NA. A. JAYASENA , Appellant, and S. I. POLICE , AKMEEMENA , Respondent

077-NLR-NLR-V-61-NA.-A.-JAYASENA-Appellant-and-S.-I.-POLICE-AKMEEMENA-Respondent.pdf


306
Jayasena v. S. 1., Police, Ahmeemena
1958
Present: Weerasooriya, J.N.A. JAYASENA, Appellant, a-nd S. I., POLICE,
Respondent
8. G. 291—.M. O. GaZle, 3,751
Criminal Procedure Code—Section 296 (2)—Accused undefended—Duty ofCourt to explain points against him.
Where an accused is undefended, the failure of the Magistrate to draw hisattention, in compliance with section 296 (1) of the Criminal Procedure Code,to the principal points in the evidence for the prosecution which tell against himvitiates the trial.
A
/ .a PPEAL from a judgment of the Magistrate’s Court, Galle.
M.8. A. Hassan, for the- accused-appellant.
P. Aoeysuriya, Crown Counsel, for the Attorney-General –
WEERASOORIYA, J.—-Jayasena v. S. I, Police, Ahmeemena
307
July 4, 1958. Weebasoobiya, J.—
The accused in this case was convicted of offences punishable underSections 287 and 486 of the Penal Code and sentenced to three monthsrigorous imprisonment for each offence, the sentences to iron concurrently.
He was undefended at the trial and at the close of the case for theprosecution the Magistrate made the following note in the record :** I comply with Section 296 of the Criminal Procedure Code. TheMudaliyar informs the accused accordingly. The accused elects to giveevidence ”, This entry would appear to indicate that Section 296 (1)of the Criminal Procedure Code was complied with only to the extent ofinforming the accused of his right to give evidence on his own behalf.Learned Counsel for the accused submits that it would be highly unsafeto conclude from this entry that on the accused electing to give evidence,his attention was called by the Magistrate to the principal points in theevidence for the prosecution which told against the accused, which is afurther requirement under Section 296 (1). With this submission I agree.
The question is whether, in view of this omission, the conviction of theaccused can be allowed to remain. A number of previous decisionsof this Court were cited to me by learned Counsel for the accused aswell as by learned Crown Counsel. Some of these authorities are inconflict with the others cited. Following the decision in Sumanapala v.JayaiilaJee, S. I. Police1 and Wilbert Singho v. Tharmarajah, S. I. Police,Fart2, I would set aside the convictions of the accused and the sentencespassed on him and remit the case for a fresh trial before another.Magistrate,
Remitted for fresh tried.