Kumar v State [2011] FJHC 167; HAC043.2011 (16 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

High Court Criminal Case No: HAC 043 of 2011

BETWEEN:

STATE
Prosecution

AND:

1. MANOJ KUMAR
2. PRAKASH GHRANA
3. ALVIN RAJ
Accused Persons

Counsel: For State - Ms. Nayomi, W
For 1st Accused - )Mr Raza, M
For 2nd Accused - )
For 3rd Accused - )

Date of Ruling: 16/03/2011

RULING

The Applicants Manoj Kumar, Prakash Ghrana and Alvin Raj made an Application for permanent stay of proceedings in Criminal Case No. 528/2010 in the Magistrates Court in Suva.

By her ruling dated 9/2/2011, the learned Magistrate decided that the Magistrates Court has no jurisdiction to consider Applications for permanent stay. After the finding that Magistrates Court has no jurisdiction, the learned Magistrate transferred the case to the High Court in terms of Section 191 of the Criminal Procedure Decree.
The question before this Court is, whether the learned Magistrates' order of transferring the case to this court is valid, and whether the learned Magistrate had authority to transfer this case to High Court in terms of Section 191 of Criminal Procedure Decree.

The learned Magistrate has carefully considered the law on permanent stay application and has correctly decided that the Magistrates Courts do not have inherent jurisdiction to consider permanent stay of proceedings.

Section 191 of the Criminal Procedure Decree provides provision to transfer any charges or proceedings to the High Court.

Division 3 of Part XIII of the Criminal Procedure Decree provides provision on Transfer of accused persons to the High Court. (Section 191-200)

Therefore Division 3 applies to the transfer of accused persons to High Court.

Section 191

A Magistrate may transfer any charges or proceedings to the High Court.

In terms of Section 191, charges or proceedings referred to therein, are those where the Magistrate Court assume jurisdiction at the initial stage.

Power to stay proceedings permanently are inherent powers of the High Court and they are not governed by Criminal Procedure Decree or some other legislative enactment, as the learned Magistrate has correctly decided referring to the case of State v Seth Rizatar Ali Criminal Appeal Case No.: 89 of 2007 and other decided cases.

Proceedings in respect of which, the Magistrates Court could not otherwise have jurisdiction, cannot be transferred to the High Court under Section 191 of the Criminal Procedure Decree. When the Magistrate has no jurisdiction to entertain, the Magistrate has no jurisdiction to transfer.

Therefore I find that, although the learned Magistrate has correctly decided that the Magistrates Court has no jurisdiction to entertain applications for permanent stay of proceedings, the learned Magistrate has erred in making the order to transfer the case to the High Court.

Therefore the order of learned Magistrate to transfer the case to High Court is set aside. Magistrate Court record to be sent back to the Magistrates Court to proceed with the matter.

There is no proper application made to High Court for permanent stay of proceedings. However, the applicants are at liberty to file an application for permanent stay in High Court if they are so advised.

Priyantha Fernando
JUDGE

At Suva
16th March, 2011.