099-NLR-NLR-V-34-ROSAIRO-v.-SILVA.pdf
GARVIN S.P.J.—Rosoiro v. Silva.
365
Present: Garvin S.P.J.
ROSAIRO u. SILVA.
588—P. C. Negombo, 1,534.
Discharge of accused—Complaint by Excise Inspector—Absence of complainant—Magistrate’s right to vacate order—Criminal Procedure Code, s. 191.
Where proceedings before a Police Court commenced upon the com-plaint of an Excise Inspector in terms of section 148 (1) (b) of theCriminal Procedure Code and in the absence of the complainant, on theday of trial, the Magistrate made order discharging the accused.
Held, that the order was in its legal effect an order under section191 of the Criminal Procedure Code and that the Magistrate had nojurisdiction to vacate it.
^^PPEAL from an order of the Police Magistrate of Negombo.
Earle Wijewardene, for the accused-appellant.
Wendt, C. C., for the complainant-respondent.
October 12, 1932. Garvin S.P.J.—
These proceedings commenced upon the complaint of an ExciseInspector in terms of section 148 (1) (b) of the Criminal Procedure Code.On the day appointed for the trial the Excise Inspector was absent.An application was made on his behalf for a postponement but this wasdisallowed and the Police Magistrate made order discharging the accused.A few days later upon an application made to him he made the followingorder:“ I think the absence of complainant has been sufficiently
explained in the affidavit of Mr. Abeysinghe, Assistant Superintendentof Excise. I vacate the order of July 11, 1932.” The appeal is uponthe ground that the Police Magistrate had no power to vacate the orderof discharge made by him.
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366
Rodrigo v. Karunaratne.
The appeal is clearly entitled to succeed. The Police Magistratehaving discharged the accused, when he addressed himself to the appli-cation made by the complainant in his endeavour to purge his default,and have the case restored, treated his earlier order as an acquittalunder the provisions of section 194 of the Criminal Procedure Code.Had it been an acquittal under the provisions of that section, then itwould have been competent for the Magistrate to cancel his order wherehe was satisfied that the complainant’s absence was due to sickness,accident or some other cause. Apart entirely from the circumstancesthat the order is in terms an order of discharge, there is the furtherdifficulty that inasmuch as this prosecution was initiated by a complainantunder section 148 (1) (b) it would have been impossible for the Magistrateto apply to the case the provisions of section 194 which are only applicableto prosecutions initiated under the provisions of section 148 (1)(a).
This was in its terms and in its legal effect an order under section 191.An order of discharge made under its provisions and in pursuance of thepowers conferred on the Magistrate by that section is a final order whichdetermines the proceedings and which he has no jurisdiction to vacate.Such an order is not, of course, a bar to a fresh prosecution but it is afinal determination of the proceeding in which the order of dischargewas entered.
The appeal must therefore be upheld and the order of the PoliceMagistrate by which he purported to cancel and vacate his order setaside.
Set aside.