1. Prosecution applied for discharge not amounting to acquittal (DNAA) under s254(3) CPC after material witnesses failed to attend trial; magistrate refused. (Para 1 , 2 , 3 , 4 , 5 , 6 )
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2026 MarsdenLR 1802
HIGH COURT SABAH & SARAWAK TAWAU
STEVE RITIKOS, JC
PP – Appellant
Versus
MUHAMMAD KHAIR AL MAARIF ERIZAN – Respondent
[Criminal Revision No: TWU-43-4-6/2026]
Petitioner Advocates:Suhayl Aminin Sallehuddin,Nur Nisla Abdul Latif ,Respondent Advocate: Darmin Achok,Nur Hafizah Husna Elahab @ Lahab
Under Section 254(3) Criminal Procedure Code, DNAA is the default position when prosecution withdraws a charge, unless compelling reasons otherwise exist. Magistrate cannot force prosecution to close case by refusing DNAA when essential witnesses are absent, as this amounts to miscarriage of justice.
Headnote:(A) Criminal Procedure Code (Act 593) - Section 254(3) - Discharge Not Amounting to Acquittal (DNAA) - Where Public Prosecutor withdraws a charge, court shall discharge accused, such discharge not amounting to an acquittal unless court otherwise directs - Default position is DNAA unless compelling reasons otherwise. (Paras 16, 17)
(B) Federal Constitution - Article 145(3) - Attorney General's power to discontinue proceedings - Discretion is unfettered and cannot be challenged or substituted by court's discretion. (Paras 18-20)
(C) Criminal Procedure Code - Section 376(1) - Public Prosecutor has control and direction of all criminal prosecutions - Section 254 requires conscious or deliberate invocation by prosecution that it will not further prosecute accused. (Paras 21, 26)
(D) Criminal Procedure Code - Section 173(c) - Court shall take all evidence produced in support of prosecution - Court cannot record discharge and acquittal unless all evidence has been heard. (Paras 26-27)
Facts of the case:
The prosecution applied to the High Court for revision of a Magistrate's refusal to grant a Discharge Not Amounting to Acquittal (DNAA) under Section 254(3) of the Criminal Procedure Code. A child offender was charged under Section 335 of the Penal Code. Trial commenced with five witnesses called. On 8 June 2026, prosecution sought to call two eyewitnesses who failed to attend despite subpoena. The Magistrate refused the prosecution's application for DNAA, holding that the Investigating Officer failed in duty and further adjournments would prejudice the child offender who was preparing for SPM examinations.
Findings of Court:
The High Court found the Magistrate's refusal was erroneous in law. Section 254(3) CPC contemplates DNAA as default when prosecution withdraws a charge. The Magistrate's direction for parties to file submissions effectively forced prosecution to close its case despite two essential witnesses being absent. By denying prosecution right to call remaining witnesses, this amounted to a miscarriage of justice. The court's discretion must be exercised in accordance with law and not prejudice prosecution's right to present its case. While the child offender's schooling was sympathetic, it cannot override statutory provisions and prosecutorial discretion under Article 145 of the Federal Constitution.
Issues: The main issues were whether the Magistrate erred in refusing the prosecution's application for DNAA under Section 254(3) CPC and whether the refusal amounted to a miscarriage of justice by prematurely closing the prosecution's case.
Ratio Decidendi: Section 254(3) CPC mandates DNAA as default when prosecution withdraws a charge, unless court finds compelling reasons otherwise. The Attorney General's discretion under Article 145(3) of the Federal Constitution is unfettered and cannot be substituted by court's discretion. Forcing prosecution to close its case when essential witnesses are absent fundamentally prejudices the prosecution's right to re-charge the accused and undermines fairness of trial.
Result: The Magistrate's refusal to grant DNAA was set aside. The prosecution's application for DNAA was allowed. The matter was remitted to the Magistrates' court for further directions consistent with the ruling. (Para 31)
Legal Category Hierarchy
- practice and procedure
- crime and sentencing
- constitutional law
Table of Contents
2. Prosecution argued DNAA is default under s254(3) and refusal prejudiced case; magistrate reasoned investigator's failure and child offender's schooling outweighed. (Para 10 , 11 , 12 , 13 , 14 )
3. High Court allowed revision, set aside magistrate's refusal, granted DNAA, and remitted for further directions. (Para 31 )
4. What is the default position when the prosecution withdraws a charge under s254(3) CPC?
DNAA is the default unless the court otherwise directs; the court must give compelling reasons to depart from this default. (Para 16 , 17 , 24 )
5. Does the court have discretion to refuse a DNAA application under s254(3) CPC?
Yes, but discretion must be exercised in accordance with law and not in a manner that prejudices the prosecution's right to present its case. (Para 23 , 24 )
6. Can the court compel the prosecution to close its case when material witnesses are absent?
No, compelling the prosecution to close without calling essential witnesses amounts to a miscarriage of justice; prosecution must be allowed to adduce all available evidence. (Para 22 , 25 , 26 , 27 , 28 , 29 , 30 )
7. What is the scope of the Attorney General's prosecutorial discretion under Article 145(3) and s376 CPC?
The Attorney General's discretion to institute, conduct or discontinue proceedings is unfettered and cannot be challenged or substituted by the court. (Para 18 , 19 , 20 , 21 )
8. What is the purpose of the High Court's revisionary power under the Criminal Procedure Code?
To correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions, or apparent harshness of treatment. (Para 8 , 9 )
JUDGMENT
Introduction
[1] This is an application by the prosecution for the court to exercise its revisionary power to revise the non-granting of the order to discharge not amounting to acquittal ("DNAA") under s 254(3) of the Criminal Procedure Code in the matter before the Magistrates' court in Tawau in Case No: TWU-84-15-9/2025 [Public Prosecutor v. Muhammad Khair Al Ma'arif Bin Erizan]. The application was made via a letter dated 16 June 2026 and subsequently via an Affidavit In Support affirmed on the 26 June 2026 by Suhayl Aminin Bin Sallehuddin, the Deputy Public Prosecutor in the AGC at Tawau.
Background Facts
[2] The Respondent, a child offender ("CO"), was charged under s 335 of the Penal Code ("PC") in Magistrates' court Case No TWU-84-15-9/2025.
[3] The trial commenced on 2 March 2026, with five witnesses already called, including the victim, complainant, attending doctor, victim's brother, and the investigating officer.
[4] On 8 June 2026, the prosecution sought to call two further eyewitnesses, but both failed to attend despite a subpoena being served on one.
[5] The prosecution applied for a Warrant of Arrest and subsequently for a Discharge Not Amounting to Acquittal (DNAA) under s 254A of the Criminal Procedure Code ("CPC") citing powers under art 145 of the Federal Constitution and s 376 CPC.
[6] The Learned Magistrate refused both applications, holding that the Investigating Officer had failed in his duty and that further adjournments would prejudice the CO, who was preparing for his SPM examinations. The Learned Magistrate then directed the parties to file their respective submissions on 8 July 2026.
Provisions Of The Law On Revision
[7] Having scrutinized the said letter and the said Affidavit In Support, this revision was fixed for hearing on the 7 July 2026.
[8] The case of Liaw Kwai Wah & Anor v. PP [1986] 1 MLRA 254; [1987] 2 MLJ 69; [1987] CLJ (Rep) 163 laid down the purpose of revision as follows:
"We would observe that the power of revision is to be exercised in accordance with the law for the time being in force relating to criminal procedure, in the present case that law is the Criminal Procedure Code. We would also observe that the object of the revisionary powers provided for in the Code is:
"... to confer upon criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law; irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand, in some undeserved hardship to individuals."
(Emperor v. Nasrullah & Others AIR 1928 All 287).
[9] Liaw Kwai Wah & Anor further stated:
"... Basically, the duty lies with the High court to see that the criminal law is properly administered by an inferior court.
The Judge's duty is to satisfy himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court. Where, for instance, a convicted person has scrupulous objection to invoke the jurisdiction of a High court, either on a question of legality of conviction or error of law concerning the conviction or sentence, the judge ought to call for and examine the record with a view to exercising the revisionary power to correct a miscarriage of justice."
The Prosecution's Position
[10] The prosecution argued that s 254(3) CPC provides that unless the court deems otherwise, withdrawal of a charge should result in DNAA.
[11] The prosecution further argued that the two absent witnesses were eyewitnesses, essential to proving the charge under s 335 PC.
[12] Thus, the denial of DNAA deprived the prosecution of the opportunity to secure crucial testimony, amounting to injustice.
The Learned Magistrate's Reasoning
[13] The Investigating Officer failed to ensure witness attendance.
[14] The CO's interest as a s
