Solicitor General V. Aradiel

1948     Present : Basnayake J.

SOLICITOR-GENERAL, Appellant, and, ARADIEL,
Respondent

S. C. 395-M. C. Panadure 46 (Labour)

Criminal Procedure Code-Discharge of accused at close of prosecution Subsequent trial for same offence-Autrefois acquit-Section 330 (1) Shops Ordinance-Production of closing order-Court cannot take judicial notice-Ordinance No. 66 of 1938, section 18.

Where at the close of the case for the prosecution the accused called no evidence but took objection to the validity of the summons and the Magistrate thereupon " discharged " the accused-

Held, that the accused had been acquitted within the meaning of section 330 (1) of the Criminal Procedure Code and could not be tried again for the same offence.

Held, further, that in a prosecution under section 18 of the Shops, Ordinance, No. 66 of 1938, the relevant closing order should be produced

It does not come within the class of documents enumerated in section 57 of the Evidence Ordinance and a court is not bound to take judicial notice of it.

Fernando v. Rajasooriya (1946) 47 N. L. R. 339, dissented from.

APPEAL from a judgment of the Magistrate, Panadure.

T. S. Fernando, Crown Counsel, with A. E. Keuneman, Crown Counsel for Solicitor-General, appellant.

B. Senaratne, for accused respondent.

Cur. adv. vult.

 November 12, 1948. BASNAYAKE J.-

The accused-respondent, K. Aradiel, was on November 1, 1947, tried on a charge under the Shops Ordinance, No. 66 of 1938. The accused was charged from a summons which reads:

" Whereas complaint hath this day been . that you did on the 20th day of July, 1947, at Moratuwa, within the division aforesaid being the occupier of a shop, to wit, premises bearing No. 36 and situated at Galle Road, Digarolla, Moratuwa . . . . keep the said shop open at 11.30 a.m. for the serving of customers and thereby committed an offence punishable under section 23 (1) read with section 18 of the said Ordinance and that you did permit a customer to enter the said shop on a Sunday and thereby committed an offence punishable under section 23 (1) read with section 18 of the said Ordinance."

The only evidence against the accused was that of one Eric de Silva, Inspector of Labour, who made the report under section 148 (1) (b) of the Criminal Procedure Code. His evidence is to the effect that while proceeding on patrol duty on Sunday, July 20, 1947, at 11.30 a.m. at Moratuwa, observing that shop No. 36, Galle Road, Moratuwa, which is owned by the accused, was kept partially open, he entered it and saw the accused hand a bottle of balm to a person who enquired for its price. The witness says he was accompanied by one Rajasooriya, another Inspector of Labour. The accused neither gave nor called any evidence on his behalf, but at the close of the prosecution his proctor took the objection that the summons served on him made no reference to the Ordinance under which he was charged. The learned Magistrate thereupon discharged the accused.

On December 6, 1947, a fresh summons was taken out on the accused and on February 14, 1948, the date fixed for the trial, his proctor took

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