Mbako v Reginam (Central Registry Criminal Application No. 6 of 1956) [1950] EACA 571 (1 January 1950)

# $571$

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and EDMONDS, J. (Kenya)

## SAJA s/o MBAKO, Applicant (Original Accused)

## REGINAM, Respondent.

## Central Registry Criminal Application No. 6 of 1956

(Appeal from the decision of H. M. High Court of Uganda, Bennett, J.)

Practice-Arraignment before one Judge and trial before another-Uganda Criminal Procedure Code, sections 262, 267 and 269—Indian Criminal Procedure Code, section 272.

The applicant applied for leave to appeal against his conviction for murder by the High Court, a certificate that the case was one fit for appeal having been refused by that Court. It appeared that the accused had been arraigned before one Judge who ordered an adjournment. It was called on approximately one month later before another Judge who without further arraigning the accused, proceeded with the trial.

Held (24-8-56).—As arraignment does not form part of the trial there can be no objection to an accused being arraigned before one Judge and tried by another without the latter taking any further steps in regard to arraignment, although the better practice is for the second Judge to arraign the accused afresh or at least to remind him of the substance of the charge and of his former plea.

Application refused.

Case referred to: Queen-Empress v. Bastiano bin Alexander Silva, (1891) I. L. R., 14 Bombay 514.

Applicant absent, unrepresented.

### Boy for respondent.

JUDGMENT (prepared by Edmonds, J.).—The applicant applied for leave to appeal against his conviction and sentence by the High Court of Uganda on a charge of murder, a certificate that the case was one fit for appeal having been refused by that Court. We dismissed the application as we did not consider it had any merits, but we invited counsel for the Crown to address us on the question of whether or not the procedure of the learned trial Judge in not arraigning the appellant resulted in the trial being a nullity. After hearing learned counsel, we intimated that we were satisfied that there was no irregularity, and we now give our reasons.

The case was originally on 24th March, 1956, called before Sheridan, J., who, after duly arraigning the accused, entered a plea of "not guilty". It was then ordered that the case be adjourned to the next sessions. On 17th April, 1956, the case was called before Bennett, J., who, without further arraigning the accused, proceeded with the trial. It appeared to us that the failure of the learned trial Judge to arraign the accused might have the effect of making the trial a nullity. However, the authorities have satisfied us that, arraignment not forming part of the trial, there can be no objection to an accused being arraigned before one Judge and tried by another Judge without the latter taking any further steps in regard to arraignment. We think, however, that the better practice in such circumstances is for the second Judge to arraign the accused afresh, or at least to remind him of the substance of the charge and of his former plea.

Sections 262, 267 and 269 of the Uganda Criminal Procedure Code provide as follows:-

<sup>\*</sup>262. Every accused person, upon being arraigned upon any indictment, by pleading generally thereto the plea of 'not guilty' shall, without further form, be deemed to have put himself upon his trial.

267. If the accused pleads 'not guilty', or if a plea of 'not guilty' is entered in accordance with the provisions of section 264 of this Code, the Court shall proceed to choose assessors, and to try the case.

269. When a trial is to be held with the aid of assessors, the Court shall select them from the list of those summoned to serve as assessors at the sessions."

Under section 272 of the Indian Code of Criminal Procedure, provision is made that: "If the accused refuses to, or does not plead, or if he claims to be tried, the Court shall proceed to choose jurors or assessors as hereinafter directed and try the case". In Queen-Empress v. Bastiano bin Alexander Silva, (1891) I. L. R. 14 Bombay 514, it was stated that: $-$

"It is only when proceedings are commenced at which the assessors can give their aid that the trial with their aid, as contemplated in sections 268 and 284, can be said to have commenced. As the assessors are chosen under section 272 only if the accused has refused to or does not plead to the charge or claims to be tried, it is clear that in a Court of Session the trial 'with the aid of assessors' does not commence with the reading of the charge."

The position is the same in England: "By a plea of 'not guilty' the defendant thereby 'put himself upon the country' for trial, and the Court must thereupon order a jury to be called in the usual manner for the trial of the defendant". 10 Halsbury (Simonds's ed.) 408. It is, therefore, clear that arraignment is not part of the trial, and that the procedure at the trial of the accused in this case was not irregular. We repeat, however, that we think it would have been the better practice had the learned Judge arraigned the accused afresh.