Lal v The State [2003] FJHC 99; HAR0001J.2003S (9 April 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

CRIMINAL REVIEW NO: HAR0001 OF 2003S

Between:

NAWEEN AMIT LAL
Applicant

And:

THE STATE
Respondent

Hearing: 8th April 2003
Judgment: 9th April 2003

Counsel: Mr N. Nand for State
No appearance for Applicant

JUDGMENT

The accused Naween Amit Lal was charged on the 11th of December 2001 with the following offence:

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 245 of the Penal Code Act 17.

Particulars of Offence

NAWEEN AMIT LAL s/o Munna Lal on the 1st day of December 2001, at Suva in the Central Division assaulted one SHAREEN LATA d/o Net Ram thereby occasioning her actual bodily harm.

The record shows that on the 31st of July 2002, State counsel appeared before the learned Magistrate and said:

“Apply to withdraw the charge. The DPP has verbally agreed. I need him to get written confirmation.”

The matter was adjourned to 30th August 2002 and then to 13th September 2002. On that day, events took a dramatic turn. The complainant, the accused’s wife said:

“The accused did not assault me. I tried to assault the girl that was going around with the accused. I wanted to do that because I was jealous. I have forgiven the accused. I want the proceeding terminated.”

The court then said: “Parties have reconciled. Proceeding terminated.” He did not discharge or acquit the accused.

The accused then wrote to the Chief Magistrate on the 27th of March 2003. He said that the proceedings ought not to have been terminated in this way and that because he was not acquitted, he was not entitled to his leave and salary arrears. He attached a letter from the DPP explaining what had happened in court, and a letter from his wife admitting that she was not assaulted by the accused but that it was she who had assaulted his girlfriend.

Clearly, this was not a case for reconciliation. As the Chief Magistrate states in his minute to the Officer in Charge of the Magistrates’ Court –

“Given the circumstances of the case the charge against the Accused should have been withdrawn by the Prosecution or on sanction of the DPP. As it stands I can’t do much as this court is now functus officio. However I am of the view that if nothing is done in the case then grave injustice will be done to the Accused person.”

He referred the matter to the High Court for review.

The accused could not be located at his last given address, but State Counsel appeared yesterday in Chambers and agreed that the learned Magistrate’s order terminating the proceedings should be quashed. This will allow the prosecution to formally withdraw the charge. The accused can then be discharged or acquitted.

I agree. This was not a case of reconciliation. The prosecution must be given an opportunity to withdraw the charge on the basis that the complainant gave a false statement to the police and there is now insufficient evidence to prosecute.

I therefore quash the order of the learned Magistrate terminating proceedings. I order that the matter be remitted to the Magistrates’ Court for a new date to be set to allow the prosecution to make the application to withdraw.

Nazhat Shameem
JUDGE

At Suva
9th April 2003