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THE KING u. HARMANIS.
D. G., Galle, 13,176.
Criminal Procedure Code, s. 157—Discharge—Further prosecution for the sameoffence—Committal thereon to trial before District Court—Competency ofDistrict Judge to question committal.
Where a Police Magistrate acting under section 157 of the CriminalProcedure Code discharged an accused on the ground that the evidencedid not establish a* primd facie case of guilt, and another Magistrate upon afresh inquiry committed the aesused for* trial before a District Court:
Held, it was not competent for the District Judge to enter into thequestion whether the Magistrate who ordered the committal * had any• right to hold the fresh inquiry which ended in such committal, andthat it was the duty of the District Judge to hear and determine the case.Norman v. Perera (4 N. L. R. 85) explained.
HE accused above named were charged under sections 443 and369 of the Penal Code. At the inquiry the Police Magistrate,
Mr. Gunatilake, found there was no primd facie case against them,and made an order discharging them.
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Mr. Ekanayeke, the successor to Mr. Gunatilake as Police Magis- 19031trate, held a fresh inquiry, and committed the accused for trial April $0.at the District Court of Galle.■™"
At the District Court the counsel for the accused took as apreliminary objection that the committal was bad, as the order ofdischarge given by the first .Magistrate still held good, and thesecond Magistrate had no right to hold a fresh inquiry. Thelearned District Judge, Mr. J. D. Mason, thereupon made thefollowing order: —
** I uphold the objection raised by Mr. Jayawardene on behalf ofthe accused. On the 11th March, 1890, the Magistrate, Mr. Guna-tilakq, made this order: * The evidence does not establish aprimd facie case of guilt. I do not believe it. The accused aredischarged. ’
“ As in the case reported in 4 N. L. B. 85, the Magistrate exercisedhis discretion i – and after examining the complainant and hiswitnesses came to the conclusion that there was no case for criminalprosecution. If the Magistrate was wrong the procedure was anappeal to the Supreme Court under section 837. It was not opento the Magistrate who succeeded Mr. Gunatilake to treat as nulland void the legal order of discharge and the refusal to issueprocess under section 151 of his predecessor. I direct that theaccused be discharged. ”
Against this order the Attorney-General appealed.
Fernando, G.G., for appellant.
No appearance for respondents.
80th April, 1903. Layaru, C.J.—
I set aside the order of the District Judge discharging theaccused from this prosecution.
The Magistrate in the Police Court acted under the provisionsof section 157 of the Criminal Procedure Code and discharged theaccused. Sub-section (2) of that section enacts,, that a dischargeunder that section does not bar a further prosecution for the sameoffence. The District Judge has held that it does bar a furtherprosecution for the same offence, and in support of his finding hecites the judgment of Chief Justice Bonser in the case of Norman*v. Perera, 4 N. L. B. 85. But it is clear that Chief Justice Bonserdoes not in that judgment decide that a discharge" under section157 of the Criminal Procedure Code bars a further prosecution forthe same offence; he merely decided that where a Police Magistratehas refused to issue process two remedies are open to the personaggrieved, viz., either an application to the Supreme Court for a
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mandamus or an appeal to the Supreme Court with the sanctionof the Attorney-General. That decision has $o bearing on thequestion of a discharge under section 157 being a bar to a furtherprosecution. The provisions of sub-section (2) of section 157 are soexplicit that 1 cannot understand how the District Judge made uphis mind in this case to discharge the accused.
, The order of discharge is set aside and the case remitted to theDistrict Court to be proceeded with In due course of law.
THE KING v. HARMANIS