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Sinha v State [2011] FJHC 381; HAM070.2011 (13 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO. HAM 070 OF 2011

BETWEEN:

SALENDRA SEN SINHA
Applicant

AND:

STATE
Respondent

Applicant in Person
Ms M. Fong for the State

Date of Hearing: 09 June 2011 and 08 July 2011
Date of Ruling: 13 July 2011

RULING
[Stay Application – Delay]

[1] The applicant seeks a stay of proceedings in the Magistrates Court at Tavua (being heard in the Lautoka Magistrates Court) on one charge of abduction contrary to section 251 of the Penal Code, Cap. 17. The applicant was charged with one other as follows:

Statement of Offence

ABDUCTION: Contrary to section 251 of the Penal Code, Cap. 17.

Particulars of Offence

SALENDRA SEN SINHA and LOMANI DERENALAGI on the 10th day of July 2008 at Tavua in the Western Division abducted Police Constable No. 3316 Vishwa Baran with intent to cause the said PC 3316 to be secretly and wrongfully confined.

[2] He was brought before the Magistrate on the 11th July 2008 where he (and his co-accused) entered pleas of not guilty. On the 14 occasions the matter was called thereafter, this applicant appeared on only four occasions. He absented himself for 3 months in 2008 and was the subject of a bench warrant. He was thereafter in custody, on remand for this case and others and after the 29th October 2010 he was serving a term of imprisonment for fraud. He still is serving terms of imprisonment having been sentenced by this Court for fraud in December 2010.

[3] Production orders were issued to bring him to Court many times for this matter but sadly they were not honoured. On occasions he was in Suva on trial but not always. The applicant submits that the State is intentionally delaying proceedings and leaving this charge "hanging over my head". Such a submission is vehemently denied by the State of course, and the record does not disclose any purposeful delay on the part of the State.

[4] The non-appearance of the applicant since the end of 2008 is regrettable but obviously a fault of the system. Even though it is no fault of the applicant, the delay occasioned is not prolonged.

[5] The test in considering whether a delay is unreasonable or not was expounded by the Privy Council in Flowers [2007] WLR 2396 where the Board held that the Court should take into account:

1. The length of the delay;
   
2. The reason for the delay;
   
3. Whether or not the (accused) had asserted his right to a speedy trial; and
   
4. The extent of any prejudice.
   

Although three years may seem to be a long period before the matter is heard, a great deal of that time is attributable to the accused's non appearance. As a result the delay cannot be said to be unreasonable.

[6] The record reveals that this applicant has never asserted his right to a speedy trial, nor is there evidence that this applicant may be prejudiced in this trial by the delay. The applicant devotes a large part of his submissions on this application to evidence of his contact with the alleged victim in the case, that is the police officer said to be abducted. He maintains that the officer willingly got into the vehicle that the applicant was driving at the time and he was neither forced to remain nor assaulted.

[7] These submissions are of course irrelevant to the present application. They are issues to be aired at trial.

[8] Following the authorities of Rahiman [2011] FJHC 298 and Bavaro [2011] FJHC 235, stay should only be granted in the most exceptional circumstances. I do not consider that this case can be regarded as exceptional, and in any event where the allegation is that an officer of the Police Force has been abducted, it is a matter of public interest that the evidence be aired in Court as soon as possible. A production order is issued to that purpose.

[9] Much of the applicant's concerns could be alleviated, should this matter now proceed to a speedy hearing; that being so, I refuse the application for stay and I order that the applicant appear in the Magistrates Court at Lautoka on Monday 18th July at 9.00am, so that the matter can be heard and a trial date be set as a matter of strict priority and as soon as practicably possible for the Magistrate.

[10] Lautoka Case No. 172 of 2008

Connected with the case just discussed is another case against the accused, where he has been charged with Breach of Bail Conditions, arising from his non appearance in the Tavua Magistrates Court.

The charge reads:

Statement of Offence

BREACH OF BAIL CONDITIONS: Contrary to section 25(2) B and 26 of the Bail Act 2002.

Particulars of Offence

SALENDRA SEN SINHA s/o Jagendra Prasad on the 2nd day of September 2008 at Tavua in the Western Division breached the condition of bail by not complying with the condition imposed by the Tavua Magistrates Court in Case File Number 145 of 2008.

[11] As Goundar J. has recently ruled in Eremasi Raileqe – Cr. App. No. HAA013 of 2011, there is no such offence of breach of bail; the only offence provided for in the Bail Act being absconding whilst on bail created by section 26 of the Act.

[12] As a consequence these proceedings against the applicant are a nullity and the matter still proceeding below is permanently stayed.

Paul K. Madigan
JUDGE

At Lautoka
13 July 2011