Vigny Alfred Raj a/l Vicetor Amratha Raja v Public Prosecutor [2022] 5 MLJ 639

Federal Court Putrajaya 

Whether order of DNAA is appropriate

1. The Appellant was charged under section 130V of the Penal Code and pleaded not guilty. On the date fixed for trial, before any evidence could be adduced, the Deputy Public Prosecutor (DPP) informed the Court that the Prosecution would not proceed as investigations were still ongoing. Consequently, the DPP applied for a discharge not amounting to an acquittal (DNAA) under section 254 of the Criminal Procedure Code (CPC). The Appellant’s counsel objected to this application, arguing that the appropriate order should be a discharge amounting to an acquittal (DAA) instead.
2. The High Court granted the DNAA on the basis that the Court did not have the authority to acquit the Appellant without hearing evidence, and that under Article 145 of the Federal Constitution, the discretion to initiate or discontinue prosecutions rests with the Attorney General or Public Prosecutor. The Court of Appeal upheld the High Court’s decision, agreeing that the prosecution had valid reasons for seeking a DNAA since the trial had not commenced, as no witnesses had been called, and the prosecution could not proceed due to the ongoing investigations. The Court of Appeal also found that in the absence of any evidence being presented, the High Court was correct in declining to grant an acquittal.
3. When the matter came before the Federal Court, the DPP informed the Court that the investigations had been completed and that the Public Prosecutor had decided not to proceed with the charge against the Appellant, leaving it to the Court to determine the appropriate order in the circumstances. Under subsection 254(1) and (2) of the CPC, when the Prosecution informs the Court before judgment is delivered that it will not continue with the prosecution, the Court shall discharge the Accused from the charge.

1. Whether an order for discharge amounting to an acquittal under section 254 of the CPC can be granted

1. The Federal Court explains that subsection 254(3) of CPC clearly outlines the legal effect of a discharge. It provides that a discharge does not equate to an acquittal unless the Court expressly directs otherwise. This interpretation flows directly from the plain and ordinary language of the statute and the Court is therefore obligated to apply the words of the law as written, without adding or distorting their natural meaning.
2. Furthermore, in addressing the application of subsection 254(3) of the CPC, the Federal Court clarified the correct legal approach when the Public Prosecutor decides not to pursue a case after trial has commenced. Although the Court of Appeal had earlier followed the case of K Abdul Rasheed v PP [1985] 1MLJ 193, stating that a discharge amounting to an acquittal (DAA) required an application by the accused, the Federal Court disagreed with this view.
3. In Mohamed bin Kanathi Meerah Mydin v Public Prosecutor [2019] 2 MLJ 194,  the Court of Appeal had reasoned that, since the accused did not actively apply for a DAA, the Court could not grant one, even though it recognized that it would be improper to let a criminal charge hang indefinitely over a person’s head. Nevertheless, the acquittal in that case was granted based on the inadmissibility of a key witness’s testimony rather than under subsection 254(3) itself.
4. The Federal Court emphasized that under subsection 254(3), it is not the duty of the accused to seek an acquittal. Rather, it is for the Prosecution to request the Court to direct that a discharge should not amount to an acquittal and such a request must be accompanied by solid, justifiable reasons. The discretion under subsection 254(3) must be exercised sparingly and only in rare, exceptional circumstances where public interest outweighs the rights of the accused.
5. The Court further reiterated that trial proceedings commence once the charge is read and the accused pleads, in accordance with section 178 CPC thus triggering the applicability of section 254. There is no requirement for Prosecution witnesses to be called before section 254 can be invoked. The Court cited Public Prosecutor v Marwan bin Ismail [2008] 3 MLJ 51 and Public Prosecutor v Lee Chan Sang [1989] 1 MLJ 224 to support this position.
6. Moreover, the Federal Court stressed that allowing a discharge without acquittal solely on the basis that investigations are still ongoing, after a charge has already been filed, is an abuse of process. The statement from the DPP that investigations were incomplete, yet a charge had already been brought, raised serious concerns. It signalled an unacceptable practice of charging first and investigating later which is a process deemed incompatible with the principles of criminal justice.
7. In this case, by the time the appeal was heard, the Prosecution had already confirmed that investigations were completed and the AG/PP had no intention to proceed. Therefore, the Federal Court found no justification for the earlier DNAA order. It concluded that a discharge amounting to an acquittal was appropriate and necessary in light of the circumstances.

1. The Federal Court allowed the appeal, setting aside the orders of High Court and Court Appeal. 
2. The Federal Court discharged and acquitted the Appellant under section 130V of the Penal Code.