JUDGMENT

Harun J:

This case has been called for a revision.

The defendant was alleged to have neglected to exercise due control over his motor-car on 14 August 1973 at about 11.00 p.m. at Bulatan Duta, Kuala Lumpur. There is no record when the Summons (No: TN 6373/74) against the defendant for the alleged offence was applied for or issued but the record does show that the first return date of the Summons was more than a year later, that is on 24 October 1974. On that date the defendant appeared in court and hearing was fixed for 11 November 1974. When the case came up for hearing the prosecution said its witnesses were not available and hearing was postponed to 28 November 1974. On the adjourned date the prosecution said an important witness was absent but it appeared that was because he had not been subpoenaed, whereupon the magistrate discharged the defendant not amounting to an acquittal.

The prosecution applied for a fresh Summons (TN 1752/75) but again dates of application and issue are not known. However, the return date of the Summons was 3 March 1975. This time the charge was for dangerous driving at the same time and place as the first charge.

When defendant appeared in court on 3 March 1975, his counsel said that in addition to the earlier two appearances in court, the defendant had appeared a third time on 20 January 1975 in compliance with a Police Notice but as the prosecution did not have the Charge Sheet in court he had been asked to go away. He now faces a more serious charge to which counsel objected on the grounds that the earlier charge still remains. This objection was over-ruled and hearing was fixed for 18 September 1975.

The court could not proceed with the hearing on 18 September 1975 as the magistrate was on leave and then hearing was adjourned to 23 December 1975.

When defendant appeared on 23 December 1975 the prosecution asked for an adjournment on the grounds that investigation had not been completed. Counsel for defendant objected to the application on the grounds that there had been several postponements in the past and the charge should not be left hanging on the defendant's head for so long and drew the court's attention to the case of Public Prosecutor v. Suppiah Pather [1953] MLJ 126 whereupon the magistrate acquitted and discharged the defendant.

The question is whether the magistrate was right in making the order of acquittal at that stage.

On the authority of Kuppusamy V. Public Prosecutor , a magistrate cannot acquit an accused person until the evidence for the prosecution has been heard. In a Summary Trial by a magistrate, his powers of acquittal can only be exercised either under s. 173(f) of the Criminal Procedure Code at the close of the case for the prosecution when there is no case to answer or under s. 173(m)(1) of the Criminal Procedure Code at the close of the case for the defence when the court finds the accused not guilty. Apart from these two provisions, a magistrate may order a discharge amounting to an acquittal when the Public Prosecutor declines to prosecute further at any stage before delivery of judgment under s. 254 of the Criminal Procedure Code.

A magistrate, however, may discharge an accused person under either s. 173(g) of the Criminal Procedure Code before the close of the case for the prosecution or s. 173(n) of the Criminal Procedure Code before calling upon the accused to enter upon his defence but the discharge under these provisions does not amount to an acquittal.

The decision in Suppiah Father's Case is not fully reported but a portion of it appears in the report of Ariffin Bin Cassim Jayne V. Public Prosecutor . From what is reported, this was a Penang case and therefore the Criminal Procedure Code of the SS Cap. 21 applied then. Section 182(g) of that Code is almost similar to our s. 173(g) but with this important difference - the magistrates in Penang and Melaka had the power to acquit an accused person before the close of the case for the prosecu