057-NLR-NLR-V-61-THE-ATTONEY-GENERAL-Appellant-and-M.-KIRIBANDA-et-al-Respondent.pdf
SAN-S ONI, J.—The Attorney-General v. Kiribanda
227
1959Present: Sansoni, J.
THE ATTORNEY-GENERAL, Appellant, and M. KIRIBANDA et al.,
Respondents
S. G. 58—M. G. Anuradhapura, 13,383
Autrefois acquit—Difference between “ acquittal ” and “ discharge ”—Criminal
Procedure Code, ss. 190, 191, 194, 195.
An order of acquittal under section 190 of the Criminal Procedure Codecannot he made until the case for the prosecution has been dosed. Such anorder must be made on the merits and on no other ground.
The trial of the accused-respondents in an earlier case No. 8232 was post-poned several times, and eventually the Magistrate made order discharging theaccused, remarking that four dates of trial were enough punishment for theaccused. The present case was thereafter filed against them on the same charge.
Held, that the order made in the earlier case was not one of acquittal and wastherefore no bar to a second prosecution.
Don Abraham v. Ghristoffelsz (1953 ) 55 N. L. R. 92 and Dias v.Weerasingham (1953) 56 N. L. R. 135, not followed.
-^^.PPEAL from a judgment of the Magistrate’s Court, Anuradhapura.
V. S. A. Pvllenayegum, Crown Counsel, for appellant.
No appearance for respondents.
Gur. adv. vult.
November 2, 1959. Sastsostx, J.—
This is an appeal by the Attorney-General against an order of theMagistrate upholding a plea of autrefois acquit.
The two accused had been charged in an earlier ease No. 8232 withthe offence of having in their possession parts of the hemp plant. Thetrial of that case was postponed several times,'and eventually the Magis-trate made order discharging the accused, remarking that four dates of. trial were enough punishment for the two accused, who are husbandand wife, and who had. to come a distance of 14 miles to Court.
The present case was thereafter filed against them, on the same charge.The question I have to decide is whether Crown Counsel is right when hesubmits that the order made in case No. 8232 was not one of acquittaland is therefore no bar to a second prosecution.
SANSONI, J.—The Attorney-General v. Biribanda
Sections 190 and 101 of the Oriminal Procedure Code axe the relevantsections. They read:
If the Magistrate after taking the evidence for the prosecutionand defence and. such further evidence (if any) as he may of his ownmotion cause to he produced finds the accused not guilty, he shallforthwith record a verdict of acquittal. If he finds the accused guiltyhe shall forthwith record a verdict of guilty and pass sentence uponhim according to law and shall record such sentence.
Nothing hereinbefore contained shall be deemed to preventa Magistrate from discharging the accused at any previous stage ofthe case, but he shall record his reasons for doing so.
On a reading of these sections one may well conclude that the earlieststage at which a verdict of acquittal may be recorded is after all theevidence for the prosecution has been taken, though the Magistrate isempowered to make an order of discharge at any previous stage, whichI take to mean a stage earlier than the close of the case for the prosecution.
The two sections were considered in Senarcitna v. Lenohamy1. In thatcase a Vidane Arachohi charged certain accused with theft and voluntarilyobstructing him, in the discharge of his public functions. On the trialdate his witnesses were not present, and he could not go on withoutthem. The Magistrate thereupon discharged the accused. It wasnever in dispute that the order fell under section 191, and the only ques-tion argued was whether it prevented the accused being charged againfor the same offences. The majority view was that the order was no barto a fresh prosecution. De Sampayo J. said that the words “ at anyprevious stage of the case ” in section 191 import that all the evidencefor the prosecution, as contemplated by section 190, had not been taken ;he also said that * ‘ if the prosecutor has put before the Court all the evidencewhich is available to him, or which he is allowed a reasonable oppor-tunity to produce, the accused will be entitled to demand a verdict at thehands of the Magistrate instead of an inconclusive order of discharge, sothat he may not be vexed again
The same view was taken by Soertsz J. in Sumangala Thero v. PiyatissaThe.ro2 where the learned Judge held that the Magistrate cannotenter an order of acquittal before the conclusion of the case for the prose-cution. He added : “If, therefore, the Magistrate puts an end to theproceedings before the complainant had led all his evidence, the orderby which he does so is an order of discharge and no more The learnedJudge disagreed with the view taken by Garvin J. in Gabriel v. Soysa3and in Weerctsinghe v. Wijeyesinghe4 that an order of acquittal can bemade, before the case for the prosecution was closed.
The question was therefore ripe for decision, as to whether an order<of acquittal can be made before the end of the case for the prosecution,and it came before the Court of Criminal Appeal in JR. v. William.5. The
1 {1917) 20 N. L. B. 44.3 {1930) 31 N. L. B. 314.
s {1937) 39 N. L. B. 265.4 {1927) 29 N. X,. B. 203-
5 {1942) 44 N. £. 22. 73.
SA2TSOSJT, J.—The Attorney-General v. KJiribanda
229
-accused in that case had raised the plea of autrefois acquit but it had beenoverruled by the presiding Judge, and he was convicted by the unanimousverdict of the jury. At a previous trial for the same offences, before aMagistrate who had assumed jurisdiction as District Judge, he had beenacquitted after the evidence of four witnesses had been recorded, butbefore all the witnesses for the prosecution had been called. If theview of Garvin J. was correct the plea of autrefois acquit should havebeen upheld, but the Court of Criminal Appeal approved the view takenby Soertsz J. Hearne J. said : “ We take the view that the wording ofsection 190 means that a Magistrate is prevented from making an orderof acquittal under that section till the end of the case for the prosecution.It follows that although the Magistrate of Avissawella purported to makean order under section 190, in reality he made an order under section 191.mistakenly calling it an acquittal, instead of a discharge. Such anorder cannot support a plea of autrefois acquit ”. Heame J. also pointedout that an acquittal under our Code is not necessarily an order madeon the merits, for under sections 194 and 195 orders of acquittal can bemade before the merits are gone into ; but so far as section 190 is concernedthe learned Judge said : “ the word ‘ acquittal ’ has no artificial mea-ning. It means an acquittal on the merits Two distinct and un-equivocal propositions were therefore enunciated by the Court in thatjudgment: (1) that an order of acquittal cannot be made at a trial untilthe case for the prosecution has been closed, and (2) that an order ofacquittal which purports to have been made under section 190 must hemade on the merits and on no other ground.
In view of that judgment it is easy to pronounce on the true effect of-the order made by the Magistrate in case No. 8232. It was certainlynot an order made on the merits and for that reason the plea of autrefois-acquit cannot be sustained. Nor does the fact that the prosecution wasunable to go to trial because of the absence of the Government Analyst’sreport make any difference ; it was a very similar situation to that whicharose in Senaratna v. Lenohamy and a discharge in those circumstances-does not bar a fresh prosecution.
I wish, with respect, to point out that the opinion of Heame J. in,Jt. v. William 2 that the case of Senaratna v. Lenohamy1 was wrongly de-cided seems to have arisen from a misapprehension of the particularprovision of the Code under which that case Was instituted. It wasa prosecution initiated with a report under section 148 (1) (6) by a public-officer ; an order of acquittal under section 194 could not therefore havebeen made, though Heame J. seems to have thought it could, for thatsection only applies where a complaint has been made under section148 (1) (a). But this is by the way.
It would serve no useful purpose for me, having regard to the binding•effect of the decision in R. v. William2, to consider certain judgments whichJbave been based on a view that cannot be reconciled With that decision.It would appear that a strong current of authority began to flow in a-contrary direction, starting with the judgments of Nagalingam A.C.J.
1 {1917) 20 N. L. JR. 44.
a (1942) 44 N. L. B. 73.
230
BASNAYAJKE, C.J.—Velautham v. Velauther
in Don Abraham v. Ghristoffelsz 1 and Dias v. Weerasingkam 2. The judg-ment in S. v. William 8 does not appear to have been brought to thenotice of the learned Judge before he gave judgment in those cases.
With great respect to the learned Judges -who have thought that the>decision in It. v. William8 can be reconciled with the view taken,by Nagalingam A.C.J., I find myself unable to share their opinion.
For the reasons I have given this appeal must be allowed. I set aside-the order of discharge and send the case back to the Magistrate in order'that he might proceed with the trial according to law.
Appeal allowed.