1930

Present: Maartensz A.J.

FERNANDO v. FERNANDO.

399-P. C. Balapitiya, 13,602.

Attorney-General-Power to re-open inquiry-Discharge of accused by Magistrate under s. 156 (2) of the Criminal Procedure Code-Direction by Attorney-General- Criminal Procedure Code, s. 391.

Where, in a non-summary inquiry, an accused person has been discharged by the Police Magistrate under section 156 (2) of the Criminal Procedure Code, the Attorney-General has the right to" direct the Magistrate to re-open the inquiry.

APPEAL from an order of the Police Magistrate of Balapitiya.
R. L. Pereira, K.C. (with him Ameresekera and Abeyewardena), for appellant.

Hayley, K.C. (with him Gnanaprakasam), for respondent.

Crossette Thambiah, C.C., for Crown.

October 28, 1930. MAARTENSZ A.J.-

The accused-appellant in this case was charged with having forged the signature of the complainant and with having attempted to cheat him, offences punishable under sections 454 and 400 and 490 of the Ceylon Penal Code.

The facts on which the accused was charged are not relevant to the appeal.

Forgery punishable under section 454 is an indictable offence, and the Magistrate after examining the complainant on oath under section 149, sub-section (1), of the Criminal Procedure Code issued a summons for the attendance of the accused.

When the accused appeared the nature of the offence was explained to him with the necessary particulars and his statement was recorded. Thereafter certain evidence was recorded by the Police Magistrate, Colombo, on a commission issued to him.

After the return of the commission the complainant was recalled to the witness box, the evidence already recorded was read over to the accused and he was cross-examined. Another witness was examined and cross-examined on a subsequent date and, according to the note on the record, the case for the prosecution was closed.

The note on the record is as follows : " There is no further evidence in the case. Case for prosecution closed. "

The Magistrate immediately after the case for the prosecution was closed made an order which he concluded with these words: " There is no case made out against the accused. I discharge him. "

The Magistrate stated his reasons for making his order but they do not touch the question for decision in this appeal.

The order does not specify the section of the Criminal Procedure Code under which it was. made, but there can be no doubt that it was made under the provision of section 156 (2) of the Criminal Procedure Code.

This order was made on December 31, 1929.

The Solicitor-General in April, 1930, made the following order :-

I do hereby under section 391 of the Criminal Procedure Code order you to re-open the inquiry against the accused in P. C. Balapitiya, case No. 13,602, record all evidence available and send the case to me in the ordinary course for instructions.

This order was sent to the Magistrate with a covering letter dated April 30, 1930.

The accused appeared on notice on May 26 and took the objection that the Attorney-General had no power to re-open proceedings under sections 391 of the Criminal Procedure Code where the Police Magistrate has discharged the accused under section 156 (2) of the Criminal Procedure Code.

The Magistrate made the following order :-

I have no discretion in the matter. I have only to carry out instructions.

The appeal is from this order. Section 391 of the Criminal Procedure Code enacts as follows :- Whenever a Police Court shall have discharged an accused under the provisions of section 157 and the Attorney-General' shall be of opinion that such accused should not have been discharged the Attorney-General may forward to it an indictment and direct it to commit such accused to the court nominated by the Attorney-General or order a Police Magistrate of. such court to re-open the inquiry and may give such instructions with regard thereto as to him shall appear