080-NLR-NLR-V-64-G.-PIYADASA-Appellant-and-THE-QUEEN-Respondent.pdf
ABEYESTHSTDERE, J.—Piyadaea v. The Queen
473
1902Present: Herat, J., and Abeyesundere, J.
G. PIYADASA, Appellant, and THE QUEEN, Respondent
S.C. 112—D. G. (Criminal), Hambantota, 43j28,347
Indictment—Power of Attorney-General to withdraw a count therefrom—Scope—Criminal Procedure Code, as. 172, 202, 217 (1) (3).
The Attorney-General has no power to withdraw a charge from an indictmentat a trial in a District Court.
/APPEAL from a judgment of the District Court, Hambantota.
Colvin R. de Silva, with Ml L. de Silva, for the accused-appellant.
Ei E. C. Jayetileke, Crown Counsel, for the Attorney-General.
June 21, 1962. Abeyesundehe, J.—
The 1st accused-appellant in this case was charged together with the2nd accused in the District Court of Hambantota on an indictmentcontaining eight counts. During the trial the Crown Counsel whoappeared for the prosecution moved to withdraw count 8 from the indict-ment. That motion appears to have been allowed by the Court,although there is no order to that effect, as the withdrawal of that countis referred to in the judgment of the learned District Judge.
Unlike at a trial in the Supreme Court, the Attorney-General has nopower to withdraw a charge from an indictment at a trial in a DistrictCourt. Section 202 .of the Criminal Procedure Code provides that theAttorney-General may at any time before the verdict is recorded with-draw any indictment and the prosecuting counsel may also with thepermission of the District Judge at any time before the verdict is recordedwithdraw any indictment, and thereupon all proceedings thereon shallbe stayed and the accused shall be discharged. Under sub-sections (1)and (3) of section 217 of that Code before the return of the verdict at atrial in the Supreme Court the Attorney-General may inform the Courtthat he will not further prosecute the accused upon the indictment orany charge therein, and the prosecuting counsel may with the consentof the presiding Jud"e withdraw the indictment or any charge therein,and thereupon all proceedings on such indictment or charge as the casemay be against the accused are stayed and he is discharged.
The indictment in this case could have been altered by the Courtunder section 172 of the Criminal Procedure Code, but that course ofaction has not been adopted by the learned District Judge. The effectof the withdrawal of one of the counts from the indictment is that theindictment has been altered in a manner not permitted by law, and theproceedings on the indictment as so aitered are therefore invalid.
474
Munasinghe v. The Auditor-General
I set aside the conviction of the 1st accused-appellant and the sentencespassed on him and order that he be discharged. In consequence of myfinding that the proceedings are invalid, I exercise the powers of revisionand set aside the verdict and order of the learned District Judge inrespect of the 2nd accused in this case and order that he also be• discharged.
Herat, J.—I agree.
Conviction set aside.