IN THE MAGISTRATES COURT AT NASINU

(Extended criminal jurisdiction of the High Court of Suva)
Criminal Case No: HAC 261 of 2011
Criminal Case No. 221/2011

STATE

-v-

MUKESH SANJAY KUMAR

P.C Sanil for the Prosecution
Mr Rameshwar Prakash with Ms. P Sheiran for the Accused. 

Ruling on Adjournment

1] The accused is charge with following offence; namely;

CHARGE

FIRST COUNT

Statement of offence (a)

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Decree No. 44 of 2009.

Particulars of offence (b)

MUKESH SANJAY KUMAR on the 20th day of February 2011 at Nasinu in the Central Division with intent to do some grievous harm to Daniel Denise Vankatesh, unlawfully wounded the said Daniel Denise Vankatesh with a stone.

2] This is an indictable offence and case was transferred to the High Court. Then, High Court remitted the case under extended jurisdiction. The accused pleaded not guilty to the charge on 06th September 2011. Full and additional disclosures were served. On 07th December 2011 both parties were present and case was fixed for three days hearing from today. 

3] When the matter was called the prosecution sought an adjournment on following grounds. 

a)	The witness were not summoned
b)	The officer in carriage prosecutor (Mr. Ravi Narayan) is sick. 

4] The counsel for the accused vehemently objected this application stating that the prosecution fails to show "good cause" for adjournment. He said that the prosecution was given ample time to get ready for trial. He inquired whether summonses have been taken from the registry to the witness by the prosecution. The Prosecution said none of the lay witnesses have come as they cannot be located but all police witnesses are present. The Defence counsel, Mr. Prakash said that the injured person Mr. Daniel Denise Vankatesh has also not been listed as a prosecution witness and on the above premises charge be dismissed. 

Law

5] 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." (Emphasis is mine)

6] 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)" (Emphasis is mine)

7] In Golden west Enterprises Ltd v Pautogo [2008] FJCA 3; ABU0038.2005 (3 March 2008) Fiji Court of Appeal held; 

"This Court has every sympathy with the wish of trial courts to maintain a tight rein on proceedings and to ensure expeditious hearings. This is particularly so if a trial date has been set or if the history of a matter reveals a litany of delays particularly caused through adjournments. Adjournments by consent between the parties can indicate a lack of preparation and attention to the need for litigation to be conducted in a timely manner. The Court is aware that in too many instances adjournments are or may be sought as a matter of course and that due to the Court's schedule and a mounting number of cases, adjournments may too readily be gained. It is understandable that as an antidote to this, a Court may ultimately be loath to grant an adjournment where otherwise a trial is ready to proceed and the Court has set a firm date after a number of adjournments. At the same time, Courts must be careful to ensure that all the circumstances must be borne in mind and that ultimately expedition is not the sole measure. Justice and fairness are essential features of the consideration for a request for an adjournment." (Emphasis is mine)

8] In Sahim v State [2007] FJHC 119; HC CA No HBM 32 of 2006 (30 March 2007) His Lordship Justice Gerard Winter observed Magistrates Court trials; 

"The Magistrates Court is especially designed to administer swift summary justice. It is for that reason that provisions such as Section 202 of the Criminal Procedure Code (as amended) provide that only short adjournments  might be justified and then only for good cause such as a reasonable and excusable absence of a party or witness or legal practitioner." (Emphasis is mine) 

9] In this matter the prosecution has given nearly ten months time to locate their witnesses. In fact the prosecutor said that they cannot locate the witness but actual truth behind this is they failed to filed summons and get them issued by the court. Thus, that they cannot locate the witnesses is myth. The illness of the officer in carriage is a good cause for adjourn the matter, but failed to summon witness is not a good cause. This matter is fixed for three days trial. This court has ample cases to be heard and disposed off. It is unseen why the prosecution failed to summon their witness. This is really waste of time of the court and injustice to other litigants. The prosecution's lackadaisical manner cannot be tolerated.

10] Counsel for defence asks that case be dismissed under section 171(1) (b). 

"171. — (1) If at the time or place to which the hearing or further hearing is adjourned — 

(a) the accused person does not appear before the court which has made the order of adjournment, the court may (unless the accused person is charged with an indictable offence) proceed with the hearing or further hearing as if the accused were present; and 

(b) if the complainant does not appear the court may dismiss the charge with or without costs."
 
13] The ground for adjournment is untenable. I decline to grant adjournment. The State did not give good cause. But considering the rights of parties and overall justice, I only dismiss the charge with liberty to recharge the accused.

14] I therefore make following orders;

a) Adjournment is refused.
b) The charge is dismissed under section 171(1) (b) of the Criminal Procedure Decree.
c) The prosecution may recharge the accused as the case was not adjudicated and disposed on merits by the court.

15] 28 days to appeal.

On this 02nd October 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate