Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Kumar [2012] FJMC 168; Criminal Case 07.2011 (19 July 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI SLANDS
AT TAVEUNI

Criminal Case No: 07/11

STATE

V

JITENDRA KUMAR

Prosecution: Sgt Epeli, Police Prosecutor.

Accused: Mr.Sen A.

RULING ON NO CASE TO ANSWER

1. This is an application by the counsel for the defence, under section 178 of the Criminal Procedure Decree 2009.
   
2. Section 178 of the Criminal Procedure Decree states that,
   

"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".

3. Before the inauguration of the Criminal Procedure Decree in 2009 applications on 'No Case' was governed by section 210 of the Criminal Procedure Code.
   
4. The test for no case to answer in the Magistrates' Court under section 210 is adopted from the Practice Direction, issued by the Queen's Bench Division in England and reported in [1962] 1 All E.R 448 (Moiden v R (1976) 27 FLR 206). There are two limbs to the test under section 210:
   

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

5. An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates' Court.
   
6. The test of determination on the issue of no case to answer at the conclusion of the prosecution case is a prima facie standard. It was held in R. v Jai Chand (1972) 18 FLR 101),
   

" the decision as to whether or not there is a case to answer should not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law, and the evidence could or might convict on the evidence so far laid before it".

7. Winter J held in State v George Shiu Raj ([2005] FJHC 522; HAC0019.2005 (9 September 2005) "This is not a test involving judicial prediction of the assessors opinion or my verdict. It is not a question of likelihood of outcome but what may be properly done to give an opinion on guilt and render a guilty verdict. This task requires an objective assessment of the prosecution evidence.
   
8. In Sahib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) Hon. Shameem J held,
   

'In the Magistrates' Courts, both tests apply. So the magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence,

And second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case'.

9. The accused of this case had been charged for a count of 'Obstructing a Police Officer in Due Execution of His Duty' contrary to section 277(b) of the Crimes Decree 2009

.

10. The alleged incident took place on 30.12.2010 at Taveuni in Northern division of Fiji. The charge states that the accused obstructed Acting ASP Ms Shobna Sharma whilst she was in due execution of her duties.
    
11. Two police witnesses testified for the prosecution case on 27.03.2012. Namely Police Constable 3485 Avinesh and W. Sgt Shobna Sharma.
    
12. Constable Avinesh testified that on the day of the incident he was on traffic duties in order to book wrongdoers. He was accompanied by two other male officers and ASP Shobna. ASP Shobana has been the most senior ranker in the team.
    
13. A vehicle which left suspiciously initiated this incident. PC Avinesh tried to stop a Suzuki vehicle which he could not. They followed the vehicle from the police vehicle but did not succeed. But they found another ongoing van and Avinesh directed it to stop. The van adhered to the orders. PC Avinesh got off from their police vehicle and asked the driver whether they saw the Suzuki vehicle. The reply of that driver was negative and PC Avinesh went on to demand his Driver's licences.
    
14. At this point the accused who was a back seater asked Avinesh ' Who are You?' in Hindi. The constable was in full uniform. He introduced himself to the accused. Avinesh states that he felt the accused was under the influence of liquor at that time. The accused kept on asking 'Who are you?' from the constable.
    
15. At this point ASP Shobna came out from the police vehicle and PC Avinesh went on to book the driver of the vehicle for some defects. The accused stated to ASP Shobna that his uncle too is a police officer. Shobna's attempt to call his uncle failed.
    
16. Witness Avinesh stated that he felt some kind of obstruction by the questioning of the accused 'Who are you?'
    
17. During his cross examination witness stated that it is nothing offensive for a person to ask 'Who are you?' from a police officer. Further the witness was questioned on the point of arrest. He stated that after the incident on the road all of them went to the driver's house to get some of his cloths. On their way back they have gone to the accused house. Avinesh testified that ASP Shobna had asked the accused to perform 'sit-ups' at his residence. Again the accused confronted asking what wrong he did to do sit ups. This was the place ASP Shobna ordered to arrest him.
    
18. ASP Shobna Sharma testified as the next witness of the prosecution. Her evidence is very much identical to the testimony of Avinesh. She stated that the questioning of the accused disturbed her duties. She has warned him not to obstruct.
    
19. She admitted in her cross examination that it is not an offence to ask a person 'Who are you?'. It was transpired that she was not in uniform when the accused questioned her. Further she denied the fact that she asked him to do the 'sit-ups'. According to her it was asked by the brother of the accused.
    
20. Thereafter the prosecutor closed the case. The test, referred to above, therefore pertains to the issue of existence of evidence to satisfy all the elements of the offence so as to enable the Court to proceed after the case for the prosecution is closed.
    
21. Section 277(b). — of the Crimes Decree 2009 reads as follows,
    

A person commits a summary offence if he or she-

(b) Assaults, resists or wilfully obstructs any police officer in the due execution of his or her duty, or any other person acting in aid of such an officer;

Elements of the offence that could be extracted from the above section are,

1. The Accused person,
   
2. Should obstruct a police officer by assaulting, resisting or wilfully obstructing,
   
3. When he is in due execution of duties. or
   
4. Any other person acting in his aid.
   

22. It is clear that the question before this Court is to determine whether the prosecution sufficiently proved the element of 'Obstruction'. The evidence clearly demonstrates that the accused only uttered 'Who are you?'. Any of the witnesses did not mention any kind of physical conduct of the accused for obstruction.
    
23. Section 277 is categorized under Division 5 in Part 15 of the Crimes Decree which creates 'Offences against the Person'. Heading of division 5 is 'Assaults'. And further section 277 refers to 'Serious Assaults'.
    
24. The sub section which creates the offence entails an assault, resist or wilful obstruction to a police officer. When general terms used in a statue the doctrine of 'ejusdem generis' applies. A general word which follows particular and specific words of the same nature itself takes its meaning from them and is presumed to be restricted to the same genus as other words.
    
25. The words 'resist or wilful obstruction' follow the word of assault. I am of the view that the section 277(b) requires some degree of physical resistance or obstruction from the offender to constitute an offence.
    
26. Mere questioning of an accused person 'who are you?' in my view cannot consider as an obstruction in a backdrop where the person whom was obstructed (ASP Shobna), was not in her uniform. Prosecution further stated that they proceeded to charge the driver despite this questioning of the accused. The officers decided to charge the accused of this case when he questioned ASP Shobna the right to ask him to perform sit-ups.
    
27. In view of foregoing reasons, I hold that the prosecution has not established the element of 'wilful obstruction' at the conclusion of their case. Hence accused Jitendra Kumar, is not required to make a defence.
    
28. Pursuant to section 178 of the Criminal Procedure Decree, I dismiss the charge against the accused person and acquit him from further proceedings.
    
29. Twenty eight (28) days to appeal against this order.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate
19th July 2012