IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 34 OF 2000
(Suva Mag. Ct. Crim. Case No. 349/2000)

Between:

BIMAL ROY KRISHNA
Appellant

And

STATE
Respondent

Mr. M. Raza for the Appellant
Ms. Resina Senikuraciri for the State

JUDGMENT

On 10 February 2000 the appellant appeared before the Resident Magistrate (Mrs. M. Sharma) for the offence of assault occasioning actual bodily harm contrary to section 245 of the Penal Code Cap. 17 and pleaded not guilty.

The Particulars of Offence are that on 11th day of January 2000 at Suva in the Central Division the appellant assaulted his wife Yashmin Krishna (d/o Shiu Dayal) thereby occasioning her actual bodily harm. 

On 24 February 2000, the adjourned mention date, the complainant told the Court that she has reconciled and has ‘forgiven him provided proceedings stayed for 12 months, I don’t want this to happen again’. Whereupon the learned Magistrate without hearing the appellant at all, for the record does not reveal that he uttered a single word, made an order staying proceedings for 12 months with $40 costs to prosecution.

Grounds of Appeal

The Grounds of Appeal are as follows:

A.	That the matter was that of a husband and wife and fully settled.

B.	That the matter was of a very TRIVIAL nature

C.	That the medical report does not show any injuries that would constitute a charge of Assault Occasioning Actual Bodily Harm - Contrary to Section 245 of PC Cap 17.

D.	That section 163 of the Criminal Procedure Code states "the Magistrate may" ......... This is discretionary and the learned magistrate should have TERMINATED the proceedings after taking into consideration all the facts surrounding this case.

E.	That voluntary and unconditional full reconciliation was effected between the Appellant and the wife but the learned magistrate stayed the Proceedings for a period of 12 months and imposed a cost of $40.00 in default 40 days whereas the matter should have been TERMINATED under section 163 of the CPC Cap 21.

Appellant’s submission

The learned counsel for the appellant elaborated on the said grounds of appeal and relied on them.

He submitted, inter alia, that a case of assault occasioning actual bodily harm has not been made out going by the medical report. There was full reconcilation and without asking the appellant/husband anything and by just listening to the complainant/wife the learned Magistrate made the orders she did which was wrong in the exercise of her discretion. He said that the proceedings should have been terminated.

Respondent’s submission

The learned counsel for the State submitted that s.163 empowers the Court to promote reconciliation or facilitate reconciliation "...on terms of payment of compensation or on other terms ... and may thereupon order the proceedings to be stayed or terminated".

She opposed the appeal stating that the ‘fine against the appellant is safe, proper and not manifestly excessive in the circumstances of this case’. She said that any criminal assault is not a trivial matter.

Counsel says that the learned Magistrate did not err in law when she made the said orders and she said that the appeal be dismissed with costs.

Consideration of the appeal

Upon a careful consideration of the submissions made by both counsel and upon reading the Record I find that the appeal has a lot of merits.

In view of reconciliation the learned Magistrate applied s.163 of the Criminal Procedure Code which provides:

163. In the case of any charge or charges brought under any of the provisions of subsection (1) of section 197 or of section 244 or of section 245 or of subsection (1) of section 324 of the Penal Code, the court may, in such cases which are substantially of a person or private nature and which are not aggravated in degree, promote reconcilation and encourage and facilitate the settlement in an amicable way of proceedings, on terms of payment of compensation or on other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated. 

The appellant was charged with the offence of assault occasioning actual bodily harm and I agree with Mr. Raza that the medical report does not establish that. If anything it was a case of common assault and the appellant should not have been charged with AOABH.

In any case the appellant had pleaded not guilty and in that case the case should have been adjourned for hearing. That did not happen and upon being told by the complainant/wife that they have reconciled and that she wants a stay of proceeding for 12 months the learned Magistrate proceeded to make the orders under s.163 without confirming reconciliation with the appellant.

Had the parties accepted reconciliation then it would have been open to the learned Magistrate to make whatever order she thought fit in her discretion in the circumstances. Then there would not have been any room to complain about the exercise of her discretionary powers..

The very fact that the appellant pleaded not guilty was all the more reason why his views should have been sought before staying proceedings.

By not allowing the appellant the opportunity to have his say meant that he was denied his right to be heard. Hence the stay order hanging over his head for 12 months was a miscarriage of justice. There is nothing in the Record to show why proceedings were stayed.

For these reasons, I find that on the facts it was an unlawful exercise of discretion staying the proceedings and making an order for costs against the appellant.

The appellant succeeds on his grounds of appeal.

The Orders are therefore set aside. The fine if paid is ordered to be refunded to the appellant. I further order that since the appellant had pleaded not guilty, the case be remitted to Magistrate’s Court at Suva to be dealt with according to law before another Magistrate.

The appeal is allowed to that extent.

D. Pathik
Judge

At Suva
30 June 2000