State v Prasad [2010] FJMC 14; Criminal Case 57.2009 (19 February 2010)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case No: 57 of 2009

STATE

V

SHELVIN PRASAD

For Prosecution: Inspector Harish
Accused Counsel: Ms. Karan R.

RULING ON DEFECTIVE CHARGE

1. Three Accused were charged for Burglary and two have pleaded guilty. On behalf of the third accused, this objection of “Defective Charges” was raised by the counsel.

2. Counsel for the accused had filed written submission justifying the objection. According to the submission, the accused was charged for committing an offence of “Burglary” contrary to sec. 229 of the Penal Code. It is further said that this defect is “incurable” and objection were raised under Sec. 119 of the Criminal Procedure Code.

3. According to the charge sheet “Count 1” states out as follows.

BURGLARY – Contrary to Sec. 229 of the Penal Code.

Particulars of Offence as far as it is relevant.

Taniela Vakalaca, Manasa Tuidama and Shelvin Prasad, on 13th day of January 2009, at Suva in the Central Division, by night broke and entered the dwelling house of.............

4. In the written submission, counsel for the accused draw the attention of the court to the sec. 229 of the Penal Code. Offence of Burglary defined in Sec. 299 and not in sec. 229 as mentioned in the charge sheet.

5. Issue is whether this is an incurable mistake and warrants a dismissal from the court. Did this error prevent the accused to have a “reasonable information as to the nature of the offence charged” as it is pointed out by Sec. 119 of the Criminal Procedure Code?

6. It is apparent that prosecution had inadvertently typed Sec. 229 instead of Sec. 299. Prosecutor moved the court that they may be grant permission to amend the section to read as Sec. 299.

7. Unless you are a person well conversant with Law, for a normal person, a number which specifies a particular offence may not have done any difference. What is important is to have particulars of offence clear, as to give reasonable explanation about the offence charged.

8. As per the count one, I find that the mistake is not a fatal mistake and not an “incurable” defect as mentioned in the submission. I am satisfied that by no means that mistake had confused the accused in preparing for his defence.

9. According to the other objection, Count two is badly phrased. It is submitted by the counsel that Accused was not seen entering the house and no stolen items were recovered from him. According to the counsel, prosecution had proved that this accused was outside the compound of complainant’s house. It is further mentioned in the submission that “from the evidence given by the prosecution, it seems that the accused is charged for aiding and abetting”.

10. As per my understanding, no evidence had been led against the accused so far. Hence, I am at a loss to understand as to how the accused’s counsel came to those assumptions in her written submission. Until such time prosecution concludes their case, it is impossible to decide that they were failed to prove the particulars of the offence.

11. Hence, accused’s counsel’s second objection with regard to the count one, does not have any merit.

12. According to above-mentioned findings, I dismiss the objection of the third accuse and proceed to fix this case for hearing after necessary amendments were done to count one.

13. 28 days to appeal.

On this Friday 19th day of February 2010.

Kaweendra Nanayakkara
Resident Magistrate.