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State v Goundar [2011] FJMC 111; Criminal Case 364.2011 (4 July 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
WESTERN DIVISION
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 364 of 2009

State

-v-

Permal Goundar,
Yogendra Naiker aka Johnney,
Ramesh Naidu, and
Ventesh Goundar

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : ASP Anil Prasad.
Accused : All Present.
Counsel For Accused : Mr Hari Ram, Rams Law, Nadi.
Date of Hearing : 4th April 2011 and 4th July 2011

JUDGMENT

Introduction

The accused were charged as follows:

First Count

Contravening Public Emergency Regulation: Contrary to Section 3 (1) (2) (4) and 25 of the Public Emergency Regulation No 1 of 2009.

The particulars of the offence: "Permal Goundar, Yogendra Naiker alias Johhney, Ramesh Naidu, and Ventesh Goundar on the 29th day of November 2009 at Andhra College, Olosara, Sigatoka in the Western Division held a meeting after the permit was revoked by District Officer and despite being ordered to disperse by Police Sergeant No. 452 Hemant Kumar."

Second Count

Obstruction: Contrary to Section 20 and 25 of the Public Emergency Regulation No 1 of 2009.

The particulars of the offence: "Yogendra Naiker alias Johnney on the 29th day of November 2009 at Olosara, Sigatoka in the western Division willfully obstructed

Police Sergeant No. 452 Hemant Kumar an officer acting in accordance with his duties."

The Law

The Relevant Laws in this case are the Public Order Act (Cap 20) and The Public Emergency Regulation 2009.

The Public Order Act (Cap 20) is an Act for the Maintenance of Public Oder and provides for the guidelines and laws that need to be adhered to in holding public meetings, processions and gatherings. Section 8 of the Public Order Act requires that permits be obtained for meetings and processions in public place. It requires that:

"8.-(1) Any person who wishes to organize or convene a meeting or procession in a public place shall first make an application for a permit in that behalf to the appropriate authority and, unless such authority is satisfied for good reason that such a meeting or procession is likely to prejudice the maintenance of peace of good order, he shall issue a permit specifying-

(a) in the case of a procession, the purpose for which, and the routes of which, and the times at which, such procession may pass and such other conditions as he may think fit to impose;

(b) in the case of a meeting, the purpose for which and the place or times at or between which, such meeting may be held and such other conditions as he may think fit to impose; and

(c) the name or names of the person or persons to whom such permit is issued.

(2) Every person to whom a permit is issued under the provisions of subsection (1) shall be responsible for the due observance of all the conditions specified in the permit.

(3) Every application for a permit under the provisions of this section shall be made in writing to the appropriate authority at least seven days, or within such lesser time as he may specify in any particular case, prior to the date on which it is proposed to organize or convene a meeting or procession.

(4) The provisions of this section shall not apply to processions solely in connection with marriages or funerals.

(5) Notwithstanding any of the other provisions of this Act, any sporting, recreational or social event or fixture, any private entertainment, or any assembly for religious or charitable purposes, conducted with the permission of the local authority or other body or person having control of the public place in which such event, fixture, entertainment or assembly is held, shall be exempted from the provisions of this section.

The relevant part of the Public Emergency Regulation is Part II of the Public Emergency Regulation, which provides for the Powers for Maintaining Public Safety. Section 3 of the Regulation provides as follows:

"3.—(1) The Commissioner of Police or the Officer Commanding or the officer in charge of the Police District and, where necessary, in consultation with the local district officer, may by order prohibit absolutely or subject to such conditions as he or she may think fit any procession, meeting or assembly in any place, or building whether public or private notwithstanding the fact that a permit for such a procession, meeting or assembly may have already been granted.

(2) Any procession, meeting or assembly in any place whatsoever, whether or not any order shall have been made prohibiting such procession, meeting or assembly under the provisions of the last preceding paragraph, may be ordered to disperse by any police officer or any administrative officer, or any member of the Armed Forces of or above the rank of Sergeant, and it shall thereupon be the duty of the person taking part in such procession, meeting or assembly, to disperse accordingly.

(3) Any police officer or any member of the Armed Forces, if in his or her opinion such action is necessary for the public safety, after giving due warning, may use such force as he or she considers necessary, including the use of arms, to disperse the procession, meeting or assembly and to apprehend any person present thereat, and no police officer nor any member of the Armed Forces nor any person acting in aid of such police officer or member using such force shall be liable in criminal or civil proceedings for having by the use of such force caused harm or death to any person.

(4) Any person who organizes or assists in organizing any procession, meeting or assembly, held or intending to be held, in contravention of an order made under the provisions of this regulation, or who incites any person to take part in such procession, meeting or assembly, or who takes part in such a procession, meeting or assembly shall be guilty of an offence."

Section 20 of the Regulation deals with Obstruction of officers and provides that "any person who wilfully obstructs, knowingly misleads, or otherwise interferes with or impedes, or withholds any information in his or her possession which he or she may reasonably be required to furnish to, any officer or other person who is otherwise acting in accordance with his or her duty under these Regulations, shall be guilty of an offence against these Regulations."

The Penalty for breach of Public Emergency Regulations is provided in Section 25 of the Regulation – "Any person who is guilty of an offence under these Regulations shall be liable to a fine not exceeding one thousand dollars or to imprisonment for any terms not exceeding two years or to both such fine and imprisonment."

Burden and Standard of proof

The burden of proof its case is on the Prosecution, the State. The prosecution is required to prove all the elements of the charge the accused are charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails.

Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.".

The Evidence

Evidence of the Prosecution Witnesses

The Prosecution called 4 witnesses: Pw-1 – Kailash Bhoosan, Pw-2 - Sgt Hemant Kumar , PW-3 - Sushil Sharma , and Pw-4 – D/Constable 1966 Waisake .

Evidence of Pw- 1 - Kailash Bhoosan (Sworn on Ramayan in English)

Examination in Chief – "Executive officer, Commissioner Western's Office. 2nd Month in Commissioner Western's Office. 8th year in western Division. 2009 posted as assistant District Officer. 1 ½ year in Sigatoka. In 2009 acted as DO. November 2009 was acting DO held from June. 12th November 2009 received correspondence an application from school for meeting. Approved by police we gave permit. Have a copy (PE-1 – copy of Permit).

18th November 2009 received correspondence from main branch regarding an unauthorized meeting. Then cancelled permit. Permit cancelled on 26th November 2009. I signed. Addressed to Ramesh Naidu, Secretary. Ramesh Naidu is 3rd Accused from right. Faxed all copies to Ramesh Naidu at Mission School. He is a teacher there. Did not get acknowledgement of fax. (PE-2 cancellation notice of meeting).

27th November 2009 recall date. Permal Goundar and 4 others, a police officer, Rusiate queried about cancellation. Accused received letter from PM's office. I told them they can. I told them if they want to they can go against me. They showed letter from PM' Office. Cancellation letter had gone out. 1st accused is Permal, who visited me. None of the other accused visited me. 29th November 2009 Commissioner Western told me about illegal meeting. At 10.30am in Lawaqa. Received call from Commissioner Western to check on the meeting. Took Sgt Hemant and Cpl Waisake. We reached school at 11am. Only 3 of us went.

When we reached school. 200 people at meeting conducted by Permal. Ramesh was there. 4 seated in dock conducted the meeting. About 200 people there. Commissioner Western asked me to negotiate with them to suspend the meeting. I asked them liase with other party. Before suspension we had cancelled the meeting. I cancelled the meeting. They had 200 people. They said they will not stop the meeting. We had some argument between Sgt Hemant and those in the dock. I can recall Permal saying things. Sgt Hemant asked them to stop the meeting.

Permal Goundar said who Commissioner Western and DO to stop meeting. They did not listen to us. Sgt Hemant called Station, no response. Called Lautoka."

Cross-Examination – "gave statement to police. Can Id statement. Issued permit and cancelled permit. Communication by fax. Did not know fax # I sent to. I sent to personally. Faxed to main body in Lautoka, Commissioner Western, and to Mission School – Attention – Ramesh Naidu.

Do not have fax confirmation sheet. In district office for 8 years. Know how fax works. Put document on top. Type fax # and start. When received on other side get message sent. When fax is sent goes to another machine. Machine is office of Mission school in Nayawa. Ramesh Naidu is a teacher at Mission School. I called typist she confirmed receiving. I do not know if Ramesh Naidu received the fax. Other accused did not receive the fax.

Intended recipient to receive same day. Only box #. No fax #. Means to communicate by post. Posted same day. Posted to Box 4. mail boy posted. No record that letter was sent. Commissioner Western does not have this recording system. Expect it to be received 2nd day. Produced to 1st accused Permal Goundar. Showed him the document. No record that it was given to 1st accused. Showed 1st accused – did not give it to him. 1st accused was about 3 metres. He was able to read. (Witness is shown document by counsel from about 3 metres and asked to read) – cannot read from 3 metres.

Message from Commissioner Western to suspend the meeting. By 27th cancelled the meeting. Commissioner Western wanted it suspended. Was an illegal meeting. I report to Commissioner Western. directive from Commissioner Western to stop the meeting. I told Commissioner Western meeting had been cancelled. Commissioner Western said to suspend the meeting. The same one that I had cancelled. I went to cancel, Commissioner Western wanted to suspend.

They did not listen to what I said. They did not listen to Hemant. About 2 metres from hemant when he talked to permal. Beside Permal and Hemant. Other accused were there. Close to me and Hemant. I was able to hear what Hemant said. He said meeting cancelled. Do not know if he (Hemant) showed it to them. Directive from Commissioner Western that meeting is suspended. Hemant said meeting cancelled. Hemant not supposed to follow my directives. Hemant in charge that day. Solicitor Sushil Sharma there. He was inside at the meeting. He came towards us. I told him meeting cancelled.

He informed accused that permit was cancelled why they had the meeting. 27th November 2009 meeting was in presence of Police Inspector Rusiate. Recognize Goundar only. Cannot recall another person in Court that was present. I showed cancelled permit to Permal. I said to accused if they wanted they can go ahead against my decision. Arrived at 11am. Wear watch checked time. I arrived between 11 to 12. cannot say if meeting had concluded.

When I arrived after 3 minutes entered the meeting. They were doing elections. Sgt Hemant in plain clothes. Permal Goundar gave some explanation in my office on 27th. They had directive from PM's Office. I did not enquire. I had cancelled the permit."

Re-Examination – "addressed cancellation to Ramesh Naidu. He applied for the permit. Did not have confirmation copy, but on the screen. Explained to Permal about the cancellation. On 29th November 2009 spoke to Permal Goundar. I was the District Officer. I had cancelled the meeting. Commissioner Western was to suspend the any meeting going on."

Evidence of Pw- 2 –Sgt Hemant Kumar (Sworn on Ramayan in English)

Examination in Chief – "31 years in Police Force. Based at Prosecution Office. Prior at Sigatoka for 6 years. Sgt for 10 years, 29th November 2009 at 10.30 am on duty. DO (PW-1) visited me. he requested me to accompany him. I did. Const Waisake went with us to Andhra High. Reached at 10.30am. upon arrival noticed group of people conducting meeting. 200 to 250 people.

Can recognize those 4 accused in accused box as being present. DO called Permal and told him that permit was cancelled. Commissioner Western will come and talk to them in the weekend. Permal strated to argue. I came in and warned him. Permit is cancelled. They must suspend and disperse.

Permal stated who is Commissioner Western and DO. He will carry on the meeting. Communication in corridor. Can see people seated in hall. When uttered disperse. They did not disperse. He uttered we will carry on the meeting. I consulted Sector Commander and contacted RPO and briefed him. RPO – Divisional Commander. He said assistance coming from Nadi.

We waited for re-enforcements from Nadi. Waited for 2 hours. They came. Some were cooking others were seated. Meeting finished then and brought them to Sigatoka Police Station for questioning. When I asked to disperse, Permal said he will continue. Solicitor, Sushil came to me. 2nd accused came to me. when I talked to Permal he interfered with me. He was 2 yards away. He tried to hide Permal and moved in between."

Cross-Examination – "did not take documents to meeting on 19th. We sighted documents before we left for place. Cancellation of permit was with DO. Issue by National Body that parties had differences. Sighted letter by National Body and I sighted one letter from DO cancelling the meeting. DO read and I was beside him. He read. Letter with DO.

Duty officer that weekend. Arrived after 10.30 am, before 11am. I did not check my watch. Went to corridor. Meeting inside the hall. Waited about 10 to 15 minutes talked to accused. Is correct. We waited to be sure. We then called the organizers. Within 10 to 15 minutes called accused and spoke to them. Our conversation is included in that. 5 minutes after we arrived we spoke to Permal. DO spoke first. I was beside DO. He argued with DO. We were close to each other.

When Permal ignored DO's warning I then talked to Permal. Then 2nd accused obstructed. DO told Permal that permit had been cancelled and Commissioner Western will see them in the weekend. DO asked said meeting cancelled. Meeting postponed. The word suspension was not used. (shown statement – I signed. Typed version is same as original document.) statement on 29th November 2009 stated time commenced and completed. Same evening of meeting.

Not in statement I asked accused to disperse. 1st accused proceeded to argue. Message from Commissioner Western to suspend the meeting for 1 week. Nothing in my statement that meeting was cancelled. Paragraph 10 is an error. Should not be to attend but check the meeting. Was there to check the meeting. Commissioner Western said to suspend meeting for 1 week. I told 1st accused to listen to DO. DO's message was to suspend the meeting.

DO was carrying letters that permit was cancelled. We sighted letter before. DO had letter I did not have the letter. I do not know Yogendra Naicker from before. I have never seen 2nd accused before. 1st time I saw him, he came in when I talked to Permal. He came in when I talked to Permal. Only time I saw him when he came in between me and Permal.

We were standing in the same group. Permal was 2 yards away. 2nd accused came in between Permal. 2nd accused went around Permal and made sarcastic remarks. He was going around Permal. He did that for about 3 to 5 minutes. I did not record in the statement. Could be overlooked. Statement correct. Recollection of what I wrote. Did not make notes or other records. I am telling the truth. Johnny yelled and interfered. They did not invite me to sit inside. Permal did not invite me to sit inside. Not made aware of meeting of 27th November. I was in uniform. I think it is correct. I cannot recall.

(Shown Photos0 I am there in the verandah. Meeting inside the hall. I was in civilian not in police uniform. I explained to Permal I was a Police Officer before I talked to him. Showed Id to Johnny also ID card in civilian clothes. Not correct that I did not use ID. Did not only communicate with 1st accused. DO not only said meeting was suspended. I asked them to disperse. Did not wait 15 minutes. Permal did not come to see me."

Re-Examination – "my version in court is true. On 29th November 2009 DO brought cancellation permit. (Shown PE-2- was the document shown.). no animosity with anyone of them. Visit to check on cancellation. Id carries rank shown to accused".

Evidence of Pw- 3 – Sushil Sharma (Sworn on Ramayan in English)

Examination in Chief – "4 years as Solicitor. Practice in Sigatoka. 29th November 2009. was instructed by 1st accused to explain civil judgment to public at Andhra Sangam School. Between 10 to 11am. Represented him in civil matter. 200 to 300 people present. 1st accused was present, while I was explaining judgment. Police Hemant and DO entered school premises as I attended to them. They advised no permit for the meeting. 1st accused had given me a permit. Police advised me that permit was postponed. Parties were at liberty to apply another day. Cancelled. Advised accused to stop meeting. Then I left.

1st accused was in school premises. 1st accused was present when I discussed with police. Police- Hemant. Prior to Police I was there for 15 minutes. I advised and then I proceeded to my house."

Cross-Examination – "practice for 4 years. Police who came on that day I showed him written permit. He said this was cancelled. They can re-apply another day. Police said permit was cancelled. Had some conversation with DO. Police was present. DO confirmed permit had been cancelled. Do understand cancellation different from postpone which is different from suspension. Revoke similar to cancellation. Suspend to put on hold. Revoke and suspension different – distinct. Was solicitor for school. 1st accused was plaintiff in civil action. Was solicitor for accused.

I did demand written cancellation of permit was advised by DO. He was the one who issued and he cancelled it. He did not produce any document, neither the police. 1st accused told me he did not receive any notice of cancellation. Police and DO came between 10 and 11am. They waited outside. I was inside. They waited for few minutes. I was called and other members. Do not recall conversation between DO and 1st accused. I departed after reason from DO. He said he had right to cancel the permit. I advised accused and I left. Warning by police to disperse to 1st accused and Ramaiya (deceased) and group of people.

I advised accused that since DO is cancelling the permit they can postpone and have the meeting another day. Discussion with Police for less than 5 minutes. I told them outside. I did not go inside. Do did not say suspension. Was inside during meeting. I went outside to talk to DO and police. I explained to accused to stop meeting. I demanded written permit. Not produced. Emergency decree in force. I advised accused to stop meeting. No commotion while I was present. Still talking when I left."

Re-Examination – "Police and DO were about 5 to 6 metres from meeting room."

Evidence of Pw- 4 – D/Constable 1966 Waisake (Sworn on Bible in English)

Examination in Chief – "21 years in Police Force. 15 years as CID. Transferred to Nadi in 2010. prior to that at Sigatoka. 20 years at Sigatoka. 29th November 2009 at 10.30am on duty. The DO visited the police station had conversation with Sgt Hemant – to go to Andhra School.

Went with Sgt Hemant and DO. Meeting taking place. DO show me any documents. About 150 to 200 people inside at meeting. Those in accused box were present. They organized the meeting. I came with DO and Sgt Hemant. We explained the purpose. They did not move. Sgt Hemant contacted the Nadi Police to assist all were present attending the meeting despite being warned by police. They were warned to stop the meeting.

Sgt Hemant contacted Sushil advised him of our purpose being there. For Sushil to explain the purpose. He then left. Other were still there. Officers from Nadi came and arrested the man. I heard the words. I heard about the name calling – who will be President. Reached school at 11am. Left there with accused after 2 pm. We waited for other officers. 10 officers came."

Cross-Examination – "went at about 11am. Went with DO and sgt Hemant. When we went there we observed what was going inside the classroom. We observed for ½ hour. All 3 of us observed for ½ hour. After ½ hour DO and Hemant spoke to Sushil. He was inside the hall. Saw 2 talk to Sushil. He was only one who came outside. Sushil went back inside. I was outside. I saw him talk with the organizers. He left after he talked to the man. He came back and talked to us. Sushil and other man came and talked. While we waited they were electing office bearers. Prior to election we waited outside. After meeting went to have lunch. Officers arrived. Observed that meeting was coming to an end.

I went earlier. Sgt Hemant and DO came afterwards. We arrived together. I was in the verandah. Then I looked around. I was with DO and Hemant when they spoke to the man. I did not communicate with accused. I heard DO communicate with accused. Do explained to 1st, 2nd, 3rd, 4th and 5th accused. Calm and peaceful communication. Difference in opinion with accused and DO. Only going to assist DO and Sgt Hemant to stop meeting. Following directive from Commissioner Western. DO informed us that Commissioner Western wanted to stop the meeting. Not sure what DO said. Not close to them. Was close when Sgt Hemant talked to them.

Sgt Hemant explained to them he is stopping the meeting. What DO has said. Dispute with DO and accused. When Sgt Hemant explained to them 2nd accused talked harshly to Hemant. He was talking bluntly to Hemant. 2nd accused was next to 1st accused. Sgt Hemant was having conversation with 1st accused. Sgt Hemant faced 1st accused. He stood in front of Sgt Hemant. I was 3 to 4 metres from Hemant. 2nd accused came beside the 1st accused and talked loudly. Cannot recall what was said. He was present in the meeting. He was in the vicinity. I was in the verandah. Cannot recall 2nd accused move around. 2nd accused did not like what Sgt Hemant explained to him. He talked harshly. After the discussion all sat inside the classroom."

Re-Examination – "They spoke in English and Hindi. Do not understand Hindi. Was present right through. Was in Verandah. Was about 5 to 8 metres from Sgt Hemant and DO. Had clear vision. They did not stop the meeting."

The Caution Interviews of all the accused were tendered by consent.

The Evidence of the Defence Witnesses

The Defence called 4 witnesses: DW-1 – Rusiate Narube, Dw- 2 – Permal Goundar, Dw- 3 – Yogendra Naicker, Dw-4 – Ramesh Naidu, and Dw-5 – Jyoti Singh.

Evidence of Dw-1 – Rusiate Narube (Sworn on Bible in English)

Examination in Chief – "Farmer. Aware of 4 accused's charge and reason for charge. On 27th accused came to me said to me permit is cancelled. Permal came to me. clarification from DO's office. Went to DO's office. Sat with DO. He told us meeting is cancelled. I asked for letter. I asked for letter from Commissioner western. He said no.

I told him if something between 27th and Sunday. DO agreed that meeting will go on. He said verbally that meeting is cancelled. No supporting letter for cancellation of the meeting. No letter to cancel the meeting. Sent Sgt Hemant to attend Meeting on Sunday. Did not get any notification of cancellation prior to time I sent Hemant.

No officer received notification of cancellation. I instructed Hemant to attend. DO did not show me any letter. Hemant left with DO to attend meeting I told him to go.

Cross-Examination – "former police Officer. 2009 – Inspector. Was Station Officer. I was not officer Commanding Police District (OCPD) – is the head of Police District. DO verbally informed that permit had been cancelled. I asked him to get letter to cover us. I believed him that permit was cancelled. Letter should be presented. (shown PE-2-) copied to OCPD. I was not OCPD. Was Asst Suprintendant Fulori. I was Hemants boss. I asked him to go to the school. I don not know about the letter. 29th November- Sunday. Hemant was not on duty. He was assigned to the school. I was on duty. I was the Senior most Officer. I do not know they held meeting without permit."

Re-Examination – "(looking at PE-2) – never seen this before. 1st time now. Not copied to Police. OCPD is supposed to tell me. I was not told about the cancellation. Sgt Hemant is Junior to me. He is to listen to my orders. I queried for the letter."

Evidence of Dw-2 – Permal Goundar (Sworn on Ramayan in English)

Examination in Chief – "aware of charge. Served Society for 24 years. Manager for Korotogo Andhra for 17 years. 17 years National Treasurer. Same period Manager for 4 schools. Secretary for School – Ramesh Naidu. We applied for permit. Application by Secretary – Ramesh Naidu. Dated 13th November 2009. assured by DO. We had meeting in accordance with permit. 14th November we advertised in Fiji Times.

On 27th went to DO to confirm. Called Commissioner western's office. Happened in presence of S/O Rusiate. DO told us to proceed with meeting. Asked DO for revocation and cancellation. Was not served. Permit was valid. We heard that National Borad had written to DO. We had heard that permit may be cancelled. We heard from Station Officer that permit may be cancelled.

We went to DO's Office, myself, Rusiate Narube, Ramaiya, and Chengaiya. We discussed about permit. He said he had received letter from National Board. We had civil case – by National Board. Judgment read at meeting. Guideline set out by Judge to have Special General Meeting. We called SGM. Do called Commissioner Western's office. He showed me a paper. Put it down. Permit is valid carry on with the meeting. He had paper in hand. Cannot read without glasses. 1 ½ metre away. He said I have not served. Permit is valid.

I did not read the contents. He said cancellation is here but not served. Permit is valid. He picked one paper. I do not know what. We invited him to come to the meeting. We invited Rusiate Narube 27th to 29th November did not get cancellation notification. On 29th having meeting. Start at 11.15am at 12.30am meeting almost complete. Saw DO and Police Officer – observing meeting. I went out to ask DO to come inside. He told me that Commissioner had suspended the meeting. He asked me to suspend the meeting. I told him meeting about to conclude. He nodded his head. We completed the meeting. They observed from outside. From there they went away.

I do not know how long they were there. After they allowed us to have the meeting they stayed there. Did not know Hemant as Police Officer. He was not in uniform. Was in T/shirt. We completed meeting over 150 people there. Members had lunch and then they left. About 17 of us there in Home economics room. When military and police came. They picked us and took us to police Station. 17 of us arrested. Police Officer spoke to me. he said listen to what DO had to say. By look he did not look like police. Not physically fit. Never looked like police officer.

Yogendra Naicker was beside me. I went to DO. Yogendra Naicker did nothing. Was talking and listening to me. I was in talks with DO did not realize what happened beside me. Solicitor, Sushil Sharma was invited as well. Was part of the meeting. He filed civil action against National Board. He was present when DO and Police came around. He came for short time. He spoke to Hemant and went. He did not talk to me after that.

He did not advise me that meeting was cancelled. Accused 3 did not communicate with me about cancellation of meeting. (Shown PE-2) seen 1st time when given as disclosures. Did not see before this. DO did not show me this letter. Hemant did not ask us to disperse. He only spoke to Sushil and me. I donot know if he spoke to others"

Cross-Examination – "Am school manager. Was chair for the meeting. Came to DO on 27th November. We came to police were told permit may be cancelled. We went to DO's Office. National Board had written to Commissioner western. Met PW-1 spoke to him. He told me permit had been cancelled. (shown PE-2) did not show this letter. 1st time seen is in disclosures. No animosity with DO. Dispute with Executives and School Board.

Was elected by local community. The executives did not recognize us. DO came to school with Hemant. Came to know he was a police when arrested. DO and Police observed for 15 minutes. 5 to 10 minutes meeting over. Meeting in progress. Other accused were part of the meeting.

I went out to see the DO. He told me that Commissioner western had sent him to suspend the meeting and he will come and see us. He did not say to stop the meeting. Hemant asked me to listen to the DO. No animosity with Hemant. He did not ask us to disperse. He did not show me his ID card. Not in uniform.

Solicitor was present. He talked to Hemant only while he was going out. Not correct he asked us to stop the meeting. No animosity with Sushil, was our Solicitor. DO had called to Commissioner western. We had asked for cancellation. He said we can go ahead. We invited him to the meeting. ¾ hour with DO and Rusiate. DO 1st said permit cancelled. That permit is in order. Continued with meeting after DO's permission. He nodded his head. I did not say I am not afraid of police and Army. Police came when about to have lunch.

Born in Sigatoka. 55 years old. The officers who came were not from Sigatoka. Did not see them. New faces. DO allowed us to continue. DO gave us permit. Hemant did not ask us to disperse."

Re-Examination – Nil.

Evidence of Dw-3 - Yogendra Naicker (Sworn on Bible in Hindi)

Examination in Chief – "present at meeting on 29th November at 11.30. after church service. Getting people to sit. Role to escort people. Did not know DO, knew Police Officer. They came after 11.30 close to 12. they were standing outside. I saw them asked them to come and sit. Knew police. He asked for permit. I said "yes". Angrily he said he was not talking to me. I used to drink with his brother. He got sacked from work. Hemant blamed me for this. He blamed me for his brothers sacking. I did not do anything. 1 metre corridor. Cannot go around him.

I did not disturb Sgt Hemant. Did not circle Permal. 1 metre wide corridor cannot go around in circle. Myself, Permal, DO, Hemant and few other around. Did not say anything else to Hemant. He knows me personally. Hemant is lying, he knows me. I have been to his place. Went to his place. Sat in Nadi police Bure. Went to his place in Kabisi. Used to go to his brother in kabisi. Hemant did not order us to disperse. Neither did another police officer. Did not talk to DO. Only asked to sit inside. He did not come inside. Saw accused one speak to DO. Meeting continued. 15 to 20 minutes. DO and Hemant were there in corridor. They did nothing. Did not intervene.

I did not obstruct Sgt Hemant. He has old animosity. I did not communicate with Sgt Hemant. Police did not arrest me at the meeting. Police came at my residence told wife that if I did not turn up. Came home, wife told me. I walked towards police station – saw Hemant with another group who are running school now at school bus shelter. Wife knows Sgt Hemant. Arrested on the road. On way to Sigatoka."

Cross-Examination – "reside in Sigatoka since 40 years. Member of school. Not in committee. Saw permit shown by Permal on day of meeting. Did not show other papers. (shown PE-2) cannot read without glasses. Not aware of cancellation. DO and Hemant at meeting. Other accused at meeting. Not with 1st accused at the table. Role – escorting people. Meeting started at close to 11.15am. saw Sgt Hemant and did not know DO. Meeting in progress. Hemant and DO there for 15 minutes. Permal came outside. I was outside. Permal only spoke to DO. I was beside Permal – 1 metre away. Area is about 1square metre.

Do said to stop meeting. Postpone until next week. Permal said meeting about to end. DO said to Permal to complete meeting. I have sworn to give the truth. No animosity with DO. Meeting commenced after DO said to continue meeting. Saw Hemant with DO, Permal and myself. Did not hear him say anything. He did not order us to disperse.

10 to 15 years ago problem with Hemant, his brother, went to him with his brother. He does not talk to me. he warned me once. See you one day. Solicitor, Sushil present. He was sitting in front. When we were talking (in front of public). When I came inside he left. I did not see him. After talking to DO meeting convened. Sushil did not tell us to stop the meeting. No animosity with him.

It's a lie no space to move around. Did not obstruct Sgt Hemant. Police interviewed us at night. Not at 6.30 but about 9 or 10pm. (shown Caution Interview) it was dark when we went inside, I signed interview. Donot agree at 6.38 but later at night. Meeting had permit. Did not obstruct Sgt Hemant."

Re-Examination – "Sgt Hemant warned me when his brother got sacked from Police force. He said I was the reason of his brothers sacking. Arrested at 3.30pm. statement at night."

Evidence of Dw-4 – Ramesh Naidu (Sworn on Ramayan in English)

Examination in Chief – "Secretary of Andhra School. Teacher at Sigatoka Methodist College. Applied for permit at DO's Office. Permit granted. Permit granted on 13th November 2009. was present. Not present at meeting of 27th November 2009. Did not receive any cancellation of permit.

(Shown PE_2 ) seeing for the 1st time. Addressed to me. did not receive fax. No communication made to me. Box 3 of School – Andhra College. Present at meeting not advised of cancellation of meeting. Do and Hemant did not communicate with me. did not make enquires at all. Permal Goundar communicated with DO. I was seated inside. I did not come outside. Saw DO and Police arrive an stood outside. Meeting in progress. Stood for 15-20 minutes they observed the meeting. I could see from where I sat.

I saw Permal talk to them. I did not participate in this communication. Accused 2 brought people in. he went outside. I did not see accused 2 near Hemant or Permal. Sushil did not communicate with us. He did not talk to us personally. Hemant did not communicate with me. not present at meeting of 27th November. "

Cross-Examination – "am Secretary of school. Permal is manager. Was also Assistant General Secretary of the Board. No-one advised me that meeting was cancelled. Did not receive the fax. After 11.15 meeting started. DO arrived after meeting started. Was seated in hall in front table. With other members. More than 120 people.

DO and police arrived were outside in corridor. 8 metre away from me. had clear vision. Stood there for ½ hour. Accused one went to speak to them. Did not hear them. DO, Sgt Hemant and other members standing there. Johnny was there. For 5 minutes stood with them. Were standing beside each other 1 metre apart. Corridor is about 1 metre wide. Cannot recall the position of those people there. As soon as DO and Police came, Sushil left 1st followed by Permal. Did not see Sushil talk to DO.

Saw Sushil go outside. Then he left. He did not inform us that meeting was cancelled. No animosity with Sushil. DO did not communicate cancellation. Sgt Hemant did not communicate with me. He did not utter from outside. Permal went outside, came in meeting continued. Police came to arrest after meeting at 2 pm. In Sigatoka since brith. Arresting officers from outside. Hemant was beside DO. Right of DO. DO faced the hall. Permal was in front."

Re-Examination – Nil.

Evidence of Dw-5 – Jyoti Singh (Sworn on Bible in English)

Examination in Chief – "Secretary at school on 26th November 2009. Principal In charge of fax. I deliver faxes. (PE-2 shown) addressed to accused 3. did not receive the correspondence from principal. Did not receive call from anyone – DO. Principals wife also worked as Secretary. I did not receive any call. No-one else enquire about the correspondence.

Cross-Examination – "Secretary of School since 2000. also Principal's wife was Secretary. Two secretaries. Fax in Principals office. I have office outside. Principal's wife in another office. Possibility call could be transferred to her.

Re-Examination – Nil.

Analysis of the Evidence

The Court has analysed all the evidence of all the witnesses in this case. The Court has also scrutinized all the documents that were tendered in this case. The Court has also noted the demeanor of all witnesses in this case The Court has taken note of the applicable laws in this case incuding, the Public Order Act (Cap 20) and the Public Emergency regulation 2009.

There is no denying that a permit was issued for a public meeting for a Special General Meeting of the Management of the Andhra Sangam College on Sunday 29th November 2009 from 11 am to 4pm. The contention by the 1st prosecution witness is that the permit was cancelled and the meeting was therefore illegal and that the accused persons breached the Public Emergency Regulation.

PW-1 is his evidence maintains that he had cancelled the meeting. He further informed the Court that he was sent by the Commissioner Western to suspend the meeting. The Court finds it difficult to reconcile the fact why would PW-1 proceed to suspend a meeting which he had cancelled.

In any event the Court has closely scrutinsed the evidence and finds that the accused never received any communication from PW-1 cancelling the meeting. If PW-1 had actually cancelled the meeting as per PE-2 (letter dated 26th November 2009) at the meeting on 27th November 209 with the 1st accused, Inspector Rusiate and others he should have given a copy to them. Inspector Rusiate an officer of long stead in Police Force, who was also the Station Officer at the time had no communication that the meeting was cancelled. His evidence is "DO agreed that meeting will go on. He said verbally that meeting is cancelled. No supporting letter for cancellation of the meeting. No letter to cancel the meeting. Sent Sgt Hemant to attend Meeting on Sunday. Did not get any notification of cancellation prior to time I sent Hemant". The Station officer had sent Sgt Hemant to the meeting on 29th November 2009, but he had no knowledge that the meeting had been cancelled. He had no communication stating that the meeting had been cancelled. Neither has the prosecution proven in this Court that the Officer In-Charge of the Police District (OCPD) had knowledge that the meeting was cancelled and he had acted accordingly.

The Court further notes Regulation 3 (1) of the Public Emergency Regulations which provides that "The Commissioner of Police or the Officer Commanding or the officer in charge of the Police District and, where necessary, in consultation with the local district officer, may by order prohibit absolutely or subject to such conditions as he or she may think fit any procession, meeting or assembly in any place, or building whether public or private notwithstanding the fact that a permit for such a procession, meeting or assembly may have already been granted."

The evidence in this case does not show that The Commissioner of Police or the Officer Commanding or the officer in charge of the Police District prohibited or ordered dispersal from the meeting. In fact the Station Officer, the Senior Most Police Officer giving evidence in this case had no notification from the Commissioner of Police or the OCP prohibiting the meeting and ordering dispersal. The Station Officer went with the group to enquire about the meeting following the granting of the permit but they were not given any notification that the meeting had been cancelled.

The Court has carefully scrutinsed all the evidence and finds that the evidence tendered does not support the charge and the evidence is unreliable as the District Officer who had purportedly cancelled the permit proceeded to suspend the meeting and clearly this cannot be overlooked.

Furthermore the 2nd count of obstruction against the 2nd accused is not supported by evidence beyond reasonable doubt. The Court notes inconsistencies between prosecution witnesses that 2nd accused circled Sgt Hemant and that he argued with Sgt Hemant. The inconsistencies do not support the prosecution case.

Count 1: all accused are found not guilty

Count 2: accused 2 found not guilty

All the accused are acquitted of the respective charge.

28 Days to appeal.

Chaitanya Lakshman
Resident Magistrate
Sigatoka
13th September 2011