Deo v Jattan [2002] FJHC 180; HAA0077J.2002S (11 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0077 OF 2002S

Between:

RAJENDRA IST DEO
Appellant

And:

RATNESH LAL JATTAN
Respondent

Hearing: 8th November 2002
Judgment: 11th November 2002

Counsel: No appearance for Appellant
Mr M. Raza for Respondent

JUDGMENT

This is an appeal from an acquittal in a private prosecution in the Suva Magistrate=s Court. The charge filed on the 5^th of June 2002 read as follows:

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

RATNESH JATTAN (f/n not known to complainant) of 70 Shalimar Street, Raiwasa, Suva on the 29^th of September, 2001 took an amount of $2,300.00 from Rajendra Ist Deo (f/n Ram Kissun) with the intent to defraud the said Rajendra Ist Deo and on the pretext that he was going to make a passport for him and also that he would fix him a multiple visa for USA and NEW ZEALAND, none of which promises were fulfilled by Ratnesh Lal Jattan.

The case was first called on 2^nd July 2002. There was no appearance for the prosecution. The accused did not appear personally but Mr Raza appeared to represent him. The case was adjourned to 25^th July 2002 for mention only. On that date, Mr J.K. Maharaj appeared for the prosecution. There was no appearance for the accused. The case was adjourned to another mention, on 20^th August 2002. On that day, there was again no appearance for the prosecution. Mr Raza appeared for the accused. He asked for the charge to be dismissed on the ground of non-attendance of the complainant and prosecution.

The learned Magistrate ruled as follows:

A1. Defence application for dismissal of charge on the grounds of non-attendance of the complainant and/or his prosecutor is granted pursuant to section 198 of the Criminal Procedure Code.

2. Prosecution and/or complainant is ordered to pay $100 court costs, this to be paid in 4 weeks in default 1 month in prison.@

The prosecutor then filed an appeal against this decision. The grounds of appeal, which I summarise for the sake of brevity are that:

1. That counsel for the prosecution did appear on the 2^nd of July when counsel for the accused did not appear;
   
2. That counsel was given the wrong date by the clerk of the court;
   
3. That the costs order was excessive and wrong in principle because the case was never set for trial;
   
4. That the order for acquittal and costs be quashed and the matter to set for trial before another Magistrate.
   

At the hearing of this appeal, neither prosecutor nor his counsel made an appearance, despite notices of hearing having been served on him. The Respondent was represented by Mr Raza. He applied for the appeal to be summarily dismissed. However, because section 313 of the Criminal Procedure Code, only allows the High Court to summarily dismiss the appeal after perusing the petition and record and before setting a hearing date, I have proceeded to consider the appeal.

The dismissal of charge

Section 198(1) of the Criminal Procedure Code provides as follows:

A(1) If, in any case which a magistrate=s 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 if 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.@

In State -v- Semisi Wainiqolo CA HAA00117 of 1997, an order had been made to dismiss the charge Aon the ground that no prosecutor was present in court.@ Pain J held that section 198 only applies on first call, when the accused appears Ain 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 to the court under arrest.@ Thereafter, when the prosecutor or accused does not appear for further mention or hearing dates, it is section 203 of the Code that applies. Section 203(1) provides as follows:

A(1) If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit.@

Further, under either section 198 or section 203, there is no power to acquit. At page 5 of his judgment Pain J said in State -v- Semisi Wainiqolo (supra):

AI can find no provision in the Criminal Procedure Code which enables a Magistrate to acquit an accused because the prosecutor fails to appear. The only provisions for acquittal that I am aware of are section 210 (which provides for an acquittal if there is no case to answer) and section 215 (which provides for acquittal after a defended hearing.)@

The learned Magistrate erred in dismissing the charge under section 198. However the effect of a dismissal under either section 198 or 203, is the same. It leads to a discharge which permits the prosecutor to lay a fresh charge or complaint. The discretion to dismiss a charge must however be exercised judicially. A prosecutor will not be permitted to lay a fresh charge if the offence has time limitations, and will in any event be put to the inconvenience of initiating fresh proceedings.

In this case, although the learned Magistrate did not give reasons for his decision, the court record itself provides those reasons. The prosecutor did not appear on first call, nor did he appear on the third date given. For a private prosecutor, having gone to the lengths of launching a private prosecution and issuing process for an accused to come to court; to fail to appear, especially on the date of the first call, a date he himself had caused to be issued in the Form 6 Summons, is astonishing. Further, counsel for the prosecution was himself present in court on the 25^th of July 2002 when the 20^th of August date was given by the learned Magistrate. To blame the clerk for giving him the wrong date is therefore unacceptable. The learned Magistrate=s decision to dismiss the charge in these circumstances is understandable.

This appeal succeeds to the extent that the dismissal was ordered under the wrong section. However, that is an error easily remedied by this court. The order is set aside and substituted with an order for dismissal under section 203 of the Criminal Procedure Code.

Costs

Any order for costs under section 203(1) of the Criminal Procedure Code, must be made judicially. Of particular relevance is the conduct of the parties. In this case, although the prosecutor failed to appear twice, the accused failed to appear on all three dates set by the court. His counsel failed to appear on one occasion. In the circumstances I do not consider the costs order to be justified, particularly when the prosecutor has already been penalised by being forced to re-commence proceedings. The appeal against the costs order is allowed. It is quashed.

Result

The dismissal of the charge under section 198 of the Criminal Procedure Code is substituted with a dismissal under section 203 of the Code. The dismissal is not a bar to fresh proceedings on the same charge. The appeal against the costs order is allowed. It is quashed.

Nazhat Shameem
JUDGE

At Suva
11^th November 2002