Howes J:

This is an appeal from the order of the Magistrate, Telok Anson, discharging the accused who was tried summarily on a charge of theft in a dwelling house under section 380 of the Penal Code.

The Magistrate after hearing all the evidence for the prosecution, and without calling upon the accused to enter upon his defence, reserved judgment, and in his written judgment decided that:-

the Court has no alternative but to discharge the accused and order that the sum of $13.00 found on him be returned to him.

It is from this order of "discharge" that the appellant now appeals.

Since this is neither an appeal against an acquittal under section 314 (a) of the Criminal Procedure Code, nor from a conviction under section 314 (b), the appeal can only come under sub-section (c), viz, one "from any other order" (of the Magistrate) in which case the power of the Appellate Court is limited to either dismissing the appeal, or altering or reversing such order.

The appellant asks "that the order of discharge may be reversed into an order of acquittal.

The basics of the appeal is section 171 (f) of the Criminal Procedure Code, which reads:

If, upon taking all the evidence hereinbefore referred to, '(ie, all the evidence produced in support of the prosecution)' the Court finds that no case against the accused has been made out which if unrebutted would warrant his conviction the Court shall record an order of acquittal.

From this sub-section it is clear that, in the circumstances, the proper procedure was for the Magistrate to have recorded an order of acquittal.

The only cases in which, in a summary trial, the Magistrate can 'discharge' an accused are (1) under Section 171 sub-section (g), where, in the course of, and before the completion of the evidence for the prosecution the Magistrate considers the charge to be groundless; (2) under subsection (n) when, in a private prosecution of a compoundable offence the complainant is absent; and (3) under section 252 (i), where, if the accused is not further prosecuted upon the charge by the officer conducting the prosecution, the proceedings may be stayed by leave of the Court, and the accused be 'discharged of and from the same'

Sub-section (g) of section 171 has been imported into the Federated Malay States procedure in summary trials from section 253 (2) of the Indian code of Criminal Procedure which deals with the trials of "Warrant Cases". In India, although I have not access to the cases quoted, it has been held that if in the trial of a "Summons Case", under section 245 (i) (which is analogous to the Federated Malay States procedure in summary trials), the Magistrate finds no case made out against the accused and lets him go unconditionally, he acquits the prisoner, though the Magistrate may style his order of acquittal an order of discharge, and tack on to it the number of the section of the Code which deals with the discharges: and that the accused is none the less in law, acquitted: for the Indian Code in such a case contemplates no other order in Summons-cases-see Sohoni, Code of Criminal Procedure, 13th Edn. p. 610.

Further it is to be noted that in Reg. v. Monteiro, 4 Kyshe 556, it was held that in a compoundable case of assault, a "discharge" implied an acquittal, and that therefore there could be no second trial.

This, in my view, appears to have been the intention of section 171 of the Federated Malay States Criminal Procedure Code. The whole object of summary jurisdiction is to dispose of a case conclusively and expenditiously.

The Fedecrated Malay States Criminal Code, with the exceptions above mentioned, only contemplates two courses as being open to the Magistrate in Summary trials, viz, to acquit or convict. Whichever he does, it is then open to the accused person to appeal from the conviction, or to the Public Prosecutor to appeal against the acquittal.

In the present case, it is evident, from his judgment, that the Magistrate was of opinion that n