016-NLR-NLR-V-70-THE-QUEEN-v.-M.-KARTHENIS-DE-SILVA-and-3-others.pdf
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MANICAVASAGAH, J.—The Queen v. Karthenia de Silva
[Assize Court]
Present: Manicavasagar, 3.
THE QUEEN v. M. KARTHENIS DE SILVA and 3 others
S. O. 120/64—M. C. Galle, 12442
In the matter of an Application for Withdrawal of an Indictmentunder Section 217 (3) of the Criminal Procedure Code
Trial before Supreme Court—Withdrawal of Indictment—Permissibility—Criminal
Procedure Code,s. 217 (3).
In a prosecution before the Supreme Court, there were two abortive trials.At the commencement of the third trial, Crown Counsel satisfied the Court,upon the material before it, that the trial would inevitably result in averdict of acquittal.
Held, that it was open to the prosecuting Counsel to apply, under section217 (3) of the Criminal Procedure Code, for the withdrawal of the indictmentbefore the return of the verdict.
•A. PPLICATION for the withdrawal of an indictment undersection 217 (3) of the Criminal Procedure Code.
A. A. de Silva, Crown Counsel, for the Attorney-General.
Kaniska de Zoysa, with R. D. de S. Nagahawatta (assigned) for theAc cused.
December 14, 1966. Manicavasagar, J.—
Counsel for the Crown seeks my consent to withdraw the indictmentagainst these four accused persons who are accused of having committedthe offence of murder by causing the death of Poduru Handi Upasaka,alias Tailor Upasaka, on the 4th day of April, 1964.
MA*>nCAVASAGAR, J.—The Queen v. Karthenis de Silva
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The application is made under Section 217 (3) of the Criminal Procedure•Code.
On 15th February, 1966, five accused persons were brought to trialbefore an English speaking jury ; after the trial had proceeded for severaldays, the Presiding Judge discharged the jury, consequent on an allegationmade against a juror. The five accused persons were brought to trial forthe second time on 6th May, 1966; at the closure of the case for the Crown,the jury on the direction of the Judge returned a verdict of not guiltyagainst one of the accused persons on the ground that there was no evidenceagainst him. At the conclusion of the trial, the jury were not ready toreturn a verdict, being divided 4 to 3, and the Judge discharged the juryand directed a fresh trial.
These accused persons are now before me facing a third trial, and Crown’Counsel in supporting his application has given me a resume of theevidence at the two preceding trials, and also drawn my attention tocertain infirmities in the evidence; his submission is that this trialmust necessarily end in a verdict of acquittal. Reference was made tothe practice in England in the event of there being a third trial. TheEngish practice is that where the jury are not agreed at the two previoustrials, the Crown offers no evidence at the third trial, and the Judgethereupon directs the jury to return a verdict of not guilty. Thispractice, however, has no application to the instant case, for the reasonthat it was only at the second trial the jury were not able to return averdict as required by law, the first trial not having reached the stage of averdict by the jury.
The instant application must be decided on the construction of Section217 (3) of the Criminal Procedure Code. This provision calls for the exer-cise of judicial discretion ; the guiding principle being that the Courtshould be satisfied that this is not an attempt to interfere with the courseof justice for an improper and illegitimate purpose, and the Counsel forthe Crown in exercising his executive functions is not acting improperly.The Court should also be satisfied in taking the matter away from thenormal procedure of a trial, that the material before it does not provideeven a reasonable chance of conviction. Bearing these principles in mind,I have examined the evidence given at the two previous trials in thisCourt, the depositions of the witnesses and the statements recorded by thePolice, and my view is that not a moment should be spent in calling uponthese men to face another trial, because I am convinced that upon thematerial before me the trial must inevitably result in a verdict of acquittal.No reasonable jury can find otherwise. On the evidence of the 2nd accusedand his witnesses it has been indubitably established that he could nothave been at the venue of the incident at the time Upasaka came by hisdeath—I am not taking into consideration several other material infir -miti es arising on the evidence of Linton and Ematin—is sufficient tothrow a reasonable doubt on the entire case for the Crown.
The application is granted and the accused persons are discharged.
Application for withdrawal of indictment granted.