Rex v Merali (Criminal Appeal No. 153 of 1945) [1946] EACA 19 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent (Original Respondent and Prosecutor)

HASHAM MERALI, Appellant (Original Accused and Appellant) ...

## Criminal Appeal No. 153 of 1945

(Appeal from decision of H. M. Supreme Court of Kenya)

A magistrate tried a case summarily under S. 197 C. P. C. but did not fully comply with the requirements of that section. The magistrate convicted the accused and sentenced him to be bound over for six months and to pay Sh. 50 costs to the prosecution. The accused appealed to the Supreme Court. His appeal having been dismissed he appealed to the Court of Appeal for Eastern Africa.

Held (3-9-45).—That a failure to comply fully with the provisions of S. 197 C. P. C. could not per se invalidate the proceedings so long as it had not occasioned a miscarriage of justice. Appeal dismissed.

[*Editorial Note*.—The appellant sought to appeal to the Privy Council which, however, dismissed his application for leave to appeal with costs.]

Khanna for the Appellant.

Todd (D. D. Doshi with him) Crown Counsel (Kenya) for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—After hearing counsel in this second appeal, the Court have been in agreement that it cannot be questioned that the magistrate failed to comply fully with the requirements of section 197 of the Criminal Procedure Code. By section 197 (1) $(h)$ , a magistrate in trying a case in a summary fashion is required to enter the following particulars: "The finding and where evidence has been taken, a judgment embodying the substance of such evidence". The obvious reason for such a provision is that a Court of Appeal may have before it material on which to exercise its judgment. The further question then arises whether the failure of the magistrate to comply with this provision has occasioned a miscarriage of justice, for a failure to comply with the provision per se would not warrant a Court of Appeal upsetting the judgment. There were four grounds of appeal before the first Court of Appeal: -

1. The proceedings are a nullity for want of compliance with section 197 (1) (h) and the orders passed are *ab extra* section 197 (4).

2. It is inherently incredible that a person would publicly or to an individual acknowledge his guilt.

3. It is again incredible that such an admission should not have been conveyed immediately to the respondent, but only at a chance meeting some days after, and only after the incident was mentioned by the respondent to Jamal Pirbhai.

4. The respondent was shown to have prevaricated on one essential point, by the evidence of Mr. Shah, Advocate, which was believed.

Grounds 2, 3 and 4 were thus before the Court of Appeal who must be taken to have considered them and come to the conclusion that they did not

constitute grounds for interfering with the magistrate's decision. The first ground that the proceedings were a nullity, the only one argued before this Court, merely alleges a failure to comply with the provisions of the section to which we have referred. Having given further consideration to this question as to which the Court were not at first in agreement, we have come to the conclusion that there having been no allegation before the Supreme Court, sitting in appeal, that the failure of the magistrate to comply fully with the provisions of section 197 had occasioned a failure of justice or to put it in another way, it not having been alleged either that the magistrate had failed to consider the evidence for the defence or having considered it, had reached a wrong conclusion, this Court is satisfied that it would amount to a failure of justice to allow the appeal in such circumstances. As has been said on previous occasions, this Court is a Court of justice and not an academy of law. Had the correctness of the magistrate's finding been questioned in the Supreme Court, that Court, had it been embarrassed by the magistrate's failure to comply with the provisions of the section, would have been entitled to refer the record to the magistrate for the purpose of having the omission rectified. The necessity for doing this did not $\mathbf{arise.}$ ċ $\bar{\mathcal{A}}$ $\mathcal{L}_{\mathcal{A}}$

The appeal is dismissed.