MALCOLM PEBERA, J.—Premaratne v. Republic of t>ri Lanka
imposed upon the Trial Judge the duty of informing theundefended accused person of his right to give evidence on hisown behalf, and if the accused elects to g ve evidence on his ownbehalf, the Trial Judge shall call the attention of the accusedperson to the principal points in the evidence for the prosecutionwhich tell against him in order that he may have an opportunityof explaining them. These provisions are imperative ; the TrialJudge must strictly conform to them. In the present case, whatwas most telling against the accused person was the presence offinger-prints.
I find support for my view in the case of Sumanapala v. Jaya-tillake (33 C.L.W. p. 46) where Dias J. observed as follows :•“ There are two chains of authority under this section, one ofwhich takes the view that the failure to comply withsection 296 (1) of the Criminal Procedure Code is a fatal irregu-larity rendering the conviction liable to be quashed. The otherchain of authority suggests that even where the record does notshow that the provisions of section 296 (1) were complied with,yet if it is clear that the accused was aware of the points he hasto meet, such irregularity would not be fatal to the conviction.
Mr. Ameer submits that the Court will follow the latter chain,but there is nothing in the proceedings to show that the accusedwas aware of his rights or the points made against him. I am notprepared to apply the presumption that judicial acts were regu-larly performed in this case, nor am I prepared to send the caseback to the Magistrate to inquire whether in fact he compliedwith the provisions of this section. I am in the presence of a fatalirregularity which, I do not think, can he cured. I therefore quashthe conviction and direct that the accused be re-tried beforeanother Magistrate. ”
In the case of Wilbert v. Tharmarajah (42 C.L.W. 69) Basna-yake J., (as he then was) said : “ Learned Counsel for appellantsubmits that the accused-appellant was not represented by apleader at the trial and that the learned Magistrate has omittedto comply with that provision of section 296 (1) of the CriminalProcedure Code which requires him to call the attention of anunrepresented accused who elects to give evidence to theprincipal points in the evidence for the prosecution which tellagainst him in order that he may have an opportunity of explain-ing them. In the instant case, the accused has given evidence,but there is no record that the learned Magistrate called hisattention, before he did so, to the principal points in the ev'dencefor the prosecution which tell against him. That is a provisionenacted in the interests of justice and is therefore imperative.
MALCOLM PERERA, J.—Premaratne v. Republic of Sri Lanka
In my op.nion, the omission to observe that requirement of theCriminal Procedure Code is fatal to the conviction of the accused.My view finds support in the case of Fernando v. Perera(16 N.L.R. p. 477) and in the opinion of Schneider A. J. in thecase of King v. Roma (7 C.W.R. p. 14). With great respect. I findmyself unable to agree with the case of Somaliya v. Kaluwa(7 C.W.R. p. 121). I set aside the conviction and order a re-trialbefore another Magistrate. ”
In the case of N. A. Jayasena v. S. 1. Police, Akmeemana•(61. N.L.R. p. 306), where the accused stood charged .undersections 287 and 486 of the Penal Code and sentenced to three *months’ rigorous imprisonment for each offence and where hewas undefended at the trial and at the close of the case for theprosecution, the Magistrate had made the following note in therecord : “ I comply with section 296 of the Criminal ProcedureCode. Mudaliyar informs accused accordingly. The accusedelects to give evidence. ”
Weerasooriya J. observed as follows : “ This would appear toindicate that section 296 (1) of the Criminal Procedure Code wascomplied with only to the extent of informing the accused of hisright to give evidence on his own behalf. ” In that case, it wassubmitted by learned Counsel for the accused that it would behighly unsafe to conclude from these entries that when theaccused elected to give evidence, his attention was called by theMagistrate to the principal points in the evidence for the prose-cution which told against the accused, which is a further require-ment under section 296 (1). With these submissions, WeerasooriyaJ. agreed and he went on to say : “ The question is whether inview of this omission the conviction of this accused can be

allowed to remain. A number of previous decisions of this Courtwere cited to me by learned Counsel for the accused as well aslearned Counsel for the Crown. Some of these authorities are inconflict with the others cited- Following the decision in Sumana-pala v. Jayatillake, S.I. Police (33 C.L.W. p. 46) and Wilbertv. Tharmarajah S.I. Police, Port, (42 C.L.W. p. 69), I would setaside the conviction of the accused and the sentence passed onhim and remit the case for a fresh trial before another Magis-trate. ”
Karunaratne v. The State
In the instant case, I hold that the learned Trial Judge hasnot conformed to the imperative provisions of section 296 (1) ofthe Criminal Procedure Code. This is a fatal irregularity whichvitiates the trial. I set aside the conviction of the 2nd accused-appellant. In the circumstances of this case, I think it would bein the interests of justice to set aside the convictions of the 1st,3rd, 4th and 5th accused—appellants also. Therefore I set asidethe convictions of all the accused-appellants and remit the casefor re-trial before another Judge.
Ismail, J.—I agree.
Vythialingam, J.—I agree.
Case remitted for re-trial.