088-NLR-NLR-V-77-V.-PERMARATNE-and-four-others-Accused-Appellants-and-the-Republic-of-Sri-Lanka.pdf
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MALCOLM PEEERA, J.—Premaratne v. Republic of Sri Lanka
Present: Malcolm Perera, J., Ismail, J. and Vythialingam, J.
V. PREMARATNE and four others, Accused-Appellants, and theRepublic of Sri Lanka, Complainant-Respondent
S. C. 6—10/74—D. C. (Crim.) Anuradhapura No, 1228—
M.C. Anuradhapura No. 5902
Criminal Procedure Code—Accused undefended at the trial—Duty ofTrial Judge—Effect of S, 296 (1)—Provisions therein imperative
Held : S. 296 (1) of the Criminal Procedure Code impose uponthe Trial Judge the duty of informing the undefended accusedperson of the right to give evidence on his own behalf and, if theaccused elects to give evidence on his own behalf, the Trial Judgeshould call the attention of the accused person to the principalpoints in the evidence for the prosecution which tell against himin order that he may have an opportunity of explaining them.These provisions are imperative and the Trial Judge must strictly*conform to them.
A-PPEAL against conviction.
Sarath Dissanayake for the 2nd appellant.
Bala Nadarajah with Miss S. Senaratne and S. Subramaniamfor the 3rd Accused-Appellant.
(1st, 4th and 5th Accused-Appellants are absent andunrepresented)
T. Wickremasinghe, State Counsel for the State.
Cur. adv. vult.
February 11, 1975. Malcolm Perera, J.—
In this case, the five accused-appellants were indicted at theinstance of the Attorney-General, and the charge against themread as follows : “ That on or about the 22nd day of November,1964, at Karavilgoda, Balalwewa, within the jurisdiction of thisCourt, you did commit robbery of motor car bearing registeredNo. EN 2657 valued at Rs. 7,000 being property in the possession*of Uyanwattage Jamis and that you have thereby committed anoffence punishable under section 380 of the Penal Code. ”
At the conclusion of the trial, the learned District Judgeaccepted the prosecution evidence and convicted the five accused-appellants. A sentence of eighteen months’ rigorous imprison-ment was imposed upon each of the accused persons. Theaccused-appellants appealed against this conviction and sentencein these appeals.
MALCOLM PERERA, J.—Premaratne v. Republic of Sri Lanka.
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It has been submitted on behalf of the 2nd accused-appellantthat he was undefended in the lower Court and that there isnothing on the face of the record to indicate that the learnedTrial Judge informed the accused of his right to give evidence onhis own behalf, and if he had elected to give evidence on his ownbehalf, whether he called his attention to the principal points inthe evidence for the prosecution which tell against him in orderthat he may have an opportunity of explaining them. The pointthat arises for determination, is whether the learned DistrictJudge’s failure to comply with section 296 (1) is fatal to theconviction. In the case of King v. Roma (7 Ceylon WeeklyReporter p. 14), it was held that where the accused was notrepresented by a pleader and at the close of the case for theprosecution the Judge informed him of his right to give evidenceand he elected to do so, the omission to call the attention of theaccused to the principal points in the evidence for the prosecutionwhich told against the accused did not vitiate the conviction asthe evidence given by the accused showed that he was quiteaware of the effect of the evidence against him and was notprejudiced by the omission.
Schneider A. J. said : “ In the present case the evidence showsthat the accused were quite aware of the effect of the evidenceagainst them. They have not complained that they have in anyway been prejudiced. I would follow the decision in Somaliya v.Kaluwa (4 C.W.R. p. 121) and affirm the conviction and sentence.But I do so with some hesitation as I am not sure that the failureto observe the provisions of section 296 is an irregularity oromission of the kind contemplated in section 425 of the CriminalProcedure Code. It seems to me to be something more. It isan illegality. But I do not feel justified in the present case in notfollowing the precedent of Somaliya v. Kaluwa. I would, there-fore, dismiss the appeal. ”
In the case of Somaliya v. Kaluwa (Supra), Wood Renton C. J.said : “ The only point of law taken in support of the appeal wasthat the conviction was bad inasmuch as the record did not showaffirmatively that the Police Magistrate had explained to theaccused who was not represented by an Advocate or Proctor themain points in the case against him in conformity with the.provisions of section 296 (1) of the Code of Criminal Procedure.There is no doubt that the Police Magistrate complied with theprincipal provisions in that sub-section. He had informed theaccused of his right to give evidence and the accused elected todo so and his evidence shows that he perfectly understood boththe nature and the details of the charge against him. Moreover,•there is no allegation to the contrary in the Petition of Appeal.It does not appear to me that in these circumstances there is
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anything in the case of Fernando v. Perera (16 N.L.R. p. 477)which makes the conviction bad. At the same time I wouldventure to point out to the Police Magistrate the great impor-tance of obviating difficulties of this kind by making in everyinstance a short note in the record itself showing that the require-ments of section 296 (1) of the Criminal Procedure Code havebeen complied with. ”
In the case of King v. Joseph (36 N.L.R. p. 416), it was heldwhere in criminal proceedings the accused is undefended and therecord does not contain an entry to the effect that the Trial Judgehas complied with the provisions of section 296 of the CriminalProcedure Code, the Supreme Court will not infer from themere fact that no record has been made that the section.has notbeen complied with.
Where the petition of appeal does not make the failure tocomply with the section a ground of appeal, there should bematerial before the Court that the accused was not informed ofhis rights under the section.
In the case of Fernando v. Perera (Supra), the accused-appellant alleged in his Petition of Appeal that he was notdefended by a pleader at the trial and that he was unaware of hisright to give evidence and that if he had had an opportunity ofplacing his version of the circumstances before the Court, theresult would or might have been very different- The accusedhimself admitted that he was asked by the Magistrate whetherhe had anything to add to his original statement when he wascharged. There was nothing on the face of the record to showwhether the provisions of section 296 (1) of the Criminal Pro-cedure Code which entitled the accused person to be expresslyinformed of his right to give evidence on his own behalf and asto what are the principal points against him, were compliedwith Wood Renton J. observed : “ In these circumstances I thinkthe accused is entitled to a new trial. I set aside the convictionand sentence and send the record back for this purpose. ”
In the instant case there is nothing on record to indicate thatthe learned Trial Judge conformed with section 296(1). At
Page 68, marginal 72, there is a note by the learned Trial Judge :
ment regarding his case. ” On an examination of the Petition ofAppeal, it is clear that the. accused has not urged as a point forconsideration by this Court the failure of the learned Trial Judgeto conform to section 296 (1) of the Criminal Procedure Code.However, in my view, the plain wording of section 296 ()
‘ The 2nd accused informs that he will not make a state-
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imposed upon the Trial Judge the duty of informing theundefended accused person of his right to give evidence on hisown behalf, and if the accused elects to g ve evidence on his ownbehalf, the Trial Judge shall call the attention of the accusedperson to the principal points in the evidence for the prosecutionwhich tell against him in order that he may have an opportunityof explaining them. These provisions are imperative ; the TrialJudge must strictly conform to them. In the present case, whatwas most telling against the accused person was the presence offinger-prints.
I find support for my view in the case of Sumanapala v. Jaya-tillake (33 C.L.W. p. 46) where Dias J. observed as follows :•“ There are two chains of authority under this section, one ofwhich takes the view that the failure to comply withsection 296 (1) of the Criminal Procedure Code is a fatal irregu-larity rendering the conviction liable to be quashed. The otherchain of authority suggests that even where the record does notshow that the provisions of section 296 (1) were complied with,yet if it is clear that the accused was aware of the points he hasto meet, such irregularity would not be fatal to the conviction.
Mr. Ameer submits that the Court will follow the latter chain,but there is nothing in the proceedings to show that the accusedwas aware of his rights or the points made against him. I am notprepared to apply the presumption that judicial acts were regu-larly performed in this case, nor am I prepared to send the caseback to the Magistrate to inquire whether in fact he compliedwith the provisions of this section. I am in the presence of a fatalirregularity which, I do not think, can he cured. I therefore quashthe conviction and direct that the accused be re-tried beforeanother Magistrate. ”
In the case of Wilbert v. Tharmarajah (42 C.L.W. 69) Basna-yake J., (as he then was) said : “ Learned Counsel for appellantsubmits that the accused-appellant was not represented by apleader at the trial and that the learned Magistrate has omittedto comply with that provision of section 296 (1) of the CriminalProcedure Code which requires him to call the attention of anunrepresented accused who elects to give evidence to theprincipal points in the evidence for the prosecution which tellagainst him in order that he may have an opportunity of explain-ing them. In the instant case, the accused has given evidence,but there is no record that the learned Magistrate called hisattention, before he did so, to the principal points in the ev'dencefor the prosecution which tell against him. That is a provisionenacted in the interests of justice and is therefore imperative.
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MALCOLM PERERA, J.—Premaratne v. Republic of Sri Lanka
In my op.nion, the omission to observe that requirement of theCriminal Procedure Code is fatal to the conviction of the accused.My view finds support in the case of Fernando v. Perera(16 N.L.R. p. 477) and in the opinion of Schneider A. J. in thecase of King v. Roma (7 C.W.R. p. 14). With great respect. I findmyself unable to agree with the case of Somaliya v. Kaluwa(7 C.W.R. p. 121). I set aside the conviction and order a re-trialbefore another Magistrate. ”
In the case of N. A. Jayasena v. S. 1. Police, Akmeemana•(61. N.L.R. p. 306), where the accused stood charged .undersections 287 and 486 of the Penal Code and sentenced to three *months’ rigorous imprisonment for each offence and where hewas undefended at the trial and at the close of the case for theprosecution, the Magistrate had made the following note in therecord : “ I comply with section 296 of the Criminal ProcedureCode. Mudaliyar informs accused accordingly. The accusedelects to give evidence. ”
Weerasooriya J. observed as follows : “ This would appear toindicate that section 296 (1) of the Criminal Procedure Code wascomplied with only to the extent of informing the accused of hisright to give evidence on his own behalf. ” In that case, it wassubmitted by learned Counsel for the accused that it would behighly unsafe to conclude from these entries that when theaccused elected to give evidence, his attention was called by theMagistrate to the principal points in the evidence for the prose-cution which told against the accused, which is a further require-ment under section 296 (1). With these submissions, WeerasooriyaJ. agreed and he went on to say : “ The question is whether inview of this omission the conviction of this accused can be
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allowed to remain. A number of previous decisions of this Courtwere cited to me by learned Counsel for the accused as well aslearned Counsel for the Crown. Some of these authorities are inconflict with the others cited- Following the decision in Sumana-pala v. Jayatillake, S.I. Police (33 C.L.W. p. 46) and Wilbertv. Tharmarajah S.I. Police, Port, (42 C.L.W. p. 69), I would setaside the conviction of the accused and the sentence passed onhim and remit the case for a fresh trial before another Magis-trate. ”
Karunaratne v. The State
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In the instant case, I hold that the learned Trial Judge hasnot conformed to the imperative provisions of section 296 (1) ofthe Criminal Procedure Code. This is a fatal irregularity whichvitiates the trial. I set aside the conviction of the 2nd accused-appellant. In the circumstances of this case, I think it would bein the interests of justice to set aside the convictions of the 1st,3rd, 4th and 5th accused—appellants also. Therefore I set asidethe convictions of all the accused-appellants and remit the casefor re-trial before another Judge.
Ismail, J.—I agree.
Vythialingam, J.—I agree.
Case remitted for re-trial.