073-NLR-NLR-V-39-SUMANGALA-THERO-v.-PIYATISSA-THERO.pdf
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SOERTSZ J.—Sumangala Thera v. Piyatissa Thero.1937Present: Soertsz J.
SUMANGALA THERO v. PIYATISSA THERO.
749—P. C. Galle, 15,437.
Appeal—Order of discharge—Final order—When order of acquittal should bemade—Sanction of Attorney-General—Time limit-—Criminal ProcedureCode, ss. 190, 191 and 338.
Where a Police Magistrate discharges an accused before the complain-ant has led all his evidence, the order is one of discharge under section 191of the Criminal Procedure Code and is appealable without the sanction ofthe Attorney-General.
A Police Magistrate has no power to enter an order of acquittal undersection 190 of the Criminal Procedure Code before the conclusion of thecase for prosecution.a
Gabriel v. Soysa (31 If. L. R. 314) not followed.
Where an appeal for which the sanction of the Attorney-General isunnecessary is lodged with such sanction the appeal would be out of time,if it is not filed within the period of ten days.
Police Sergeant Banda v. Dalpadadu (1 C. L,. W. 2) followed.
^ PPEAL from an, order of the Police Magistrate of Galle.
A. H/f. C. de Silva, for complainant, appellant.
Siri Perera, for accused, respondent.
a
December 21, 1937. Soertsz J.—
Cur. adv. vult.
A preliminary objection was taken to this appeal on the ground that itis out of time. It is out of time if an appeal lay without the sanction ofthe Attorney-General. It is contended that the order made by theMagistrate in this case is not an order of acquittal under section 190 ofthe Criminal Procedure Code but a final order under section 191, and,therefore, appealable under section 338 of the Criminal Procedure Code,without the sanction of the Attorney-General. I agree that the order mustbe regarded as one made under section 191 of the/ Code although theMagistrate uses the word “ acquit ”. In my view, the words of section 190of the Criminal Procedure Code are very clear. They do not enable me totake the view taken by Garvin J. in the case of Gabriel v. Soysa1 that it isopen to the Magistrate to acquit an accused under section 190 at anystage of the proceedings. The words of the section are : “ if the Magis-trate after taking the evidence for the prosecution and defence and suchfurther evidence (if any), as he may of his own motion cause to be produced,finds the accused not guilty, he shall forthwith record a verdict ofacquittal ”. These words postulate that the end of the case for theprosecution is the earliest stage at which an order of acquittal may beentered. I do agree with the opinion expressed by Garvin J. that .thesewords were not intended to place the Court under a duty to record theevidence offered by the defence before entering an order (of an acquittal),if he disbelieve the evidence for the prosecution or‘if that evidence fails
■ 31 N. L. R. 311.
SOERTSZ J.—Sumangala Thero v. Piyatissa Thero.
to establish the charge against the accused. Obviously the words“ evidence ….-• for the defence ” in section 190 apply to thosecases in which the Court calls upon the accused for his defence. But theMagistrate cannot enter an order of acquittal before the conclusion of thecase for the prosecution. This does not result, however, as Garvin J.thought it did “ in depriving the Magistrate of the power to control thecourse of the trial ”, for the Magistrate is entitled to discharge the accusedat any stage of the case. But he cannot acquit at any stage of the case.He must hear the evidence for the prosecution before he can do that.See Keshri v. Muhamed Baksh'. If therefore, the Magistrate puts an endto the proceedings before the complainant had led all his evidence, theorder by which he does so is an order of discharge and no more. Section 3of the Criminal Procedure Code defines “discharge” for the purpose ofthe Code, as meaning the discontinuance of criminal proceedings againstan accused, but does not include an acquittal.
An order of discharge made under section 191 of the Criminal ProcedureCode is a final order. If authority is required for this proposition I wouldrefer to the case reported at page 116 of the 7th volume of the New LawReport. Being a final order a right of appeal from it lies under section338 without the sanction of the Attorney-General. Such an appeal mustbe preferred within ten days of the order. In this instance the order wasmade on July 2. The appeal was lodged on July 19. It is therefore outof time.
The fact that the appeal has been sanctioned by the Attorney-Generaldoes not make the longer period allowed in appeals by or at the instanceof the Attorney-General, available to the appellant because a sanctionthat is not necessary cannot regularize an appeal that is out of time. SeePolice Sergeant Banda v. Dalpadadu
therefore, sustain the preliminary objection and reject the appeal,but I am clearly of opinion that the Magistrate should not have discon-tinued proceedings in this case at the stage at which he did. His orderwas not an order made under section 190 because at that stage he couldnot act under that section. The order is, as I have observed, to beregarded as one under section 191 and such an order will not support aplea of autrefois acquit. An order under section 191, in a case like thepresent, appears to be dubious advantage to an accused person. If theMagistrate had heard all the complainant’s evidence and then made hisorder, there would have been an end of the matter satisfactorily to allparties. These short cuts which some Magistrates appear to be soenamoured of invariably result in an expenditure, or perhaps, I should say,in a waste of more time than would have been required for a proper treat-ment of the case by the Magistrate. As the Chief Justice has had occasibnto point out recently in several cases, this kind of shirking—for it is nothingless—of their duties by Magistrates result in a great deal of the morevaluable time of Appeal Courts being unprofitably consumed. Section 191appears to be meant to apply in cases in which it is obvious that an offencehas not been committed or where a previous prosecution has ended in anacquittal or in some such clear case. In the present case, the Magistratemade an order acquitting the accused because it was conceded that the» Allahabad 221.* 1 n. K. W. 2.
HKARNE 3.—The Kina v. Tholis Silva.
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accused who is a Buddhist monk has a right as such to reside in thistemple. The Magistrate holds that for that reason the accused’s entrycannot amount to criminal trespass. But that is to overlook the factthat a person who has a limited right may mala fide exceed that right andenter upon premises in such a manner as to make his entry amount to acriminal .trespass. It must be clearly understood that I am not sayingthat that is the case here. All I am saying is that there is a case forinvestigation.
The appellant’s failure to appeal in time was due to the fact that theorder of the Magistrate was construed literally as an order of acquittal.The Magistrate himself used the word acquit.
The case Gabriel v. Soysa, to which I have referred, supports the viewappellant took. I, therefore, deal with this case in revision, set asidethe order of the Magistrate, and send the case back for trial.
Sent back.