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ADRIAN DIAS v. WEERASINGHAM
NLR55V135
1953 Present: Nagalingam
A.C.J.
ADRIAN DIAS, Appellant, and WEERASINGHAM
(Excise Inspector), Respondent
S. C. 37-M. C. Colombo South, 40,646
Autrefois acquit-Failure of
prosecutor to lead evidence-" Discharge " of accused
Right of prosecutor to institute fresh proceedings-Criminal Procedure Code,
ss. 190, 191, 2S9 (5), 330.
When, in a summary case, the prosecutor is not ready to proceed with his case on
the date of trial, even after he has been given ample opportunity to place his
evidence, an order of Court refusing postponement and "discharging" the accused
operates as an acquittal. It is not open then to the prosecutor to institute
fresh proceedings upon the same charge.
Senaratne v. Lenohamy (1917) 20 N. L. R. 44,distinguished.
APPEAL
from a judgment of the Magistrate's Court, Colombo South.
E. R. S. R. Coomaraswamy, for the accused appellant.
S. S. Wijesinha, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
September 25, 1953. NAGALINGAM
A.C.J.-
A plea of autrefois acquit is urged against the conviction of the appellant, who
has been found guilty under section 17 of the Excise Ordinance with having
illicitly sold arrack and of having been in possession of arrack in excess of
the quantity allowed by law. The plea arises on these facts : In case No. 35,759
of the Magistrate's Court of Colombo South the appellant was charged on 27th
April, 1951, with having committed the offence of which he has been subsequently
found guilty. That case was duly fixed for trial, and there were no less than
five postponements. It would appear that two of those dates were granted, one on
the application of the accused on the' ground that he was not ready on the very
first date of trial, and the second as the accused had not appeared in Court,
but on the other three occasions the prosecution was not ready. On 11th January,
1952, which was the last trial date fixed in the case, the prosecutor applied
for a postponement on the ground that one of his witnesses was not present, but
the learned Magistrate acting under section 289 (5) of the Criminal Procedure
Code, refused the postponement, and as the prosecutor said he could not proceed
with the case, discharged the accused. Thereafter, on 22nd February, 1952, the
present proceedings were initiated against the accused on the identical charges,
and he has been found guilty after trial.
It has been urged on behalf of the appellant that though the learned Magistrate
used the term " discharge " in connection with the previous proceedings that
term should correctly be regarded as an order of acquittal.
Sections 190 and 191 are the two relevant sections of the Criminal Procedure
Code that need consideration for the purpose of adjudicating upon the contention
put forward. These sections have been the subject of several decisions in our
Courts. In fact there is one case which is referred to as a Full Bench Case, and
that is the case of Senaratne v. Lenohamy1[ (1917) 20 N. L. R. 44.]. In that
case the facts were that on the accused person appearing in Court and on the
charge being read out to him and on his being called upon to plead, he said he
was not guilty and the trial was immediately thereafter taken up, but the
prosecutor was not ready and the learned Magistrate made order of discharge. It
will be noticed that the facts tend to show that the prosecutor had not been
given a fair opportunity of placing his evidence before Court, and in those
circumstances the majority of the Court took the view that the order was an
order of discharge and not of acquittal. But one of the Judges who expressed the
majority view in regard to the case expressed himself in
language which quite clearly and
completely expresses the view I had formed on a reading of these sections. I
venture to cite the relevant extract from the judgment of de Sampayo J. The
learned Judge said :-
" The words ' at any previous stage of the
