Rex v Nathoo (Criminal Appeal No. 71 of 1946) [1946] EACA 34 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR NORMAN WHITLEY, C. J. (Uganda), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and PEARSON, J. (Uganda)

REX, Respondent (Original Prosecutor)

## MEGHJI NATHOO, *Appellant (Original Accused)*

#### Criminal Appeal No. 71 of 1946

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

- Criminal Practice-Non-compliance with section 209 Criminal Procedure Code (Kenya)—Curable by section 361 Criminal Procedure Code where no failure of justice has occurred. - Held (8-5-46).—That an omission at the trial to comply with the provisions of section 209 Criminal Procedure Code is not fatal to a conviction when such omission has not in fact occasioned a failure of justice.

Appeal dismissed.

Cases referred to: Abdul Rahman v. King Emperor (1926) 25 A. L. J. 117; Kapoor Chand v. Suray Prasad 55 All. 301; Rex v. Bakola 20 K. L. R. 67; Subrahmania Ayyar v. King Emperor (25 Mad.) distinguished.

Appellant absent, unrepresented.

Aubrey. Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—This being the second appeal lies only on a matter of law. The point of law raised is whether the failure of the learned Magistrate to carry out the provisions of section 209 of the Criminal Procedure Code is fatal to the conviction.

The appellant contends that the section is mandatory and that the failure to observe it is an illegality which on the authority of the Privy Council decision in Subrahmania Ayyar v. King Emperor (25 Madras) cannot be cured by the curing section of the Criminal Procedure Code (sec. 361 in Kenya, sec. 537 in India).

That however was an exceptional case as appears from the two opening paragraphs of their Lordships' judgment which read as follows:-

"In this case the appellant was tried on an indictment in which he was charged with no less than forty-one acts, these acts extending over a period of two years. This was plainly in contravention of the Code of Criminal Procedure, (97) section 234, which provided that a person may only be tried for three offences of the same kind if committed within a period of twelve months. The reason of such a provision, which is analogous to our own provisions in respect of embezzlement, is obviously in order that the jury may not be prejudiced by the multitude of charges and the inconvenience of hearing together of such a number of instances of culpability and the consequent embarrassment both to Judges and accused. It is likely to cause confusion and to interfere with the definite proof of a distinct offence, which it is the object of all criminal procedure to obtain. The policy of such a provison is manifest and the necessity of a system of written accusation specifying a definite criminal offence is of the essence of criminal procedure.

Their Lordships think that the course pursued and which was plainly illegal cannot be amended by arranging afterwards what might or might not have been properly submitted to the Jury."

In the present case the position is entirely different. The object of section 209 (1) is to ensure that the accused shall fully understand the nature of the charge which he has to answer, and that it is open to him to give evidence, etc. The appellant was represented by an experienced advocate who opened his final address by stating that it was a question of fact whether an invoice was given or not. That shows that the nature of the charge was fully appreciated. Since also the appellant gave evidence it is clear that the omission of the Magistrate to explain to him his right to give evidence did not occasion any prejudice or embarrassment to the appellant in his defence.

That being so it is an omission which has not in fact occasioned a failure of justice and accordingly the case falls within section 381 and the finding cannot be reversed on appeal on account of that omission.

The Subrahmania Ayyar case was decided in 1901. In 1925 the Privy Council in their judgment in Abdul Rahman v. King Emperor (1926) 25 A. L. J. 117 at page 125 pointed out that in the earlier case it was possible that the contravention of the Code might have worked actual injustice to the accused.

In Kappoor Chand v. Suraj Prasad 55 All. 301. The Allahabad full bench inferred from the observations of the Board in the Abdul Rahman case that the real ratio decidendi in the Subrahmania Ayyar case was that section 537 of the Indian Code of Criminal Procedure could not cure the defect in that case because the Code contained the provision that an irregularity which had worked injustice to the accused, could not be cured. The full bench concluded with the following passage at page $312:$ —

"We do not think that we should introduce a distinction between<br>'illegality' and 'irregularity'. The sole criterion given by section 537 is<br>whether the accused person has been prejudiced or not. The object of procedure is to enable the Court to do justice, but if in spite of even a total disregard of the rules of procedure, justice has been done, there would exist no necessity for setting aside the final order, which is just and correct, simply because the procedure adopted was wrong."

With that conclusion we respectfully agree and we are of opinion that the Supreme Court of Kenya in deciding the first appeal was right in holding that in this case the accused was not prejudiced by the Magistrate's omission.

Since the case of Rex v. Bakala 20 K. L. R. 67, in which omission to comply with section 209 (1) was held to be fatal to the conviction, has been referred to in the written arguments of appellant's Counsel, we think it desirable to point out that in that case it appears from the judgment that the accused did not give evidence or make a statement after the conclusion of the Crown case so that the omission to explain to him his rights under the section clearly prejudiced him in his defence. In the present case as already pointed out the accused gave evidence on oath.

The appeal is dismissed.

We cannot too strongly impress upon magistrates, especially those new to their duties, the vital importance of complying with the requirements of the Criminal Procedure Code when conducting trials and preliminary inquiries. The relevant sections are clear and comprehensive. A magistrate who carefully follows them can hardly go wrong. Neglect of them leads to appeals such as this.