071-NLR-NLR-V-47-THE-KING-v.-FONSEKA-et-al.pdf
HOWARD C.J.—The King v. Fonseka.
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1946Present: Howard C.J. and Soertsz S.P.J.THE KING v. FONSEKA et al.
4—D. C. (Crim.) Mannar, 166.
Criminal procedure—Trial before District Court—Absence of prosecutingrCrown Counsel—Application for postponement refused—Regularity oforder discharging the accused
On the date of trial, in a prosecution before a District Court, anapplication was made on behalf of the Crown for a postponement on theground that the prosecuting Crown Counsel was unable to be present.The District Judge refused the application and, as there was no one toprosecute in the case, he discharged the accused.
Held, that the District Judge had no power to discharge the accusedwithout calling upon them to plead to the indictment.
Held, further, that an adjournment might have been granted on thecosts of the accused being paid by the Crown.
A
PPEAL from an order of discharge entered by the District Judge ofMannar.
H. H. Basnayake, Acting Attorney-General (with him G. P. A. Silva.C.C.), for the Crown, appellant.
N.Nadarajah, K.G. (with him C. S. Barr Kumarakvlasinghe), for theaccused, respondents.
February 14, 1946. Howard C.J.—
We are of opinion that this appeal must be allowed. It appears thaton the date of trial, which had been postponed on the application of theCrown from the previous day, an application was made on behalf of the
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HOWARD C. J.—J&ooein v. Galle Police.
Grown for a further postponement as Crown Counsel was in Colombo.The District Judge refused the application and, according to the record,as there was no one to prosecute in the case he discharged all the accused.We think that he had no power to do this as there had been no trialwhatsoever. It might have been different if he had called upon the accusedto plead and then asked the prosecution to open their case, but he did notdo so, and the trial was therefore a nullity. On the other hand, wethink that the District Judge might have granted an adjournment onthe costs of the accused being paid by the Crown. In these circumstanceswe set aside the order of discharge and direct that the accused be tried.At the same time we suggest that the costs of the accused amounting toRs. 315 be paid to them by the Crown.
Soertsz S.P.J.—I agree.
Order set aside.