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State v Chand [2011] FJMC 42; CRC427.2007 (14 March 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 427/07

BETWEEN

THE STATE

AND

DINESH CHAND

JUDGEMENT

1. The accused in this case is charged with two counts under the Telecommunications Act. The statements of offences and particulars of offences are as follows;
   

First count

Statement of offence

Sending indecent messages by telecommunication: Contrary to Section 30(a) of the Telecommunications Act.

Particulars of offence

Dinesh Chand s/o Bhagwaan Dutt between 13th December 2006 to 24th January 2007 at Lautoka in the Western Division did send message by telecommunication which was indecent to Vinita Chand d/o Ambika Prasad which caused annoyance to Vinita Chand.

Second count

Statement of offence

Persistently making telephone call: Contrary to Section 30(c) of the Telecommunications Act.

Particulars of offence

Dinesh Chand s/o Bhagwaan Dutt between 13th December 2006 to 24th January 2007 at Lautoka in the Western Division did persistently make telephone calls to Vinita Chand d/o Ambika Prasad without reasonable cause.

2. The case was instituted on the 23rd July 2007 and was taken up for hearing on the 30th June 2010. The accused was unrepresented. The Prosecution was conducted by a Police Prosecutor. The Prosecution called four witnesses and after the prosecution case was closed, the Court held that there is a case for the accused to reply. The accused gave evidence and a defence witness was also called.
   
3. Before analysing the evidence it would be worth while to ascertain the scope of the two charges. Section 30 of the Telecommunications Act reads out as follows;
   

"If any person;

(a) sends any message by telecommunication which is grossly offensive or of an indecent, obscene or menacing character;

(b) sends any message by telecommunication which he knows to be false for the purpose of causing annoyance, inconvenience or needles anxiety to any other person or

(c) persistently makes telephone calls without reasonable cause and for any such purpose as aforesaid,

he shall be liable on conviction to imprisonment for a term not exceeding three months or to a fine not exceeding one hundred dollars or to both such imprisonment and fine."

4. It appears that the accused is charged in two counts for the same offence. On the plain reading of the Section 30(c) reveals that a person can be charged under that section only if he commits the offence for any such purpose mentioned in Section 30(a) or 30 (b). Section 30(c) does not say "persistently makes telephone calls without reasonable cause or for any such purpose as aforesaid'. It says without reasonable cause and for any such purposes mentioned in Section 30(a) or 30(b).
   
5. Therefore once an accused is charged under Section 30(a), I do not think that he can be charged under Section 30(c) again for the same transaction. On the other hand, the second count is defective in any event, since it does not specify for which purpose he made persistent calls. In the above circumstances I decide to acquit the accused from the second count.
   
6. The Complainant, Vinita Chand gave evidence that she received four calls form the accused. She said her phone number was 6666853. The evidence she gave with regard to the dates she received those calls can be set out as follows;
   

13th December 2006 – "That day that man asked me whether that house belong to a mechanic. My husband is a mechanic. Before he was a Special Sergeant."

11th January 2007- "That day that man told me he knows me very well and he wants to have an affair with me."

23rd January 2007 - "On that day he said he know me very well and said he wants to have an affair with me. Then he told me what I was wearing. He told me he saw me wearing clothes in the morning. He told me I look nice and he told me he likes to take me to a hotel to have sex with me. He said he likes to have different styles of sex which my husband does not do at home. I told him I will go out with him only if I know your identity."

24th January 2007 - "Again he asked me whether he could take me out. I told him I want to know his identity. That day he told me his name. He told me his name as Dinesh Chand."

7. The Complainant said that she spoke with the accused with the knowledge of her husband to find out who he is. She said on the 24th the matter was reported to the Police and made an application to obtain a report from the Telecom. The Complainant further said that she went to the accused person's house with her husband to inform about this to the accused's wife. The Complainant said when she got the report from the Telecom she rang the accused person's house to tell her wife about the report. She said then the accused answered the phone and she recognized the voice as the same of the person who was calling her.
   
8. A witness from the Telecom gave evidence. He said that there are four calls originated from number 6651322 on the dates mentioned by the Complainant. He said the number is registered under Mr. Dinesh Chand. He said the four calls were given to the number 6666853.
   
9. The accused gave evidence. Yet he was not able to put forward any defence. The accused cross examined all the prosecution witnesses. But he could not challenge the credibility of the witnesses or could not create any doubt in the prosecution case. At least the accused could not give an explanation regarding the calls which were originated form his number, if it was not him. The defence witness said the accused used to work with him. However he could not testify with certainty whether the accused was at work place on the dates on which the accused is alleged to have made the calls.
   
10. Section 2 of the Telecommunications Act defines a "message" as any communication sent or received or made by telecommunication or given to a telecommunication officer to be sent by telecommunication.
    
11. The word telecommunication is defined as "any system for the transmission, emission or reception of signs, signals, writings, images, and sounds or intelligence of any nature by wires, radio, visual or other electro magnetic systems."
    
12. The words uttered by the accused over the phone seem to be nothing less than indecent in nature in a civilized society. Further I am satisfied about the identity of the accused. The Complainant gave evidence of a positive recognition of voice apart from the evidence given by the Telecom officer.
    
13. I am satisfied that the prosecution proved beyond reasonable doubt that between 13th December 2006 to 24th January 2007 the accused made telephone calls of indecent nature to the Complainant.
    
14. Accordingly I convict the accused for the first count.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka

14.03.2011