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State v Narayan [2012] FJMC 315; Criminal Case 683.2011 (21 November 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 683/2011

STATE

-v-

ATISH NARAYAN

Mr. Ravi Narayan, PC for the State
Mr. Shelvin Amit Singh for the accused (Parshotam Lawyers)

Ruling on discharge or acquittal of the accused

1] The accused, ATISH NARAYAN, has been charged following offence namely;

CHARGE:

Statement of Offence [a]

DEFILEMENT OF A YOUNG PERSON BETWEEN 13 YEARS AND 16 YEARS OF AGE: Contrary to Section 215 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

ATISH NARAYAN between the 16th day of June, 2011 to the 18th ay of June, 2011 at Nasinu in the Central Division, had unlawful carnal knowledge of Shiwani Anjini Singh a girl aged 15 years, 7 months.

2] This matter was partly heard on 17/8/12. The prosecution led the evidence of Prosecution witness number one, the virtual complainant and the victim of this case, Miss of Shiwani Anjini Singh. The evidence in chief was almost led and they prosecution tried to tendered the victim girl's birth certificate to prove the age of victim at the time of offence. The defence strongly objected to this as this document was not disclosed to the defence. The Prosecution then applied for withdrawal under Section 169 (2) (b) (ii) of the Criminal Procedure Decree 2009. The Court considered the application and allowed the application as the birth certificate is vital documents to prove this charge which was not disclosed and it is a denial of fair trial. It is to be noted that age is a material fact in issue or ingredient to be proved to succeed this charge.

3] The defence did not object for withdrawal and instead they submit that the accused should be acquitted under Section 169 (2) (b) (i) of the Criminal Procedure Decree 2009.

4] The prosecution objected to this application. The prosecution was given time to file written submission but they failed to do so. The defence filed written submission.

5] In support of the submission for acquittal, the defence submitted the following grounds:

(i) The accused has been asked to make a defence and accused ought to be acquitted under Section 169 (2) (b) (i) of the CPD. The complainant has given her evidence in Court and the defect in the Prosecution case came to light on the objection made by the defence. It is prejudicial to the accused that the Prosecution take advantage of their own fault and have liberty to recharge the accused.

(ii) The accused will be prejudiced with a discharge under Section 169 (2) (b) (ii) because he has been made to face the Police investigations been charged for an offence which he denies committing and has faced the charges in Court right to the time he has been required to make a defence. If he is discharged, the Prosecution will then have the liberty to make his go through the same cycle of charging and further attendance in Court.

(iii) The accused has put to cost of having Counsel appear for him at the hearing date. If he is discharged and subsequently recharged, the accused will have to bear further costs which do not emanate from any fault or error on his part.

(iv) The decision to withdraw the complaint has been made based on a fundamental flaw in the Prosecution case that it had failed to disclose the birth certificate of the complainant. It is unfair to all notions of justice that the Prosecution to get correct this error in subsequent proceedings against the accused on the same set of facts.

(v) In light of the above grounds, the defence submit that the withdrawal application should be allowed under Section 169 (2) (b) (i) of the Criminal Procedure Decree 2009.

6] Section 169 gives power to withdraw the charges. The Prosecution with consent of the Court can withdraw a complaint before final order is made. The withdrawal can be made at two stages. Those are;

1. Before close of the prosecution
2. After close of the prosecution.
   

7] The Law is very lucid on these stages. I reproduce section 169 of the Criminal Procedure Decree 43 of 2009 for clarity.

"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."

8] If the prosecution withdrew the charge after the court held there is a case to answer and defence to be called, then the court has no discretion, the accused must be acquitted. In Sada Siwan & Salin Pramod Kumar v State [2008] HAA 50/08L 29 August 2008. His lordship Goundar, J Held considering the section 201(2)(a) of the Penal Code said; "When DPP withdraw a charge after an accused person is called upon to make his or her defence, the court has no discretion but to acquit the accused"

9] But in this matter the prosecution only called the victim and even she was not offered for cross examination. Not disclosing of the birth certificate of the victim seems to me a technical fault. Furthermore, the trial did not go for full hearing. In State v Saiyad Iqbal [2000] HAA 125/99 (apf MAC 3665/97S) 5 January 2000 His Lordship Pathik J considered Acquitting of the accused under section 201(2)(b)(i) of the Penal Code. He held "An order acquitting because the Prosecution was not ready all along with witnesses who had changed address, instead of adjourning was a wrongful exercise of judicial discretion", the court quashed the acquittal and case remitted for hearing before a different magistrate.

10] This situation was further illustrated in State v Taoi [2000] FJHC 169; Criminal Appeal 24 of 2000 (21 July 2000) THE STATE
vs JOKINI TAOI by Justice Devendra Pathik
quoting in the case of Arvi Ratilal Ganji, 6 U.L.R. 23 (quoting from Uganda v. Milenge and Another 1970 EALR p.269 at 274):

"If the learned magistrate had rightly assessed his powers and duty we think that he would have refused to proceed to what the respondent asks me to regard as a trial, and would have dismissed the charge unheard and have discharged the accused. What was done was done owing to a misconception by the learned magistrate of his powers and duty. We think that we cannot permit the present position to stand because of that misconception..." (Emphasis is mine)

11] Thus, this case was fully unheard and unfinished and the court has no power to acquit the accused. The court stresses that the cases are to be disposed on merit for the interest of the justice and the interest of the parties and not on technical grounds.

12] I therefore make following orders;

1. The accused is discharged on withdrawal of the charged under section 169(2) (b) (ii)
2. This order will turn to be an acquittal if the prosecution fails to recharge the accused within one years of the date of discharge (today). This order is made under subsection 169(2)(b) (iii)

100. No cost
     

On 21st November 2012, at Nasinu, Fiji

Sumudu Premachandra
Resident Magistrate-Nasinu