Sri Lanka Law Reports
11996] 1 Sri L.R.
COURT OF APPEALC.A. NO. 5/95.
H. C. KURUNEGALA 40/94.
JULY 16, 1996.
Code of Criminal Procedure Act, No. 15 of 1979 as amended by Act, No. 11of 1988 – Failure to follow the provisions of section 195 in regard to theelection of a jury by an accused person.
After trial by High Court Judge the accused-appellant was convicted ofmurder and sentenced to death. The learned Trial Judge has failed to followthe provisions of section 195(ee) and inquire from the accused whether ornot he elects to be tried by a jury.
That the amendment to section 195 of the Criminal Procedure Act byintroducing sub-section (ee) was necessitated, as a result of the introductionof new section 161 in place of the original section 161. Per Gunawardana,J„ “It is to be noted that by virtue of the new section 161 of the CriminalProcedure Code, whilst trials before the High Courts are to be before theHigh Court Judge, a right has been given to an accused under the Provisoto that section, to elect to be tried by a jury in the specified offences.
This is a recognition of the basic right of an accused person to be tried byhis peers”.
What is in issue is not the question of jurisdiction but the denial of a rightwhich the Statute has given to the accused and the consequential prejudice.
Consequentially, there is a failure to comply with the provisions of section195 sub-section (f).
The failure to comply with the provisions of section 195 sub-section (ee)and sub-section (f), is a fatal irregularity which vitiates the conviction.
APPEAL against the conviction and sentence of the High Court.
Dr. Ranjith Fernando for Accused-Appellant.
Nimal Bandara v. The State (Dr. Gunawardana, J.)
C. R. de Silva, D. S. G. for the State.
Cur. adv. vult.
16 July, 1996.
DR. GUNAWARDANA, J. (P/CA.)
The accused in this case was indicted in the High Court ofKurunegala with having committed the murder of S. Ukku Amma, anoffence punishable under secion 296 of the Penal Code. After trial bythe High Court Judge the accused was convicted of the said offenceand was sentenced to death.
Learned Counsel for the Accused-Appellant submitted that thelearnedTrial Judge has failed to follow the provisions of section 195 ofthe Code of Criminal Procedure (Amendment) Act No. 11 of 1988. TheAmending Act has introduced a new paragraph numbered (ee), whichstates as follows:-
“(ee) if the indictment relates to an offence triable by a jury, inquirefrom the accused whether or not he elects to be tried by a Jury”.
This Amendment was necessitated by the introduction of new sec-tion 161 to the original Criminal Procedure Code.The new section statesas follows:-
“161. Subject to the provisions of this Code or any other law, allprosecution on indictments instituted in the High Court shall betried by a judge of that Court:
Provided that in any case where at least one of the offences fallswithin the list of offences set out in the Second Schedule to theJudicature Act No. 2 of 1978, trial shall be by a Jury, before ajudge, if and only if, the accused elects to be tried by a Jury”.
Thus in view of the said Amendment, at a trial before the HighCourt the Court is required to inquire from the accused whether or nothe elects to be tried by a jury. It is to be noted that by virtue of the newsection 161 of the Criminal Procedure Code, whilst trials before theHigh Courts are to be before the High Court Judge, a right has been
Sri Lanka Law Reports
 1 Sri L.R.
given to an accused under the Proviso to that section, to elect to betried by a jury in the specified offences.
This is a recognition of the basic right of an accused person to betried by his peers. Thus it is important that, the accused should begiven the opportunity to exercise the right whether to be tried by a Juryor not. In this case, because the learned Trial Judge has failed to fol-low the procedure laid down in section 195(ee), the accused had beendenied that right.
The learned Counsel for the State argued that the denial of thesaid right does not deprive the High Court of the jurisdiction to trythose offences. What is in issue is not the question of jurisdiction butthe denial of a right which the statute has given to the accused and theconsequential prejudice.
Furthermore there is non-compliance with the provisions of sec-tion 195, by failure of the Trial Judge to comply with section 195 (f)which states as follows:-
“(f) Where trial is to be by a jury, direct the accused to elect fromwhich of the respective panels of jurors the jury shall be taken forhis trial and inform him that he shall be bound by and may betried according to the election so made.”
Thus in our view the failure of the learned Trial Judge to complywith the provisions of section 195 subsection (ee) and subsection (f) isa fatal irregularity which vitiates the conviction.
Therefore we hereby set aside the verdict and the sentences ofdeath imposed on the Accused-Appellant and order that a fresh trial beheld in this case, as early as possible.
J. A. N. DE SILVA, J. – I agree.
Conviction and sentence of death set aside.
NIMAL BANDARA V. THE STATE