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Republic v. Angelo Crim. Rev. 18-M-71; 18/3/71; El-Kindy Ag. J.



Republic v. Angelo Crim. Rev. 18-M-71; 18/3/71; El-Kindy Ag. J.

The accused was charged with unlawful wounding before a Senior Resident Magistrate and pleaded not guilty. No evidence was taken. Two months later he appeared before a second magistrate. No plea was taken and the trial commenced, evidence being taken from three witnesses. The matter was adjourned and later a third magistrate took over the case. He took a plea of not guilty and followed the procedure laid down in section 196(1) of the Criminal Procedure Code. Witnesses for the prosecution and defence wee heard and judgment was reserved. The Magistrate hen discovered that the accused had not been called upon to plead by the second magistrate and ordered that the witnesses who had give evidence before that magistrate should be recalled to give their evidence before him. Before this could be done the third Magistrate was posted and the matter came before yet another magistrate who referred to the High court for revision.

            Held: (1) “The decision (in Regina v. Rajabu s/o Reamadhani 2 T. L. R. p. 49 at p. 51) seems to settle the matter that the trial magistrate must take the plea again before the trial proceeds, but, unfortunately, the decision is silent as to what the consequence would be if the mandatory provision is not complied with. “ (2) “Strictly speaking where a plea has already been taken no plea, it cannot convincingly be argued that no plea was taken so that the trial becomes a nullity as if no plea at all was taken from the start.” (3) “The observations of Davies C. J. in Akberale Walimohamed Damji v. R. 2 T. L. R. p. 137 at p. 139 ………… would suggest that it was not  must for the trial magistrate to take the accused’s plea otherwise the requirement of reminding the accused of the charge and his plea would be meaningless.” (4) “The position is not as clear as it ought to be ……. And I set aside the proceedings in this case and order a retrial of the accused if the Republic wished to pursue this matter”.

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