1947 Present : Dias J.

VARGHEES, Petitioner, and WIJESINGHE (S. I., Police)
Respondent.
 
164- In revision, M. C. Colombo, 26,317

Plea of autrefois convict- Scope of Criminal Procedure Code, s.330(4).

The accused was charged, under section 315 of the Penal Code, with causing hurt, and was convicted and sentenced. Thereafter , after he had served his sentence, a fresh plaint was filed on the self-same facts charging him, under section 300 of the Penal Code, with attempt to murder.

Held, that the plea of autrefois convict was available to the accused and that the case feel under section 330(1), and not under section 330 (4), of the Criminal Procedure Code.

APPLICATION, in revision, to quash certain proceedings in the Magistrate's court, colombo.
Mahesa Ratnam, for the accused, petitioner.

J. G. T. Weeraratne, C.C., for the Attorney- General.

Cur. adv. vult.

206

May 16m 1947 . DIAS J.-

The material facts are as follows :-

On August 5, 1946, the police produced the petitioner before the Magistrate alleging that the had stabbed one D.A. Pedris with a knife and asked for a remand pending the report of Judicial Medical Officer in regard to the injuries. The evidence shows that Dr. Mendis operated on the injured man on August 3,1946, when it was discovered that he had sustained an incised wound on the neck going through the floor of the mouth and cutting the tongue. It was a very serious injury because the doctor stated that had not the bleeding been arrested, it is possible that the injured man might have died. Therefore before the plaint was field the authorities knew or should have known that the injury endangered life and was at least an offence under section 317 of the Penal Code and not summarily triable by a Magistrate.

The police field a plaint in M. C. Colombo, case No.19,263, against the petitioner on August 8, 1946, charging the petitioner with causing simple hurt (section 315). The petitioner on being charged pleaded guilty and was remanded for identification and sentence.

Counsel appearing with the police then moved that the sentence be stayed until the doctor could be examined. On September 2,1946, the doctor gave evidence and the petitioner was sentenced to undergo rigorous imprisionment for a term of six months and to pay a fine of Rs.100. I was informed that this sentence the petitioner has served and that the fine has been paid.

No application was made by the prosecutor to the Supreme Court to revise the proceedings in case No.19,263, on the ground that the evidence disclosed a graver offence than one under section 315.

Thereafter in M. C Colombo, case No.26,317 the police on March 17, 1947, field a fresh plaint on the self-same facts charging the petitioner 1947, field a fresh plaint on the self-same facts charging the petitioner with attempting to murder D.A. Pedris-section 300 of Penal Code. When the petitioner appeared he raised the plea of autrefois convict. The Magistrate rejected that plea on the ground that under section 330(4) of the Criminal Procedure Code such a plea was not available to the petitioner. It is from that order that the present applications made.

Section 330 (1) lays down the general rule- Nemo debet bis pro eadem culpa puniri. Therefore , a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence is not liable to be tried again either (a) for the same offence , or (b) on the same facts (i) for any other offence for which a different charge from the one made against him might have been made under section 182, or (ii) for which he might have been convicted under section 182, illustration (a), (d) and (e) exemplify this general rule. Then follow three exceptions to the general principle. A person acquitted or convicted of any offence may be afterwards tried for any offence may be afterwards tried for any "distinct" offence for which a separ