038-NLR-NLR-V-30-MUHANDIRAM-v.-SIMON.pdf
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Present: Dalton J.
MUHANDIRAM v. SIMON.
305—P. C. Hambantota, 8,145.
Criminal procedure—Accused not represented—Record by Magistrate—Failure to explain points of evidence against him to accused—Criminal Procedure Code, s. 296 (J).
Where, in proceedings before a Police Court the Magistrateat the close of the case for the prosecution made an entry on therecord to the effect that the accused was not represented andwhere it appeared from the evidence of the accused that he hadunderstood the principal points in the evidence against him,—Held, that the failure on the part of the Magistrate to complywith the requirements of section 296 (1) of the Criminal ProcedureCode did not vitiate the conviction.
King v. Roma1 followed.
A PPEAL from a conviction by the Police Magistrate ofJ_ Ju Hambantota.
Ranawaka, for appellant.
August 2, 192S. Dalton J.—
This appeal came up before me on July 2 last when Counselfor appellant, without arguing the appeal on the merits, statedthat it would appear that the Police Magistrate had no jurisdictionto deal with the offence, it being punishable under section 403of the Penal Code. It would seem from that section and theschedule that the District Court alone has jurisdiction. I accord-ingly directed that the matter be sent back for non-summaryproceedings. The Magistrate has, however, called my attentionto an amending Ordinance, No. 6 of 1924, under section 7 (g) ofwhich the Magistrate has jurisdiction to try this offence in casethe value of the property is under Rs. 100, as is the case here.The matter was therefore put down for further argument andCounsel has expressed regret for his oversight. The order alreadymade is therefore recalled and Counsel has now argued the caseon the other grounds set out in the petition of appeal.
The accused was undefended, and he urges that the recorddoes not show that the Magistrate has strictly complied with theprovisions of section 29G (1) of the Criminal Procedure Code.In Visuvanathan v. Namtsimyam2 Pereira J., following an earlier* 7 C. If. R. 14.2 4 Bed. N. C. 75.
1928.
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1928.
Dalton J.
Muhandirum
v.
Simon
case decided by Wood Renton C.J. (Fernando v. Perera1), heldthat when, the record did not show that the Magistrate had compliedwith the provisions of section 296 (1) a new trial should be ordered.
The record in this case shows that at the close of the case forthe prosecution an entry was made by the Magistrate to the effectthat the accused was not represented. In view of what subsequentlyhappened that entry would fairly obviously seem to be a referenceto section 296 (1), although, as pointed out by Wood Renton C.J.in Somaliya v. Kaluwa,2 a Police Magistrate should rememberthe importance of obviating difficulties of this kind by making ashort and clear note in the record showing that the requirementsof the section have been complied with. Here the accused didgive evidence, and it is clear from his evidence that he understoodthe principal points in the evidence of the witnesses for the prose-cution against him. It is true he now urges in his petition ofappeal that he has been prejudiced, but he does not say in whatway, neither can Counsel state how he has been prejudiced, as hisevidence shows he was quite aware of the effect of the evidenceagainst him. Schneider J. in The King v. Roma3 in somewhatsimilar circumstances followed the decision in Somaliya v. Kaluwa(supra) holding that the conviction was not bad and it seemsto me that the principle applied in those cases is also applicable here.
The last point urged was to the effect that the Muhandiram, uponwhose report to the Court these proceedings were launched, wasnot a person entitled to exercise the powers given by section 129 (1)of the Criminal Procedure Code. No objection was taken on thispoint in the lower Court and it was not pressed. If it had beenraised in the lower Court no doubt evidence would have beenforthcoming to show that the objection was groundless.
The appeal must therefore be dismissed and the convictionaffirmed.
‘ 1C JV. L. R. 477.
4 C. W. R. 121.
a 7 C. W. R. 14.