Attorney General V. Piyasena

1962 Present : Basnayake, C.J., Gunasekara, J., and
T. S. Fernando, J.

ATTORNEY-GENERAL, Appellant, and PIYASENA, Respondent

S. C. 545-M. C. Chilaw, 25,279

Autrefois acquit-" Acquittal" on the ground that charge is illegal-Liability of the accused to be prosecuted again for the same offence-" Discharge "- " Acquittal"-Criminal Procedure Code, ss. 2, 151 (2), 187 (I), 190, 191, 194, 195, 290 (5), 330, 336.

Held (BASNAYAKE, G. J., dissenting) : Where, at the close of the prosecution in a summary trial, the Magistrate purports to acquit the accused person on the ground that the charge was illegally framed, the order of the Magistrate amounts in law to a discharge of the accused under section 191 of the Criminal Procedure Code and not to an acquittal under section 190. In such an event, the accused may be prosecuted again for the same offence in fresh proceedings.

In Case No. 21419 the Magistrate purported, at the close of the evidence for the prosecution, to acquit the accused on the ground that the accused, who had appeared before the Court otherwise than on summons or warrant when he made his first appearance, had been charged without any evidence being led as required by section 187 (1) of the Criminal Procedure Code. No appeal was preferred against this purported acquittal. Subsequently the accused was prosecuted again in the present case for the very same offence.

Held (BASNAYAKE, C.J., dissenting), that the accused was not entitled to raise the plea of autrefois acquit under section 330 of the Criminal Procedure Code.

Fernando v. Excise Inspector of Wennapuwa (1958) 60 N. L. R. 227, not followed.

APPEAL from a judgment of the Magistrate's Court, Chilaw.

D. St. C. B. Jansze, Q.C., Attorney-General, with Ananda Pereira, Senior Crown Counsel, and V. S. A. Pullenayegum, Crown Counsel, for Attorney-General.

E. B. Wikramanayake, Q.C., with M. M. Kumarakulasingham and A. K. Premadasa, for Accused-Respondent.

Cur. adv. vult.

January 24, 1962. BASNAYAKE, C.J.-

This is an appeal by the Attorney-General against the order of the Magistrate of Chilaw acquitting the accused-respondent on a plea of previous acquittal in M. C. Chilaw case No. 21419 raised under the authority of section 330 of the Criminal Procedure Code. The charges in the instant case are as follows :-

" You are hereby charged, that you did within the jurisdiction of this Court at Erunwila on 25th May 1957 manufacture an excisable article to wit arrack without a licence from the Government Agent, Puttalam, Chilaw District, in contravention of section 14(a) of the Excise Ordinance (Cap. 42) and thereby committed an offence punishable under section 43(6) of the Excise Ordinance (Cap. 42).

2. At the same time and place aforesaid did possess and use a still for the purpose of manufacturing an excisable article other than toddy to wit arrack without a licence from the Government Agent, Puttalam, Chilaw District, in contravention of section 14 (e) of the Excise Ordinance (Cap. 42) and thereby committed an offence punishable under section 43 (/) of the Excise Ordinance.

3. At the same time and place aforesaid did without lawful authority have in your possession an excisable article to wit 20 drams of arrack which had been unlawfully manufactured and thereby committed an offence punishable under section 44 of the Excise Ordinance (Cap. 42). "

The charges in M. C. Chilaw 21419 are as follows :-

" You are hereby charged that you did within the jurisdiction of this Court at Nankadawara on 25.5.57 did manufacture an excisable article to wit arrack without a licence from the Government Agent, Puttalam, Chilaw District, in contravention of section 14a of the Excise Ordinance (Chapter 42) and thereby committed an offence punishable under section 436 of the Excise Ordinance (Chapter 42).

2. At the same time and place aforesaid did possess and use a still for the purpose of manufacturing arra

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