Chand v State [2012] FJHC 1209; HAM77.2012 (17 July 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO.: HAM 77 OF 2012

1. VISHAL CHAND

2. RONIL RAVINESH RAM
APPLICANTS:

STATE
RESPONDENT

Counsels: Both Applicants in Person
Ms. S. Kiran for the State

Date of Judgment: 17th July, 2012

JUDGMENT

1. The applicants above named were originally charged before the Magistrate on two Counts each on 27/12/2008.
   
   1. "Abduction of girl under 18 years of age with intent to have carnal knowledge" contrary to Section 153 of the Penal Code; and
      
   2. "Defilement of girl between thirteen and sixteen years of age"
      

contrary to Section 156 (1) (a) of the Penal Code Cap 17.

2. On the 1st August 2011 the State withdrew charges against these two applicants and they were discharged under section 169 (2) (b) (11) of the Criminal Procedures Decree.
   
3. Subsequently on the 13th March 2012 when the case was called both applicants moved for an acquittal order, the Magistrate ordered as follows.
   

"13/03/12

Prosecution: ASP Prasad

Accused: Accused 1 – Present – Mr. Shah

Accused 2 – Present – Mr. Shah

Mr. Shah seeks that the accused may be acquitted.

However it appears that the accused are discharged on the 1st August 2011.

I cannot make any further orders.

Sgd

Resident Magistrate"

4. Both applicants were attached to the Fiji Police Force and they were suspended because of the charges. They are seeking the Court for an acquittal order to rejoin the force.
   
5. There is no Express Provision in the Criminal Procedures Decree to deal with such a situation.
   
6. In the case of State v Prasad [2001] FJHC 204; Criminal Appeal 23 of 2001 (28 June 2001), the Learned magistrate had acquitted the accused because (prosecution was not able to bring document exhibits because the investigation officer was transferred to another station) it was an old case and a lot of adjournments had taken place since 1997.
   

Overturning that decision, Justice Pathik stated that:

"Merely because the case has dragged on for so long is no ground in itself to acquit. He should have borne in mind that the alleged offence is against the state and not against the complainant."

He further referred to an excerpt from the judgment of the High Court of Uganda in the appeal case of Arvi Ratilal Ganji, 6 ULR 237, which stated:

"The case was fixed for hearing and on the hearing day an Inspector of Police appeared for the prosecution. The main prosecution witness, although warned to attend, failed to appear in time at the trial and the Magistrate after calling upon the prosecution to prove their case which they could not do, proceeded to acquit the accused. The two judges on appeal held that the magistrate's proper course was either to have adjourned the case or to have dismissed the charge under the provisions of s. 197 of the then Criminal Procedure Code. Section 197 is similar to s. 202 in the present Criminal Procedure Code. In their judgments the court state:

'We think that the proper course for a Magistrate where the Crown case cannot be heard by reason of a total absence of witnesses is either to adjourn the hearing, or if that is for some reason impossible to dismiss the charge unheard ............'.............

'It 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.'

He went on to say that in such circumstances the proper decision would have been for the Learned Magistrate to dismiss the charge or discharge the accused but not to acquit. Hence, he set aside the acquittal and ordered for the matter to proceed at the Magistrate's Court.

This is what the Learned Magistrates is the current matter before your Lordship did: because State was not able to proceed on the grounds of unavailability of the witness, the proper exercise of judicial discretion was to discharge the accused persons and to allow time for the State look for the complainant. Now, that period to locate the complainant and for State to recharge the accused person is not indefinite. If State wishes to recharge the accused person that it has to be within a reasonable time.

7. We are invoking the inherent jurisdiction of this Honourable Court to consider the balance between public interest and the interest of the Applicants. Justice Nazhat Shameem in delivering her Judgment in Kaloudigibeci .v. The State [2003] FJHC 144 HAA 0036 J.2003S highlighted the dictum of Dawson J in Grassby [1989] HCA 45; (1989) 168 CLR 1. His Lordship stated:
   

"But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by Statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand the Magistrates' court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is to draw upon the will of undefined powers which is available to the Supreme Court."

8. The Magistrate could not exercise the discretion whether to acquit the Applicants because he was not the Magistrate that ordered for the Applicants to be discharged. Therefore, in the interest of the Applicants we are seeking the discretion of this Honourable Court. The court must review the interests of both parties before exercising its discretion. As Pathik J stated in State .v. Iqbal [2000] FJHC 136 HAA125.1999S (5 January 2000) by quoting the judgment of Atkin L. J in Maxwell v Keun [1928] 1 KB 645 at 653 CA is apt:
   

"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 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." (emphasis mine)

9. In the case of Mototabua v State [2011] FJSC 10; CAV0005.09 (12 August 2011), where the police wanted to re-charge the petitioner after 2 years but DPP'S office informed them that due to some technical problem, he should not be re-charged (he was discharged earlier). Base on the facts, the court decided that because prosecution will not charge him on the same facts, he should be acquitted which he eventually was.
   
10. The applicants submit that they are unable to rejoin if there is no order of acquittal is made.
    
11. The State Counsel submitted to Court that they have not appealed against the order of discharge by the Magistrate and she submits that the State is not inclined to re-open this case again. They have no objection to an acquittal order.
    
12. Considering the nature of the application I find this is a fit and proper case to invoke the inherent jurisdiction of this Court. Accordingly I order both applicants be acquitted from the charges.
    
13. So ordered.
    

S. Thurairaja
Judge

At Lautoka
17th July 2012

Solicitors: Both Applicants in Person

Office of the Director of the Public Prosecution for the State