalnature and the Court of Appeal was in error in upholding it".
On a consideration of the authorities cited by counsel for thepetitioner, it would appear that the learned High Court Judge hadupheld a preliminary objection of a very technical nature withoutconsidering the merits of the petitioner's application. Therefore, in myview, under normal circumstances this case should be sent back tothe High Court to make an order on the merits of the case. However,having regard to the other legal question raised by learned counselfor the petitioner in this application and the long delay that may resultby sending this case where the offences were committed on 27.07.1987to the High Court, it would be proper in the interests of justice toconsider the merits of the case and to decide this application in thiscourt itself. Further, such consideration of the merits in this case wouldsatisfy the concerns expressed by learned counsel for the petitioner,that the learned High Court Judge failed to consider the merits ofthe application and had dismissed it on a mere technicality.
Therefore, when considering the merits of the case, the centralissue to be decided here is whether the Magistrate was lawfully entitledto proceed with the trial on the 2nd information filed by the respondentdespite the earlier order of discharge. It was the contention of thelearned counsel for the petitioner that section 314 of the Code ofCriminal Procedure Act, No. 15 of 1979 applied to the facts in thiscase and therefore the plea of autrefois acquit was available to thepetitioner. Section 314 (1) of the Code of Criminal Procedure Actprovides as follows:
"A person who has once been tried by a court of competentjurisdiction for an offence and convicted or acquitted of such offence
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shall while such conviction or acquittal remain in force not be liableto be tried again for the same offence nor on the same facts forany other offence . .
The counsel submitted that after a period of about five years sincethe filing of the 'B' report the Magistrate had discharged the petitionerin MC Kalutara case No. 6195 on 11.12.1995 consequent to therespondent informing the Magistrate that the police did not wish tocontinue proceedings against the petitioner. It is seen from the journalentry dated 11.12.1995 that petitioner had been discharged by theMagistrate after recording that the police did not wish to proceed withthe case. Thereafter, proceedings were reinstituted by the respondentagainst the petitioner on 01.01.1996 in the MC Kalutara case No.64677/95 for the same offences based on the same facts. Learnedcounsel sought to argue that the petitioner was in fact acquitted bythe Magistrate on 11.12.1995 in case No. 6195 for the reason that,when the respondent on 11.12.1995 stated that the police did not wishto proceed with the case, the respondent in effect was withdrawingthe case against the petitioner and that the said withdrawal amountedto an acquittal in terms of section 189 of the Code of CriminalProcedure Act.
Section 189 of the Code of Criminal Procedure Act provides asfollows:
"If a complainant at any time before judgment is given in any caseunder this chapter satisfies the Magistrate that there are sufficientgrounds for permitting him to withdraw the case the Magistrate maypermit him to withdraw the same and shall thereupon acquit theaccused, but he shall record his reasons for doing so. . . " A closeexamination of this section makes it clear that there should be sufficientgrounds for permitting the withdrawal of the case and the Magistratethereafter would be in a position to acquit the accused after recordingreasons. In the present case it is seen that the case has not beenwithdrawn and further the learned Magistrate had not recorded anyreason or reasons to show that the case had been so withdrawn.Therefore, the contention of counsel that when the police stated on11.12.1995 that they were not willing to proceed with the case, the
CA Perera v. Officer in Charge, SCIB, Kalutara (Hector Yapa, J.)413
police by such conduct were withdrawing the case is unacceptable.In these circumstances the submission of counsel that there was awithdrawal of the case by the police on 11.12.1995 which amountedto an acquittal in terms of section 189 of the Code of CriminalProcedure Act is without any merit and therefore this submissionshould fail.
Learned counsel for the petitioner further submitted that the pleaof autrefois acquit can be taken in respect of an order of acquittalmade otherwise than on merits of the case. In support of this con-tention he cited the following cases: Fernando v. Excise inspector,Wennappuwaf3); Y. M. Premadasa v. T. E. R. Assen (Inspector ofPolice^; Solicitor-General v. Aradief5) and Gunaratne v. HendrickAppuham/6). In those cases even though it has been stated that theplea of autrefois acquit can be taken in respect of an order of acquittalmade otherwise than on the merits of the case, the facts and cir-cumstances in those cases are clearly distinguishable and would haveno application to the present case. Besides, in the present case therehas been no order of acquittal and in addition there has been nosubstantial reason or ground for the order of discharge of the petitionerexcept that the police have stated that they did not wish to proceedwith the case. Further, it is relevant to note that in those cases citedby learned counsel, evidence had been led and the prosecution casehad even been closed before the accused were acquitted or dis-charged for various reasons such as the charge was defective or theaccused had been charged under the wrong statute or the summonswere defective or that the accused had been charged under a repealedOrdinance.
Learned counsel for the respondents, however, contended that ona perusal of the journal entries filed by the petitioner it is very clearthat the said order of discharge that was made on 11.12.1995, wasnot made on a trial date. Counsel submitted that the case was calledon 11.12.1995 to receive the report of the EQD as seen from theprevious journat entry dated 02.10.1995. Further, learned Magistratehad neither referred to the section under which the order of dischargewas made, nor had he given any reasons for his order. Therefore,what is clear from the journal entry dated 11.12.1995 is that, on the
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said date the respondent had informed court that the police did notwish to proceed with the case. In addition it is seen that no evidencehad been led before the court by that stage. Therefore, learned counselfor the respondents submitted that the order of discharge that wasmade by the Magistrate was made without going into the merits ofthe case for the reason that no evidence had been led by that stage.In the circumstances counsel submitted that it was not possible tocontend that the petitioner had been tried by court at that stage asrequired by section 314 of the Code of Criminal Procedure Act.
It is to be observed here that for an accused person to be ableto successfully raise the plea of autrefois acquit as provided in section314 of the Code of Criminal Procedure Act, he (accused) should havebeen tried and acquitted in the initial proceedings or the trial. In supportof this contention learned counsel for the respondents cited the caseof Fernando v. Inspector of Police17'. In that case the accused hadbeen discharged by court because the prosecuting officer had not ledany evidence at the trial owing to the absence of the principle witness.Accused was subsequently prosecuted again by the same officer forthe same offence and on the same facts and the court held, thatthe plea of autrefois acquit was not available to the accused and thata decision upon the merits was essential for a valid plea of autrefoisacquit. The same proposition was adopted by three Judges of theSupreme Court in another case cited by counsel for the respondentin De Silva v. Jayathilakef8) despite several judgments of single Judgeswho have expressed a contrary view. In that case it was also statedthat while it was open to a Magistrate for reasons stated to dischargean accused in terms of section 191, (vide section 186 of the Codeof Criminal Procedure Act) such discharge can amount only to adiscontinuance of the proceedings against that accused and does nothave the effect of an acquittal. An acquittal under section 190 (videsection 185 of the Code of Criminal Procedure Act) means an acquittalon the merits. Learned counsel also cited the case of Veerappan v.the Attorney-GeneraP> where the Privy Council held that the defenceof autrefois acquit cannot succeed where an order of discharge madewithout going into merits but made solely on the counsel for theprosecution stating that the prosecution was not adducing anyevidence against the accused and there was no indication that the
Perera v. Officer in Charge, SCIB, Kalutara (Hector Yapa, J.)415
accused was called upon to plead to the charge. In such a case itcannot be said that the appellant (accused) was ever put in peril onthe first occasion. It would appear, therefore, in the present case allthat had happened was merely getting the accused to plead to thecharge.
On a consideration of the material referred to above, it is very clearthat the present case had not even been fixed for trial before theMagistrate and the question of deciding the merits of the case wasnever reached. In other words there was no occasion at all whichinvolved any adjudication of the innocence of the accused (petitioner).The mere reading of the charge could not be construed as puttingthe accused in peril. Therefore, the contention of the counsel for thepetitioner that the petitioner is entitled to succeed in the plea ofautrefois acquit has no merit and therefore should fail.
In the circumstances, we direct the High Court to refer this caseto the Magistrate who should proceed with the trial against thepetitioner and conclude the case expeditiously.
U. DE Z. GUNAWARDANA, J. – I agree.
High Court directed to refer case to the Magistrate's Court to proceedwith the trial.
PERERA v. OFFICER IN CHARGE, SCIB, KALUTARA