1965 Present  : T. S. Fernando, Sri Skanda Rajah and G. P. A. Silva, JJ.

L. I. C. DE SILVA, Appellant, and V. M. P. JAYATILLAKE
(

Inspector of Police), Respondent

S. C. 746 of 1961 - J. M. C. Colombo, 21053

Criminal procedure-Summary trial-Stages at which the accused person may be convicted or acquitted or discharged- " Acquittal "Plea of autrefois acquit- Criminal Procedure Code, ss.190.191,194,195, 290, 330.

On 25th January 1960, which was the date fixed for the retrial of a summary case, a material witness for the prosecution was absent, and the Magistrate directed that the " case be called " on 9th February 1960. On the latter data the Magistrate made order discharging the accused when he was informed by the complainant that the witness would not be available for another year for his evidence to be taken. On 19th February 1961 the same complainant instituted the present case against the same accused for the same offence.

Held, that the accused was not entitled to raise the plea of autrefois acquit.

The earliest stage at which a Magistrate can convict an accused in a summary trial is after he has taken the evidence for the prosecution, the evidence for the defence (where tendered) and the evidence (if any) which he (the Magistrate) may of his own motion cause to be produced.

The earliest stage at which a Magistrate can acquit an accused in terms of section 190 is the same stage at which he can convict him .

While it is open to a Magistrate for reasons stated to discharge an accused in terms of section 191, such discharge can amount only to a discontinuance of the proceedings against that accused and does not have the effect of an acquittal.

An acquittal under section 190 means an acquittal on the merits.

Don Abraham v. Christoffelsz (55 N. L. R. 92), Adrian Dias v. Weerasingham (55 N. L. R. 135), Edwin Singho v. Nanayakkara (61 N. L. R. 22) and Peter v. Cotelingam (66 N. L. R. 468) overruled.

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

Colvin R. de Silva, with M. L. de Silva, Miss Manouri de Silva and T. Edirisuriya, for the accused-appellant.

V. S. A. Pullenayegum , Crown Counsel, with E. Abeysuriya, Crown Counsel, for the Attorney-General.

Cur. adv. vult

May 11,1965. T. S. FERNANDO, J.-

The interpretation of sections 190 and 191 of the Criminal Procedure Code has received the attention of this Court on several occasions in recent years and, on the appeal now before us, our attention has been

invited to a number of decisions which seem to take different views on the question as to the stage when a prosecution in a summary trial under the Code can be said to have ended.

Before examining these decisions, it is necessary to set down the following material facts :-

The accused-appellant was charged in case No. 14038 with attempting to cheat, an offence punishable under section 403 read with section 490 of the Penal Code. He was convicted in the Magistrate's Court but, on an appeal preferred by him, the Supreme Court quashed that conviction and remitted the case to the Magistrate's Court for retrial. The retrial was fixed by the Magistrate for 25.1.1960. On this date a material witness for the prosecution was absent, and the Magistrate directed that the " case be called " on 9.2.1960. On this latter date, the complainant informed the Magistrate that the witness will not be available for another year for his evidence to be taken. The Magistrate, recording that it would not be fair to keep the charge hanging over the accused for another year made an order discharging him.

The same complainant on 19.2.1961 presented to the Magistrate's Court a report in terms of section 148 (1) (6) of the Criminal Procedure Code alleging the commission by the accused of the same charge as was the subject of case No. 14038. This was the commencement of the proceedings in case No. 21053 from which the present appeal arises. Wh