Regina v Mullan [1977] FJSC 160; Criminal Appeal 111 of 1977 (31 October 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 111 of 1977

BETWEEN

REGINA
Appellant

AND

1. ADI MULLAN s/o Ellaiya
2. MOHAMMED RAFIQ s/o Pari Kutti
Respondents

Mr. Ikbal Khan, Counsel for the Appellant
Mr. R. Krishna, Counsel for the Respondents.

JUDGMENT

The two respondents were charged under S.97A of the Penal Code for throwing stones at a taxi. In the magistrate's court one respondent said he may have thrown a stone whilst drunk and the other denied the offence.

The learned magistrate recorded no pleas and purported to proceed under the reconciliation provisions of S.160. C.P.C. He may well have been justified in taking that course at one time. However, S.160 C.P.C as it appears in the 1967 LAWS was repealed in 1976 and replaced by another version. The amending act, No. 18 of 1976 limits the court's power of promoting reconciliation to specific offences committed under the Penal Code namely Sections 218, 276, 277 and 360(1). There is no general power vested in the magistrate to attempt reconciliation in criminal cases. Offences committed under S.(7(A) P.C. do not come within the reconciliation provisions of S.160 C.P.C.

It follows that the magistrate was not empowered to proceed as he did. What the learned magistrate had done was to terminate the proceedings on payment by the accuseds of $30.00 to the complainant by way of compensation for the damage done to his taxi.

The D.P.P.'s appeal is directed to the learned magistrate's erroneous approach and of course it must succeed. The proceedings were a nullity.

In the ordinary way they would be and are remitted to magistrate so that he may, if the prosecution so desires, take the pleas of the accuseds and proceed in the normal and usual manner.

However, I apprehend that the prosecution have lodged this appeal solely with the intention of reminding the learned magistrate of the amendment to S.160 C.P.C. and no doubt the charge will not be pressed although no doubt it will have to be mentioned in order to be removed from the list of pending cases.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
31st October, 1977.

Director of Public Prosecutions for the Appellant
Messrs. Anand, Tappoo & Company for the Respondents.

Date of Hearing: 31st October, 1977.