006-NLR-NLR-V-05-QUEEN-v.-SILVA.pdf
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QUEEN v. SILVA.
D. C., Kalvtara, 1,113
Nature of order to pay Crown costs and compensation—Plea of autrefois con-vict—Summary trial byDistrict Judge—Criminal Procedure Code,
s. 152 (3).
Per BbOwnb, – A.J.—An order to pay Crown costs and compensationunder section 197 (1) of the Criminal Procedure Code is not a penalty.It only recoups the Crown its expenses and the acquitted party hiscosts and loss of time..
Therefore, the person . cast in Crown costs and compensation forbringing a false charge cannot, when prosecuted for the offence ofbringing a false charge under section 208 of the Penal Code, pleadautrefois convict.
Where a Magistrate, after receiving the complaint of an offence andrecording the examination of the complainant, requested another judicialofficer, – who was both Magistrate and District Judge, to hear the case,—
Held, that it was not competent to the latter to adopt the procedureof section 152 (3) of the Criminal Procedure Code, upon the ' mereexamination of the complainant recorded by the former Magistrate, andwithout stating that the offence might properly be tried summarily byhim, and that a conviction .’resting upon such a state of the record wasbad.*
1901.
January 16and 18.
T
TTF. accused in this' case was indicted before the DistrictCourt of Kalutara under section 208 of the Penal Code with
haying brought a false charge of theft against one Fernando inPolice Court case No. 10,061.
He pleaded autrefois convict, in that he had already paid Rs. 30as compensation and Rs. 5 as Crown costs in terms of an order ofthe Police Magistrate in the original case No. 10,061.
The District Judge held* that the award of the Police Magistratewas no bar to the present prosecution and, proceeding to hear thecase, found the accused guilty and sentenced him to to a fine pfRs. 250..
Accused appealed.
Sampayo (with Elliott), for appellant.
Walter Pereira; Acting S.-O., for respondent. .
2J. N. A 68216 (1/47)’
Cur. ado. vuIt.
1901.
January 16and 18.
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18th January, 1901. Browne, A.J.—
In acquitting parties accused of theft from a dwelling-house theMagistrate said: “This is a palpably false case. The evidence for“ the prosecution is simply made up. I am quite convinced that“ this false case is instituted against accused owing to the dispute,”&c. And he then ordered the complainant straight away, withoutcalling on him to show cause, &c., to pay compensation under theCriminal Procedure Code, section 197 (1), for instituting a fri-volous case. He evidently had not read 1,444, P. C., Tang alia,{Browne’a Bep. 34), or he would not have confounded togetherfalse and frivolous charges.
One of those accused in those proceedings subsequently prose-cuted herein the then complainant for an offence against section -208 of the Penal Code.
The Magistrate received and recorded the oral complaint, andthen in fairness requested the gentleman who is the DistrictJudge and Additional Police Magistrate to hear the case with“ a new mind,” and he, after disposing of a plea of autrefoisconvict. proceeded to avail himself of the procedure of section 152(3) of the Criminal Procedure Code. But I doubt he could do soupon the mere examination of the complainant made by anotherthan himself, and he has 'not recorded that he was of opinion thatthe offence charged might properly be tried summarily by him.His reason was stated by him to be that the charge was one triableby a District Judge, and that he held the dual office of Judge andMagistrate. That per se is not sufficient reason for exemptingnon-summary charges from the operation of chapter XVI. I must.therefore hold these summary proceedings were not regularlyinitiated..
As to the plea of autrefois convict, I agree with Mr. Solicitor thatunder section 330 of the Criminal Procedure Code it is absolutelynecessary that the previous, conviction or acquittal must be inrespect of the same charge as the subject or the second pro-secution, and that a mulcting in Crown costs and compensationis not a conviction of an offence against section 208 of the PenalCode. The former pays no penalty to the State. It only recoupsthe State its expenses'and the acquitted party his costs and his lossof time. The test is the record of the prior charge and the finding,thereon; are they identical with the matter of the,new charge?
As to the present trial, I must point out that the irregularity ofputting evidence in Police Court proceedings en masse has beencommented on before now. The charge, its date or nature, orthe conviction, or what particular evidence a witness gave, maybe proved specifically. But the whole of prior proceedings are
not, by the fact that they were had, necessarily admissible asevidence, nor -will consent thereto avail in criminal prosecutions.
Here the onus lay on complainant to prove that he had beenfalsely charged with theft from accusal's house on the night of 21st(22nd) September. He swore he never in his life had been atKahitara before that, and adduced evidence he was ill on 26thSeptember when arrested. Accused deposed that complainantand two others had slept in his house the night he was robbed,and proved that he made prompt complaint next morning whenhe found their party gone and his money with them. In theconflict of testimony I do not consider the tobacco controversyor rivalry motive as per se a. sufficient factor whereby /to decidethe criminality of the appellant, and I set aside the convictionand acquit the accused.
10OU
January 16
and 18.
Browne,
A.J.