JUDGMENT OF AMISSAH J.A.
The point in this appeal has been narrowed down to one simple issue, namely, whether a committal magistrate is entitled to discharge an accused person rather than commit him for trial if the evidence in the summary before the magistrate supports some offence other than that charged in the indictment even though the trial court would have power to convict the accused of the other offence on the same charge. The respondent was brought before the district court on an indictment which charged him with two counts of stealing. The learned magistrate who was called upon to deal with the case took the view that the evidence supported charges of fraud by false pretences and not stealing. He therefore stated as his opinion that the summary of evidence did not disclose that the offence of stealing had been committed and he discharged the accused. The State complains of this action.
Mr. Boison for the state has argued that the whole scheme of the Criminal Procedure Code, 1960 (Act 30), for the trial of persons on indictment, would be frustrated if the magistrate's view was accepted as correct. Because whereas a court trying a case on indictment may, upon finding that the evidence does not support a charge of stealing, nevertheless, by law, convict the accused of fraud by false pretences, a magistrate's conduct in discharging the accused would deny such a [p.534] trial court any opportunity of complying with the provisions on alternative convictions.
Section 184 (4) and (5) of the Criminal Procedure Code, 1960, governs the decision of the magistrate to commit or discharge. Its provisions are as follows:
"(4) If the Court is of opinion that there is a case for the accused to answer, it shall commit him for trial to a Court (in this Part called 'the trial Court') of competent jurisdiction
(5) If the Court is of opinion that there is not a case for the accused to answer, it shall discharge him but this shall not be a bar to a subsequent charge in respect of the same facts."
The decision at the committal stage, therefore, turns on whether or not in the magistrate's opinion there is a "a case for the accused to answer." For if there is, the magistrate is under a duty to commit the accused. When, then, should the magistrate find that there is a case to answer? At a trial, a court finds that there is a case to answer, in the first place, if there is evidence adduced by the prosecution on all the ingredients of the offence. If there is such evi
