State v Kumar [2000] FJHC 170; Criminal Appeal 39 of 2000 (21 July 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 39 OF 2000
(Suva Mag. Ct. Crim. Case No. 1337/99)

BETWEEN:

THE STATE
Appellant

AND:

RAVINESH KUMAR
s/o Shanti Lal

DHARMENDRA DEO
s/o Dharm Deo
Respondents

Mr. N. Bhindi for Appellant
Mr. D. Sharma for Respondents

JUDGMENT

The respondents Ravinesh Kumar s/o Shanti Lal and Dharmendra Deo s/o Dharm Deo with Umeshwar Singh s/o Dhir Singh (who is dead now) were charged for the offence of assault occasioning actual bodily harm contrary to s.245 of the Penal Code Cap.17 in that they on 18 April 1999 at Suva assaulted one Silas Mohan s/o Mohan thereby occasioning him actual bodily harm.

On 13 March 2000 the case was called for hearing, but because the prosecution witnesses although on subpoena (including the complainant) were not present in court, the learned magistrate acquitted the respondents under s210 of CPC.

This appeal is against the said acquittal on the ground "that the learned Magistrate erred in fact and in law in acquitting the Respondent under section 210 of the Criminal Procedure Code, Cap. 21 as the prosecution had not adduced any evidence at all against the Respondent". The appellant is asking the Court to set aside the decision of the Magistrate and that the matter be remitted to the Magistrate’s Court for retrial.

Appellant’s submission

The learned counsel for the appellant submitted that the Magistrate dismissed the charge and acquitted the accused pursuant to section 210 of the Criminal Procedure Code because there was no evidence presented by the Prosecution to support the charge.

Mr. Bhindi submitted that an application was made for an adjournment because the subpoenaed witnesses were not present but it was refused.

Counsel referred to the case of State v Livario Radrega and David Lal Cr. App. No. 41/96 where this Court dealt with at length with the very issue that is before the Court. There in my judgment I said that: "It is my view that s210 has no application to the facts of this case. As the ‘marginal note’ to that section states ‘acquittal of accused person where no case to answer’, and as section itself states where, "if at the close of the evidence in support of the charge", it means that there has to be evidence adduced before the section is invoked. There was no evidence adduced to enable the learned Magistrate to proceed to acquit the Respondents under this section".

The said section 210 provides:

"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 to make a defence, the court shall dismiss the case and shall forthwith acquit the accused."

Respondents’ submission

The learned Counsel for the respondents submitted that the appellant did not ask for adjournment. This is not correct as the Record shows otherwise. However, he said that the prosecution had no knowledge that the two witnesses were travelling from Lautoka. He said that they should have informed the Court of their difficulty.

As for ‘non-disclosure’ this was not an issue as the request had been complied with hence the Magistrate’s reference to this aspect that it was not done is not borne out by the Record.

Counsel stated this was an incident in a Night Club between young boys. It is a reconcilable offence. The injuries could not have been serious.

Mr. Sharma submits that the learned Magistrate was right in acquitting the respondents after referring to a number of sections of the Criminal Procedure Code.

Consideration of the appeal

The issue for Court’s determination is whether the learned Magistrate was correct in acquitting the respondents under s.210 of the Criminal Procedure Code in the circumstances of this case.

The facts are very simple. The appellants were charged with assault occasioning actual bodily harm on the complainant Silas Mohan. On 13 March, the day of the hearing, both Mohan and a civilian witness who were on subpoena failed to appear. There was no indication why they were not present. It appeared later on 5 April 2000 (23 days later) when they were arrested on bench warrant and brought to Court that they took no notice of the subpoena. They gave the excuse that their car broke down while they were coming from Lautoka. The learned magistrate took that excuse with a ‘pinch of salt’ and fined them $50.00 each in default 14 days.

In the absence of these witnesses through no fault on his part the prosecutor could not proceed with the case. He applied for adjournment but this was refused. He could not adduce any evidence and told the Court so whereupon the learned Magistrate dismissed the case and acquitted the accused persons under s.210 of CPC.

If the complainant and witness could not come because their car broke down they were duty bound to inform the Court on the same date and not wait for their arrest after 23 days and then give a lame excuse. I hope they do not do this again otherwise they will face the consequences of disobedience to a subpoena. I now understand why the learned Magistrate had strong words to say when he said that the Court ‘has on many occasions been asked to wait for witnesses’. However, in view of the nature of the charge the accused persons should not have been acquitted of the charge because the witnesses were not present through no fault of the prosecution.

The relevant section to deal with this type of situation is s198 of the Criminal Procedure Court (in case where complainant does not appear) which provides:

198. - (1) If, in any case which a magistrates’ court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his barrister and solicitor, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit.

As I said in my judgment in State v Kelemedi Lagi & Anor (Cr. App. No. 15 of 1996), it should not be forgotten that the alleged offence is committed against the State and not against the individual although it is the complainant who failed to turn up. If the procedure adopted in this case by the learned Magistrate was accepted then complainants will fail to appear for reasons best known to themselves and accused persons will go free without being dealt with for the offences alleged to have been committed by them. In this regard I refer to the following paragraph which is apt from the judgment of the High Court of Uganda sitting on appeal in Arvi Ratilal Ganji 6 U.L.R, 23(quoting from Uganda v Milenge and Another 1970 EACR p.269 at 274):

"In seems to us that the position is substantially the same where the Magistrate has before him merely a public prosecutor, whose function is simply to conduct the case and to examine the persons who are the true informants. If the latter are absent, and yet it is known that they are in existence and that their attendance can be secured, it seems to us little short of farcical to embark on a trial of the case and to acquit the accused, the complaint against him being wholly unheard."

I hold that in this case the learned Magistrate did not exercise his discretion judicially. As stated in Robert Tweedle Macahill and Reginam Cr. App. No. 43/80 the refusal of adjournment is a "matter of law" and "granting of an adjournment is always the exercise of judicial discretion".

As I said in Livario Radrega & Anor. (supra, p6-7), although an appellate Court is slow to interfere with the exercise of discretion, it does so if injustice is likely to occur to the parties, for it was said by Atkin L.J. in Maxwell v Keun (1921) 1 K.B. 645, 653 C.A.:

"I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty to do so."

The following passage from the judgment of Woolf J. in R v. Birmingham Justices, ex.p. Lam & Anor. (1983) 3 All E.R. 23 at 28 is apt in the exercise of discretion judicially when considering application for an adjournment:

"When exercising the discretion which they have whether or not to adjourn cases, the justices have to exercise their discretion judicially. Doing that, they must be just not only to the defendants but to the prosecution as well. They must not use their powers to refuse an adjournment to give a semblance of justification for their decision to dismiss the prosecution when the refusal of an adjournment means that that is an inevitable consequence."

For these reasons I set aside the order of acquittal and remit the case to the Magistrate’s Court to proceed with the hearing after a fresh plea is taken.

D. Pathik
Judge

At Suva
21 July 2000