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State v Kumar [2011] FJMC 98; Criminal Case 507.2007 (5 September 2011)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 507 of 2007

STATE

V

AVINESH KUMAR

For Prosecution: PC Ravi
For the accused: Mr. Raman Singh

RULING ON WANT OF PROSECUTION

1] The Accused is charged with following offence.

CHARGE:

Statement of Offence [a]

First Count

HOUSE BREAKING, ENTERING AND LARCENY Contrary to Section 300 of the Penal Code Act 17.

Particulars of Offence [b]

AVINESH KUMAR s/o ARUN KUMAR between the 9th and 10th day of April 2007 at Nasinu in the Central Division, broke and entered the dwelling house of SWASTIKA LAL d/o JAI MANGAL LAL, and stole from therein I Nakita DVD Player valued at $100.00, I Akita DVD Player valued at $100.00, 1 Phillips brand Food Processor valued at $300.00, 1 Pressure Cooker valued at $120.00, 1 Toaster valued at $40.00, 1 Egg Beater valued at $20.00, 4 Stainless Steel container valued at $30.00, 1 Coffee Maker valued at $29.00 and 1 Kerosene Stove valued at $40.00 to the total value of $679.00 the property of SWASTIKA LAL d/o JAI MANGAL LAL.

2] Charged was read to the accused on 16-04-2007 and the accused pleaded not guilty to the charge. The Pre Trial Conference was set. On 28th June 2007, at the Pre Trial Conference allegation and facts were outlined to the accused and he denied the alleged facts and allegation. The Court gave hearing date on 12-09-2007 and bail was extended. On that date the Prosecution mentioned "Not feeling well, ask for an adjournment". Then on the application of the Prosecution the hearing was vacated. Thereafter following hearing dates were vacated on various applications which were made by various parties. Following facts could be gathered from the case record and I put them in chronological order (Hearing Dates only). I should be noted this case was called before several Magistrates and it was partly heard.

29th November 2007: Court was busy

31st March 2008: Called before Another Magistrate.

04th June 2008: Prosecution was not ready

31st July 2008: Defence Counsel was appearing in High Court case in Suva

09th September 2008: Defence was not ready to proceed.

16th September 2008: Prosecution was not ready to proceed, because the Complainant mother has passed away.

11th November 2008: Prosecution was not ready to proceed, witness were not present. Prosecution misplaced the summons. Date was objected by the defence, but date was granted by the Court as the charge is serious.

28th January 2009: Hearing was commenced. Evidence of PW1, 2, 3, 4 were taken. Matter was then adjourned for continuation of trial.

24th February 2009: PW 6, 7 were called. Then Prosecution closed their case. My predecessor held there was a case to answer. Rights were given to the accused, defence opted to give evidence.

04th March 2009: Defence was not ready

13th March 2009: Regular Police Prosecutor was on leave

23rd April 2009: Unavailability of the Magistrate under the Public Regulation Emergency Decree 2009, due to political unrest.

21st May 2009: No hearing

06th August 2009: case was called before new Magistrate. De novo trial was ordered on the application of the defence. Court allowed the application under 196(a) of the Criminal Procedure Code.

24th August 2009, 11th November 2009, 18th December 2009, case was called just mention to fix a hearing date. No hearing date was set.

11th and 12th December 2010: Hearing but, No Magistrate for Nasinu Court Number 01. Hearing was again vacated.

09th September 2010, 17th November 2010, 20th December 2010, 25th February 2011, case was called to mention to fix a hearing date.

3] On 13th July, 2011, this case came before me for hearing. The prosecution moved a date. The reason was that hearing date be vacated as they do not have the Exhibits and it was already tendered in previous trial. The defence objected to this application saying that witnesses are not present and the ulterior motive of the application is to get another date and not that the exhibits issue. It is to be noted on 18th December 2009 (two years back) that exhibits had been released to the Police Prosecution, though, they might not collect it.

Law

4] In section of the Criminal Procedure Decree 2009 grants power to adjourn cases on "good cause".

"170. — (1) During the hearing of any case, the magistrate must not normally allow any adjournment other than from day to day consecutively until the trial has reached its conclusion, unless there is good cause, which is to be stated in the record.

(2) For the purpose of sub-section (1) "good cause" includes the reasonably excusable absence of a party or witness or of a party's lawyer.

(3) An adjournment under sub-section (1) must be to a time and place to be then appointed and stated in the presence and hearing of the party or parties, or their respective lawyers then present.

(4) During the adjournment of a case under sub-section (1), the magistrate may —

(a) permit the accused person to leave the court until the further hearing of the case; or

(b) commit the accused to prison; or

(c) release the accused upon his or her entering into a bond (with or without sureties at the discretion of the magistrate) conditioned for his or her appearance at the time and place to which the hearing or further hearing is adjourned.

(5) If the accused person has been committed to prison during an adjournment the adjournment may not be for more than 48 hours.

(6) If a case is adjourned, the magistrate may not dismiss it for want of prosecution and must allow the prosecution to call its evidence or to offer no evidence on the day fixed for the adjourned hearing, before adjudicating on the case.

(7) A case must not be adjourned to a date later than 12 months after the summons was served on the accused unless the magistrate(for good cause which is to be stated in the record)considers such an adjournment to be required in the interests of justice." (Underlining is mine)

5] But it is seems to me the exhibit is not ready and is not a good cause to grant a date. But, without rush; as it is a partly heard matter, I reserved the ruling. I now deal with it. Granting of adjournment on hearing date is a matter of discretion of the court. His Lordship Justice Goundar in the case of State v Agape Fishing Enterprises (2008) FJHC19; HAA 011.2008 (15 February 2008) said in his judgment;

"The granting of an adjournment is a matter of discretion. The discretion must be exercised judicially so that the rights of the parties are not defeated and that no injustice are done to one or other of the parties (see, McCahill v State, Criminal Appeal No. 43 of 1980; Chand v State, Criminal Appeal No. AAU0056 of 1999S)."

6] This court admits the cases to be adjudicated and disposed on merits. But it is to ne noted; normally Magistrate court is a busy creature unlike other court. Apart for the date to day cause lists, this court normally fix three or four hearing per day. Truly, this court's diary is fully booked for this year and if hearing date was vacated, case to be postponed till next year. The burden to prosecute the accused timely manner is lies on the prosecution.

7] Applications for vacate hearing date are often made in this court by the prosecution. The police prosecutors informed this court that they have no powers to withdraw the application under section 169, before that they should get sanction of the DPP.
8] Withdrawal of charges at the hearing, if the hearing could not be proceeded are made sometimes by the DPP counsels in trials. Powers to withdraw charges are given in section 169. It provides;

169. — (1) The prosecutor, may with the consent of the court, withdraw a complaint at any time before a final order is made.

(2) On any withdrawal under sub-section (1) —

(a) where the withdrawal is made after the accused person is called upon to make his or her defence, the court shall acquit the accused;

(b) where the withdrawal is made before the accused person is called upon to make his or her defence, the court shall subject make one of the following orders —

(i) an order acquitting the accused;

(ii) an order discharging the accused; or

(iii) any other order permitted under this Decree which the court considers appropriate.

(3) An order discharging the accused under sub-section (2)(b)(ii) shall not operate as a bar to subsequent proceedings against the accused person on the basis of the same facts. (Underlining is mine)

9] If so, they could withdraw the case and later they could file fresh charge for same case within reasonable time. Court has power to dismiss a charge in want of prosecution under section 166.

10] This non-appearance of complainant at hearing is discussed in section 166 of the Criminal Procedure Decree 2009. It says;

"166. — (1) This section applies to any case in a Magistrates Court, where —

(a) the accused person —

(i) appears in obedience to the summons at the time and place appointed in the summons for the hearing of the case; or

(ii) is brought before the court under arrest; and

(b) the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear—

(i) in person; or

(ii) by his or her lawyer.

(2) In the circumstances stated in sub-section (1), the court shall —

(a) dismiss the charge; or

(b) adjourn the hearing of the case until some other date, upon such terms as it determines if there are reasons for not dismissing the case; and

(c) upon any adjournment the court shall—

(i) admit the accused to bail; or

(ii) remand the accused to prison; or

(iii) take such security for his or her appearance as the court determines.

(3) The expression "lawyer" in this section and in this Part shall in relation to a complaint include any prosecutor." (Underlining is mine)

11] But this section is uncertain if that the summons was not served to the witness, then what would be the position of court. Can the court discharge or acquit the accused?

12] Some Jurisdictions gave more clear views and jurisdiction for want of prosecution. For the comparison I reproduce Sri Lankan Code of Criminal Procedure sub section 188(2).

"(2) If the summons has been issued on a complainant under section 136 (1) (b) or (c) as the case may be, and on the day fixed for trial the prosecution is not ready the court may discharge the accused unless for some reason the court thinks proper to adjourn the hearing of the case to some other hour or day.

(3) The order of discharge referred to in subsection (2) shall operate as an acquittal where either

(a) it is not set aside and the case against the accused is not reopened within a period of one year from the date of such ord.er; or

(b) the case has been duly reopened and an order of discharge is made for the second time ( Code of Criminal Procedure (Amendment),Act, No. 25 of 1989)"

13] Thus, that Section gives discharge when summons issued by the court registry. Serving a summons is matter for the prosecution. Both Jurisdiction (Fijian and Sri Lankan) has adversarial jurisdiction and common law countries. Sri Lankan law has given powers to reopen cases within reasonable time and Accused's rights are also protected. On the other hand, it helps to maintain court's day to day work without piling up cases.

14] Therefore, it is high time to give direction by high court decision to address this issue otherwise cases are piling up in Magistrate courts without adjudicating. It should be noted that delay defeats justice. In this case it is unclear that the prosecution has summoned their witnesses or summons were duly served on them. They solely moved the date that the Exhibits are not available to them.

15] APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL CASE NO: HAA 015 OF 2011 THE STATE V TEVITA RAIKOTI on 03/08/2011 His Lordship Justice Priyantha Fernando addressed similar kind of issue. In that case prosecution moved a date stating that witness cannot be located. Then the court discharged the accused in want of prosecution. But High Court reversed the decision of the Magistrate (This Court) on two grounds.

01- After refusing the adjournment the learned Magistrate did not call upon the Appellant (State) to adduce evidence in court.

02- Magistrate has not made any inquiry from the Counsel for the Prosecution, what steps they have taken to locate the witness. (On Appeal the State said to the high court that they now can locate the only eye witness and she now is in the Solomon Islands and willing to come and adduce evidence against the accused)

16] In above decision, it is understood, if the trial court refuses an adjournment the court should offer the prosecution to go with available witnesses. If prosecution failed to adduce any evidence, it seems under section 178 of the Criminal Procedure Decree 2009 (CPD) the Magistrate can acquit the accused. This position is not clearly addressed in above High Court decision.

17] Section 178 of Criminal Procedure Decree 2009 says;

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused." (Emphasis is mine)

18] In this case prosecution has led their evidence previously and two days were given to call the defence. But the accused failed to put forward defence for various reasons. Then, there was changing circumstance has led to this undue delay. The, he applied for de novo trail. The Prosecution now cannot produce a case against the accused.

19] As I earlier noted, granting a date is matter of discretion by the court. But it should be exercised judicially. On balance, since the prosecution fully adduced their evidence previously, I hold it is unfair to dismiss the charge and it is reasonable to give a final date to the prosecution. On contrary the accused could file stay of proceeding application (if he dissatisfy) in the High Court stating unreasonable delaying of the prosecution. This court has no power to stay proceedings. As noted only provision is section 166 of the CPD 2009.
20] I am also mindful of Section 150(4) of the said CPD regarding compensation or cost. I reproduce it for clarity.

" (4) A judge or magistrate may make any other order as to costs as may be required in the circumstances to —

(a) defray the costs incurred by any party as a result of an adjournment sought by another party;

(b) recompense any party for any costs arising from any conduct by any other party which delays a trial or requires the expenditure of monies as a result of the conduct of that party during a trial;

(c) penalise a lawyer for any improper action during a trial, and in such a case the order may be that the lawyer pay the costs personally; and

(d) otherwise meet the interests of justice in any case." (Emphasis is mine)

21] The ground for adjournment is untenable. I incline to award cost as there is no application I do not award it. But next time, if the prosecution makes frivolous application for postponement, I have no hesitation to order cost or make appropriate order. In this matter, five months have been given for the prosecution for preparation of the trial. Thus, they should show genuineness to pursue this case to end of justice. Otherwise, there will not be end of justice, if Magistrates do not exercise the discretion suitably and timely manner.

22] I make following orders;

a) Final adjournment is granted for the prosecution

b) No cost in this application

23] 28 days to appeal.

On this 05th day of September 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate