1929  Present : Maartensz A.J.

DYSON v. KHAN.

297-P. C. Anuradhapura, 66,295

Acquittal-Order of discharge after close of case for prosecution-Summary trial-Tantamount to acquittal-Plea of autrefois acquit- Criminal Procedure Code, s. 330.

Where, in a summary trial, the Magistrate at the close of the case for the prosecution made order discharging the accused, as the evidence failed to establish the charge,-

Held, that the order was tantamount to an acquittal under section 190 of the Criminal Procedure Code.

Where a person is charged under section 210 of the Penal Code with accepting a gratification for screening an offender from punishment and acquitted, he cannot be charged again on the game facts under section 138, with accepting a gratification as a motive or reward for rendering a service with a public servant.

APPEAL from an acquittal by the Police Magistrate of  Anuradhapura.

Schokman, C.C., for the appellant.

H, V. Perera, for the respondent.

September 18, 1929. MAARTENSZ A.J.-

The accused in this case, a Police Sergeant, was charged in case No. 65,177 of the same Court with accepting for himself a gratification, to wit, Rs. 100, from one Vegodapola in consideration of his screening the said Vegodapola from legal punishment for certain offences specified in the said charge and thereby committing an offence punishable under section 210 of the Penal Code.

At the close of the case for the prosecution accused's Counsel cited certain authorities and the Magistrate made the following order: -
" The Advocate for the defence argues at this stage that a prosecution under section 210, C. P. C, is inapplicable in the present case. He quotes 2 N. L. R. 48 and 8 N. L. R. 114. In the cases quoted the charge was under section 211, C. P. C, but I agree with him that both sections have at least this in common, namely, that they apply only in the case of charges brought in respect of gratifications offered or accepted with the intention of escaping the legal consequences of offences actually committed.

The ' offence ' in the present case is one of obstruction and insult and it is still pending. It is uncertain at this stage whether the accused in that case is guilty or indeed whether any offence has been committed at all. In view of this I consider the prosecution in the present case premature. I discharge the accused.

It is open to the complainant to reopen the case after the charge of obstruction, &c, is disposed of, assuming there is" no legal bar to such reopening."

As far as I can make out, Vegodapola was not prosecuted and no application was made to reopen the case.

In the present case the accused was charged with the same offence and with the offence of accepting for himself a gratification other than legal remuneration, to wit, Rs- 100 from Vegodapola as a motive or reward for rendering a service to him with the Sub-Inspector of Police of Anuradhapura, a public servant, an offence punishable under section 158 of the Penal Code.

The learned Police Magistrate upheld the plea of autrefois acquit and the appeal is taken from that order.

It was contended in appeal (1) that the order made in case No. 65,177 was an order made under section 191 of the Criminal Procedure Code and that it did not amount to an acquittal under section 190, (2) that in any event the plea was not a good one against the charge made under section 158 of the Penal Code.

Sections 190 and 191 enact as follows: -

Section 190.-" If the Magistrate, after taking the evidence for the prosecution and defence and such further evidence (if any) as he may of his own motion cause to be produced finds the accused not guilty, he shall forthwith record a verdict of acquittal. If he finds the accused guilty he shall .forthwith record a verdict of guilty and pass sentence upon him according to law and shall record such sentence."

Section 191.-"Nothing hereinbefore contained shall be deemed to pr