040-NLR-NLR-V-10-THE-ATTORNEY-GENERAL-V.-APPUWA-VEDA.pdf
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Present: Mr, Justice Middleton.
THE ATTOBNEY-GENEBAL v. APPUWA VEDA.
D. C. (Criminal), Kegalla, 1,343-
Autrefois ' acquit — Withdrawal of indictment — Discharge — Acquittal —
Validity of commitment — Amendment of indictment — Criminal
Procedure Code, ss. 3, 131 (1)* 133, 191, 195, 199, 209, 252.
Inthe course ofa criminal trial in theDistrict Courtobjection
wasraisedto adocument being receivedin evidenceon the
ground that the document was not entered on the. back of the indict-ment. Theobjectionhaving been upheld, theCrown Proctor
moved towithdrawthe indictment. TheJudgepermitted this
to be done, and discharged the accused under section 202 ot theCriminalProcedureCode. Subsequentlyfreshproceedings were
taken against the accused, and he was committed for trial for thesameoffence.Theaccused pleaded autrefoisacquit.
Held, that the plea was untenable, as a discharge under section202 did not amount to an acquittal;
Held, also, the District Judge was not competent to inquire intothe validity of the commitment, andthatit wastheduty of
the DistrictJudgeto try the accused onthe indictmentpresented
by the Attorney-General, such indictment being goodonthe face
of it.. ’
Held,further, thatwhen the objectionto thereceptionof the
document in evidence was raised, theCourtmighthaveamended
the indictment and given the accused an adjournment, if neces-8ai7*
A
PPEAL by the Attorney-Generalfroman acquittal. The
fact£ sufficiently appear in the judgment.
Walter Pereira, K.C., S.-G., for the Crown.
St. V. Jayewardene, for the accused, respondent.
Cur. adv. vult.
5th June, 1907. Middleton J.—
»
In this case the Attorney-General appeals against an order of theDistrict Court acquitting the accused* The- District Judge purportsto follow a ruling of Withers J. in Ukkurala v. David Singho.1 ■
I agree with the learned Attorney-General that that case has noapplication to -this case, as in that case, which was' under section 228of Ordinance No. 22 of 1890, now re-enacted by section 194 ofthe Criminal Procedure Code, the Magistrate ordered tlie dischargeof the accused where the law required him to acquit him.
» (1895) 1 N. L. R. 339.
1907.
June 5
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1907.
June 5.
Middleton
J.
In the present case, bn the 20th December, 1906, owing to adocument required for the prosecution not having been entered inthe indictment, objection was taken to its being used in evidence,and the objection being upheld, the Crown Proctor applied, undersection 202, Criminal Procedure Code, to withdraw the indictment.The Judge permitted this to be done, and discharged the accused.
Subsequently, it would appear fresh proceedings were taken, andthe indictment, completed by the insertion of the name of the .required document in the list of production, was, with the accused,brought before the District Judge again, presumably, the Attorney-General having directed the accused to be re-committed, and filedeither an amended or new indictment.
Counsel for the accused thereafter raised the plea of autrefoisacquit, which the Dictrict Judge held good, and acquitted the accused,while his counsel before me has relied to some extent on the sameground, but in addition urges that the re-committa] of the accused -was irregular, and called my attention to sections 1S5, 191, 250, and252 of the Criminal Procedure Code and to Be application of V. C.Vellavarayam for a writ of prohibition.1
I think it is clear that the word “ discharge ” in section 202, lookingat section 3 of the Code, is used in its ordinary sense, and does notimport an acquittal. The principle involved is that no man oughtto be twice brought into danger for the same crime.
The withdrawal of the indictment removes the foundation onwhich the trial must be based and takes the accused out of thejeopardy involved in the trial therein. * The District Judge couldnot try him without the indictment, and has not tried him,and therefore has- not acquitted him,, and he was nov thereforebrought into danger on the 20th December, 1906. A dischargeunder section 191 may, as Pereira A.P.J. holds in Eliyatamby v.Tabiyah,2 operate under sections 151 (1), 199, and 195, or if freshproceedings are taken on the same charge be supported as an acquittalby a plea of autrefois acquit, a<s was held in 7 N. L. R. 116;. but adischarge under section 202 is, in my opinion, in no sense an acquittal,as there is no danger of conviction when the indictment is with-drawn, and'the Judge’s duty is not to acquit, but to discharge.In my judgment also section 85 will not apply to cases of this kind,but only to the special circumstances produced ir. that section.The ruling of Chief Justice Burnside in The King v. Kolandawel aand that of Chief Justice Layard in The King v. Harmanis4seem to me to support the view contended for by ,tfie learnedSolicitor-General, that the District Judge in the presence of anindictment •good on the face of it, and supported by a commitmentby the Attorney-General, has no jurisdiction to inquire into thevalidity of the commitment.
i (19080 7 L. N. R. 116.8 (1891) 1 8. C. R. 198.
*2 Bdasingham 22.« (1903) 8 N. L. R. 188.
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In all non-summary cases where an accused has been dischargedhe is liable to re-arrest, further inquiry, and commitment, and hisdischarge by a District Judge. Section 202 does not appear tohave the right to renewed inquiry or re-commitment.
I must confess that I do not suppose the author of the CriminalProcedure Code contemplated that section 202 would be usedin the way adopted in the present case, for it seems to me thatan amendment might have been made by the District Judge, and,if necessary, and adjournment given to the accused, if it appearedthat immediate trial after amendment would have prejudiced him,which I doubt.
In my opinion the acquittal by the District Court should be setaside, and the case sent back for trial in due course.
Appeal allowed: case remanded.
♦
1907.
June 5.
MidULBTOK
J.