Onkoba v Regina (Criminal Appeal No. 695 of 1951) [1953] EACA 21 (1 January 1953)

## **APPELLATE CRIMINAL**

Before DE LESTANG and WINDHAM, **JJ.**

## **OMORIBA** s/o **ONKOBA** *(Appellant)*

*v.*

## **REGINA** *(Respondent)*

## Criminal Appeal No. 695 of 1951

Criminal Procedure-Section 197, Criminal Procedure Code-Failure to comply-Whether material on record on which Appellate Court can properly exercise its judgment-Whether defect curable under section 381, Criminal Procedure Code, where no failure of justice.

The accused was charged with theft. The magistrate tried the case as a minor offence under the provisions of section 197, Criminal Procedure Code which are mandatory that where evidence is taken and not recorded there must be a judgment embodying the substance of that evidence .and very briefly recorded evidence but without a judgment proceeded to convict and sentenee the accused. The mode in which the evidence was recorded was not in manner prescribed by section 194, Criminal Procedure Code. The accused appealed.

*Held* (22-2-52).-(1) Notwithstanding the failure of the magistrate to comply strictly with the provisions of section 197, Criminal Procedure Code, •as there was material on record on which the Court of Appeal could properly eKercisc its judgment, the non-compliance was not fatal to conviction since it did not occasion any failure of justice.

(2) The defect in the proceedings was curable under section 381, Criminal Procedure Code.

Appeal dismissed.

Case followed: *R. v. Basham Merali,* (1946) 13 E. A. C. A. 85.

*Appellant, absent, unrepresented.*

*Pearson, Crown Counsel, for the Crown.*

JUDGMENT.-The only point which has troub1ed us in this appeal is the failure of the learned magistrate to comply strictly with the provisions of section 197 of the Criminal Procedure Code. He has neither recorded the evidence of the witnesess in full nor written any judgment. Section 194 of the Criminal Procedure Code prescribes the manner in which the evidence of witnesses shall be recorded, and in recording what appears to be merely the gist of the evidence the magistrate · has not complied with that section. Section 197 on the other hand provides that where evidence has been taken and not recorded there must be a judgment embodying the substance of such evidence. This the magistrate has failed to do.

We are aware of the decision of the Court of Appeal of Eastern Africa in *Hasham Merali,* 13 E. A. G'. A. 85, where it was held that a failure to comply fully with the provisions of section 197 of the Criminal Procedure Code could not *per se* invalidate the proceedings so long as it had not occasioned a miscarriage of justice. In other words if, notwithstanding the failure of the magistrate to comply<br>strictly with the provisions of section 197 of the Criminal Procedure Code, there is material on the record on which the Court of Appeal can properly exercise its judgment, then in such a case the mere compliance with section 197, Criminal Procedure Code will not be fatal to a conviction since it would not have occasioned any failure of justice. The defect in the proceedings in such a case would be curable under section 381, Criminal Procedure Code.

Applying these principles to this case, we consider that the brief evidence recorded supported the conviction.

The appeal is dismissed.