State v Chand [2015] FJMC 125; Criminal Case 627.2011 (13 October 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 627 of 2011

STATE

V

SURESH CHAND

Prosecution : PC Nilesh.
Accused : Mr Fesaitu. M.

Ruling : 13 October 2015

RULING

1. The Accused, Suresh Chand is charged with one count of Indecently Insulting or Annoying Any Person contrary to section 213 (1)(a) of the Crimes Decree, and one count of Resisting Arrest contrary to section 277(b) of the Crimes Decree.
   
2. The particulars of the offence is that on the 5th day of October 2011, at Wailevu, Labasa in the Northern Division, with intent to insult the modesty of PC 4308 Kamal uttered the words "Mother Fucker" intending that such words be heard by the said PC 4308 Kamal AND wilfully resist arrest to PC 3531 Shuvnesh in due execution of his duty.
   
3. The Accused pleaded not guilty to the charges on 22 November 2013. Two hearing dates have been vacated and the hearing finally proceeded on 4 March 2015.
   
4. The Prosecution called two witnesses. The caution interview and the charge statement were tendered by consent. The Prosecution closed his case. The Defence Counsel makes an application under section 178 of the Criminal Procedure Decree, seeking time to file his No Case to Answer Submission for the count of Resisting Arrest. The Defence Counsel filed his No Case to Answer Submission on 9 March 2015. The Prosecution on 24 April 2015 and 22 June 2015 seek further time to file his written submission. On 11 August 2015, the Prosecution informed the court that he will rely on the court records and will not file any submission.
   
5. The Defence Counsel in his submission state that the Prosecution has not adduced sufficient evidence and their evidence is so unreliable. It was submitted that there is no evidence to show the accused willfully resistance. There was no detail account on how the accused willfully tried to free himself. There was no force used.
   
6. According to the prosecution witness PC Shivnesh, he was on duty on the day and time of the incident. They were on traffic operation when PC Kamal informed him that the accused swore at him. PC Shivnesh in his evidence in chief confirmed that he arrested the accused. He informed the accused that he is arrested for swearing in public place. He holds the accused's hand firmly and the accused tried to free himself. He called the accused to get into the vehicle, the accused refused to go into the vehicle, so PC Kamal and PC Viliame assisted him in pushing the accused into the vehicle. In cross examination, PC Shivnesh confirmed that he informed the accused on the purpose of his arrest, that he has committed an offence and he is under arrest. He also confirmed that before he arrested the accused, his rights were given to him and he resisted the arrest.
   
7. PC Kamal in his evidence confirmed that he saw PC Shivnesh arrested the accused. He heard PC Shivnesh told the accused that he will be taken to the police station for further questioning. The accused tried to free himself and get away from the police vehicle.
   
8. I have noted the test for no case to answer in R v Galbraith (1971) 73 Cr. App. R. 124; R v Jai Chand (1972) 18 FLR 101; Moidean v Reginam Crim. App. No. 41 of 1976; and in Rohit Ram Latchan v The State Crim. Action No. HAA0032 of 1996.
   
9. The evidence adduced by the Prosecution clearly shows that the accused resist arrest when he want to free himself from PC Shivnesh and when he refused to get into the police vehicle to be taken to the police station for further questioning. This evidence fulfilled the requirements and tests laid down in the above case authorities.
   
10. In assessing the evidence adduced by the Prosecution, I find that there are sufficient evidence adduced by the Prosecution that requires the accused to put a defence to the charge of resisting arrest.
    
11. In my ruling, I dismiss the Defence Counsel submission for no case to answer for the count of Resisting Arrest and call for the accused to put his defence to the charge.
    

Cama M. Tuberi
RESIDENT MAGISTRATE