Juma Ally & Two Others v. R., Crim. App. 5-A-70; 28/4/70; Bramble J.

Juma Ally & Two Others v. R., Crim. App. 5-A-70; 28/4/70; Bramble J.

The prosecutor made an application to withdraw from a prosecution under section 86 (a) of the Criminal Procedure Code which does not operate as a bar to subsequent proceedings against an accused on the same facts. The magistrate made an order granting permission to withdraw the complainant under section 200 of the Criminal Procedure Code under which the accused was acquitted and was not liable prosecution on the same facts. The prosecutor appealed

            Held: (1) “There seems to be no discretion in the court to decide which of the relevant sections to invoke and while in an particular case it may be of the opinion that there should be an end to the proceedings it can only act on an application made by the prosecutor. In this case the prosecutor did not allege that there were sufficient reasons for permitting him to withdraw the case finally. He sought a withdrawal with liberty to institute fresh proceedings if the circumstances warranted it and the court could only grant or refuse his request.” (2) “The learned magistrate had no power to make an order for withdrawal under section 200 of the Criminal Procedure Code and I must allow the appeal, revoke the order and substitute  an order for withdrawal under section 86 (b).” Appeal Allowed.