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Suva City Council v Mishra [2011] FJMC 154; Criminal Case 14.2011 (14 December 2011)

IN THE MAGISTRATE'S COURT AT SUVA
CRIMINAL JURISDICTION

Criminal Case no. 14/11

Suva City Council

v

Vipul Mishra
Kiran Mishra

For the Prosecution: Mr. Sahu Khan
For the Accused: Mr. Prakash & Ms Karan

RULING

This is a private prosecution initiated by the Suva City Council against the two Accused persons as the joint proprietors of the property at CT No. 12934 on DP 3348 at Lot 19 Boron Road, Suva.

The allegation is that on the 3rd of June 2010, both the offenders, after having been served with a Notice from the building surveyor of the Suva City Council to stop using the property for industrial purposes, namely illegal refrigeration works, failed to comply with such notice.

The charge originally named an additional person, one Wang Dimin, the tenant at the above property however he has subsequently been removed as an Accused person. It then transpired that the second Accused Kiran Mishra is no longer resident in Fiji and she has also been removed as an Accused.

The Accused entered a plea of not guilty to the charge.

The matter was fixed for trial on the 20th of October 2011 at 2:30 pm and on that date only Vipul Mishra remained to answer the charge.

The prosecution called three witnesses, all employees of the Suva City Council.

(i) Eric Singh – Senior Technical Assistant

(ii) Filipo Tawake – Graduate Trainee

(iii) Monit Lal – Senior Engineering Assistant

The following documents have been tendered for the prosecution: -

Exhibit 1 – Notice pursuant to the Town Planning Act dated 31st June 2010

Exhibit 2 – Statement of Eric Singh dated 3rd of May 2010

Exhibit 3 – Statement of Eric Singh dated 27th May 2010

Exhibit 4 – Statement of Eric Singh dated 3rd June 2010

Exhibit 5 – Statement of Eric Singh dated 25th August 2010

Exhibit 6 – Statement of Filipo Tawake dated 3rd May 2010

Exhibit 7 – Statement of Filipo Tawake dated 3rd June 2010

Exhibit 8 – Ten photos taken at the property

The Accused have filed written submissions and paragraphs 4.1 to 6.2 sets out an accurate summary of the testimony of these witnesses as well as their responses under cross examination. The Court adopts these portions of the submissions as a fair summary of the evidence recorded at the trial.

The elements of this charge as properly identified by counsel in their written submissions are as follows: -

(i) Was Vipul Mishra using the property at Lot 19 Boron Road in a manner that contravened the Town Planning Act, namely illegal refrigeration works?

(ii) Was Vipul Mishra properly served with the Notice to Desist?

(iii) Having been served with the Notice by the Council did he willfully persist in maintaining the illegal refrigeration works at Lot 19 Boron Road?

For service of Summonses, the relevant section is section 77 of the Criminal Procedure Decree 2009, which provides as follows: -

"Service of summons

77.—(1) Every summons shall, if practicable, be served personally on the person summoned by delivering or tendering to the person one of the duplicates of the summons.

(2) Every summons shall be served within 12 months of the date that it is issued.

(3) A court may extend the time for the service of any summons that is not served in accordance with subsection (2)."

When personal service is not possible, then the following provisions apply: -

"Procedure when service cannot be affected

79. If service in the manner provided by the preceding sections cannot be effected by the exercise of due diligence, the person serving it shall affix one of the duplicates of the summons to some conspicuous part of the house in which the person summoned ordinarily resides, and the summons shall then be deemed to have been duly served."

From the evidence that has been tendered in Court, it is clear that there was no personal service. Notwithstanding the fact that the Accused had informed the officers from the council to leave it at his chambers in Suva, this did not absolve them from serving him in accordance with the specific provisions of the Criminal Procedure Decree.

The evidence led by the Accused was largely uncontested – the property was rented by a third party to these proceedings, the person named Wang Dimin. He apparently used the premises for storage in direct contravention of his Tenancy agreement with Vipul Mishra. There is no evidence of any refrigeration business as alleged in the indictment before the Court. It is also established that Vipul Mishra is not resident in Suva at this address as his residential address is at Varadoli, Ba.

The Accused tendered the following documents into evidence: -

Exhibit 1 – zoning list for Suva residential areas

Exhibit 2 – tenancy Agreement between Vipul Mishra and Wang Dimin dated 1st February 2010

Exhibit 3 – Letter from Mishra Prakash & Associates to Wang Dimin

Exhibit 4 – Writ of Summons – civil action between Vipul and Kiran Mishra against Wang Dimin.

Analysis

After considering the evidence before the Court – it is clear that the prosecution has not been able to establish all the elements of the offence before the Court.

Service was defective as set out in the case of B. Kwan –v- Suva City Council [2000] FJHC 113.

The prosecution has also not been able to establish that the Accused Vipul Mishra was using the property for illegal refrigeration works as alleged in the charge.

In analysing the evidence before the Court therefore the prosecution has not been able to establish all the elements of the offence before the Court.

That being the case, it therefore follows that the Accused has no case to answer and is entitled to be acquitted.

Vipul Mishra you are acquitted and you are free to go.

28 days to appeal

U. Ratuvili
Acting Chief Magistrate

14th December 2011