Police v Joseph [1957] FJLawRp 4; [1956-1957] 5 FLR 29 (22 February 1957)

[1956-1957] 5 FLR 29

SUPREME COURT OF FIJI

Appellate Jurisdiction

Criminal Appeal No. 4 of 1957

Between:

THE POLICE
Appellant

AND

BENJAMIN PREM JOSEPH
Responent

Penal Code s. 35 (2)-whether person lodging complaint with police can be bound over under this subsection.

The respondent was convicted in the Magistrate's Court of causing grievous harm to one Gajraj Singh. The public prosecutor asked that both the respondent and Gajraj Singh, who had lodged the complaint to the police, be bound over under section 35 (2) of the Penal Code. The magistrate held that he had no power to bind over Gajraj Singh under the subsection. The Crown appealed by way of case stated. The question of law for determination by the Supreme Court was: "Whether the word ' complainant' in section 35 (2) of the Penal Code includes the person or persons who make a complaint to a public prosecutor so as to give the Court power to bind them over in the terms of the section".

Held.-The word" complainant " in section 35 (2) of the Penal Code means the person who had lodged a complaint with the court under the provisions of the Criminal Procedure Code, section 82, and does not include a person who files a complaint with the police upon the basis of which the police themselves institute criminal proceedings.

Magistrate's decision upheld.

Justin Lewis, Crown Counsel, for the appellant.

Respondent in person.

HAMMETT, J. [22nd February, 1957]-

This is an appeal by the Crown by way of Case Stated against the decision of the learned Magistrate sitting at Lautoka, dated 2nd January, 1957.

The respondent Joseph was convicted on the 2nd January, 1957, of the offence of causing grievous harm to Gajraj Singh. The police prosecutor in the court below asked that both Joseph, the accused, and Gajraj Singh, who had lodged a complaint to the police, should be bound over under the provisions of the Penal Code, section 35 (2), which reads as follows:-

"In addition to the powers conferred by subsection (1) of this section any magistrate shall have power in any trial before him, whether or not the complaint be dismissed, to bind both the complainant and defendant with or without sureties, to keep the peace and be of good behaviour for a period not exceeding one year and may order any person so bound, in default of compliance with the order, to be imprisoned for three months or until such earlier time as he so complies."

This course the learned trial Magistrate declined to adopt on the ground that the complainant in the case before him was the police and not Gajraj Singh.

The Crown, not being satisfied with the reason given by the court below for declining to bind over Gajraj Singh, has asked that the following question of law be determined by the Supreme Court:-

"Whether the word 'complainant' in section 35 (2) of the Penal Code includes the person or persons who make a complaint to a public prosecutor so as to give the court power to bind them over in the terms of the section."

The learned Acting Solicitor-General has drawn my attention, inter alia, to section 194 of the Criminal Procedure Code where it is clear that the word "complainant" means "complainant to the Police". The Crown ask that the same interpretation be given to the word "complainant" in section 35 (2).

I agree that if in the Penal Code, section 35 (2), the word "complainant" means "public prosecutor", it would almost reduce the subsection to an absurdity. It is almost impossible to imagine any proper purpose being served by binding over a public prosecutor. Nevertheless, even if the word "complainant" in the section does not mean "public prosecutor" it is logically and properly open to the construction that it only means a "private prosecutor". In such cases it would obviously serve a most useful purpose.

It is difficult to see why it should be assumed that the word" complainant" in section 35 (2) should include the complainant to the police without the section making it abundantly clear that this is the intention of the Legislature.

After all the complainant to the police has no right of audience at the hearing of a prosecution instituted by the police. There is no provision in the Code whereby he is given any right of addressing the court on his own behalf either personally or by counsel. A public prosecutor certainly has no particular duty to watch over the interests of the person who has lodged a complaint to the police.

If the word "complainant" in section 35 (2) is to be interpreted in the way submitted by the Crown, it would appear that a complainant to the police may be ordered to enter into a bond and in default to be committed to prison without any opportunity or procedure having been provided for him to be heard on his own behalf or to show cause why the order should not be made. I do not think that such an interpretation should be adopted unless the Legislature has shown that this was its intention in much clearer terms than those set out in the section.

In my opinion the learned Magistrate was correct and the word "complainant" in the Penal Code, section 35 (2) means the person who has lodged a complaint with the Court under the provisions of the Criminal Procedure Code, section 82, and does not include a person who files a complaint with the police upon the basis of which the police themselves institute criminal proceedings.

For these reasons I am of the opinion that the learned trial Magistrate was correct in this case in refusing to bind over Gajraj Singh under the provisions of the Penal Code, section 35 (2).