Fiji Independent Commission Against Corruption (FICAC) v Kumar [2010] FJHC 313; HAC181.2008 (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 181 OF 2008

BETWEEN:

THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION (FICAC)
PROSECUTION

AND:

SUNIL KUMAR s/o BAIJU
ACCUSED-PERSON

Counsel: Mr N. Marasinghe & Ms. E. Leweni - For FICAC
Mr. A. Kohli - For Accused

Date of Ruling: 13.08.2010

RULING

1. The accused-Sunil Kumar (the accused) stood charged on seven counts on the information dated 19.12.2008 filed by the Fiji Independent Commission Against Corruption (FICAC). All seven counts related to 'attempting to prevent the course of justice', an offence punishable under Section 131 (d) read with Section 47 of the Penal Code. The charges were founded on the basis of the comments and/or remarks made by the accused whilst hearing cases of 'formal proof' in relation to traffic offences as the Resident-Magistrate at Nausaori between 11.05.2007- 09.10.2007.
   
2. The 'comments and/or remarks' as referred to by witnesses, to which I will make reference later, do not in my view qualify themselves to be termed as such. Instead, it would be more semantically appropriate to categorise them as 'utterances' for the purposes of this ruling, of course, without doing violence to the evidential impact of the testimonies of each witness.
   
3. The alleged utterances appeared to have been directed at Special Constable 2103 Divendra Singh on 11.05. 2007 and 12.05.2007, Woman Police Constable 3088 Ashika Mala on 07.06.2007, 30.08.2007 and 18.09.2007, Sergeant Timoci on 11.06.2007, and Police Constable 3201 Avinesh on 09.10.2007. Utterances of the accused on each day, as mentioned above, had given rise to a charge in the above order against the accused according to the information dated 19.12.2008.
   
4. The information was, however, amended on 12.04.2010 by FICAC by deleting count No 7, where the allegation of 'attempting to prevent the course of justice' was founded on the alleged accusation by the accused that '[Police Constable 3201 Avinesh was] taking tips from drivers...'.
   
5. Remaining six counts were further reduced by an amendment to the information dated 10.06.2010 by deletion of the count relating to 12.05.2007 admittedly for the reason that the impugned utterances could not have been made at Divendra Singh on that date, which was a Saturday, in the absence of judicial proceedings being presided over by the accused.
   
6. The trial, having commenced on 28.07.2010 on the amended information dated 10.06.2010, was proceeding in respect of existing five counts. In the course of the trial, the 3rd count pertaining to the alleged utterances of 11.06.2007 by the accused directed at Sergeant Timoci was withdrawn – though belatedly – on 06.08.2010 due to the absence of witness Timoci.
   
7. The resultant position was that the information, as amended and filed on 10.06.2010, was left with only four counts. The case for the prosecution, having led nine witnesses with exhibits marked 'P-1'-'P-26 (a)', was closed in respect of those four counts. Record of exhibits tendered by the prosecution is annexed in Schedule-X.
   
8. I propose to set-out below the charges in the four counts against the accused in the order of their occurrence in the amended information in respect of which the prosecution led and produced evidence.
   

(i). Count 1 – 11.05.2007: ordered Special Constable No. 2103 Divendra who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drivers or he would be crippled like former Police Commissioner, Mr. Jimi Koroi, thereby attempting to prevent the course of justice by discouraging such officer from carrying out his official duties.

(ii). Count 2 – 07.06.2007: ordered Woman Police Constable No. 3088 Ashika Mala who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drivers accusing her for killing them as Police have nothing to do and threatened the said officer that her children will be crippled like former Police Commissioner Jimi Koroi as a result of public curse, thereby attempting to prevent the course of justice by discouraging such officer from carrying out her official duites.

(iii). Count 4– 30.08.2007: ordered Woman Police Constable No. 3088 Ashika who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drivers or she would be crippled like former Police Commissioner, Mr. Jimi Koroi thereby attempting to prevent the course of justice by discouraging such officer from carrying out her official duties.

(iv). Count 5 – 18/09/07: ordered Woman Police Constable No. 3088 Ashika who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drives or she would be crippled like former Police Commissioner, Mr. Jimi Koroi thereby attempting to prevent the course of justice by discouraging such officer from carrying out her official duties.

9. At the close of the prosecution case, court wished to be aided by submissions of learned counsel as to the commission of the offences by the accused in light of the evidence adduced and the documents produced. Court specifically invited the assistance of the learned counsel for the prosecution to sum-up evidence in the case in respect of each and every element of the offences.
   
10. Learned counsel for the prosecution, however, appeared perturbed and persistently relied on the contention that 'there should be an application by a party [obviously for 'no case to answer']' and alluded to the proposition that the court did not have power to embark on the course of action that it did wish to.
    
11. Judicial course, as the court wished to embark on as stated above, was premised on Section 231 of the Criminal Procedure Decree No 43 of 2009 (the Decree), which states:
    

'Close of case for the prosecution

231. (1) When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence.

(2) When the evidence of the witnesses for the prosecution has been concluded, the court shall, if it considers that there is evidence that the accused person (or any one or more of several accused persons) committed the offence, inform each such accused person of their right —

(a) to address the court, either personally or by his or her lawyer (if any); and

(b) to give evidence on his or her own behalf; or

(c) to make an unsworn statement; and

(d) to call witnesses in his or her defence.

(3)...

(Emphasis added) '

12. An analysis of the provisions of Section 231, as applicable to this instance, would be opportune and appropriate in view of the learned prosecuting counsel's contention, which I find to be obnoxious to the Section. Such analysis would also, in my view, be relevant for purposes of posterity even though the learned counsel for the prosecution ably summed-up his case after an adjournment either with or without appreciation of the provisions of the Section-which court was not able to fathom in the absence of a submission to that effect by the learned counsel.
    
13. Section 231, inter alia, envisages two situations, namely '...there is no evidence... [to proceed with]' under sub-Section (1) and '...there is evidence ... [to proceed with]' under sub-Section (2) and in either situation, the court has to make a provisional determination. It was in the spirit of sub-Section (1) and on principles of equity, that court invited submissions from both counsel albeit the court was empowered to make such determination ex-mero motu.
    
14. I may digress to observe that one may perhaps find the learned counsel to be correct in his contention that, 'an application [for no case to answer] had to come from a party' for court to consider the evidence of the prosecution thus far led. But, that is due to the misconception of a day-to-day practice in court, which is almost now hardened to a rule, instead of the appreciation of the statutory content of the Section. The statutory content, however, does not at all postulate that court could consider evidence of the prosecution at the stage of its close only on an application from a party. Conversely, it is the court and the court alone that ought to make the determination under the Section either with or without any application. If it is otherwise, as erroneously contended by the learned counsel, it would amount to an abdication of the power of court. Such an abdication by court of its power must not be viewed to have been present in a criminal trial.
    
15. Moreover, this power of court as granted by the Decree, which I consider as salutary in criminal jurisprudence and procedure, must not be compromised with the practice in court even though such practice has attained the status of cursus-curiae contrary to the clear language in the Section.
    
16. By means of either abdication or compromise, the power vested with court under Section 231 (1) of the Decree is too expensive to have been done away with, as some fundamentals of criminal jurisprudence and procedure, in my view, seem to have been ingrained in that Section. And, it is the sacrosanct duty of court to uphold them.
    

(i) Firstly, it has the effect of shielding an accused-person against self-incrimination, which is available to any person as a privilege. This privilege against self-incrimination could be affected if court exposes a person accused of an offence without prima facie satisfying itself on the evidence as to the commission of an offence.

(ii) Secondly, it ensures that 'a prima-facie case' against the accused-person should be brought forward by the prosecution as an innocent man is required to offer no explanation or defence against any allegation on commission of an offence.

(iii) Thirdly, the combination of (i) and (ii) above, reinforces the inviolable golden rules of presumption of innocence and burden of proof on the prosecution, which are unique to criminal law.

(iv) Fourthly, it guarantees judicial intervention of court as the final arbiter to uphold and preserve above principles in favour of a person accused of an offence.

17. The first two signify substantive legal principles, which are presumed to have known to any investigative and prosecutorial agency and they are expected to apply the principles objectively so as to avoid a person being charged, if no criminal offence is revealed under the law. Once the case is handed-over to court after going through the channels of investigative and prosecutorial agencies, the legislative wisdom of the Criminal Procedure Decree, as the other contemporary jurisdictions do, invests court with power to procedurally uphold the above legal principles through a mechanism prescribed by Section 231 (1). This mechanism is pertinently important especially if a prosecutorial agency either innocuously or consciously presents a case without prima facie evidence in respect of each and every element of the offence with which the accused is charged.
    
18. It was in this background of Section 231 that court invited submissions of counsel in order to be able to discharge its mandatory task of determining on whether to proceed or not as required by the Section. Learned counsel for the prosecution and for the accused made submissions and I must place on record that the court was benefitted by them. Before I consider the submissions, I would deal with the test that needs to be adopted in making the determination by court under the Section at the close of the prosecution case.
    
19. The provisions of Section 231 (1) of the Decree are identical to those of Section 293 (1) of the Criminal Procedure Code. The application of the provisions of the Section and the similar provisions in contemporary jurisdictions has very often become a contentious issue in the adjudication of cases pertaining to criminal law. The matter, however, is now settled by a long line of judicial precedents perhaps commencing from the landmark decision in R v Galbraith 73 Cr. App. R. 124 of the Court of Appeal of the United Kingdom.
    
20. In Gailbraith's case, it was held that:
    

' ...(1) If there is no evidence that the crime alleged, has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

. . . . There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.'

21. The above dictum was considered by the Fiji High Court in the case of the State v Kapoor [1996] FJHC 111; HAC 06/94; 30.04.1996 in light of the submission by the prosecuting counsel to the effect that if there is some evidence, the case should proceed apparently on the basis of a ruling in Sisa Kalisoqo v R Cr. App. 52/1984.
    
22. Sisa's case appears to have been relied on by the State in order to negate court's inclination to follow the dictum of Grant J. in the case of R. V Jai Chand (1972) 18 FLR 101, where the issue of 'whether to or not to proceed' arose. Grant J.'s forceful formulation as to how a Judge should approach the issue merits its setting-down. His Lordship ruled:
    

'It seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution's case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence.'

23. Having considered the above decisions, His Lordship Justice Fatiaki (as he then was) observed that:
    

'Prosecuting counsel in light of the above dictum of the Fiji Court of Appeal in Sisa Kalisoqo's case submitted that the decision in Jai Chand must be considered as impliedly over-ruled.

In my view, however, the two decisions are not necessarily in conflict and indeed may be reconciled on the basis that Sisa Kalisoqo's case was directed at interpreting the meaning of Section 293 in the context of the recognised separation of the duties and functions of a judge and a jury in the case of a jury trial, whereas, Jai Chand's case is directed at the meaning of the term "evidence" as it occurs in Section 293 when viewed in the context of the mode of trial in this Court where the judge in giving the judgment of the Court is not bound to conform to the opinions of the assessors. (See: Section 299(2) CPC).'

24. Learned prosecuting counsel in this case, too, was strenuously seeking to make the point that if there is 'some evidence', the court must proceed and the case must be left to the assessors to decide. This submission, on one hand, has the inefficacy of downplaying the role of the Judge in a High Court Criminal Trial in view of the provisions in Section 237 of the Decree, which states:
    

'237(1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors.

...'

The counterpart section of the above under the Criminal Procedure Code has already been considered by Fatiaki J. in Kapoor's case and has underlined the inconclusiveness of the opinions of the assessors in a criminal trial under the laws of Fiji as opposed to trials by jury in other jurisdictions. His Lordship's observation serves to reinforce the Judge's role in a criminal trial at every stage until its conclusion.

25. The submission, on the other hand, cannot be legally accommodated in light of the recent pronouncement by Goundar J. in FICAC v Rajendra Kumar and Jaswant Kumar HAC 001/09; 11.02.2010. His Lordship Justice Goundar in that case very succinctly formulated the test to be applied in dealing with a matter at the stage of the close of prosecution case. His Lordship held that:
    

'The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence. The credibility, reliability and weight of the evidence are matters for the assessors (Sisa Kalisoqo v. State Criminal Appeal No. 52 of 1984, State v. Mosese Tuisawau Criminal Appeal No. 14 of 1990)'.

(Emphasis added)

26. The above holding clearly demarcates the functions of the Judge and the assessors. The credibility and the weight of the evidence indisputably can be considered only after all the evidence including that of the accused is led; and, that stage is yet to come. The test, referred to above, therefore pertains only to the issue of existence of evidence to satisfy all the elements of the offence so as to enable court to proceed with after the case for the prosecution is closed.
    
27. The offence of 'attempt to prevent the course of justice' under Section 131 (d) of the Penal Code, with which the accused is charged, is common to all four counts numbering (1), (2), (4) and (5) of the amended information dated 10.06.2010. The Section provides:
    

'Any person commits a misdemeanour who-

(a) conspires with any other person to accuse any person falsely of any crime or to do anything to obstruct, prevent, pervert or defeat the course of justice; or

(b) in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so; or

(c) obstructs or in any way interferes with or knowingly prevents the execution of any legal process, civil or criminal; or

(d) in any way obstructs, prevents, perverts or defeats, or attempts to obstruct, prevent, pervert or defeat, the course of justice.

28. The 'attempt' is defined under Section 380 of the Penal Code, which states:
    

'When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

29. Elements of the offence that could be deduced from the above legal provisions are:
    

(i) Intention to commit the offence (namely the prevention of the course of justice);

(ii) Putting such intention into execution by means adapted by him to fulfil the intention; and,

(iii) Manifestation of such intention by some overt act.

30. Intention to prevent the course of justice, therefore, plays a pivotal role in the whole gamut of the offence of 'attempt to prevent the course of justice' under Section 131(d) read with Section 380 of the Penal Code. Contents of (i) above represent the essential mental element, while the contents of (ii) and (iii) above represent the essential physical element. Presence of both elements together would only constitute the offence.
    
31. His Lordship Justice Goundar in his ruling dated 18.03.2010 in this case considered the constituent elements of the offence under Section 131(d) of the Penal Code. I respectfully call in aid the formulation by His Lordship on the issue of intention based on R v Vreones [1891] UKLawRpKQB 14; (1891) 1 QB 360 to support the above proposition. It was held that:
    

'The accused is specifically charged with an attempt to prevent the course of justice, contrary to section 131(d) of the Penal Code. This charge can be sustained in law and fact, if it could be shown that the accused did an act with an intention to prevent the course of justice. It was held in R v Vreones (supra) that the offence requires proof of a specific intention to prevent the course of justice and not an act that has a known tendency to prevent the course of justice.

32. Prosecution, in laying charges in respect of the offence, therefore, has to undertake the task of proving both elements beyond reasonable doubt in the discharge of its overall burden at the conclusion of the case. It must in the process satisfy court that '...there is evidence that the accused person has committed the offence' at the close of the prosecution case as, if it is otherwise, Section 231 (1) of the Decree poses a threat to the prosecution case at the instance of the Judge to '...record a finding of not guilty...'.
    
33. Evidence as adduced by the prosecution at the close of the prosecution case comes from witnesses Sp. Constable 2103 Divendra Singh in relation to Count No 1 and from Woman Police Constable 3088 Ashika Mala in relation to Count Nos. 2, 4 and 5.
    
34. Evidence of witness-Ashika Mala reveals that:
    

'She was a Woman Police Inspector and was attached to Nausori Police Station.She was on duty in Highway Patrol Section. She gave evidence before the accused when he was functioning as the Magistrate in Nausori from June- September, 2007. Evidence was taken in Chamber of the accused from 0800 hrs. PC 2103 Divendra Singh, Sgt 191 Timoci were present. Police Prosecutor was PC Shalend Prasad. She went to give evidence on 07.06.2007.She said that why I was doing so many bookings. Your are killing the people of Nausori. What had happened to Jimi Koroi . He is on a wheel chair. That is what will happen to you. He asked whether I was married. I said that I was just engaged and he said that your children when born will be crippled. The witness said that she felt so bad and built fear against doing bookings. That resulted in less bookings. She said normally she had about 10-15 bookings per day. She had complained of the incident to Sgt 266 Subash Mudliyar and CPL 1298 Ashok Kumar. She said the remarks had traumatized her and that she had never experienced it before.

She had gone before the accused on 30.08.2007 between 0800 hrs-0830 hrs. The accused had questioned on her bookings. She had not been able to answer the queries by the accused and she had been subjected to the same comments by the accused. She said that the incident built fear in her and resulted in less bookings.

She had suffered the same experience on 18.09.2007. She had asked for transfer.

Witness identified TINs relating to her appearance before the accused on 30.08.2007 and marked such TINs commencing from Nos 723922-725956 in relation to count 4 of the Information as 'P-1'.

She marked TINs from 733659-750697 and the volume containing such TINs as 'P-2' in relation to count 5 of the Information, which related to her cases for 18.09.2007. She said that she had taken 48 TINs for the period from 04.07.2007-01.08.2007.

Witness marked Traffic Registers from 22.12.2006-06.01.2008 as P3-P21

She identified 36 TINs for 30.08,2007 and 48 TINs for 18.09.2007. She said that the reduction of bookings was due to the fear that she had over the remarks made by the accused.. She said she went before the accused even after 07.06.2007 on 30.08.2007 and 18.09.2007.

She said that she had to form some white forms before the cases were taken up before the accused and that she had not filled such forms before and that she only gave the police dockets for formal proof cases.

In cross-examination, she said that:

She said that she could not show any TIN total of which was 60 in number that came up for formal proof on 07.06.2007, on which date the comments in issue were made by the accused. She was emphatic that her TINs for 07.06.2007 were not available for her to testify on and instead relied on court register.

However, after the trial was adjourned for the following day being the 02 .08.2010, the TINs that were alleged to have been unavailable emerged and were produced before court. She could not tell whether all the accused were discharged or convicted in her formal proof cases on 07.06.2007. She said that she had about 60 TIN for that day and only 39 had been presented to court and 21 were missing. The percentage of conviction on the basis of available TINs was 66% and it could be even more had the balance TIN been available. She said that she was not in a position to say where the balance TIN were.

She said that the accused did not want any booking. She said that 10 minutes were given for her study the file and come back for formal proof.

She said that Devendra Singh too could not answer the questions and he was also given the files to be taken home

She said that the dockets were given when she was not able to answer the accused and she saw nothing wrong in the accused asking questions like that. She was not able to say whether the TINs that were not before court were the ones where she was not able to answer on. She said that the accused was only asking that why you were doing so many bookings and that comments was made during the proceedings in the formal proof cases.

She said after the comments the bookings came down. She said that the number of formal proof cases on her TINs were 38 and that was for March, 2007. For the month of June, 2007, the number of cases formally proved was 36. She admitted that there was a reduction by 2. Answering court whether such decrease could not be attributed to any other contributory factors, she emphatically said that it was exclusively due to the remarks made by the accused. On 18.09.2007, she had formally proved her bookings for the month of July,2007 and it was 47 TINs. She did not answer the question that for the month of July, 2007, the number of her TINs had gone up by 11 and he sought to explain the increase on the basis of traffic operations

35. Evidence of witness Divendra Singh in relation to Count No (1) is of similar tenor. He said that that:
    

He went to court on 11/5/2007. He had about 100 Formal Proof Notices. The proceedings were held in open court on 11/5/2007 before the accused. He was not able to answer all the questions a he had about 100 Formal Proof Notices. He did not remember speed places of offence, etc.

The Accused gave the file for him to study the fast and come and give evidence. Even after going through the files he was not able to grasp all the details in the file because of the number of the files. They were called back to give evidence and she could not give all the details asked by the accused.

The accused then started making remarks saying "You people can't give evidence why are you doing so many bookings. You people need to be spoon-fed. Make rice and dhal and feed you. You are being cursed by the drivers. Your former Commissioner, Jimi Koroi and another officer whose limb has been amputated - the same fate will happen to you". He was discouraged by the remarks by the Magistrate.

The witness marked the volume of TINs containing 31in number marked P22.

He went for the remaining 69 TINS on 14/5/2007.

Answering cross examinations the witness said that he was not able to give the details that the accused wanted. The accused said if the witness was not able to recall the details of bookings why was he having so many bookings?

The accused said the witness should recall the details of his booking.

He was given a form under Section 221 of the CPC to fill in. That assisted him. But the witness thought it was wrong.

The witness said that he preferred the questions to have been asked by the police prosecutor because he used to ask leading questions as they were easy to answer because they suggested the answers.

36. The testimony of the two material witnesses, insofar as the words spoken to by the accused are concerned in relation to the four counts, is uncontradicted. The rest of the evidence of many witnesses corroborated the testimony of the two witnesses in that regard. The defence, in fact, did not seek to dispute them. This court, therefore, is able to come to the inevitable conclusion that the words alleged were spoken to and directed at the two witnesses, who had appeared before the accused in 'Formal Proof Cases' on Traffic Infringement Notices (TIN). Court accordingly takes the words at their worst against the accused.
    
37. Having heard the evidence of the two witnesses, this court notes with a great deal of contempt that the words directed at them by the accused in this case were really intrusive and distasteful; and, no sensible human being could have consumed them. The accused, therefore, deserves to be frowned upon and must receive the opprobrium of this court for making those utterances whilst sitting as a Magistrate as no judicial officer is expected to make that kind of offensive utterances at a witness or anyone else in judicial proceedings.
    
38. Learned counsel for the prosecution submitted that he was relying only on the utterances made by the accused to support his case. This Court holds that the utterances would constitute the physical element of the offence under Section 131 read with 380 of the Penal Code, if and only if, the prosecution establishes that the words spoken were 'the means adapted by the accused in fulfilment of his intention' and the act of speaking of those words was 'the manifestation of his intention' to 'prevent the course of justice'. This, by any standard, was an uphill task for the prosecution in the absence of evidence suggestive of any other offending act in this case by the accused.
    
39. The legal issue before this court, therefore, looms large requiring court to consider as to whether, the words spoken and directed at the two witnesses by themselves, were capable of making both the mental element and the physical element so as to constitute the offence as analysed in paragraph 30 above. In this context, ruling in R v Vreones (supra) on the specific intention to prevent the course of justice and the specific act to prevent the course of justice as opposed to its mere tendency should be borne in mind.
    
40. The utterances made by the accused should be considered in overall consideration of the conduct of the accused as such utterances, though offensive, represent only one segment of his conduct in the judicial proceedings concerning 'Formal Proof Cases' on TINs on the four relevant dates.
    
41. The overall conduct of the accused was brought forward in cross-examination of the prosecution witnesses. It was transpired that:
    

(i) The accused took-up the traffic cases in the morning from 08.00-09.00 a.m.;

(ii) The accused used to ask for details of traffic infringements from witnesses;

(iii) As and when the witnesses failed to know the details of TINs, he rebuked and remarked 'if you cannot remember the details of your bookings, do not book people for the sake of booking;

(iv) The accused adjourned the proceedings to enable the two witnesses to refresh their memories on the relevant dates;

(v) The accused wanted the witnesses to fill details that they tended to forget in a white form to expedite the disposal of cases;

(vi) The accused made the utterances only in the course of the proceedings in relation to TINs that came up in the ordinary course of the business of court presided over by him;

(vii) The accused had not asked to stop bookings in general;

(viii)The accused had not asked not to book any particular person, group or class of persons.

42. It was further revealed in prosecution evidence that:
    

(i) In the volume of documents marked as 'P-1' relating to witness- Ashika Mala, there were 36 TINs for 30.08.2007 and on all offending drivers were found guilty by the accused, sentences imposed and in some cases cost awarded against the drivers;

(ii) In the volume of documents marked as 'P-2' relating to witness Ashika Mala, there were 48 TINs for 18.09.2007 all offending drivers were found guilty by the accused, sentences imposed and cost awarded as appropriate;

(iii) In the volume of documents marked as 'P-22' relating to witness- Divendra Singh, there were 31 TINs for 11.05.2007 and on all offending drivers, except for three where the TINs were defective, were found guilty by the accused, sentences imposed and in some cases cost awarded against the drivers; and,

(iv) In the volume of documents marked as 'P-23' relating to witness- Ashika Mala there were 39 TINs for 07.06.2007 and on all offending drivers were found guilty by the accused, sentences imposed and in some cases cost awarded against the drivers.

43. The above overall conduct of the accused, as revealed, in the course of the prosecution case itself, should be considered even if the accused had per se uttered 'stop bookings of offending drivers......' as averred in the four counts.
    
44. As Goundar, J. observed in his ruling of 18.03.2010 (paragraph 20), with which I respectfully agree after carefully assessing the evidence and the applicable law, the state of mind or the intention of the accused could be inferred from the entire circumstances of the case but not in isolation of even one of them.
    
45. When this court considers the evidence of prosecution at its close, court finds that there is no evidence to conclude that the words were uttered with the intention of attempting to prevent the course of justice. Therefore, court holds that mere utterances per se are not capable of either establishing the mental element or physical element to have constituted the offence of 'attempt to prevent the course of justice' in the absence of any accompanying acts or result.
    
46. Even though the result needs not always be proved or have existed in an attempted-offence, the case for the prosecution was presented on the basis that there was a substantial reduction of bookings as a result of the utterances by accused as police officers including the two witnesses were discouraged and traumatized by the utterances of the accused.
    
47. However, bringing into focus of an inconsistency within the prosecution case itself, the above analysis of oral and documentary evidence clearly show that the number of bookings despite, subjective and self-interested assertions by witnesses, had remain intact. On the contrary, they had gone up in the case of witness-Ashika Mala, when she gave evidence for the third time on 18.09.2007. Documents marked as 'P-3'-'P-21' were not shown to have any other impact on bookings even they were relentlessly marked by the prosecution.
    
48. For these reasons I find that there is no evidence on any element of the offence against the accused, as charged in Counts (1), (2), (4) and (5), to proceed further. I accordingly find the accused not guilty of Count No (1), (2), (4) and (5) of the information dated 10.06.2010.
    
49. The accused is accordingly acquitted.
    

PRIYANTHA NAWANA
JUDGE

Friday the 13th August, 2010