HEARNE 3.—The King v. K. William.
Court of Criminal Appeal.
1942Present: Soertsz, Heame, and de Kretser JJ.
THE KING v. K. WILLIAM.
1—M. C. Avissawella, 24,331.
Autrefois Acquit—Order of acquittal entered before all the evidence for prosecu-tion is called—Order in reality an order of discharge—Criminal Pro-cedure Code, ss. 190 & 191.
Where a Magistrate after the evidence of four witnesses had beenrecorded and before the prosecution had called all the witnesses, whoseevidence was available, entered an order of “ acquittal ”,—
Held, that the order was in reality an order of discharge undersection 191 of the Criminal Procedure Code and that such an order couldnot support a plea of autrefois acquit.
PPEAL from a conviction by a Judge and Jury before the WesternCircuit, 1942.
A. Seyed Ahamed, for accused, appellant.
E. H. T. Gunesekera, C.C., for the Crown.
December 18, 1942. Hearne J.—
The appellant was found guilty by the unanimous verdict of the, Juryof the offences of robbery and of causing grievous hurt at the time ofcommitting the offence of robbery.
The only point of law that was argued was that the presiding Judgewas wrong in ruling that the plea of autrefois acquit which was raised atthe trial failed.
The facts relative to the former trial were these. The appellant hadbeen tried by the Magistrate of Avissawella, who had assumed jurisdictionas District Judge. After the evidence of four witnesses had been recordedbut before the prosecution had called all the witnesses whose evidencewas available, an order of acquittal was entered. Following this order non-summary proceedings were taken against the appellant, in consequenceof which he was committed for trial before the Supreme Court.
The relevant law is set out in section 330 (1) of the Criminal ProcedureCode, and the question for our decision is whether the appellant had beenpreviously tried and acquitted within the meaning of that section. Itreads thus : “ A person who has once been tried by a court of competentjurisdiction for an offence and convicted or acquitted of such offenceshall while such conviction or acquittal remains in force not be liable tobe tried again for the same offence nor on the same facts for any otheroffence for which a different charge from the one made against him mighthave been made under section 181 or for which he might have beenconvicted under section 182 ”.
In English law an acquittal means an acquittal on the merits but thisis not necessarily so under our Code. Under section 194, for instance,if the complainant does not appear on the day fixed for trial the Magis-trate shall acquit the accused, unless he thinks proper to adjourn the
HEARNE J.—The King v. K. William.
hearing of the case. If he acquits, then, subject to the proviso inthe section, the accused is entitled to the benefit of section 330. He isdeemed to have been tried and acquitted, although no trial in any senseof the word has taken place.
On this view of the section the decision of the majority of the Courtin the case of Seriaratna v. Lenohamy1 was wrong. An order hadbeen made by the Magistrate under section 194 and the accused, it wouldappear, was entitled to an acquittal and not to an inconclusive discharge.So strictly has the section been construed in India that even where theaccused, against whom process had been issued, was also absent, anorder -of acquittal was held to entitle him to raise the plea of autrefoisacquit (34 Mad. 253.).
Again, under section 195, notwithstanding the fact that no trial takesplace, the accused is in law deemed to have been tried and acquitted withinthe meaning and for the purpose of section 330. An attempt, however, ismade to preserve the idea of an acquittal on the merits by the use of thewords “if the complainant …. satisfies the Magistrate ….”.
An order of acquittal under section 195 which follows the with-drawal of the complainant implies that the Magistrate has addressedhimself to the merits of the case and has satisfied himself that the com-plainant should be permitted to withdraw for the reason that the accusedcannot be proved to be guilty.
On the other hand in section 190 the word “ acquittal ” has no artificialmeaning. It means an acquittal on the merits.
Section 191 is an unfortunate section. Under the Indian Code, whenan accused is tried summarily, if a Magistrate does not find him guiltyhe must record an order of acquittal (I am not now dealing with thecompounding of offences). No order of discharge can be made. Butsection 191 gives a Magistrate in Ceylon the power to discharge theaccused at any stage. Even if he is unaware of the nature of the-evidenceof the remaining prosecution witnesses, he hiay stop the trial and dis-charge the accused. That such a power may have mischievous resultsis illustrated by this case. The accused was “ acquitted ” when all theprosecution evidence had not been led and yet when all the availableevidence was placed-before a Jury they unanimously found him guilty.
The point in this appeal is whether the order of the Magistrate—it iscalled an acquittal—was made under section 190 or section 191. If itwas made under, the latter it was no more than an order of discharge whichdoes not bar the institution of fresh proceedings.
It was argued on behalf of the appellant that, although the case for theprosecution had not been closed, the order that was made was one undersection 190. This view is supported by the 'obiter dicta in Weerasinghev. Wijeyesinghe’, and it is also supported by the decision in Gabriel v.Soysa‘. The latter, however, was not followed in two recent casesreported in 39 N. L. R. at page 265 and 20 C. L. W. at page 77. We takethe view that the wording of section 190 means that a Magistrate isprecluded from making an order of acquittal under that section till theend of the case for the prosecution.
1 (1917) 20 N. L. R. 44.* (1927) 29 N. L. R. 208
» (1930) 31 N. L. R. 314.
In re Goonesmha.
It follows that although the Magistrate of Avissawella purported tomake an order under section 190, in reality he made an order undersection 191, mistakenly calling it an acquittal, instead of a discharge.Such an order cannot support a plea of autrefois acquit.
The appeal is dismissed. The application to appeal on the facts iswithout merit and is refused.