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State v Patel [1997] FJHC 259; Haa0026.97 (9 December 1997)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CRIMINAL APPEAL NO. HAA 26 OF 1997
(Suva MC 2758/96)

THE STATE
Appellant

V

RAMESH PATEL
(f/n Rodjibai Patel)
Respondent

SECOND INTERIM JUDGMENT

On 24 October 1997, I delivered a first interim Judgment in this matter. I had hoped expeditiously to follow with my full Judgment dealing with both petitions of appeal. Unfortunately I have been overtaken by ill-health and it may be several weeks before I am finally able to deal with the two difficult questions of law which have been raised.

The first question, the relationship between Section 220 of the CPC and section 4 of the Electable Offences Decree 22/88, may effectively and for the time being sufficiently answered by the single word “none” and by reference to Ramesh Patel v State FCA AAU0017/96 page 13 line 24 which reads:

“If the prosecutor’s application had been solely under S220, the learned Chief Magistrate had no option and the trial should have been transferred.”

The second question, which is whether the prosecution has the possibility, means or right of placing a grant of bail by a Magistrate before the High Court for its reconsideration either by way of appeal or by way of review is obviously not only a matter of some complexity needing very careful study but is also made additionally difficult by what, at least on their face appear to be Judgments of the Fiji Court of Appeal which I have found hard to reconcile.

In Southwick v The State (AAU020/96) the Court, citing Asgar Ali v Reginam [1964] 10 FLR 235 said (page 10 line 8):

“In our respectful view (the) reasoning was sound and (the) decision correct”.

The fundamental conclusion in Asgar Ali was (page 240, letter A)

“...no right of appeal exists from a refusal of bail to a convicted person pending appeal; a fortiori from an order granting bail” (emphasis added).

In Ramesh Patel (supra) (page 11 line 11) (delivered after Southwick) the Court said:

“Whether the prosecutor has a right of appeal against a bail order may be arguable in the High Court and we think the parties should have the opportunity to test it there. His Lordship may also wish to exercise whatever review powers are available to him in respect of His Worship Mr Temo’s bail decision in the light of Townsley J’s criticism when referring to Ss 323 and 325 of the Code.”

For the purpose of this Interim Judgment I think the answer to the conundrum is to be found in the revisional jurisdiction referred to in the passage just quoted.

As I have pointed out before, our own Criminal Procedure Code (Cap. 21) is closely related to the Indian Code of Criminal Procedure and many of the corresponding sections of the two Codes are in identical or almost identical terms.

Section 323 of our Code reads:

“The High Court may call for and examine the record of any criminal proceedings before any Magistrates Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order recorded or passed, and as to the regularity of any proceedings of any such Magistrates Court.”

Section 397 of the Indian Code is, so far as is material to this matter, in identical terms.

The object of revisional legislation has been described by no lesser a source than Mitra’s Code of Criminal Procedure (16^th Edition) as being:

“To confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriages of justice arising from misconceptions of the law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or, on the other hand in some undeserved hardship to individuals.”

On revision the question for the Court is whether “some real or substantial justice has been done” and even an order which might ordinarily be termed “interlocutory” is reviewable (not only because there is no Fiji equivalent to the Indian Section 397(2)) if it touches on or substantially affects important rights or liabilities of the parties (see Amar Nath v State of Haryana [1977] INSC 153; AIR 1977 SC 2185).

Although the revisional jurisdiction is not lightly exercised (it is not, it must be understood, a form of appeal on the merits) my view is that it is a power (very similar to the power explicitly given to the Court by Sections 98(1) of the 1970 Constitution, by Section 114 (1) of the 1990 Constitution and by Section 120 (6) of the 1977 Constitution) which exists and which was granted by Parliament for use in strong and compelling cases in the overall interests of justice.

Although I believe the correct position in Fiji to be that the High Court will not ordinarily interfere with the grant or refusal of bail by a Magistrates Court and while I find myself bound by the Judgment in Southwick (supra) and therefore hold that there is as yet no right of appeal against an order refusing or allowing bail in the Magistrates Court I am firmly of the view that there is no good reason wholly to exclude such orders from the purview of the Court acting either under the powers plainly conferred by the Constitution or by Section 323 of the Code.

As far as I know neither the Accused nor the DPP has so far sought to review the decision of Temo R.M. granting bail. Under Section 325(5) no review will be entertained where an appeal lies. The Fiji Court of Appeal has held that no appeal lies. It is not for me to advise the parties how to take this matter further. I will in any event not be able to consider the matter or any application in it in the near future.

As pointed out by the Fiji Court of Appeal in Southwick (supra) in other similar jurisdictions legislation specifically dealing with the subject of bail has been found to be necessary. I am aware that such legislation already exists in Fiji in draft Bill form. I would respectfully urge the Attorney General to consider its’ early introduction. The answering of questions affecting the liberty of the subject and the bringing to trial of persons charged with crimes of national importance should not be delayed by arcane legal arguments.

I hope to produce a full reasons for this Judgment at the earliest opportunity next year.

M.D. Scott
Judge

9 December 1997.