Raju v State [2012] FJHC 1405; HAC148.2012 (31 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 148 OF 2012

BETWEEN:

MANJULA WATI RAJU
[Applicant]

AND:

STATE
[Respondent]

Counsel : Mr. Iqbal Khan for the Applicant
Mr. L.Sovau for the State

Date of Ruling : 31st October 2012

RULING ON BAIL PENDING APPEAL

1. The above mentioned Applicant was convicted after the trial before the Magistrate of Nadi under Section 279 (1) (a) of the Penal Code for Conversion and imposed a sentence of 2 years and 4 months imprisonment.
   
2. The husband of the Applicant Sundar Raju had filed an affidavit and sought bail. He submits the following factors.
   
   • (a) His wife is 65 years old and suffering from arthritis, high blood pressure, depression and paranoid schizophrenia.
     
3. When the application was taken up for hearing Counsel submitted that the Applicant has likelihood of success in the appeal.
   
4. State Counsel who appeared on the 17th October 2012 moved for one week to file his submissions. He was granted time until 26th October but he failed to file his response on time and filed it only on the 29th October 2012 at around 3.30pm. The hearing was listed for the 30th instant.
   
5. State Counsel objects for bail and submits that the Applicant had not fulfilled the requirement stated in Section 17(3) of the Bail Act.
   
6. Further the State Counsel submits that the Applicant had not submitted any exceptional circumstances.
   
7. Section 17(3) of the Bail Act governs granting of bail pending appeal states as follows:
   

"(3) When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take into account-

(a) the likelihood of success in the appeal;

(b) the likely time before the appeal hearing;

(c) the proportion of the original sentence which will have been served by the applicant when the appeal is heard."

8. The Counsel for the Applicant submits additional grounds of appeal. It has to be decided by the Court which hears the appeal whether additional grounds filed out of the appealable period can be treated as a substantial ground. Hypothetically, if I consider the ground that the Magistrate had not complied with Section 179 of the Criminal Procedure Decree. The maximum I can rule is to send back the case to the Magistrate to comply with the statutory requirements. This will not result the acquittal of the Applicant.
   
9. Section 17(3) has other two requirements namely that the time before hearing the appeal. Considering the workload at the appellate division of High Court of Lautoka there is no backlog. Usually if counsels file their papers on time and appeal is dispose within 3 months or much lesser.
   
10. Considering Section 17(3) of the proportion of the original sentence served to the Applicant in this case, the Applicant was sentenced on 27th July 2012 for 2 years and 4 months todate she had served 3 months in the prison.
    
11. In Arora v State (2012) FJCA67, AAU001.2012 (16 October 2012) His Lordship Suresh Chandra RJA re-emphasized to consider exceptional circumstances. In many cases the Court of Appeal and the High Court considered bail on exceptional circumstances.
    
12. In the present application the Applicant submits some medical grounds which were mentioned in paragraph 2 above. Those grounds were supported by some medical certificates. Those certificates were dated from 2008 to 2011. Nothing in the recent past. Further those grounds do not fall under exceptional circumstances.
    
13. Considering all I do not find the Applicant qualified herself under Section 17(3) and the requirement of Exceptional Circumstances hence I refuse bail pending appeal.
    
14. While refusing the bail I direct the Registrar to expedite the appeal and list it for mentioning within this year.
    
15. Application dismissed.
    

S. Thurairaja
Judge

At Lautoka
31st October 2012

Solicitors:

Messrs Iqbal Khan & Associates for the Applicant
The Office of the Director of Public Prosecution for the State