JUDGMENT

Abdoolcader J (delivering oral judgment):

My attention was drawn by a report in the New Straits Times of 6 June 1975, to the proceedings in the Sessions Court at Ipoh on the preceding day when the learned president struck off the case against Probationary Inspector Syed Abdul Bahari Shahabuddin bin Syed Abdullah who was charged with an offence under s. 4(a) of the Prevention of Corruption Act, 1961. I accordingly called for the record of the proceedings in Ipoh Sessions Court Arrest Case No. 158/ 75 to examine and consider the correctness, legality and propriety of the order made by the learned president.

The learned president apparently proceeded on the basis that he had no jurisdiction as the accused had been granted a discharge not amounting to an acquittal on the same charge by a former learned president of the Sessions Court at Ipoh, and accordingly struck off the case in exercise of what he termed his inherent powers.

The accused had been charged on the same charge previously in the Sessions Court at Ipoh in Ipoh Sessions Court Arrest Case No. 35/73 and after six witnesses had given evidence the prosecution informed the Court on 22 March 1975, that it had five more witnesses and that one of them, a material witness, was seriously ill and unable to be present in Court that day. A medical certificate to that effect was tendered in support, and the prosecuting officer then requested the case to be adjourned to another date for continued hearing. Counsel for the defence objected to this course contending that the offence alleged took place in July 1972, that the accused was charged in Court only in April 1973, and that there had been several postponements of the case, and requested the Court to grant the accused a discharge not amounting to an acquittal "and matters could be left at that so that the prosecution could make its own option as to what to do." The learned president in that case accordingly granted the accused a discharge not amounting, to an acquittal, recording and attributing the reasons therefor to the circumstances pertaining to the history of the case in question and also his personal position in hearing it at a later date, presumably referring to his impending resignation from the Judicial Service.

I do not think that the learned president in that case was correct in the order he made as the only provision in the Criminal Procedure Code which could apply in the circumstances would have been s. 254(ii) which would empower him to grant a discharge only if the officer conducting the prosecution informed the Court that he did not propose further to prosecute the accused on the charge, whereupon all proceedings thereon would be stayed by leave of the Court and the accused discharged of and from the same. The learned president acted suo motu in making the order of discharge with the prosecuting officer, far from acting under the provisions of s. 254, only applying for an adjournment. However, further consideration of this aspect would only be academic in view of the fact that a fresh charge in respect of the same offence has been preferred against the accused in the present proceedings before the Sessions Court at lpoh which have now come under review in this criminal revision.

I would only pause to observe that when there is no reasonable prospect of a case proceeding as a result of the absence of one or more witnesses or for some other cogent reason, then the prosecution should act under the provisions of s. 254 of the Criminal Procedure Code. Sub-section (iii) of s. 254 specifically enacts that a discharge under that section shall not amount to an acquittal unless the Court so directs. It is settled law that unless there are good grounds to the contrary, a discharge under this provision should amount to an acquittal. Good grounds for a discharge not amounting to an acquittal would arise where the prosecution is unable to proceed for the time being but can satisfy the Court that the temporary imped