1962 Present: T. S. Fernando, J.

M. A. PETER and another, Appellants, and E. D. COTELINGAM
(Range Forest Officer), Respondent

S. C. 200-202 of 1962, with Application in Revision- M. C. Chilaw, 41769

Criminal Procedure Code-Sections 190 and 191-Stage or point of time at which accused may be acquitted.

Where, in a summary trial, the prosecutor fails, without excuse, to lead any evidence after he has been allow ed. a reasonable opportunity to do so. the proper order which the Magistrate should make in respect of the accused is one of acquittal and not discharge. In such a case, the accused is not liable to be prosecuted again for the same offence.

The trial of a summary case was postponed three times and, on the fourth " specially fixed " date of trial, neither the prosecuting officer nor the witnesses for the prosecution were present. No explanation was given for their absence. In the circumstances the Magistrate " discharged " the accused.

Held, that the order of the Magistrate was, in fact, one of acquittal and that the accused were not liable to be tried again, in a subsequent case, for the same offence.

APPEAL, with application in rev