Kumar v State [2022] FJSC 5; CAV 014 of 2021 (26 January 2022)

IN THE SUPREME COURT OF FIJI

APPELLATE JUSRISDICTION

Criminal Appeal No. CAV 014 OF 2021

AJAY KUMAR and

ASHNEEL AVISHAY KUMAR

Applicants

THE STATE

Respondent

Coram: Hon. Mr. Justice Kamal Kumar, President of the Supreme Court

Counsel: Mr. I. Khan for the Applicants

Mr. L. Burney and Ms S. Shameem for the Respondent

Hearing: 5 January 2022

Ruling: 26 January 2022

RULING

(REVIEW – BAIL PENDING TRIAL)

Introduction

1. On 16 December 2021, Applicants filed Application for Review of His Lordship Justice Rajasinghe’s Ruling delivered on 29 November 2021, and for an Order that Applicant be granted bail pending trial on such terms and conditions as the Court deems fit and proper (“The Application”).
   
2. The Applicants relied on Affidavit of Ronald Ritesh Kumar sworn on 12 December 2021, and filed on 16 December 2021, (hereinafter referred to as “Ronald’s Affidavit”).
   
3. The Application was called on 21 of December 2021 when parties were directed to file and serve Affidavit/Submission and the Application was adjourned to 4 January 2021, for hearing.
   
4. On 30 December 2021, the Respondent filed Affidavit in Opposition of the Deputy Sergeant 4943 Netava sworn on 30 December 2021 (hereinafter referred to as “Netava’s Affidavit”).
   
5. Both parties filed Submissions as directed by the Court.
   
6. At the commencement of the Hearing, the Applicants’ Counsel informed the Court that the day before the hearing, the Respondent filed a Nolle Prosequi against the Second named Applicant.
   
7. Both parties agreed to proceed with hearing in respect to the First named Applicant who will hereafter, be referred to as “the Applicant”.
   

Background Facts

8. On or about 13 October 2021, the Applicant was charged with one count of Murder in High Court Criminal Case No. HAC 116 of 2021.
   
9. The Applicant was arrested on 10 October 2021 and after being released for six (6) hours was re-arrested and brought to Court on 13 December 2021.
   
10. The learned Magistrate transferred the matter to High Court, Lautoka whereupon, the Applicant filed Application for Bail.
    
11. The Bail Application was heard on 5 November, 2021 and on 29 November 2021, the learned Judge delivered his decision whereby he refused the application for Bail Pending Trial.
    

Preliminary Issue – Abuse of Process

12. The Respondent raised the issue that the Applicant had already filed an Application for Review in Court of Appeal which had not been determined by the Court of Appeal.
    
13. The Respondent submitted that the filing of another Application for Review in this Court without the Court of Appeal Review Application being determined is an abuse of Court process and should be struck out.
    
14. In response, the Applicant by his Counsel submitted that:
    
    1. The Applicant filed Review Application in Court of Appeal.
       
    2. The Application for Review filed in Court of Appeal was not served on the Respondent.
       
    3. On 31 December 2021, the Applicant filed Notice in Court of Appeal to state that the Applicant does not intend to prosecute Bail Review.
       
    4. When the Applicant, filed the Notice, Court of Appeal directed him to serve the Notice of Withdrawal and Application for Bail Review on the Respondent.
       
15. What is stated at the preceding paragraph is not disputed by the Respondent.
    
16. Rule 39 of the Court of Appeal Rules provide as follows:-
    

“39. An appellant, at any time after he or she has duly served a notice of appeal or a notice of application for leave to appeal, or a notice of application for extension of time within which under the Act such notice shall be given, shall apply to the Court of Appeal to abandon his or her appeal by giving notice of application to abandon the appeal in the Form 3 of Schedule 2 to the Registrar and to the Respondent.”

17. Any notice filed pursuant to Rule 39 must be given to the Respondent.
    
18. Questions that need to be answered are as follows:-
    
    1. Does the Appeal become abandoned as soon as the Applicant files the Application pursuant to Rule 39?
       
    2. Can the Applicant make the application under Rule 39 in respect to Application to Review Bail Ruling?
       

Question 1

19. It is obvious that the Appeal is not abandoned upon filing of the Application under Rule 39 but needs to be called before the Court of Appeal for an order that the Appeal is abandoned.
    
20. What is stated at the preceding paragraph is the practice adopted by the Court of Appeal when parties wish to abandon or withdraw the Notice of Appeal or Application for Leave to Appeal or Application for Extension of Time.
    

Question 2

21. Rule 39 applies to:-
    
    1. Notice of Appeal;
    2. Notice of Application for Leave to Appeal;
    3. Notice of Application for extension of time.
       
22. It is quite improper for the Applicant to file the Application for Review of Bail Ruling when an Application for Review of Bail Ruling is still pending in Court of Appeal.
    
23. The Applicant should have had the Application for Review of Bail Ruling determined by the Court of Appeal or had the Application to Abandon the Application for Review of Bail Ruling determined by Court of Appeal.
    
24. It is clear from the above that the Application to Abandon Appeal for Review of Bail Ruling pursuant to Section 30 (4) of the Bail Act 2002 does not fall within the ambit of Rule 39 of Court of Appeal Rules.
    
25. In view of what is stated above this Court finds that the Application for Review of Bail Ruling filed in this Court is clear abuse of Court process and should be struck out.
    
26. Since, the Application is an abuse of Court process, this Court will not rule on the Application.
    

Costs

27. This Court notes that both parties filled Affidavit and made comprehensive submissions.
    

Order

28. This Court makes the following Orders:
    
    1. Application for Review of Bail Pending Trial filed on 16 December 2021 is dismissed and struck out;
       
       2. Each party bear their costs.
          

..............................................

Hon. Justice Kamal Kumar

President, Supreme Court

Solicitors:

Messrs. Iqbal Khan & Associates for Applicants

Office of the Director of Public Prosecutions for Respondent