RAJAH AND ANOTHER V. REPUBLIC OF SRI LANKA

056-SLLR-SLLR-1996-V-2-RAJAH-AND-ANOTHER-V.-REPUBLIC-OF-SRI-LANKA.pdf


RAJAH AND ANOTHERV.
REPUBLIC OF SRI LANKA
COURT OF APPEAL.
DR. A. DE Z. GUNAWARDANA, J. (P/CA)
J.A. N. DE SILVA, J.
C. A. NO 40-41/95.
KURUNEGALA HIGH COURT 09/94.
JUNE 21, 1996.
Criminal Law – Penal Code S 296, 300 – Criminal Procedure Code -Amendment 11 of 1988 – Failure to follow provisions of S 195. S 161 -Option of an accused to be tried before a Jury – Murder – Sentence of death.
Held:
Failure of learned Trial Judge to comply with the provisions of sections195(ee) and (f) is a fatal irregularity which vitiates the conviction.
Accused should be given the opportunity to exercise the right whetherto be tried by a jury or not. This is a recognition of the basic right of anaccused person being tried by his peers.
In view of the Amendment No. 11 of 1988 at a Trial before the HighCout, the Court is required to inquire from the accused whether or, not heelects to be tried by a jury.
AN APPEAL from the High Cout of Kurunegala.
Dr. Ranjith Fernando with Miss. Samadara Mampitiya for 1st Accused -Appellant.
S. Panagoda for 2nd Accused AppellantKapila Waidyaratne S.S.C. for A.G.
Cur. adv. vult
June 21, 1996.
Dr. GUNAWARDANA, J. (P/CA)
The accused in this case were indicted in the High Court ofKurunegala on 2 counts. The first count was for murder of one
Dayawathie, an offence punishable under section 296 of the PenalCode. The second count was for committing attempted murder ofTissa Mapa, an offence punishable under section 300 of the PenalCode. After trial by judge both accused were convicted of the saidoffences and were sentenced to death on the 1st count and on the2nd count they were sentenced to 5 years rigorous imprisonment.
The learned Counsel for the 1st Accused-Appellant submited thatthe learned Trial judge has failed to follow the provisions of section195 of the Code of Crimirlbl Procedure (Amendment) Act No. 11 of1988. The Amending Act has introduced after paragraph (e) of theoriginal section, a new paragraph numbered (ee), which states asfollows:-
“(ee) if the indictment relates to an offence triable by a jury,inquire from the accused whether or not he elects to be tried bya jury”.
This Amendment was necessitated by the introduction of new -section 161 to the original Criminal Procedure Code. The new sec-tion states as follows:-
“161. Subject to the provisions of this Code or any other law, allprosecutions on indictments instituted in the High Court shall betried by a judge of that Court: Provided that in any case whereat least one of the offences falls within the list of offences setout in the Second Schedule to the Judicature Act No. 2 of 1978,trial shall be by a jury, before a judge, if and only if, the accusedelects 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,not he elects to be tried by a jury. It is to be noted that by virtue of thenew section 161 of the Criminal Procedure Code, whilst trial beforethe High Courts are to be before the High Court Judge, a right hasbeen given to an accused under the Proviso to that section to elect tobe tried 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 be
given the opportunity to exercise the right whether to be tried by ajury or not, in this case because the learned Trial Judge has failed tofollow the procedure laid down in section 195{ee), the accused hadbeen denied that right.
Furthermore there is non-compliance with provision of section195, by failure of Trial Judge to comply with section 195(f) which statesas follows:-
“(f) Where trial is to be by a jury direct the accused to electfrom which of the respective panels of jurors the jury shall betaken for his trial and inform him that he shall be bound by andmay be tried according to the election so made.”
Thus in our view the failure of learned trial judge to comply withthe provisions of section 195 subsection (ee) and subsection (f) is afatal irregularity which vitiates the conviction.
Therefore we hereby set aside the verdict and the sentences ofthe death and imprisonment imposed on the Accused-Appellants andorder that a fresh trial be held in this case, as early as possible.
J. A. N. DE SILVA, J. – I agree.
Appeal allowed.
Fresh Trial Ordered.