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State v Narayan [1993] FJHC 6; Hac0011d.91s (11 January 1993)

IN THE HIGH COURT OF FIJI
(SUVA)
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 11 OF 1991

STATE

-v-

BIRENDRA NARAYAN
s/o DEO NARAYAN

LARCENY BY SERVANT

Ms. Shameem for the Prosecution
Mr. S M Koya for the Accused

DECISION

In this case the State is making an application seeking an Order under Section 164(1)(a) of the Criminal Procedure Code that the contents of Bank Accounts No. 02-802312-1001-2 and D93623 to be held in the interim custody of the National Bank of Fiji pending the trial of the accused. Incidentally Account No. 02-802312-1001-2 belongs to the Accused Birendra Narayan and the total sum held in that Account is $17,110-69 and Account No. D93623 which belongs to the Accused's wife Kushma Wati has a balance of $3535.72.

Section 164(1)(a) provides as follows:

"It shall be lawful for any court in any proceedings to make orders for -

(a) the preservation or interim custody or detention of any property or thing produced in evidence or as to which questions may arise in the proceedings."

Counsel for the State submitted that the money held in the above Bank Accounts is stolen money and which will be the subject of evidence at the trial.

This submission is based on the admission made by the Accused person in his interview under caution (on the reverse side of page 2, line 49):

Q: Now tell what happened to all the money which you stole from the company?

A: $17,110 is in my NBF Account No. 02-802312-1001-2, $3535.72 in my wife's Account No. D93623 at NBF, $70.00 in my BNZ Account No. 27256500-30, bought a car for $4800, repairing and painting of the car $1600, bought clothes, groceries and other luxuries for about $5,000 and about $6,000 as I stated above I distributed to other friends.

Therefore on the accused's own admissions the money held in both accounts is stolen money, and is property as to which questions will arise in the proceedings.

The Defence Counsel on the other hand opposed the application and submitted that the money in the two above accounts belong to the Bank and not to the Accused and his wife and cited a number of authorities in support of his argument, in particular:

R v. Davenport 1954, 38 Cr. App. R, 37

R v. Pitchley 1973, 57 Cr. App. R, 30

Attorney-General's reference (No 1 of 1983) 1980

The above cases can be distinguished from the present application by the Director of Public Prosecutions. The issue in those cases arose from actual trials and were subject of evidence in Court. In the instant case no evidence has been adduced since this is only an interlocutory matter. To whom the money in the two Bank accounts rightly belong will be a matter of evidence in the trial proper. As I see it, I believe it would be too premature for this Court to make a pronouncement as to the true ownership of the money in question at this stage since the State Counsel has submitted that the money in the two Bank accounts is stolen money and will be the subject of evidence at the trial and as such I will refrain from expressing any view on the authorities cited by the Defence Counsel but leave it to the trial court to decide on the ownership of the money in the two accounts.

It was also submitted by the Defence that the present applicant Adip Narayan Singh a police officer has no status in this proceedings as this application ought to have been made by the Director of Public Prosecutions. While I appreciate this argument, it is nonetheless clear, that the applicant was acting on the instruction of the Director of Public Prosecutions, I therefore rule that there is no merit in this argument.

As I have stated before, the authorities cited by the Defence will be more relevant and useful in the trial proper and at this stage I prefer to reply on the clear wording of Section 164(1)(a) and find that the contents of Bank accounts No. 02-802312-1001-2 and No. D93623 clearly come within its ambit and in the interest of justice and in order to maintain the status quo I direct that the money lie in credit in the above two accounts at National Bank of Fiji be held in custody by the said Bank pending the trial and I so order.

No order for cost.

S W Kepa
JUDGE

11th January, 1993

HAC0011D.91S