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Suva City Council v Chandra [2010] FJMC 153; Criminal Case 38.2010 (12 May 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 38 of 2010

SUVA CITY COUNCIL

V

SUSHIL VIKASH CHANDRA s/o Chandra Vinod

For SCC: Ms. Koroi
Accused Counsel: Mr. Prasad V.

RULING

1. The accused in this case is charged for "Operating a food establishment without a Licence" contrary to secs. 16(1), 16(2) and sec. 66 of the Food Safety Act 2003.
   
2. When this case was first called in Court on 07th April 2010, counsel appeared on behalf of the accused raised objections on issuing summons on the accused dated 23rd February 2010, in pursuant to the repealed Criminal Procedure Code.
   
3. Counsel's contention was that since the Criminal Procedure Decree 2009 came into effect on 01st February 2010, issuance of Summons any date after the 01st February 2010, should be in accordance with the Criminal Procedure Decree 2009.
   
4. Counsel for the accused made a request from the Court to support his objections in writing with supporting Judgments. As a result both parties filed documents in Court.
   
5. Whilst supporting his stance, in Para. 1.4 of the written objections, counsel for the accused state that "The Criminal Procedure Decree 2009 does not contain any saving and/or transitional provisions relating to the laying of charges and the subsequent issuance of Summons pursuant to the repealed Criminal Procedure Code [Cap 21]).
   

Issue to be determined

6. The issues before this Court to be determined are whether the Summons issued on the accused is invalid and whether there are any provisions under the Criminal Procedure Decree 2009 covering such a situation.
   
7. In support of his objections, Counsel drew the Court's attention to Criminal Case Nos: 01 of 2010, 04 of 2010 and 05 of 2010 where it was decided by Goundar J on 23rd February 2010, that after 01st February 2010, Magistrates do not have powers to transfer cases to the High Court under sec. 223 of the repealed Criminal Procedure Code.
   
8. Above-mentioned decision was based on "Magistrate's power to transfer cases to High Court" and thereby of no relevance to the present situation.
   

The Law Applicable

9. To notify the accused person of the offence, Suva City Council had used "Criminal Procedure Code Form No 5" which is the prescribed form of Summons under the Sec. 81 of the repealed Criminal Procedure Code. Any modifications to such forms have to be done by the Chief Justice or the Chief Magistrate.
   
10. Relevant legal position to this situation is in Sec. 300 (2) of the Criminal Procedure Decree 2009, where it state:
    

"The forms prescribed in the Schedules to the repealed Criminal Procedure Code shall continue to be the forms to be used under this Decree, until regulations are made to prescribe forms in accordance with Sec. 302, or the Chief Justice exercises the powers under sec. 286."

11. So far, the Hon. Chief Justice or the Chief Magistrate has not introduced any new forms to be used under the Criminal Procedure Decree to be used as forms. Therefore it is clear that the provisions set out in Sec. 300 (2) of the Criminal Procedure Decree 2009 will be applicable to the present situation.
    
12. Since the law is very clear in this situation, I dismiss the objections raised by the Counsel for the accused.
    
13. 28 days to appeal.
    

On this Wednesday 12th day of May 2010.

Kaweendra Nanayakkara
Resident Magistrate.