Principles

·  Criminal Procedure—Discharge for absence of complainant—Code of Criminal Procedure, 125, s. 154—Does not prevent resumption of trial

A discharge of an accused under Code of Criminal Procedure, 1925, s. 154, for absence of the complainant is not an acquittal and therefore does not prevent resumption of trial.

Judgment 

      M. A. Abu Rannat C.J. October 13, 1964: —The complainant lodged an information against accused for assaulting him on August 17, 1964, under Penal Code, s. 296. On the day fixed for hearing the complainant did not appear, and the magistrate discharged the accused under Code of Criminal Procedure, s. 154.

      On September 3, 1964 the accused was brought before the Police Magistrate and argued that because the accused was discharged on August 20, 1964, he could not be tried again. The Police Magistrate accepted this defence and stopped the trial. On appeal by the complainant to the judge of the High Court, His Honour ordered the resumption of trial on the ground that the discharge of accused under Penal Code, s. 154, does not prevent resumption of trial.

      This application is by advocate Abdulla Negib on behalf of accused against the decision of the honourable judge of the High Court. He contends that Code of Criminal Procedure, s. 154 is similar to the Indian Code of Criminal Procedure, s. 247, and that a discharge under section 247 15 equivalent to acquittal.

I hasten to say that the Indian Code of Criminal Procedure, s. 274 is not identical with Sudan Code of Criminal Procedure, s. 154.

      The Indian Criminal Procedure Code, s. 247, reads:

      “If the summons has been issued on complainant, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the magistrate shall, notwithstanding anything herein- before contained, acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to some other day”.

      Sudan Code of Criminal Procedure, s. 154, reads:

      “When the proceedings have been instituted upon complaint and upon any day fixed for the hearing of the case, the complainant is absent, the magistrate may in his discretion notwithstanding anything hereinbefore contained at any time before the charge has been framed discharge the accused”.

      It should be noted the Indian section uses the word “acquit” while the Sudan section uses the word “discharge”.

      The word “acquittal” means the absolution of a party charged with a crime or misdemeanour. If a person is tried and acquitted he cannot be re-tried on the same charge. The word “discharge” has many meanings under the Code; it never means “acquittal”.

      The arguments advanced by the advocate that the word “discharge” under Code of Criminal Procedure, s. 154, means “acquittal” on the ground that it had the same meaning under the Indian section 247 falls to the ground.

      I therefore reaffirm the decision of the honourable judge of the High Court and dismiss this application.

      Editors’ Note: —When the case was returned for trial, the complainant, Abdou Abu Samra, formally withdrew his complaint before Sayed Yahia Omran, Police Magistrate, Khartoum, on October 31, 1964.