Mul Prasad v The State [1997] FJHC 120; Haa0037j.97b (28 August 1997)

Fiji Islands - Mul Prasad v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 37 OF 1997

BETWEEN:

MUL PRASAD
s/o Shyam Sundar
Appellant

AND:

STATE
Respondent

Mr. A. Kohli for Appellant
Ms. A. Driu for Respondent

JUDGMENT

On 20 June 1997 the appellant was on his own plea convicted and sentenced by Labasa Magistrate's Court for the offence of assault occasioning actual bodily harm contrary to section 245 of the Penal Code. He was fined $50.00 in default two months' imprisonment.

The appellant has appealed both against conviction and sentence.

Mr. Kohli submitted, inter alia, that the appellant did not mean to cause the injury alleged to have been inflicted. The offence, he says, involves mens rea. He referred the Court to Education Gazette of Term II 1997 Vol. LXX No. 2 at p.29 under the caption "Corporal Punishment" which stated:

"2. Principals and Head Teachers may inflict moderate corporal punishment for gross misbehaviour such as bullying, stealing, lying and cheating. However, they are forbidden to punish children so severely that bodily harm is done. They are reminded that they are liable to be summoned before a magistrate and fined for inflicting unreasonable severe punishment on a pupil."

The learned counsel submits that the accused who is Head Teacher of the school where the complainant is a student, is entitled to give punishment according to the said provision in the Gazette. Whether the injury received, which is "8cm weal mark on RT buttock", is sufficient to constitute the offence with which the accused was charged is doubtful. The accused has never been shown the injury alleged to have been received.

The learned State counsel while opposing the appeal submitted that under s309(1) of the Criminal Procedure Code there is no appeal against a guilty plea. Hence there cannot be an appeal against conviction. On sentence she said that it was a lenient sentence, that is, only a fine of fifty dollars was imposed.

I find that the learned magistrate did not give adequate consideration to the mitigating factors and has taken extraneous matters into account in passing sentence.

Here we have the case of a school teacher who has been teaching for 20 years and for the last three years is Head Teacher of Bua Indian School. He has hitherto had an unblemished record. The injury in this case was of a very minor nature arising in the circumstances stated hereabove. He was entitled to give the punishment which he gave. The accused did say in mitigation that he did not mean to cause injury.

While sentencing the accused the learned magistrate told him that "permission" in the Gazette "is not part of the criminal law of this country and therefore this case cannot be treated differently from any other case of assault". If there was nothing before him as to the reason for the punishment then he should have ascertained same instead of assuming things and punishing the accused. He says that "it is important for teachers, parents and others to note that children should be protected and not injured". No one quarrels with him on that statement but we must look at the incident in the context in which it arose. The main fact to be taken into account was the provision in the Gazette which empowers Head Teachers to give corporal punishment.

It is a matter of comment that if the approach of the learned Magistrate is correct then Head Teachers run the risk of being prosecuted as in this case when they inflict corporal punishment for injury of some sort is bound to be caused. Lest this should happen again in future, I suggest to the Ministry of Education to reconsider the provisions relating to 'corporal punishment'. By having such a provision in the Gazette, and in case the law takes no note of that, as in this case, then the Ministry is a vehicle which could be seen as facilitating the dismissal of a Head Teacher from service and this would ruin the teacher's career altogether.

Each case should be considered on its own facts and due consideration should be given to mitigating circumstances. Here the application of s44 of the Penal Code should have been considered.

For the above reasons, I set aside the conviction and sentence and substitute it by exercising my powers under the said s44 by discharging the appellant without conviction and by ordering him to pay the sum of $50.00 to the victim as compensation. The fine if paid is to be refunded to the Appellant.

To that extent, this appeal is allowed.

D. Pathik
Judge

At Labasa
28 August 1997

Haa0037j.97b