Re Application of V. C. VELLAVARAYAM

Re Application of V. C. VELLAVARAYAM for a Writ of Prohibition
on the Police Magistrate of Colombo, and the
Complainant in P.C., Col. 83,148.

Criminal Procedure Code, ss. 191, 391-Power of Police Magistrate to open proceedings after discharging accused in a case summarily triable by him-Power of Attorney-General to direct the Magistrate to proceed afresh- Writ of prohibition on Magistrate-Plea in bar.

    When a Police Court had discharged, under section 191 of the Criminal Procedure Code, a person charged with an offence triable summarily, and on instructions from the Attorney-General, opened up the proceedings, an objection by the accused that the order already entered was a bar to further proceedings should be advanced by way of plea in bar, and not asserted by motion for a writ of prohibition, as such an objection is based not on the incompetency of the Court, but on the privilege of the accused that he shall not be vexed a second time for the same cause.

    The Attorney-General may by his instructions regulate the Magistrate's proceedings in a summary case as well as in a non-summary case, but such instructions can only be issued in a pending case and not in one which, so far as the Police Court is concerned, has been finally determined as by an order of discharge under section 191 of the Criminal Procedure Code.

    A discharge of an accused, under section 191 of the Criminal Procedure Code (Ordinance No. 15 of 1898), by a Police Magistrate in a case summarily triable by him is final, and so long as it stands unreversed it would prevent the Magistrate himself re-opening the prosecution. Such-discharge, however, would not have the same effect as an acquittal in barring a fresh prosecution.

    There is no provision in the Criminal Procedure Code enabling the Attorney-General to overrule or set aside an order of discharge made by a Magistrate in a summary case.

THREE accused persons were charged before the Police Court of Colombo with offences triable summarily and punishable under sections 314, 315, and 343 of the Penal Code. The Magistrate

examined the complainant and ordered summons to issue for an offence under section 314 only. Upon the appearance of the accused he proceeded to try them summarily for that offence. He examined the complainant and three other witnesses for the prosecution, recorded his disbelief of their evidence, and discharged the accused.

    The complainant thereupon applied for the Attorney-General's sanction to appeal as from an acquittal. The Attorney-General desired the Magistrate duly to record his verdict under section 190 of the Criminal Procedure Code. The Magistrate recorded that in discharging the accused he had not acted under section 190, but under section 191, and stated at greater length his reasons for having done so.

    The Attorney-General, by letter dated 2nd November, 1903, desired the Magistrate, " under the provisions of section 390 (2) of the Criminal Procedure Code, to proceed afresh against the accused under chapter 16 of that Code on the charges brought against them and to forward the proceedings to him in due course for instructions."

    The Magistrate issued notice to the parties. The accused were not served, but their proctors appeared for them and submitted that the Attorney-General had no authority to order a fresh inquiry, because the accused had been discharged in the course of a summary trial. The Magistrate agreed with this view, but being of opinion that he could not refuse to carry out the order of the Attorney-General, he ordered summons to re-issue.

    Before the returnable date application was made to the Supreme Court on behalf of the first accused for a rule nisi calling upon the Magistrate and the complainant to show cause why a writ of prohibition should not issue prohibiting them from further proceeding with the case.

    This was allowed, and notice orde

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