Rex v Nandrup (Criminal Appeal No. 239 of 1944 (Case Stated)) [1945] EACA 60 (1 January 1945)

## APPELLATE CRIMINAL

## Before Sir Joseph Sheridan, C. J., and BARTLEY, J.

## REX. Appellant (Original Prosecutor)

## K. I. NANDRUP, Respondent (Original Accused) Criminal Appeal No. 239 of 1944 (Case Stated)

Criminal law—Practice—Trial of Europeans—Incorrect procedure—Criminal Procedure Code S. 218 et seq.

The facts appear sufficiently from the judgment.

Held (14-3-45).—That the trial of a European by a magistrate under section 219 C. P. C. can only take place after the case has been inquired into in accordance with the procedure relating to preliminary inquiries.

Phillips. Crown Counsel, for the Crown.

Brian Figgis for the Respondent.

JUDGMENT.—This is a case stated at the request of the Attorney General. The facts of the case are that a European was brought before the First Class Magistrate at Thika charged on three counts with theft by a servant. The magistrate, instead of commencing the proceedings as a preliminary inquiry as he was bound by law to do, proceeded to charge the accused and on his pleading not guilty the prosecution witnesses were heard and at the close of the Crown case. the magistrate acquitted the accused on all three counts without putting the accused on his defence, upholding a submission made by the accused's advocate that there was no case to answer.

Had the magistrate properly opened the proceedings as a preliminary inquiry and at the close of the evidence called by the prosecution decided that the evidence against him was not sufficient to put him on his trial the magistrate could not have acquitted the accused. All he could have done was to discharge the accused under section 235 of the Criminal Procedure Code and such discharge would not be a bar to any subsequent charge in respect of the same facts.

The trial of a European under the provisions of section 219 of the Criminal Procedure Code can only take place after hearing the evidence for the prosecution under the procedure relating to preliminary inquiries.

For the purpose of determining this case it is only necessary for us to answer question 2 submitted by the learned Attorney General. That question is: "Whether the procedure followed was correct regard being had to the provisions of Part VII of the Criminal Procedure Code." We answer that question in the negative.

As the magistrate had no jurisdiction to enter an acquittal we set aside that acquittal and declare the proceedings to be a nullity leaving it open to the Crown to take any further action considered desirable.