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2024 MarsdenLR 2148
HIGH COURT MALAYA KUALA LUMPUR
MUNIANDY KANNYAPPAN, J
ABDUL RAZAK ANWAR BATCHA & ANOR – Appellant
Versus
PP – Respondent
[Criminal Appeal No: WA-42K-9 & 10-11/2022]
The default position under s 254(3) of the CPC is for the court to grant a discharge not amounting to acquittal (DNAA) unless circumstances justify a discharge amounting to acquittal (DAA).
Headnote:(A) Criminal Procedure Code (CPC) - Section 254(3) - Federal Constitution (FC) - Article 145(3) - Discharge not amounting to acquittal (DNAA) - Prosecution withdrew charges against accused persons for cheating - Sessions court granted DNAA upon prosecution's request, allowing for future prosecution based on further investigation. (Paras 3, 4, 18, 27)
(B) Discretion of Court - The court's discretion to grant DNAA is affirmed, and the default position is DNAA unless circumstances warrant an order of discharge amounting to acquittal (DAA). (Paras 11, 24)
Facts of the case:
Both accused were charged with cheating under s 420 of the Penal Code. The prosecution withdrew the charges, seeking DNAA due to ongoing investigations related to the case. (Paras 1, 2)
Findings of Court:
The court affirmed the validity of the DNAA granted by the sessions court, emphasizing adherence to statutory provisions and prosecutorial discretion. (Paras 26, 27)
Issues: The main issues were whether the prosecution could withdraw charges and the implications of granting DNAA versus DAA. (Paras 9, 10)
Ratio Decidendi: The court ruled that a DNAA allows for potential future prosecution, aligning with the prosecutorial discretion outlined in the Constitution and CPC. (Paras 18, 24)
Result: Application to revise the DNAA order dismissed; the order was upheld as proper under the circumstances. (Paras 27)
[1] The facts reveal, both accused persons (appellants to the present appeal) were charged for an offence of cheating at the sessions court pursuant to s 420 of the Penal Code (PC/Act 574) in furtherance of common intention of both of them, as mode of their participation in the crime pursuant to s 34 of the PC.
[2] Before trial commenced, the prosecution had decided to withdraw the charge brought against both of them. It is their constitutional prerogative to do so pursuant to art 145(3) of the Federal Constitution ( FC ). They had taken the position to discontinue the criminal prosecution, as further investigation has to be embarked on another related matter which has a bearing on the offence alleged against them.
[3] Ensuing from that, the deputy public prosecutor (DPP) appearing for the prosecution had informed the sessions court judge (SCJ) that the charges be withdrawn and instantly applied for both the accused persons to be only discharged and not acquitted. The order sought from the court, is commonly referred to as DNAA - discharge not amounting to an acquittal. To reiterate, such an order was sought as the prosecution wishes to have the criminal prosecution discontinued as further investigation has to be carried out on a related matter which has a bearing on the charge preferred against both the accused persons. Thus, if the impending investigation turns out fruitful, criminal prosecution may still be pursued, but if otherwise it would not be.
[4] By virtue of that, the SCJ had agreed with the prosecution and decided to grant an order of DNAA pursuant to s 254(3) of the Criminal Procedure Code ( CPC /Act 573) which renders the following:
(3) Such discharge shall not amount to an acquittal unless the court so directs.
[5] It is the discretion of the SCJ to grant such an order as the default position under s 254(3) of the CPC is for her to grant an order of DNAA upon withdrawal of the charge against an accused person pursuant to s 254(2) of the .
[6] Such a position is also in tandem with the law, as the earliest stage at which an accused person could be acquitted of the charge, commonly referred to as an order of DAA - discharge amounting to an acquittal, is when the court at the end of the case of prosecution pursuant to s 173(f)(ii) of the CPC , finds that the prosecution was unable to make out a prima facie case against the accused. In that respect, see the case of Kuppusamy v. Public Prosecutor ; [1948] MLJ 25 ), as well as the legal provision in s 173(f)(ii) of the which reads as:
If the court finds that the prosecution has not made out a prima facie case against the accused, the court shall record an order of acquittal.
[Emphasis Is Mine]
[7] Unlike the above, an order of DNAA could be made pursuant to s 173(g) of the CPC , when the charge preferred against the accused turns out groundless, lacking in its foundation, thus unsustainable if it proceeds for trial. Instances inter alia would be if the charge preferred is for an offence unknown in law or for a non-existing offence as the offending provision had been repealed, or there has been decriminalization of the conduct or actus reus in issue. The stage at which the court may order so, is when the case for the prosecution has not come to an end yet, as reflected in that provision itself, which reads:
Nothing in paragraph (f) (which is at the end of the case of prosecution) shall be deemed to prevent the court from discharging the accused at any previous stage of the case (before completion of the case of prosecution) if for reasons it be recorded by the court it considers the charge to be groundless.
[Emphasis Are Mine]
[8] Due to lack of research by both parties to this proceeding, this matter has reached the High court when an order of DNAA made by the sessions court is not a final order disposing of the rights of parties, since the Public Prosecutor (PP) may choose to institute prosecution of the accused persons later in time, pursuant t
