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State v Prakash [2001] FJHC 195; Criminal Appeal 9.2001 (22 May 2001)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 9 OF 2001
(Labasa Mag. Ct. Crim. Case No. 970/97)

Between:

STATE
Appellant

And:

SHIU PRAKASH s/o Umarao
Respondent

Mr. J. Rabuku for the Appellant
Mr. S. Prasad for the Respondent

JUDGMENT

On 10 October 2000 Shiu Prakash s/o Umarao the respondent appeared before the resident Magistrate Eparama Rokoika Esq. at the Magistrate’s Court at Labasa when he was acquitted of the charge of arson for want of prosecution.

The respondent with another (who has already been dealt with and sentenced to 4 years’ imprisonment) was charged for the offence of arson contrary to section 317(a) of the Penal Code in that on 3 July 1997 at Draladamu, Labasa in the Northen Division, wilfully and unlawfully set fire to a building, the property of Biman Chand s/o Moti Lal.

The respondent had pleaded not guilty. For one reason or another the Record reveals that the case was adjourned from time to time over a long period. On the last occasion it was set down for hearing on 10 October 2000.

This is what happened on 10th. The prosecution did not have all its witnesses; the complainant was not present because he could not be located as he had moved to Savusavu and could not be subpoenaed. The prosecution in the circumstances wanted the action to be left part-heard.

The counsel (Mr. S. Prasad) asked for acquittal.

The learned Magistrate said that the prosecution’s application amounted to asking for an adjournment. He said that ‘the grant for an adjournment is provided under s202 C.P.C and it involves the exercise of a judicial discretion involving the interest of the prosecution and the accused’. Then he refers to Mr. Prasad’s submission, inter alia, that the complainant has lost interest in the matter. The Magistrate agreed with counsel in this regard and said that ‘he has left Labasa without informing prosecution of his whereabouts’. He concluded by saying that ‘in exercise of my discretion, refused an adjournment part-heard and have acquitted the accused for want of prosecution’.

It is against this acquittal that the prosecution has appealed on the following grounds:

1. The Learned Trial Magistrate failed to exercise his discretion judiciously by refusing to proceed to hearing on the available prosecution witnesses.
   
2. The Learned Trial Magistrate erred in law in acquitting the accused under section 210 of the Criminal Procedure Code.
   

Appellant’s submission

The learned Counsel for the appellant submitted that the prosecution was ready to proceed with the witnesses who had been available and the Magistrate should have asked the prosecution to commence. If at the end of the evidence so far adduced and had the prosecution asked for adjournment the defence counsel could have made a submission of no case to answer. Then the Magistrate could rule and decide whether to acquit or not. It is quite possible that he would have ruled that there was a case to answer on the limited available witnesses for there was a confession about the burning to D.C. Jai Pal. By refusing to allow the prosecution to proceed, Mr. Rabuku says that this was a wrong exercise of discretion.

On the second ground, counsel submitted that s210 of the C.P.C. does not apply here as it can only be applied by the Magistrate at the close of the evidence in support of the charge [State v Kelemedi Lagi and Apolosa Navunisaravi (Crim. App. No. 15 of 1996) and State v Jokini Taoi Crim. App. No. 24/2000]. Hence the acquittal was not a proper exercise of the Magistrate’s discretion.

Respondent’s submission

In short, it was counsel’s submission that the learned Magistrate exercised his discretion correctly. He said that the case has been going on for a long time and the complainant has not shown interest.

Consideration of appeal

This is a serious case of arson. The co-accused had already been dealt with and sentenced to four year’s imprisonment. If this accused is not dealt with through the normal process of hearing it will leave a sense of grievance in the mind of the convicted co-accused with the thought that he is lingering in prison whereas this accused has gone scot free on a technical ground, namely, because the complainant has failed to turn up for the reason already advanced by the prosecution.

In a serious case of this nature and in all the circumstances of this case, it was incumbent on the learned Magistrate to exercise his discretion judicially. This with all due respect he has failed to do. It must always be borne in mind that this offence is against the State and not against the complainant who did not appear. The learned Magistrate was evidently carried away with Mr. Prasad’s statement that the ‘complainant’ is disinterested and that is why he has not appeared. The learned Magistrate made up his mind that the prosecution is seeking an adjournment despite some witnesses being available, and that he was not going to leave the case part-heard. Hence he exercised his powers under section 202 of the Criminal Procedure Code. Even under this section if he had exercised his discretion properly he would have discharged the accused and not acquit him. I see some merit in Mr. Rabuku’s argument as to what the Magistrate should have done in the circumstances. The learned Magistrate said that ‘in the exercise of my discretion, refused an adjournment/part-heard and have acquitted the accused for want of prosecution’.

Therefore, the first ground of appeal succeeds.

This brings me on to the second ground of appeal. Although the Magistrate does not say he applied s210 CPC to acquit but it does amount to that. This certainly was not a case of ‘want of prosecution’ because some witnesses were present.

If the learned Magistrate acquitted the accused under s210, then this section is not applicable in the circumstances of this case. In the two cases which I decided, and referred to by Mr. Rabuku hereabove, I stated that s210 is applicable where there is no case to answer after evidence has been adduced. It is important that my said two cases are heeded in future. I would, however, for convenience refer to the following paragraphs which I consider pertinent in the context of the issues before me from the judgment of the High Court of Uganda sitting in appeal in the case of Arvi Ratilal Ganji, 6 U.L.R 237 (quoting from Uganda Milenge and Another 1970 EALR 269 at 274:

"The case was fixed for hearing and on the hearing day an Inspector of Police appeared for the prosecution. The main prosecution witness, although warned to attend, failed to appear in time at the trial and the Magistrate after calling upon the prosecution to prove their case which they could not do, proceeded to acquit the accused. The two judges on appeal held that the magistrate’s proper course was either to have adjourned the case or to have dismissed the charge under the provisions of s.197 of the then Criminal Procedure Code. Section 197 is similar to s.202 in the present Criminal Procedure Code. In their judgments the court state:

‘We think that the proper course for a Magistrate where the Crown case cannot be heard by reason of a total absence of witnesses is either to adjourn the hearing, or if that is for some reason impossible to dismiss the charge unheard .......

‘It seems to us that the position is substantially the same where the Magistrate has before him merely a public prosecutor, whose function is simply to conduct the case and to examine the persons who are the true informants. If the latter are absent, and yet it is known that they are in existence and that their attendance can be secured, it seems to us little short of farcical to embark on a trial of the case and to acquit the accused, the complaint against him being wholly unheard.’

For these reasons the magistrate should have either dismissed the charge and discharged the accused, but not to acquit. In this regard I refer to the following passage from Ganji (supra) which states the position clearly with which I agree:

"If the learned magistrate had rightly assessed his powers and duty we think that he would have refused to proceed to what the respondent asks me to regard as a trial, and would have dismissed the charge unheard and have discharged the accused. What was done was done owing to a misconception by the learned magistrate of his powers and duty. We think that we cannot permit the present position to stand because of that misconception..."

For these reasons I hold that the acquittal was not a proper exercise of Magistrate’s discretion bearing in mind particularly the serious nature of the offence.

I therefore set aside the Order of acquittal and order that the case be remitted to the Magistrate’s Court before another Magistrate to proceed in accordance with the law after a fresh plea is taken.

The appeal is allowed.

D. Pathik
Judge

At Labasa
22 May 2001