087-NLR-NLR-V-36-KING-v.-JOSEPH.pdf
416
ALTON J.—King v. Joseph.
2934Present: Dalton J.
KING v. JOSEPH.
Ill—D.C. (Crim.) Colombo, 10,817.
Criminal Procedure—Accused undefended—Judge’s failure to record entryunder section 296—Point raised in appeal—No material before SupremeCourt-—Criminal Procedure Code, s. 296.
Where in criminal proceedings the accused is undefended and therecord does not contain an entry to the effect that the trial Judge hascomplied with the provisions of section 296 of the Criminal ProcedureCode, the Supreme Court will not infer from the mere fact that norecord has been made that the'section had not been complied with.
Where the petition of appeal does not make the failure to complywith the section a ground of appeal, there should be material before theCourt that the accused was not informed of his rights under the section.
^f^PPEAL from a conviction by the District Judge of Colombo.
Rajapakse, for accused, appellant.
B. Wickremanayake, Acting C. C., for the Crown.
December 21, 1934. Dalton J.—~~
The accused has been convicted on a charge of aiding and abettingthe offence of highway robbery; a sum of £.10. 10s. is alleged to havebeen stolen from one J. Lloyd Jones on April 14, and the accused hasbeen convicted of aiding and abetting that offence.
1 36 N. L. B. 132.
417
DALTON J.—King v. Josejj/h.
ff=:
He was not represented at the trial in* the'District Court and it hasbeen urged in appeal that the trial Judge has failed to comply with the, provisions of section 296 of the Criminal Procedure Code. He hasfailed, it is urged, to inform the accused of his right to give evidenceon his own behalf. It is quite dear that there is no entry on the recordof the proceedings in the lower Court that the trial Judge did complywith the provisions of this section; but there is no ground of appealurged in the petition of appeal based upon this alleged failure, nor doesthe accused say anywhere that he was not informed of his right to giveevidence, nor is his Counsel able to tell me that the learned Judge failedto comply with the provisions of this section.
He urges that the Court could presume from -the fact that no recordis made on the proceedings of the trial by the trial Judge; that, therefore,the trial Judge did not do what is required of him under this section.1 have been referred, in course of argument, to the decision in Fernandov. Perera1 where this Court quashed the proceedings and sent the caseback for retrial, because the record did not show that the Magistratehad complied with the provisions of section 296 of the Criminal ProcedureCode. It is clear, however, that in that case, the Court had before itan allegation in the appellant’s petition of appeal that he was not defendedby a proctor, that he was unaware of his right to give evidence andthat he was never informed of his right to give evidence.
In another case cited (Fernando v. De Jong *) a similar order was made.In that case also the Court had before it an affidavit submitted by theaccused to show that the Court had not complied with the provisionsof section 296 of the Criminal Procedure Code. Mr. Justice Akbar held,in that case, that that affidavit corroborated the record, the record beingsilent on the point of the Magistrate having complied with the provisionsofsection, and he therefore presumed, in view of the affidavit
corroborated by the lack of entry on the record, that the Magistratehad not carried out the provisions of this section.v
Tn the case before me, there is a very clear distinction between thetwo cases to which I have been referred and this case. There isnothing to show that the District Judge has not complied with theprovisions of this section, and Counsel for the appellant agrees with methat if the learned Judge has complied with the provisions of this section,his only failure has been to make a record of this compliance of theprovisions of this section, and that no prejudice whatsoever has in thatevent been caused to the accused. In the two cases referred to, therewas a definite statement before the Court from the accused that theprovisions of the section had not been complied with. I am certainlyunable to infer from the mere fact that the record has not been madethat therefore the section had not been complied with; and, as I havestated, if it was in fact done, and not recorded although it shouldhave been recorded, it is admitted that the accused could not show thathe has been in anyway prejudiced, by the mere fact that the DistrictJudge failed to make the entry on the record of. what he has done. If,therefore, the learned Judge has complied with the provisions of thissection, it will be almost a waste of time to order a new trial.
»IS L. B. 431.* 84 N. L. R. 304.
36/30•*
418Allots v. Aralishamy.
It seems to me'that the best course I shall adopt in this case is, inview of the absence of any allegation on the part of the accused thatthe provisions1- of this- section had not been complied with, to ask theDistrict Judge if in fact he did comply with the provisions* of this section.
I will, therefore, 'direct that the District Judge be asked if he didcomply with the provisions of this section 296 at the close of the casefor * the prosecution. I might also at the same time ask, if his answerto this question is in the affirmative, how it is that he failed to make arecord in the proceedings of -what he has done. If he has not done so,he will, of course, answet in the negative. When his answer is received,
I can make a final order as to whether this ’ appeal should be allowedand a fresh trial ordered or whether?the appeal should be dismissed.
The report' of th’e- District Judge called for, as notified to Counsel for'appellant at* the conclusion of the argument, is now before me. Thelearned Judge states that it has ‘been his invariable practice to act inconformity with the provisions of section 296* (1) of the Criminal ProcedureCode, and that he did so in this case. He adds that it has.not beenusual to' make- a record *that he so acted in the proceedings, but sincethe matter was brought to-his notice, he has done so. It is clear thataccused was informed of his. rights and- that no prejudice of any kindhas been'caused to him. ' .
If in any future case Counsel-for the-appellant proposes to raise anysuch point,‘he should see either that there is material before the Courtto support ari'argument that accused has not been informed of his rightsor obtain clear and definite instructions on the point.
■ The appeal is dismissed, the conviction being affirmed.
Affirmed.