Seneratna V. Lenohamy Et Al.,

[FULL BENCH]

1917 Present : Wood Renton C.J. and Ennis and De Sampayo JJ.

SENARATNA v. LENOHAMY et al.

724-P. C. Negombo, 10,757

    Criminal Procedure Code, s. 191-Summary trial-Discharge-Is it a bar to fresh proceedings ?

Per WOOD RENTON C.J. and DE SAMPAYO J. (ENNIS J. dissentiente).-The discharge of an accused without trial under section 191 of the Criminal Procedure Code is no bar to the institution of fresh proceedings in the same case. Where, therefore, in a summary case, the accused, after he had pleaded to the charge, was discharged, as the complainant's witnesses were absent on the day fixed for the hearing, and as he was not ready to go on without them.

Held, that the discharge was not a bar to fresh proceedings.

ENNIS J.-An order of discharge after the accused has been called upon to plead must be deemed to be an order of acquittal, from which the Attorney-General is entitled to appeal within twenty-eight days, and the absence of the appeal makes the order conclusive.

IN this case the accused were charged with the theft of three heaps of unthreaded paddy, which had been seized and advertised for sale under the provisions of the Police Ordinance, 1865, and with having voluntarily obstructed the complainant, who is a Vidane Arachchi, in the discharge of his public functions. The Police Magistrate discharged them without trial, on the ground that they had already been charged for the same offence in P. C. Negombo, 10,045, and had been discharged under section 191 of the Criminal Procedure Code. The Solicitor-General appealed. The case was reserved for argument before a Bench of three Judges by Ennis J. by the following judgment: -

September 17, 1917. ENNIS J.-

In case No. 10,045 of the Police Court of Negombo proceedings were instituted against the present respondents and another, by the Vidane Arachchi of Udugampola, by presenting a complaint to the Court (section 148 (b), Criminal Procedure Code). A summons was issued, and on April 30, 1917, on the appearance of the accused, a statement from the summons (deemed to be the charge, section 187 (2) was read to the accused, to which the present respondents

pleaded not guilty. The complainant was not ready to proceed with the trial, and the Magistrate, acting under section 289 (5), refused an adjournment, as he was not satisfied that reasonable efforts had been made to secure the attendance of witnesses, and he discharged the present respondents by an order under section 191. An order under section 191 is an appealable order (Gooneratne V-Barnado,1 and the present appeal is an instance), but no appeal was presented.

On July 30, 1917, the Vidane Arachchi presented a new complaint of the same offence, and summons issued in a new case, No. 10,757. At the hearing the previous proceedings were brought to the notice of the Court, which thereupon discharged the accused, holding that new proceedings could not be instituted, as they were virtually a revival of the old proceedings which had been finally closed by an order under section 191, from which no appeal had been taken. The Solicitor-General appeals on the ground that a discharge under section 191 did not amount to an acquittal, and was, therefore, no bar to fresh proceedings. In support of the appeal the cases of Davidson v. Appuhamy2 and Vellavarayam's case 3 were cited. Neither of these cases is a direct authority for the appellants' contention. Davidson v. Appuhamy 2 decided that the old proceedings could not be re-opened, while Vellavarayam's case 3 was an application for a writ of prohibition. Both cases, however, suggested the possibility of fresh proceedings on a fresh complaint in a new case with a new number. The point, however, did not arise in either case. It seems to me to be highly technical, and that the learned Magistrate in the present case is right in saying that such fresh proceedings are virtually a revival of t

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