(CRIMINAL REVISION)

SUDAN GOVERNMENT v. FATHER LEWIS BUFFONI 

AC-CR-REV-383.1964

Principles

·  Criminal Procedure –Absence of complainant-Code of Criminal Procedure ,S, 154 discharge of accused does not prevent resumption of trial Crimimal Procedure-Discharge and acquital –word  “discharg” in Code of criminal Procedure s, 154, is not equivalent to word “ aquittal”  under Indian criminal Procedure Code,s, 247.

Accused was discharged by the police magistrate under Code of criminal Procedure, s, 154, because on the day fixed for hearing the complainant did not appear later when accused was brought before the Court, the police magistrate ruled that accused once discharged under above section he could not be tried again. Judge of the High Court refused to confirm the finding and ordered resumption of trial.
Held: (i) the word “discharge” in Code of criminal Procedure ,s, 154 does not have the same meaning as the word  “acuittal” under Indian criminal Procedure Code,s,247

Judgment

Advocae: Abdalla Nagib…………………..for the accused

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, as the accused was sis charged on August 20.1964 he cannot be tried against. the police magistrate accepted this defence and stoped the trial. on appeal by the complainant to the Judge of the High Court ,His Honour orderd the resuption of trial on the ground that the discharge of accused under the Code of Criminal Procedure, s, 154, does not prevent resumption of trial.

This application is by Advocate Abdullah Negib on behalf of accused against the decision of the Honourable Judge of the High Court. He contends that the Code of Criminal Procedure ,s, 247, and that a discharge under section 247 and that a discharge under section 247 us equivalent to acquittal.

I hasten to say that the Indian Code of Criminal Procedure ,s, 154.

The Indian Code of criminal Procedure,s, 247 reads:

“if the summons has bee issued on complainant, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing maybe adjourned ,the complainant does not appear, the magistrate shall notwithstanding any thing Hein before contained, acquit the accused unless for some reason he thiks 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 chrage has been framed discharg 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 a party charged with a crime or misdemeanor and if a person was tried and acquitted he cannot be tried on the  same charge , while the word “discharge” has many meanings under the Code, although it never means acquittal.

The argument advanced 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 it the ground.

I therefore re-affirm the decision of the Honourable the Judge of the High Court and dismiss this application