062-NLR-NLR-V-50-SOLICTTOR-GENERAL-Appellant-and-ARADIEL-Respondent.pdf
Solicitor-General v. Aradiel
233
1948Present: Basnayake J.
SOLICITOR-GENERAL, Appellant, and ARADIEL, Respondent
S. G. 395—M. C. Panadure 46 {Labour)
Criminal Procedure Code—-Discharge of accused at close of prosecution-—Subsequent trial for same offence—Autrefois acquit—Section 330 (!)—-Shops Ordinance—Production of closing order—Court cannot take-judicial notice—Ordinance No. 66 of 1938, section 18-.
Where at the close of the case for the prosecution the accused called,no evidence hut took objection to the validity of the summons and the-Magistrate thereupon “ discharged ” the accused—
234
B ASNAYAKJE J.—Solicitor-General v. Aradiel
Held, that the accused had been acquitted within the meaning ofsection 330 (1)- of the Criminal Prodecure Code and could not he triedagain for the same offence.
Held, further, that in a prosecution under section 18 of the ShopsOrdinance, No. 66 of 1938, the relevant closing order should be produced.It does not come within the class of documents enumerated in section 57of the Evidence Ordinance and a court is not hound to take judicialnotice of it.
Fernando v. Rajasooriya (1946) 47 N. L. R. 339, dissented from..
^Al.PPEAXi from a judgment of the Magistrate, Panadure.
T.S. Fernando, Crown Counsel, with A. E. Keuneman, Grown Counsel,for Solicitor-General, appellant.
Senaratne, for accused respondent.
Cur. adv. wilt.
November 12, i948. Basnayake J.—
The accused-respondent, KL. Aradiel, was on November 1, 1947, triedon a charge under the Shops Ordinance, No. 66 of 1938. The accusedwas charged from a summons which reads :
“ Whereas complaint hath this day been …. that you did onthe 20th day of July, 1947, at Moratuwa, within the division aforesaidbeing the occupier of a shop, to wit, premises bearing No. "36 andsituated at Galle Road, Digarolla, Moratuwa …. keep thesaid shop open at 11.30 a.m. for the serving of customers and therebycommitted an offence punishable under section-23 (1) read with section18 of the said Ordinance and that you did permit a customer to enterthe said shop on a Sunday and thereby committed an offence punishableunder section 23 (1) read with section 18 of the said Ordinance.”
The only evidence against the accused was that of one Eric de Silva,Inspector of Labour, who made the report under section 148 (1) (6) of theCriminal Procedure Code. His evidence is to the effect that whileproceeding on patrol duty on Sunday, July 20, 1947, at 11.30 a.m. atMoratuwa, observing that shop No. 36, Galle Road, Moratuwa, which isowned by the accused, was kept partially open, he entered it and saw theaccused hand a bottle of balm to a person who enquired for its price.The witness says he-was accompanied by one Rajasooriya, anotherInspector of Labour. The accused neither gave nor called any evidenceon his behalf, but at the close of the prosecution his proctor took theobjection that the summons served on "him made no reference to theOrdinance under which he was charged. The learned Magistratethereupon discharged the accused.
On December 6, 1947, a fresh summons was taken out on the accusedand on February 14, 1948, the date fixed for the trial, his proctor tookthe plea that the accused had already been acquitted of the same charge.The learned Magistrate upheld the objection and discharged the accused.The present appeal is from that order.
BASIN'A YAKLE J.—Solicitor-General v. Aradiel
235
In acceding to the submission of the proctor for the accused and indischarging the accused on that ground, the learned Magistrate appearsto have overlooked not only the provisions of section 172 of the Code butalso of section 425.
The summons is a document issued by the Court (section 44, CriminalProcedure Code). It must be signed by the Magistrate or by any otherofficer of the Court specially authorised in that behalf. In cases wherethe accused appears on summons the Magistrate is not bound to frame acharge against the accused (section 187 (2) Criminal Procedure Code),but he may instead of doing so read to him the statement of particularsof the offence contained in the summons, which is deemed to be thecharge. That statement can be amended or altered in the same way as acharge. So that even if the Magistrate has not at the time of issuing thesummons given his mind to the statement of particulars therein he shouldbring his mind to bear on it at the time when he reads it to the accusedunder section 187 (3) of the Criminal Procedure Code and correct anydefects that appear in it. Even thereafter it is open to the Magistrate toamend the statement at any time before judgment is pronounced (section172, Criminal Procedure Code).
Although section 44 (1) of the Criminal Procedure Code provides thata summons may be signed by an officer specially authorised in that behalfthe Magistrate is not relieved of the responsibility for the statement ofparticulars of the offence contained in the summons because of theimportance attached to it by the Code. This fact is emphasised both byEnnis J. and De Sampayo J. in Ebert v. Perera 1 (3 judges). Ennis J.states at page 366 : “ I would add that the formulation of the charge orstatement in a summons or warrant on a review of the facts by an inde-pendent person is, in my opinion, a fundamental principle in our criminalprocedure as now laid down in the Code of 1898, and the proviso in section187 was necessary to make the slightest departure from it lawful.”
De Sampayo J. observes at the same page in discussing the reasonfor the distinction drawn in section 187 between a summons and warranton the one hand and areport under section 148 (1) (6) on the other : ** Thedistinction is, I think, based on the fact that it is the Magistrate himselfwho states the charge in the summons or warrant, and there is, therefore,no practical object in requiring the Magistrate to record the charge overagain.”
The question is whether the second prosecutipn lay so long as thelearned Magistrate’s order discharging the accused stood unreversed. Theanswer to it is to be found in section 330 (1) of the Code. That sectionstates :
“ A person who has once been tried by a court pf competent juris-diction for an offence -and convicted or a.equitted of such offence shallwhile such conviction or acquittal remains in force not be liable to betried again for the same offence nor on the same facts for any otheroffence for which-a different charge from the one made against himmight have been made under section 181 or for which he might havebeen convicted under section 182.”
1 (.1922) 23 N. L. S. 362.
236
BASNAYAKJS J-—Solicitor-General t>. Aradiel
Now the immediate question that arises for decision is whether theaccused has been'tried by a court of competent jurisdiction for an offenceand acquitted of such offence. Clearly the accused has been tried by acourt of competent jurisdiction for an offence. Has he been acquitted ?Learned Crown Counsel submits that he has not.
The only provision of the Code that provides for a discharge of anaccused person in a summary trial by the Magistrate is section 191,which says :
“ Nothing hereinbefore contained shall be deemed to prevent aMagistrate from discharging the accused at any previous stage of thecase, but he shall record his reasons for doing so.”
The instant case does not come within that section, for the learnedMagistrate “ discharged ” the accused after the close of the prosecutioncase and after the proctor for the defence had announced that he wasnot calling any evidence. The mere use of the word “discharge” does notnecessarily indicate that the order comes under section 1911, nor doesthe fact that the order of “ discharge ” has been made by the learned’Magistrate on a technical objection make it a discharge2 and not anacquittal. I am therefore of opinion that the accused has in the presentcase been acquitted within the meaning of that expression in section330 (1) of the Code. A plea under section 330 is available even thoughthe order is one that would have been set aside in appeal had an appealbeen taken. So long as it stands unreversed it is a bar to a second trialfor the same offence 3.
Our section does not make any distinction between an acquittal onthe merits and an acquittal on any other ground. It is therefore unsafeto resort to the principles appearing in text books and cases on the Englishlaw doctrine of autrefois acquit. Section 330 (1) is self-contained andthe question whether a plea under that section is sound or not has to hedetermined on an interpretation of its language. The decision ofUkkurala v. David Singho 4 appears to proceed on this footing. This isthe view taken under the Indian Criminal Procedure Code too. It is-sufficient if I refer to just one case on the point. I have in mind the caseof Pumananda Das Gupta and others v. Emperor 5. The Full Court statesits view thus at page 71 :
“ We think the principles underlying the English Common Law pleasof autrefois convict and autrefois acquit have been embodied so far as-this country is concerned within the limits, however narrow they maybe or have been stated to be, of the language of the statute itself. Inour view, it would be bewildering and, indeed, might result in greatinjustice to the community at large were we to endeavour to stretchthe language or extend the principles in the way we have been invitedto do by Mr. Dinesh Ch. Roy.”
1 Ukkurala v. David Sinho {1895) 1 N. L. R. 339.
Semaratna v. Lenohamy et al. {1917) 20 N. L. B. 44 at 50.
1 Gabriel v. Soysa {1930) 31 N. L. B. 314.
Dyson v. Khan {1929) 31 N. L. B. 136 at 140.
{1895) 1 N. L. B. 339.
{1939) A. I. B. Calcutta 65 {Btdl Bench).
BASMAYAKE J.—Solicitor-General v. Aradiel
237
I find myself unable to agree with the view taken by SoertszA.C.J. in the case of Fernando v. Rajasooriya1 to which learnedCrown Counsel invited my attention, that the plea is of no avail in acase where there has been no adjudication upon “ the merits ”. Withgreat respect, I find nothing in seetion330 (1) to support the view takenby the learned judge. I am of opinion that the learned Magistrate wasright in upholding the plea of autrefois acquit.
Although the Solicitor-General has not appealed against the earlierorder of the learned Magistrate and learned Crown Counsel has not askedme to deal with that order in revision, I have nevertheless examined theproceedings with a view to setting aside that order in 'the exercise of mypowers under section 357 of the Criminal Procedure Code if apart fromthe defect in the summons the prosecution was one that could bemaintained, but I am not satisfied that the evidence placed before theMagistrate by the prosecution establishes the charge.
The portion of section 18 of the Shops Ordinance, No. 66 of 1938,relevant to the charge declares that no shop shall be or remain open forthe serving of customers in contravention of any provision of any closingorder duly made under that Ordinance. The evidence is that the “ shop ”was “kept partly open”. It is not clear whether the extent of theopening was such as to create the impression that it was open for theserving of customers, for the evidence is that the accused is the owner andoccupier of the premises. I think the prosecution must, in a chargeunder section 18, place before the Court such evidence as will enable it toinfer therefrom that the shop was open for the serving of customers 2. Themere fact that the front door of a building which the owner uses both as ashop and as a dwelling is kept partially open does not establish that theshop was open for the serving of customers2. The evidence in this casedoes not necessarily lead to such an inference. The prosecution mustestablish beyond reasonable doubt all the ingredients of the offence.
The closing order is neither in evidence nor filed of record. Althoughsection 17 (4) declares that a closing order shall upon notification in theGazette be as valid and effectual as if it had been enacted in the Ordinance,it does not come within the classes of documents enumerated in section 57of the Evidence Ordinance. A Court is therefore not bound to takejudicial notice of a closing order.
The prosecution should therefore have produced the closing orderrecited in the report under section 148 (1) {b) made by the Inspector ofLabour. Sections 167 and 168 of the Criminal Procedure Code requirethat the accused should be given such particulars as are reasonablysufficient to give the accused notice of the matter with which he is charged.The reference to a number of Gazettes which are not readily available forreference even by the Judge cannot give the accused any idea of thecharge against him. I realise the practical difficulties in the way of thoseentrusted with these prosecutions, but those practical difficulties cannotprevail over the interests of justice, which require that the accusedshould be acquainted with the particulars of the charge against him.
1 (1946) 47 N. L. R. 399.2 Ratnayake v. de Silva (1941) 91 C. L. W. 39.
238
ikfwrikkwr v. Habeeba Umma
I should like to say a word about the charge itself. Section 18 makesthe following acts an offence thereunder :—
No shop shall be or remain open for the serving of customersin contravention of any provision of any closing order ; and
No customer shall on any day be permitted to enter any shopafter the hour specified in any such order as the hour at and afterwhich that shop shall be closed on that day.
Now the charge as disclosed even in the report to the Court undersection 148 (1) (b) of the Criminal Procedure Code does not allege which ofthe two acts was committed by the accused. It merely states that theaccused kept the shop open at 11.30 a.m. for the serving of customers.The mere act of keeping a shop open for the serving of customers is notthe offence created by section 18. It is the act of keeping a shop open incontravention of any provision of any closing order. The charge goes onto allege that the accused did permit a customer to enter the said shopon a Sunday. Section 18 does not create such an offence. It prohibitsthe permitting of customers to enter any shop on any day after theclosing hour prescribed for that day.
For these reasons I do not think I should interfere with even the earlierorder.
The appeal is dismissed.
Appeal dismissed.