[IN THE COURT OF CRIMINAL APPEAL]

1959 Present: Basnayake, C.J. (President), K. D. de Silva, J., and
H. N. G. Fernando, J.

THE QUEEN v. K. GEEDRICK

Appeal 89 of 1959, with Application 108

S. C. 37-M. C. Galle, 5486

Trial before Supreme Court-Plea of autrefois acquit or convict-Judge must allow it to be tried by the jury-Criminal Procedure Code, ss. 216, 330, 331.

In a trial before the Supreme Court, a plea of autrefois acquit or convict must be tried by the jury.

APPEAL against a conviction in a trial before the Supreme Court.

M. L. de Silva, with Douglas Wijeratne and N. Wijeratne (assigned), for Accused-Appellant.

V. S. A. Pullenayegum, Crown Counsel, for the Crown.

September 8, 1959. BASNAYAKE, C.J.-

The accused-appellant was indicted on the following five charges, all of which related to the theft and illegal removal of property from the premises of M. P. Gomez and Company, Galle :-

"1. That on or about the 28th day of May 1958 at Havelock Place, Galle, in the division of Galle, within the jurisdiction of this Court, you did commit theft in the premises of M. P. Gomez & Co., Galle,

which had been left vacant and unprotected, of articles, to wit, One Saucepan, One Tiffin Carrier, Two Pillows, One Blanket, Four Towels, Two Shirts, One Rug, Five Sarongs, One Suspender, One Hand Saw and Three Handkerchiefs, property in the possession of Santhosam Thomas, and that you are thereby guilty of an offence against Regulation 22 of the Emergency (Miscellaneous Provisions and Powers) Regulations published in Government Gazette No. 11,321 of the 27th May, 1958, and made by the Governor-General under Section 5 of the Public Security Ordinance No. 25 of 1947 as amended by Act No. 22 of 1949 and Act No. 34 of 1953, punishable under Regulation 22 of the said Regulations.

"2. That at the time and place aforesaid and in the course of the same transaction you did commit theft in the premises of M. P. Gomez & Co., Galle, which had been left vacant and unprotected, of articles, to wit, seven bottle-openers, property in the possession of J. L. Devotta and that you are thereby guilty of an offence against Regulation 22 of the said Regulations, punishable under Regulation 22 of the said Regulations.

"3. That at the time and place aforesaid and in the course of the same transaction, you did illegally remove articles, to wit, the articles set out in Charges 1 and 2 above from the said premises and that you are thereby guilty of an offence against Regulation 22 of the said Regulations, punishable under Regulation 22 of the said Regulations.

" 4. That at the time and place aforesaid and in the course of the same transaction you did, in a building used for the custody of property, to wit, the said premises of M. P. Gomez & Co., commit theft of One Saucepan, One Tiffin Carrier, Two Pillows, One Blanket, Four Towels, Two Shirts, One Rug, Five Sarongs, One Suspender, One Hand Saw and Three Handkerchiefs, property in the possession of the said Santhosam Thomas and that you have thereby committed an offence punishable under Section 369 of the Penal Code.

" 5. That at the time and place aforesaid and in the course of the same transaction you did, in a building used for the custody of property, to wit, the said premises of M. P. Gomez & Co., commit theft of seven bottle openers, property in the possession of J. L. Devotta, and that you have thereby committed an offence punishable under Section 369 of the Penal Code."

After the indictment was read and explained to him the accused pleaded " not guilty". Thereafter an English speaking jury was empanelled. At the request of counsel for the defence the learned trial Judge directed the jury to retire. After they had retired counsel made the following submission :-

" In addition to the plea of ' not guilty ' the accused also says that by virtue of Section 330 of the Criminal Procedure Code he is not liable to be tried in res