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State v Narayan [2022] FJHC 129; HAC250.2021 (22 March 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

Crim. Case No: HAC 250 of 2021

STATE

vs.

PREMIKA SARASH NARAYAN

Counsel: Ms. N. Shankar for the State

Mr. A. Sen for Accused

Date of Sentence 15^th March 2022

RULING

[Transfer under Sec. 188 of the Criminal Procedure Act]

Introduction

1. The Learned Magistrate of Nasinu by order dated 03^rd of November 2021 transferred the summary case bearing No. 1569 of 2020 to the High Court under Section 188 of the Criminal Procedure Act. When this was mentioned in the High Court the Defence made an application to remit this case back to the Magistrates’ Court and the Prosecution did not object and then both parties made a joint application.
2. As per the record, on the 2^nd of September 2020, the accused had been produced in the Magistrates’ Court of Nasinu and charged with 5 counts of Fraudulent falsification of accounts contrary to section 322 (1)(a)(i)(b) of the Crimes Act of 20d also 5 co 5 corresponding counts of General dishonesty-causing a loss contrary to section 324 (1) of the Crimes Act of 2009. f thesethese offences are sy offences.
3. On the 15^th of mber 2020 upon the Accused tendering not guilty pleas to alto all 10 charges the matter had been set for hearing for the 4^th of November 2020.
4. However the hearing has not commenced as scheduled but when mentioned on the 13^th of April 2021 the Learned Magistrate has inter alia made the following endorsement;

"Mention for response application for transfer to high Court 05/01/21”.

5. Due to the Covid 19 pandemic the case had been adjourned on several occasions and then on the 03^rd of November 2021 the learned Magistrate has made the order transferring the case to this Court of which the entry made by the Learned Magistrate is as follows;

“Application granted for mater to be transferred to High court.

Mention first call High Court – 19/11/21

No response filed

Bail extended.”

6. The transfer order conveyed to this court along with the copy of the record of Magistrate’s Court case No. 1569 of 2020 states that the said transfer order is made “in accordance with section 188 of the Criminal Procedure Decree”.
   
7. On the 19^th of November 2021 this matter had been mentioned in the High Court for the first time and adjourned for the 25^th of February 2022. On19^th of November 2021 Sate Counsel Mr. Tivavo and the Accused have confirmed that the application for transfer was in fact made by Mr. Amrit Sen on behalf of the Accused and that the state was not heard before making the order of transfer. Accordingly, the matter had been adjourned for Mr. Tivavo to respond on the legality of the said order.
   
8. On 25^th February 2020 Mr. Amrith Sen whilst confirming that the transfer order was made on the application of the Defence made an application to remit this back to the Magistrate. The Accused has now changed her mind and once again desires to be tried by the Magistrate. The prosecution too had no objection to this application and Ms. Shankar (State counsel) and Mr. Amrit Sen (for the Accused) are now in unison moving this Court to “remit” this case back to the Magistrates Court. Both the Prosecution and the Defence submitted that as there is a joint application the Court is empowered to make such an order but did not refer to any statutory provision.
   

Power to remit

9. Can this court make such an order? To this end it is now necessary to consider and comprehend the law and procedure by which cases are transferred to the High Court. According to the provisions of section 35(2)(a) and (b) of the Criminal Procedure Act (CPA) all criminal cases heard by the High Court should necessarily be instituted before a Magistrates Court and then be transferred to the High Court. This being so a High Court assumes jurisdiction and takes cognizance of a criminal case upon an order of transfer made by a Magistrate. Hence, a valid order of transfer should always precede and is a necessary prerequisite for a High Court to assume jurisdiction and take cognizance of a criminal case.
   

10. There are 3 categories of cases that may be so transferred to the High court. Hey are;

(i) indictable offence [section 35(2)(b)(i) of the CPA],
(ii) indictable offence triable summarily if the accused has indicated that he/she wishes to be tried in the High Court [section 35(2)(b)(ii) of the CPA] and
(iii) summary trials transferred by Magistrates [section 188 of the CPA].

(i) and (ii) above are provided for by section 35 of the Criminal Procedure Act and (iii) above is provided for by section 188 of the Criminal Procedure Act. Under section 35 of the CPA there is no discretion whereas section 188 of the CPA confers the Magistrate with a discretion. Sections 35 and 188 of the CPA provide the grounds and procedure whilst the statutory power to make such transfer orders is conferred by section 191 (Division 3 of Part XIII) of the Criminal Procedure Act. If I may farther elaborate, the power to make the transfer order is conferred by section 191 whereas the circumstances in which such transfer orders may be made are specified and determined by sections 35 and 188 of the CPA. Thus section 191 is in effect an enabling provision.

Difference between transfers under sections 35 and 188 from that of section A. 190 of the CP

11. Section 191 becomes the enabling provision as section 35(2)(b) states that, “cases ........... shall be transferred to the High Court in accordance with this Act....”, and section 188 of the CPA provides that “..the Magistrate may transfer the case to the High Court under Division 3” thereby the Magistrate is conferred with the power is enabled to make the order of transfer by virtue of section 191 of the CPA. Hence the substantive power to make the order of transfer is provided by section 191 of the CPA.

12. This being so now let’s see what section 190 of the CPA states;

190 (1) Where—

• (a)a person over the age of 18 years is convicted by a Magistrate for an offence; and
• (b)the Magistrate is of the opinion (whether by reason of the nature of the offence, the circumstances surrounding its commission or the previous history of the accused person) that the circumstances of the case are such that greater punishment should be imposed in respect of the offence than the Magistrate has power to impose,

The Magistrate may, by order, transfer the person to the High Court for sentencing.

(2) If the person is transferred under subsection (1) to the High Court, a copy of the order for transfer and the charge in respect of which the person was convicted shall be sent to the Chief Registrar of the High Court.

(3) The High Court shall enquire into the circumstances of the case and may deal with the person in any manner in which the person could be dealt with if the person had been convicted by the High Court.

(4) A person transferred to the High Court under this section has the same right of appeal to the Court of Appeal as if the person had been convicted and sentenced by the High Court.

(5) The High Court, after hearing submissions by the prosecutor, may remit the person transferred for sentence in custody or on bail to the Magistrates Court which originally transferred the person to the High Court and the person shall then be dealt with by the Magistrates Court, and the person has the same right of appeal as if no transfer to the High Court had occurred.

13. Section 190(1) provides that “...the Magistrate may, by order, transfer the person to the High Court for sentencing.” thereby in addition to incorporating the grounds and procedure, the power to make an order of transfer too is conferred by section 190 without being subject to any other provision. This is the main difference I observe between sections 35 and 188 from that of section 190 of the CPA.
    
14. Then section 190 provides for “the transfer of the person” to the High Court for sentencing whereas sections 35 and 188 read with 191 of the CPA provide for the transfer of cases, charges or proceedings. Thus, there is no transfer of a case under section 190 of the CPA. I also observe that, whilst section 190(1) of the CPA empowers the Magistrate to transfer the person convicted, sub section 5 of section thereof confers upon the High Court the corresponding power to remit the person so transferred back to the Magistrates Court. Thus, in the absence of a similar provision in sections 35, 188 and 191 of the CPA, the High Court is not conferred with such express statutory power to make an order to so remit this matter under the said provisions. Thus the power of transfer conferred by section 190 of the CPA is different and distinct from transfers made under sections 35 and 188 read with section 191 of the CPA.
    

Can this court consider the validity of the impugned order of transfer?

15. As afore stated in paragraph 9, it is only upon a valid order of transfer that this Court is able to assume jurisdiction and take cognizance of this case. This being so the existence of a valid transfer order is a necessary prerequisite and is sine qua non with so assuming jurisdiction and taking cognizance. To that extent there should be and this court should also be satisfied that there is a valid order of transfer to take cognizance of a criminal case in the absence of which this court will not have jurisdiction to take cognizance of such criminal case. Therefore this court is required to and is competent to consider this jurisdictional issue or the legality of the transfer order at this stage. Thus, it is now opportune and necessary to consider if the purported order of transfer is in fact valid.
    

16. The transfer of a summary trial is made in accordance with section 188 of the Criminal Procedure Act, which provision appears under the title “Power to stop summary trial and transfer to High Court” and is as follows;
    

188

(1) If before or during the course of a trial before a Magistrates Court it appears to the Magistrate that the case is one which ought to be tried by the High Court the Magistrate may transfer the case to the High Court under Division 3.

(2) Before the calling of evidence at trial, an application may be made by a public prosecutor or police prosecutor that the case is one which should be tried by the High Court, and upon such an application the Magistrate shall—

• (a)hear and consider the reasons for the application;
• (b)hear and consider any submissions made on behalf of the accused person as to the most appropriate court to hear and determine the charges; and
• (c)otherwise determine matters relevant to the grounds for the application,

and may continue to hear the case (unless the charges are of a nature that may be tried only by the High Court) or transfer the case to the High Court under Division 3.

17. Regard being had to contents and the nature of language employed in section 188 of the CPA as discussed above an order to transfer a summary trial could be made under section 190 of the CPA only and only if the conditions specified by section188 of the CPA are present and the procedure prescribed thereby is duly followed. However, in the present case there is nothing on record to show that the learned Magistrate has followed the procedure or formulated the necessary opinion or of the existence of any ground to satisfy the conditions stipulated by section 188. The Learned Magistrate has made the transfer order on the mere request of the Accused or if I may say on the ipse dixit of the defence counsel. This was confirmed by the Accused and the Learned Counsel in this Court.
    
18. Accordingly, the learned Magistrate has made the impugned order of transfer totally disregarding and ignoring the said prerequisites as postulated by section 188 of the CPA. This section provides the grounds and the situations in which a summary trial may be transferred to the High Court. They are, if it appears to the magistrate that the case is one which ought to be tried by the High Court or on an application made by a public prosecutor or police prosecutor that the case is one which should be tried by the High Court. These requirements are couched in the disjunctive form. As such being satisfied at least one such ground is present is necessary to make a valid order of transfer.
    
19. Though section 188 provides the grounds on which a Magistrate may transfer summary trial, the statutory power to make such an order is derived from Division 3 of Part XIII of the Criminal Procedure Act and that will be section 191 of the CPA which is the enabling provision. Thus section 188 read with section 191 of the Criminal Procedure Act certainly confers upon a Magistrate the discretion to transfer a summary offence to the High Court provided that the Magistrate forms the opinion that case appears to be a matter that ought to be tried by the High Court or on an application made by a Public prosecutor or police prosecutor the Magistrate should be satisfied that it is a matter that should be tried by the High Court. Thus, a decision to transfer a summary case may be initiated and made either ex mero motu or on application by the Prosecution. In both these instances the Magistrate is conferred with a discretion. In the present case there is neither and the Learned Magistrate had made the impugned order of transfer on a bare request of the Defence.
    
20. Judge R.D.R.T. Rajasinghe in the case of Soko Inoke Moto Vs. The State Cri Case No: HNo: HAC 324 of 2017 (9^th November 2017) cored sectioection 188 and expounded the import and the procelaid down which ought to be followed by a Magistrate in making a transfer order thereunder nder as follows;

“1cording to Section 188, the, the Magistrate is allowed to transfer a summary trial to the High Court only on two instances. The first instance is if the Magistrate considers that the matter ought to be heard in the High Court. The second instance is that upon the application of the prosecution.

15. According to the above discussed provisions, the correct procedure of transferring this matter to the High Court has stipulated under Section 188 of the Criminal Procedure Act.

16. According to the record of the proceedings in the Magistrate’s Court, it appears that the prosecution has made this application to transfer the matter to the High Court pursuant to Section 188 (2) of the Criminal Procedure Act. The learned Magistrate has neither given an opportunity nor heard from the accused pursuant to Section 188 (2) (b) of the Criminal Procedure Act, before he made his ruling.
17. In view of these reasons, I find that the transfer order is wrong and not valid in law.”
    
21. In the case of Cama v State [1995] FJ Law Rp 18; [1995] 41 FLR 121 (22 May 1995) the Court of Appeal considered a Magistrate’s committal of an accused to the High Court for sentence without considering the "character and antecedents" as required by Section 222(1) (then provision corresponding to section 191 of the CPA) and held that such failure vitiated the exercise of the discretion to commit (transfer). Their Lordships expounded thus,

“We are satisfied that the resident magistrate erred in law in failing to address his mind to the question which he should have addressed before deciding to commit the appellants to the High Court for sentence. His purported exercise of his power of committal, therefore, miscarried. In consequence the learned trial judge lacked the power to sentence the appellants; he should have remitted the case to the Magistrates' Court for the resident magistrate to consider afresh, after addressing his mind to the proper questions, whether he should commit one or both of the appellants to the High Court for sentence or sentence one or both of them himself.” (emphasis added)

22. Similarly in the present case, section 188 of the CPA does not permit or empower the Learned Magistrate to consider or act on an application of the Accused but specifies two other grounds as aforesaid. When the statute has specifically prescribed two specific grounds for the exercise of that power it is circumscribed and limited to those grounds only. The Magistrate must also advert the judicial mind and form the view that the case is one that ought to be tried by the High Court or that should be tried by the High Court. The Learned Magistrate though vested with a discretionary power to transfer a summary case has by simply acceding to an application made by the Defence and ordering the transfer of this case to the High Court without addressing her mind has flawed both in law and procedure. In the above circumstances I am of the considered view that impugned decision is a nullity on that score alone. Accordingly, I hold that the said impugned transfer order dated 03^rd of November 2021is a nullity and ab initio void.
    

Considering the Merits of the order

23. Now I will venture to consider if there is any valid ground or reason that may justify the transfer of this summary case to the High Court. Though considering this may not strictly be necessary at this point it is to my mind prudent and relevant to consider this for the completeness of this ruling.
    
24. In, this case there are 5 counts of Fraudulent falsification of accounts contrary to section 322 (1)(a)(i)(b) of the Crimesof 2009 and also 5 co 5 corresponding counts of General Dishonesty-Causing a loss contrary to section 324 (1) of the Crimes Act 09. All are summ summary ofs and the maximum sentence prescribed for fraudulent falsifalsification of accounts is imprisonment for 7 years and for general disho-causing a loss is imprisonment for 5 years. The Legislaturlature in its wisdom decreed and classified these offences to be summary offences and that they be thus tired by a Magistrate and also prescribed the maximum sentences well within the powers of sentencing of the Magistrates’ Court. These offences may not be the run-of-the-mill day to day recurring offences and may involve a large number of documents to establish these charges. But in my view, this by itself is not a valid reason to transfer this to the High Court, especially when the Legislature has deem it fit to confer the Magistrates with jurisdiction to take cognizance and try these offences.
    
25. Then could the apprehension that due to multiplicity of counts or otherwise, if convicted, the Magistrate may not be able to sufficiently punish be a valid reason to transfer this case under section 191? This to my mind cannot be so, for the reason that, section 190 of the CPA makes specific provision to meet such a situation at a different stage of the case. Under section 190 of the CPA when a person is convicted and the Magistrate is of the opinion whether by reason of the nature of the offence, the circumstances surrounding its commission or the previous history of the accused person that the circumstances of the case are such that greater punishment should be imposed in respect of the offence, the Magistrate is vested with a discretionary power to transfer such convicted person to the High Court for sentencing.
    
26. At this point, Lord Parker C.J.,’s following observation in <R v
    v >King7;8217;s Lynn JustiJustices, Ex parte Carte and Others [1968] 3 ALL E. R. 858, at p. 859 is relevantmay bsiderli>

"If at any time during thng the inquiry into the offence [and I pauI pause thse there to add ‘inquiry into the of as examining magistrates’] it appears to the court, urt, having regard to any representations made in the presence of the accused by the prosecutor or made by the accused, and to the , that that the punishment that the court has power to inflict under this section would be adequate and that the circumstances do not make the offence one of serious cter and d;do not for otheronsasons require trial on indictment, the court may proceed with a view to summaryl".