JUDGMENT

Mathew CJ:

The appellants in this case were convicted of offences under ss 373 and 372 Of the Penal Code, and were each sentenced to four years imprisonment.

Both these offences are punishable with ten years imprisonment, and the Sessions Court has jurisdiction to try these offences only if the provisions of sub-section (2) of s 63 of the Courts Ordinance have been complied with. This sub-section reads:

Notwithstanding the provisions of sub-section (1), a Sessions Court may try any offence, other than an offence punishable with death or imprisonment for life, if -

(a) the Public Prosecutor applies to such Court to try such offence; and

(b) the accused consents, or if more persons than one are charged together with the same offence, all such accused consent, to be tried by such Court.

There is nothing on the record to indicate whether there was an application by the Public Prosecutor nor whether the appellants consented to being tried by the Sessions Court.

The appellants were arrested on 7 December 1953, and appeared before the Sessions Court on 14 December They were charged, claimed trial and were released on bail. Mr Rawson appeared on that day to apply for bail, and the Public Prosecutor was represented by a prosecuting police officer who was instructed to inform the Court that the prosecution would be conducted by a

Deputy Public Prosecutor The trial took place on 18 February 1954, and for the first time Mr Rintoul appeared for the first appellant and Mr Doraisamy Iyer for the second appellant.

Sir Roland Braddell appearing for the first appellant (on this appeal) stated that in fact the consent of the appellants to be tried by the Sessions Court was not obtained.

The Deputy Public Prosecutor submitted, in essence, that the appearance of a Deputy Public Prosecutor to prosecute and the fact that both appellants were represented by Counsel at the trial were sufficient indication that the two conditions laid down in s 63(2) had been complied with. He went on to submit that para 17 of the learned President's ground's of judgment indicated that the two conditions had been complied with. He further submitted that nothing was laid down in s 63(2) as to the procedure which had to be followed by a Sessions Court to insure compliance with these conditions He has argued further that, at the most, there was only an irregularity which was capable of being cured.

I found myself unable to agree with these submission of the Deputy Public Prosecutor A Sessions Court is vested with jurisdiction to try cases punishable with sentences of imprisonment in excess of seven years, only if two conditions contained in the Courts Ordinance have been complied with. In cases of this nature, jurisdiction is conferred on a Sessions Court only if the Public Prosecutor applies for the case to be so tried, and the accused consents to being so tried. I cannot accept the contention that these two conditions are but mere formalities, and the fact that the case was tried to a conclusion indicated that these conditions had been complied with. There is nothing in the section which requires a Sessions Court to record that these conditions have been complied with, but unless they have been complied with, the Sessions Court is without jurisdiction.

Neither the Deputy Public Prosecutor nor any of the Counsel who appeared for the defence was present when the appellants were charged, and they claimed trial, on 14 February 1954. It was before they were charged that the learned President should have satisfied himself that he had jurisdiction.

The two conditions must be strictly complied with; there must be an application and there must be a consent. I am not satisfied in this case that this was so. The law requires that the consent of the accused should be obtained before the Sessions Court has jurisdiction, and it must be a positive consent and not one based on acquiescence. In this case it would appear that there was no strict compliance with s 63(2) of the Courts Ordinanc