IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 23 OF 2001
(Labasa Mag. Ct. Criminal Case No. 74/97)

Between:

STATE
Appellant

And

YOGENDRA PRASAD
s/o Shiu Prasad
Respondent

Mr. J. Rabuku for the Appellant
Ms. P. Salele for the Respondent

JUDGMENT

This is the State’s appeal against the acquittal of the respondent on 5 January 2001 on the charge of act with intent to cause grievous bodily harm contrary to section 224(a) of the Penal Code Cap.17.

The Particulars of Offence reads Yogendra Prasad s/o Shiu Prasad on the 25th day of December 1996, at Labasa in the Northern Division, with intent to do 
some grievous harm to Kamlesh Narayan s/o Ram Samujh, unlawfully wounded the said Kamlesh Kumar s/o Ram Samujh, with an iron rod.

The Grounds of Appeal are:

a)	the learned trial magistrate erred in law when he failed to exercise his discretion judiciously, refusing to proceed to hearing on the available prosecution witnesses.

b)	the learned trial Magistrate erred in law when he failed to exercise his discretion judiciously to grant an adjournment to the State.

The State is appealing to set aside the said order of acquittal.

The respondent opposes the appeal.

Background

The circumstances under which the order was made were these.

There were numerous adjournments of this case before a hearing date was set for 5 January 2001. The prosecution told the Magistrate that it was in difficulties as the investigating officer was transferred to Nabouwalu for relieving duties and that ‘documents exhibit not available’. Whereupon the defence counsel asked for ‘discharge or acquittal’. The Magistrate then said ‘this is a 1997 case and hearing has been set at least 8 times. I decide to acquit the accused.’

Appellant’s submission

It is argued by the State that the Magistrate should have proceeded to hearing with the 3 available witnesses. Section 210 of the Criminal Procedure Code could not apply in this case as the prosecution had not yet called evidence in support of the charge. This section deals with acquittal after no case to answer. As far as the non-availability of exhibits was concerned, production of photocopies could have been explored (State v Lobendhan 18 FLR 1). Acquittal cannot be based on this argument.

The Magistrate could have granted an adjournment in the exercise of his judicial discretion which he failed to do (Robert Tweedle Macahill v Reginam Cr. App. No. 43 of 1980 FCA). He should have looked at the interest of the parties before the order of acquittal, and where there have been many previous adjournments then each application calls for fresh exercise of discretion. The delay in this case was substantially caused by the accused himself with no or very little fault of the prosecution. The accused is on a serious charge and the acquittal has resulted in justice not being done.

Respondent’s submission 

Ms. Salele submitted that the Prosecution did not inform the Magistate that they were ready to proceed with some witnesses who they say were available.

She said that there was a proper and judicious exercise of discretion. Another Police Officer could have been posted to Nabouwalu for relieving duties. She referred the Court to the case of State v Suliasi Sivaro Crim. App. No. 38 of 1996 where the appeal Court referred to factors which a Magistrate must take into account in determining whether or not adjournment ought to be granted.

Counsel submitted that this case has been hanging over the Respondent’s head for four years; he has been punished enough and any further delay will definitely be doing gross injustice to him.

She asked that this Court uphold the acquittal in the circumstances of this case.

Consideration of the issue

The respondent was on a serious charge. For various reasons, according to Court Record the case was adjourned from time to time. The delay in setting the case down for hearing cannot all be heaped on the prosecution. The respondent/accused was also on bench warrant at times for non-attendance. 

Be that as it may, the only reason given by the learned Magistrate for acquitting the respondent was because, as he said ‘this is a 1997 case and hearing has been set at least 8 times. I decide to acquit the accused’. This can hardly be a cogent reason for ordering acquittal on such a serious charge. If this view was accepted for acquitting an accused it will mean that an accused will go scot free in cases where there has been delay in proceeding to hearing. There has to be a proper exercise of judicial discretion in every case bearing in mind the relevant sections on granting of adjournments, discharge and acquittal in the Penal Code and the Criminal Procedure Code.

In this case the learned counsel for the respondent asked for ‘discharge or acquittal’. But the Magistrate acquitted him for the reason he gave. I find that he fell into an error and wrong in law.

It was incumbent on the learned Magistrate to exercise his discretion judicially. Merely because the case has dragged on for so long is no ground in itself to acquit. He should have borne in mind that the alleged offence is against the State and not against the complainant. Without giving any more thought to the matter after the Prosecution stated its difficulties the learned Magistrate proceeded straight to acquit when Counsel for accused asked for ‘acquittal or discharge’.

The learned Magistrate does not say under what section of CPC he acquitted. Had he applied s202 of CPC he should have discharged the accused and not acquit him; and although he does not say that he applied s210 of CPC, acquittal in this case amounts to that. It was not a case of want of prosecution. On the facts and circumstances of this case s210 is not applicable as it only covers a case where there is no case to answer after evidence has been adduced. For ease of convenience I refer to the following excerpt from the judgment of the High Court of Uganda sitting in appeal in the case of Arvi Ratilal Ganji, 6 U.L.R. 237 (quoting from Uganda Milenge and Another 1970 EALR 269 at 274):

“The case was fixed for hearing and on the hearing day an Inspector of Police appeared for the prosecution. The main prosecution witness, although warned to attend, failed to appear in time at the trial and the Magistrate after calling upon the prosecution to prove their case which they could not do, proceeded to acquit the accused. The two judges on appeal held that the magistrate’s proper course was either to have adjourned the case or to have dismissed the charge under the provisions of s.197 of the then Criminal Procedure Code. Section 197 is similar to s.202 in the present Criminal Procedure Code. In their judgments the court state:

‘We think that the proper course for a Magistrate where the Crown case cannot be heard by reason of a total absence of witnesses is either to adjourn the hearing, or if that is for some reason impossible to dismiss the charge unheard................’.....................

‘It seems to us that the position is substantially the same where the Magistrate has before him merely a public prosecutor, whose function is simply to conduct the case and to examine the persons who are the true informants. If the latter are absent, and yet it is known that they are in existence and that their attendance can be secured, it seems to us little short of farcical to embark on a trial of the case and to acquit the accused, the complaint against him being wholly unheard.’ 

In this case, for these reasons the magistrate should have dismissed the charge and discharged the accused but not to acquit. In this regard I refer to the following passage from Ganji (supra) which states the position clearly with which I agree:

“If the learned magistrate had rightly assessed his powers and duty we think that he would have refused to proceed to what the respondent asks me to regard as a trial, and would have dismissed the charge unheard and have discharged the accused. What was done was done owing to a misconception by the learned magistrate of his powers and duty. We think that we cannot permit the present position to stand because of that misconception...”

For these reasons I hold that the acquittal was not a proper exercise of the learned Magistrate’s discretion bearing in mind particularly the serious nature of the offence.

I therefore allow the appeal and set aside the order of acquittal and remit the case to the Magistrate’s Court to proceed with the hearing after a fresh plea is taken.

D. Pathik
Judge

At Labasa
28 June 2001