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Kumar v State [2016] FJMC 240; Criminal Case 380 of 2009 (21 December 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 380/2009

BETWEEN : ATISH KUMAR

APPPLICANT

AND : THE STATE

RESPONDENT

Counsel : Mr.Devenesh Sharma for the Applicant

Ms.Jayneeta Prasad for the Respondent

Date of Ruling : 21^st of December 2016

RULING ON BAIL

1. The applicant is charged with one count of Conspiracy to commit a misdemeanor contrary to section 386 of the Penal Code.
2. He failed to appear in this Court on 05^thSeptember 2016 and been remanded from 02^nd December 2016.
3. Now he has filed a notice of motion with a supporting affidavit on 05^th December 2016 seeking bail. In his affidavit the applicant deposed that he failed to appear in the court due to his mother being seriously ill and also due to construction of a flat.
4. The respondent is objecting and filed the affidavit in response of Acting D/SgtNilesh Kumar, the investigating officer. The IO deposed that the applicant failed previously also to appear in the Court and the prosecution got a strong case. Further the applicant has already retained a private counsel. Hence the bail needs to be refused to the applicant.
5. Both parties made oral submissions during the bail hearing on 16^th December.
6. Having considered the respective submissions now I proceed to pronounce the ruling in the following manner.
7. The applicant was remanded by this Court because he failed to appear in the court on 05^th September 2016. But the main objection of the respondent is that frequent failure of the applicant to appear in the court.
8. Apart from that the in supporting affidavit the IO submitted about the strength of the prosecution case, interest of the applicant. But the counsel for the respondent did not pursue these grounds during the hearing.
9. In my view only ground that I have to consider here is whether the applicant had reasonable ground in failing to appear in the court. This is important since in the beginning of this case the respondent did not object for the bail and only now resisting this application.
10. The applicant has explained the reason for failing to come to the court. Even though he has not produced any medical reports as agreed by the defence counsel, the IO has not rebutted this ground in his response. In his affidavit he states he is not aware about this ground.
11. Further even though the respondent has submitted that the applicant has previously failed to come to the Court, the respondent did not object to extend his bail on those occasions which implies that they accept the respondent has good reasons in not coming to court.
12. Also this matter is pending in this court for nearly 07 years and the applicant has failed to appear only few times in the Court and it appears that even then most of time he came voluntarily to the court.
13. Finally the applicant and his co-accused are challenging their caution statements and there has to be a voir-dire hearing. Even though the State and the Court are willing to provide early hearing date, from the bar table the counsel for the respondent has informed that most likely the hearing has to be conducted on middle of 2017 . The trial proper hearing would follow after that which means if this application is refused the applicant would be spending substantial period in custody.
14. Considering these reasons and for the interest of justice in my view the applicant needs to be granted bail again in this case subjected to these new bail conditions:
    
    1. Bail in his own recognizance in the sum of $1000;
    2. With two sureties in the sum of $1000 each;
    100. Not to interfere with the complainant and other witnesses;
    4. Not to reoffend ;
    5. Report to nearest Police Station every Saturday between 8am to 6pm;
    6. Surrender the passport and other travel documents and not to apply for new documents;
    7. Not to change the present address without the permission from the Court;
    8. The applicant is warned if he breaches his bail conditions again his bail will be canceled.
       
15. 28 days to appeal

Shageeth Somaratne

Resident Magistrate