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

                      A. H. C. de Silva, Q.C., with K. Ratnesar, for the accused-appellants and petitioners.

                    V. S. A. Pullenayegum, Crown Counsel, with F. C. Perera, Crown Counsel, for the Attorney-General.

Cur. adv. vult.
 

May 14, 1962. T. S. FERNANDO, J.-

     This is yet another of those appeals which have in recent years raised the question of the stage at which an accused person in this country can maintain he has boon acquitted of an offence in respect of which a summary trial has commenced or has taken place.

        On 3rd September 1960 a public officer reported to court in terms of section 148 (1) (b) of the Criminal Procedure Code that the two appellants had committed an offence punishable under the Forest Ordinance. The report was entertained by the court and the proceedings were numbered 38595. The appellants were charged and their trial was fixed for 31st October 1960. The trial was not taken up on the day so fixed and was re-fixed for 12th December 1960. It was again not taken up even on this latter date, nor even on 25th January 1961 which was a new date of trial fixed. The trial was then re-fixed for 15th March 1961 on which day it was again postponed as a result of the 1st appellant being durable to appear in court. Eventually the trial was fixed for 14th June 1961, the Magistrate recording that it was "specially fixed" for that date.

On 14th June 1961 neither the prosecuting officer of the Department interested nor the witnesses for the prosecution were present. The Magistrate recording that fact, and also that this was a specially fixed case, made order " discharging " the appellants.

Nothing daunted, the same public officer who had made the report to court in case No. 28585 presented on the same day (viz., on 14th June 1961) another report in identical terms as the first against the appellants alleging the commission of the identical offence. The proceedings so initiated were numbered 41769. No explanation has been made or attempted even up to today for the refusal or failure of the prosecutor and his witnesses to appear on 14th Juno 1961 in case No. 38595. When the appellants appeared on summons in connection with case No. 41769, their proctor raised the plea-very properly, so it seems to me-that they were not liable to be tried again as they had boon acquitted in the former proceedings. The Magistrate, after hearing argument in the course of which a number of cases of this Court were cited before him, ruled on 18th January 1962 that the order of 14th June 1961 in case No. 38595 amounted only to a discharge of the appellants and therefore was no bar to their being tried in case No. 41769. It is this ruling of 1