[COURT OF CRIMINAL APPEAL] 

1940     Present: Howard C.J. (President), Hearne and Keuneman JJ. 

THE KING v. EMANIS.

64-M. C. Colombo, 33,253. 

Indictment-Three counts-Withdrawal of two counts-Power of Attorney-General to frame fresh charge on the count withdrawn-Criminal Procedure Code, .s. 172 (1). 

The words "alter an indictment" in sub-section (1) of section 172 of the Criminal Procedure Code include the withdrawal of a count in an indictment. 

Where a charge is withdrawn in pursuance of the Court exercising its power under the section, the Attorney-General has no right to frame a fresh indictment in respect of the charge. If it is desired to place the accused person on his trial in respect of a charge so withdrawn, magis­terial proceedings must be commenced de novo.

THE accused-appellant was indicted on three counts before Cannon J. on June 5, 1940. Before the indictment was read Crown Counsel withdrew with the consent of the presiding Judge count (3) of the indictment under section 217 of the Criminal Procedure Code. He next moved to amend the indictment by the deletion of count (1) with the reservation of the right to proceed against the appellant on count (1) if the charge on count (2) failed or if the Attorney-General so desired. Counsel for the appellant objected to the Crown reserving any right to frame another indictment if the present one failed. The presiding Judge allowed the motion of the Crown Counsel and proceeded with count (2). The appellant was convicted and sentenced to twelve years' rigorous imprisonment. On August 19, 1940, an indictment containing count (1) of the original indictment was presented by the Attorney-General against the appellant. Counsel for the appellant moved to quash the indictment on the ground that the Crown had no legal right to present the indictment at this stage. The presiding Judge overruled the objection and proceeded to trial. The appellant was convicted of culpable homicide not amounting to murder and was sentenced to a term of five years' rigorous imprison­ment. He appealed from the conviction.

 C. S. Barr-Kumarakulasingham (with him M. M. Kumarakulasingham), for the accused, appellant.-The word " alter " in section 172 (1) of the Criminal Procedure Code does not mean " withdrawal". An extended meaning is given to that word by sub-section (3) of that section. It is clear from this that the Legislature did not want to extend the meaning further so as to include a withdrawal of a charge. The corresponding Indian section is 227. It is different from our section in that there are the words " alter or add " instead of alter, and there is no sub-section (3). Hence the interpretation given in India will not apply. Withdrawal under section 217 would entail fresh non-summary proceedings before the Attorney-General could present an indictment on the charge so with­drawn. In the present case the Court had deleted a charge. The Attorney-General cannot take any