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Lal v State [2011] FJHC 740; HAA29.2011 (15 November 2011)

IN THE HIGH COURT OF FIJI, AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA 29 OF 2011

BETWEEN:

BEDH WATI LAL
APPELLANT

AND:

STATE
RESPONDENT

COUNSEL: Ms R. Karan for Appellant
Ms J. Cokanasiga for Respondent

Date of Hearing: 21st October 2011
Date of Judgment: 15th November 2011

JUDGMENT

1. The Appellant was charged with Dangerous Driving Occasioning Grievous Bodily Harm contrary to Section 97(4)(c) and 114 of the Land Transport Act No. 25 of 1998 in Case No. 1689/2008 in the Magistrates Court in Navua.
   
2. The case was fixed for hearing on 30/9/2008. On that date as the Complainant was absent and as the Magistrate was not satisfied on the reasons given by the prosecution for the absence of the complainant, the learned Magistrate dismissed the case and discharged the accused in term of Section 198 of the Penal Code.
   
3. Thereafter for the same offence the petitioner was charged in case no 3367 of 2008. The petitioner was summoned to appear in the Magistrate Court on 25th October 2010 for the case No. 3367 of 2008. However, the summons issued to appear on 25th October 2010 had been issued on 21/5/2008.
   
4. On 18/11/2010 the Petitioner made an application by Notice of Motion seeking an order, that the charge against the petitioner be dismissed.
   

5. On 8/3/2011 the learned Magistrate made the ruling dismissing the application of the petitioner and awarding $200 costs for the prosecution.

6. This appeal is against the said ruling of the learned Magistrate.

The grounds of Appeal are:-

1. That the Learned Magistrate erred in fact and in law in holding that the service of the Summons in these proceedings had been properly executed when in fact the said Summons was dated 21st May 2008 and had been served on the petitioner after more than 12 months from the date of its issue and not in compliance with Section 77(2) of the Criminal Procedure Decree.
   
2. That the Learned Magistrate erred in fact and in law in holding that the service of the Summons in these proceedings had been properly executed using the Summons in a previous proceedings being Action No. 1689 of 2008 when in fact the said Summons was a different proceedings altogether and the said proceedings in Action No. 1689 of 2008 had been dismissed and the petitioner discharged on 30th September 2008.
   
3. That the Learned Magistrate erred in fact and in law in arriving at her decision and not holding that the service of the Summons in these proceedings was not proper and that the said Summons was defective and had rendered the proceedings a nullity.
   
4. That the Learned Magistrate erred in fact and in law in holding that the Police Prosecutor had followed proper procedures to re-charge the Petitioner under the previous Summons in Action No. 1689 of 2008 when in fact the Summons in previous proceedings Action No. 1689 of 2008 had been dismissed and the Petitioner discharged.
   
5. That the Learned Magistrate erred in fact and in law in arriving at her decision by holding that the Summons in previous proceedings Action No. 1689 of 2008 had not been withdrawn or cancelled when in fact the Summons in previous proceeding Action No. 1689 of 2008 had been dismissed and the Petitioner discharged.
   
6. That the Learned Magistrate erred in fact and in law in ordering costs against the Petitioner without any or any proper basis and failing to give any or any adequate reasons to award costs against the Petitioner.
   

7. The petitioner submitted that the Learned Magistrate was wrong in not holding that the summons dated 21/5/2008 had expired and hence could not be properly served on the petitioner and further that the police prosecution did not properly re-charge the accused.

8. State in their submissions conceded to the grounds of appeal.

9. In Case No. 1689/2008 in the Magistrates Court the petitioner was discharged by the Learned Magistrate for want of the complainant to give evidence.

10. Thereafter Case no. 3367/2008 was filed on the same charges. Summons issued in Case No. 3367/2008 was dated 21/5/2008. By 21/5/2008 the petitioner was not even discharged from proceedings in Case no. 1689/2008 as the discharge order was made on 30/5/2008. Therefore it is clear that the Magistrate's Court has used the same summons issued in Case No. 1689/2008 to be served in Case No. 3367/2008, which could not have been done as proceedings in Case No. 1689/2008 was concluded on dismissal.

11. In terms of Section 77 (2) of the Criminal Procedure Decree, every summons shall be served within 12 months of the date that is issued. The date of issue of the summons in question is 21/5/2008 and it had been served in year 2010 well after 12 months. However, as said before, the same summons issued in Case no. 1689/2008 could not be issued in Case no. 3367/2008.

12. Therefore the Learned Magistrate has erred when decided that the summons had been properly executed and that the police have followed the proper procedures to recharge the accused under the old summons which had been not withdrawn and cancelled. Hence the grounds of Appeal 1 – 6 should succeed.

13. Therefore Criminal Case no. 3367 of 2008 in the Navua Magistrates Court is dismissed. The ruling of the Learned Magistrate is quashed.

Appeal Allowed.

Priyantha Fernando
Judge

At Suva
15th November 2011