Samsudeen V. Marikar Et Al.,

1934 Present: Macdonell CJ., Garvin S.P.J., and Dalton J.

SAMSUDEEN v. MARIKAR et al.

 936-P. C. Colombo, 8,228.

    Appeal-Discharge of accused in non-summary case before Police Magistrate- Accused discharged previously in similar proceedings-Complainants right of appeal-Criminal Procedure Code, s. 157 (3).

Where, in non-summary proceedings before a Police Magistrate, the accused was discharged, before the conclusion of the inquiry, on a plea of previous discharge in similar proceedings,-

Held, that the order of discharge was made under section 157 (3) of the Criminal Procedure Code and that no appeal lay from the order to the Supreme Court.

CASE referred by Akbar J. to a Bench of three Judges. Two accused were charged with theft under section 369 of the Penal Code in P. C. Colombo, 6,361. The proceedings were non-summary and after evidence was taken they were acquitted and discharged. Thereafter the same complainant charged five accused including the two accused in the previous case with theft and criminal breach of trust. When the accused were brought before the Magistrate on non-summary process the point was taken that two of them had been charged with the same offence and acquitted. The Magistrate discharged all of them. The complainant appealed. The question referred was whether the complainant had the right of appeal or whether the order of discharge being one under section 157 (3) of the Criminal Procedure Code the proper remedy was to have moved the Attorney-General to reopen the case.

H. V. Perera (with him Amarasekera & D. W. Fernando), for complainant, appellant.-The point is whether an order of discharge in a non-summary inquiry is appealable. This is not a discharge under section 157. Under that section a Magistrate can discharge if the complaint is groundless, that is, if it is groundless in point of fact or if in law the various elements that make up the offence do not exist. Sub-section (3) is not a section that gives the Magistrate the power to discharge. It is merely a saving provision. The power is inherent in the Court. There are other reasons for which an accused may be discharged than on the ground that the complaint is groundless. Such an order of discharge is not one under section 157 (3), and an appeal would lie.

[GARVIN J.-Would not the fact of a previous acquittal make a second charge groundless ?]

That would be extending the meaning of the word as used in the section. The language used is not appropriate to cover a case of this kind. The word " groundless" refers to a view taken by a Magistrate which he is competent to take. As an inquirer he is competent to take a view only on the evidence. Section 157 (3) merely indicates that a Magistrate may make such an order at any stage of the proceedings. The expression " further prosecution" in sub-section (2) contemplates not a reopening of the case by the Attorney-General but a fresh prosecution

King v. Haramanis1[1 8 N. L. R. 188.] If the second prosecution is merely an abuse of the process of the Court a Magistrate has an inherent power to refuse to entertain the complaint. Such a discharge is not referable to section 157(3).

[MACDONELL C.J.-If he did not discharge under section 157, under what section did he discharge ?]

There is no specific section. It is in accordance with the inherent power in the Court. The Code is not exhaustive. There may be cases which are not contemplated by the Code.

[MACDONELL C.J. referred to section 83 of the Courts Ordinance. The powers of the Police Court are limited as contrasted with the powers of the District Court in section 40.]

But section 9 of the Criminal Procedure Code makes these powers wider. The jurisdiction is spoken of as being subject to the provisions of the Code. It is therefore wider than the powers conferred by the specific sections of the Code. A Court which is given jurisdiction by Statute has power to de

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