040-NLR-NLR-V-55-ADRIAN-DIAS-Appellant-and-WEERASINGHAM-Excise-Inspector-Respondent.pdf
Adrian Dias v. Weerasingham
135
Present: Nagalingam A.C.J.
ADRIAN DIAS, Appellant, and WEERASINGHAM(Excise Inspector), Respondent
S. G. 37—M. C. Colombo South, 40,646
Autrefois acquit—Failure of prosecutor to lead evidence—“ Discharge ” of accused—Right of prosecutor to institute fresh proceedings—Criminal Procedure Code,ss. 190, 191, 289 (5), 330.
When, in a summary case, the prosecutor is not ready to proceed with hiscase on the date of trial, even after he has been given ample opportunity toplace his evidence, an order of Court refusing postponement and “discharging”the accused operates as an acquittal. It is not open then to the prosecutorto institute fresh proceedings upon the same charge.
Senaratne v. Lenohamy (1917) 20 N. L. R. 44, distinguished. ’
(1951) 53 N. L. R. 472.
136
NAG-AXiING-AM A.C.J.—Adrian Dias v. Weerasingham
■/^-PPEAX, from a judgment of the Magistrate’s Court, Colombo South.
E. R. S. R. Goomaraswamy, for the accused appellant.
S. S. Wijesinha, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
September 25, 1953. Nagauxgam A.C.J.—-
A plea of autrefois acquit is urged against the conviction of theappellant, who has been found guilty under section 17 of the ExciseOrdinance with having illicitly sold arrack and of having been inpossession of arrack in excess of the quantity allowed by law. Theplea arises on these facts :In case No. 35,759 of the Magistrate’s Court
of Colombo South the appellant was charged on 27th April, 1951, withhaving committed the offence of which he has been subsequently foundguilty. That case was duly fixed for trial, and there were no less thanfive postponements. It would appear that two of those dates weregranted, one on the application of the accused on the ground that he wasnot ready on the very first date of trial, and the second as the accusedhad not appeared in Court, but on the other three occasions the prose-cution was not ready. On 11th January, 1952, which was the lasttrial date fixed in the case, the prosecutor applied for a postponementon the ground that one of his witnesses was not present, but the learnedMagistrate acting under section 289 (5) of the Criminal Procedure Code,refused the postponement, and as the prosecutor said he could notproceed With the case, discharged the accused. Thereafter, on 22ndFebruary, 1952, the present proceedings were initiated against theaccused on the identical charges, and he has been found guilty after trial.
It has been urged on behalf of the appellant that though the learnedMagistrate used the term “ discharge ” in connection with the previousproceedings that term should correctly be regarded as an order ofacquittal.
Sections 190 and 191 are the two relevant sections of the CriminalProcedure Code that need consideration for the purpose of adjudicatingupon the contention put forward. These sections have been the subjectof several decisions in our Courts. In fact there is one case which isreferred to as a Pull Bench Case, and that is the case of Senaratne v.Lenohamy1. In that case the facts were that on- the accused personappearing in Court and on the charge being read out to him and on hisbeing called upon to plead, he said he was not guilty and the trial wasimmediately thereafter taken up, but the prosecutor was not ready andthe learned Magistrate made order of discharge. It will be noticed thatthe facts tend to show that the prosecutor had not been given a fairopportunity of placing his evidence before Court, and in those circum-stances the majority of the Court took the view that the order was anorder of discharge and not of acquittal. But one of the Judges whoexpressed the majority view in regard to the case expressed himself in
1 {1927) 20 X. L. B. 44.
NAGALESTGAM A.C.J.—Adrian Dias v. Weerasingham
137
language which quite clearly and completely expresses the view I hadformed on a reading of these sections. I venture to cite the relevantextract from the judgment of de Sampayo J. The learned Judge said :—
“ The words ‘ at any previous stage of the case ’ to my mind importthat all the evidence of the prosecution as contemplated by section 190have not been taken, but if the prosecutor has put before the Courtall the evidence which is available to Jam or which he is allowedreasonable opportunity to produce, the accused will be entitled todemand a verdict at the hands of the Magistrate instead of aninconclusive order of discharge, so that he may not be vexed again.”
A similar view seems to have been entertained, by Garvin J. See thecases of Weerasinghe v. Wijeysinghe1 and Gabriel v. Soysa-.
In this case no less than five dates of trial were fixed in the earlierproceedings, and I would hold that the Magistrate made his order ofdischarge not under any power vested in him under section 191 butunder section 190, under which he had jurisdiction either to make anorder of acquittal or of conviction.•
The Magistrate was prepared to take all the evidence that the prose-cution and defence were prepared to place before him. The prosecutionhad no evidence to place before him, so that as there was no evidenceplaced before the Magistrate he had no option but to find the accusednot guilty and enter a verdict accordingly. In my opinion, an orderunder section 191 can only be justified when, for instance, before theprosecutor has led all the evidence that is available to him and whichhe is ready and willing to place before the court, the court for somereason stops the proceedings and enters an order of discharge of theaccused person. Where, on the other hand, the prosecutor has closedhis case and led all the evidence, and objection in law is raised by thedefence without calling any evidence, it will not be open to the Magistrateto make order of discharge under section 191, and any such .order madewould have the effect of an order of acquittal under section 190—seethe case of Solicitor-General v. Aradiel3. On the other hand if the view -were adopted that whenever a prosecutor is not ready to proceed with the-case even after he has been given ample opportunity to placing hisevidence before court, the Magistrate should enter an order of discharge,leaving it open to the prosecutor to institute fresh proceedings uponthe same charge, it would be, as Ennis J. stated in the case ofSenaraine v. Lenohamy {-supra), to allow the prosecutor “ an indefinitepostponement ” while refusing a postponement of a few weeks. I
I am of opinion that the order entered by the learned Magistrate inthe earlier proceedings has the effect of an order of acquittal and that thepresent proceedings are therefore barred by that order. I therefore setaside the conviction and acquit the accused.
Appeal allowed.
1 {1927) 39 X. L. R. 20S.* {1930) 31 N. L. R. 311. _
s {1948) 50 X. L. R. 233.