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State v Maheshwari [2005] FJHC 278; HAC0031.2005 (2 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0031 OF 2005L

STATE

v.

NAWAL MAHESHWARI
s/o Lakhan Lal Maheshwari

Ms. L. Chandra for the State
Mr. H.A. Shah for the Accused

Date of Hearing: 18 November 2005
Date of Ruling: 2 December 2005

RULING

This matter came before the Court on the 18^th November 2005 having been transferred from the Lautoka Magistrates Court.

The Court Record indicates that the matter was transferred at the request of counsel for the accused after the Court advised that the offence was electable, that is there is an option for the matter to be dealt with in the High Court or the Magistrates Court.

When the matter came before this Court, State Counsel indicated that the matter could be dealt with in the Magistrates Court, it was not electable and shouldn’t have been transferred.

The Electable Offences Decree No. 22 of 1988 provides in Clause 2 that “electable offences” means such offences that are prescribed in the Schedule thereto.

In Clause 6 the Decree provides:

“To the extent that this Decree deals with the right of trial in the High Court of offences prescribed in the Schedule, the Criminal Procedure Code is amended and shall be read subject to this Decree.”

The offence with which the accused is charged is Occasioning Death by Dangerous Driving contrary to section 97 and 114 of the Land Transport Act 1998. This offence is not an offence detailed in the Schedule to the Electable Offences Decree.

The First Schedule to the Criminal Procedure Code sets forth various offences and in Column 5 details the Court by which or class of magistrate by whose court an offence is triable, in addition to the High Court.

Towards the end of the Schedule there is a heading titled “Offences under other laws when no specific provision is made to the contrary in those laws”. Relevantly Column 2 provides:

“If punishable with imprisonment for 10 years or upwards but less than life.”

Column 5 provides under the heading “Court by which or class of magistrate by whose court an offence is triable, in addition to the High Court; with the consent of the accused, Resident Magistrate”.

It would appear from these provisions that an offence punishable with imprisonment for 10 years or more can only be dealt with by a Resident Magistrate with the consent of the accused.

By virtue of section 114 of the Land Transport Act, the maximum penalty for the offence of Occasioning Death by Dangerous Driving pursuant to section 97 (2) of the Land Transport Act is $10,000.00 or 10 years imprisonment. It follows therefore that the offence can only be dealt with by a Resident Magistrate with the consent of the accused.

A similar situation was considered by Pathik J. in Tagilala Latu v The State – Cr. App. No. 20 of 1996 where His Lordship was considering the provisions of the Dangerous Drugs Act. His Lordship said at page 3:

“This offence is not a Penal Code offence and therefore falls within the ambit of the First Schedule to the Criminal Procedure Code Cap. 21 which states under caption ‘offences under other laws where no specific provision is made to the contrary in other laws’: ‘if punishable with imprisonment for 10 years or upwards, but less than for life’ is only triable ‘with the consent of the accused, Resident Magistrate’ (vide 5^th Column to the said Schedule).

I might observe at this stage that the Electable Offences Decree No. 22 of 1988 merely amended the Penal Code offences in there is set out a list of “electable offences in the Schedule thereto.

Hence it is quite clear that the Magistrates Court had no jurisdiction to try this drug offence without putting the accused to his election.”

In the circumstances therefore I am of the opinion for the reasons stated above that the offence is indeed electable and the accused having elected High Court trial the matter should proceed in this Court and an Information should be filed at an early date.

The matter is adjourned to the 16^th January 2006.

JOHN CONNORS
JUDGE

At Lautoka
2 December 2005