IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM150 of 2010

BETWEEN:

MAHENDRA PAL CHAUDHARY
Applicant

AND:

THE STATE
Respondent

Hearing: 4 March 2011
Ruling: 7 March 2011

Counsel: Mr. R. Chaudhary for Applicant
 Mr. P. Bulamainaivalu for State

RULING

[1] This is a third application by way of a motion for release of passport and for leave to travel overseas by the applicant. The proposed date of travel is between 15 March 2011 and 9 April 2011. The destination is the United States of America. The reason for travel is to attend his sister's 70th birthday.

[2] Counsel for the State has no objection to the application but has expressed concerns about the frequency of travel by the applicant while the trial is pending before the court and the insignificant amount of surety posted by him. The applicant has signed a surety in a sum of $1000.00.

[3] The applicant was charged on 23 July 2010. On the same day the case was transferred to the High Court. The Information was filed on 30 July 2010. The case was called and adjourned to 6 August 2010 for mention.

[4] Before 6 August 2010, the applicant filed an application for my recusal. The recusal application was heard and in a written ruling delivered on 19 November 2010, the application was declined. Plea was deferred upon request by the counsel for the applicant who was seeking better particulars on the charges. The case was adjourned to 28 January 2011. 

[5] However, the case was not called on 28 January 2011 because upon an application by the applicant, the court permitted him to travel to Hawaii, USA to attend Pacific Dialogue Conference between 23 and 29 January 2011. The court had earlier permitted the applicant to travel to Australia for medical treatment between 28 December 2010 and 20 January 2011.

[6] The arraignment of the applicant was deferred to 18 February 2011. On this date, plea was not taken because counsel for the applicant insisted that they had not been provided with better particulars.

[7] The case was adjourned to 17 March 2011 for mention.

[8] On 25 February 2011 this application was filed. If the court is to allow this application, this would mean that the applicant's arraignment will have to be adjourned again. 

[9] Meanwhile, the applicant has also filed applications to quash the Information and to stay the proceedings. These applications are yet to be heard.

[10] The question of the applicant being a flight risk does not arise. He has honoured his bail conditions and returned to Fiji on the last two occasions when he was permitted to travel overseas.

[11] However, the flight risk is not the only consideration in this application. The reason for the travel and the inconvenience caused to the administration of justice also has to be considered. 

[12] The court is concerned about the frequency of travel by the applicant when he has not been arraigned since the Information was filed on 30 July 2010. The reason for the next travel is to attend a relative's birthday. In my judgment, the reason advance for the proposed travel is not a good reason to vacate the next arraignment date.

[13] Taking of pleas should not be unnecessarily delayed. If the applicant cannot figure out the allegations against him from the charges, the proper procedure is to enter not guilty pleas and make appropriate applications to the court. Lack of better particulars should not be used to delay taking of pleas. 

[14] For these reasons I refuse the applicant's motion. The applicant is required to attend his arraignment on 17 March 2011.

Daniel Goundar
JUDGE

At Suva
7 March 2011

Solicitors:
Messrs. Gordon & Chaudhary for Applicant
Office of the Director of Public Prosecutions for State