REPUBLIC v PALANGYO KAANANDUMI 1992 TLR 271 (HC)

 REPUBLIC v PALANGYO KAANANDUMI 1992 TLR 271 (HC)

Court High Court of Tanzania - Arusha

Judge Nchalla J

14 September, 1992 F

Flynote

Criminal Practice and Procedure - Charges - Dismissal - Order dismissing charge and

acquitting accused made before end of prosecution case - Whether proper - Effect. G

-Headnote

After the prosecution had informed the Court that investigations of a case were

complete they applied for a hearing date. When on two dates the prosecution could

not go on with the hearing the magistrate ruled that the accused had no case to

answer and acquitted him. On revision. H

Held: (i) Before a subordinate court can invoke the provisions of section 230 of the

Criminal Procedure Act in dismissing a charge and acquitting the accused, it must

first hear evidence from the prosecution side and at the close of that evidence, the

court I shall make a ruling supported by legal reasons to the effect that the

1992 TLR p272

NCHALLA J

evidence in question has established no case sufficiently to require the accused person

A to enter his defence;

(ii) the order of the presiding District Magistrate in acquitting the accused

under section 230 of the Criminal Procedure Act, 1985 was premature, hence quite

wrong and invalid.

Case Information

Order accordingly. B

Mlambo, for the republic

[zJDz]Judgment

Nchalla, J.: The accused one Pallangyo s/o Kaanandumi had been charged before C

Monduli District Court with a traffic offence in respect of reckless driving a motor

vehicle on a public road c/ss 42(l)(c) and 63(l)(b) of the Road Traffic Act No. 30/1973.

The charge facing the accused was filed in the trial subordinate court on 5/8/91, and

D on the same day the said charge was read over and explained to the accused who

pleaded not guilty to it. On that day the Public Prosecutor informed the court that

the investigation of the case was complete, and applied for a hearing date. The

presiding magistrate Mr. A.A. Ngowi, learned Senior District Magistrate, fixed the

case for hearing on 22/8/91, and accordingly adjourned the case. E

The record, however, shows that the case was called up for hearing on 16/8/91 instead

of the 22/8/91 to which it had earlier been fixed. No reason was recorded for this

abrupt change of the date of hearing.

Be that as it may, on 16/8/91 the Public Prosecutor reported to the court thus: F

I have no police file as the case is not shown in the case list.

It seems to me that the Public Prosecutor's submission on 16/8/91 was genuine and G

was well founded as, indeed, the case was not scheduled for hearing on that date, and

the Republic was not expected to have summoned its witnesses to appear to testify

before the court on that date, which was not a hearing date for the case. Naturally,

the H Public Prosecutor did not have the police file with him on that day in respect

of the case.

Mr. Ngowi, learned Senior District Magistrate, adjourned the case for hearing on

6/9/91, but did not make any order revoking his previous order which he had made to

the effect that the case be heard on 22/8/91. This means that there were now two I

subsisting but conflicting orders as to the date the case was supposed to come

1992 TLR p273

NCHALLA J

up for hearing. There was the order that the case be heard on 22/8/91, and the A

second order that the same case be heard on 6/9/91. This was a confusion for which

the presiding District Magistrate (Mr. Ngowi) was squarely to blame.

The case was not called up for hearing on 22/8/91, but was called up on 6/9/91 in

consonance with the second order of the court as follows: B

P.P.: I have no police file.

Then the court made the following order which has given rise to these revisional C

proceedings:

Court: The case is for hearing. No application for witness summons made to

court. The witnesses are resident of Monduli. There are no good reasons as to why

should the D prosecution not to proceed with the case as per section 223 C.P.A.

In this respect, the accused has no case to answer and as such he is hereby

acquitted under Section 230 Criminal Procedure Act. E

Right of Appeal explained.

Sgd. Ngowi, A.A. SDM. F

6/9/91.

From the above synopsis of the proceedings in this case, it is an elementary part of

criminal procedure for one to realize that the order of the presiding District

Magistrate G in acquitting the accused under section 230 of the Criminal Procedure

Act, 1985 was basically premature, hence quite wrong and invalid. What the

presiding magistrate did in this case was quite prejudicial, and therefore quite

injudicious. The provisions of section H 230 of the Criminal Procedure Act, 1985

cannot be invoked in a situation where there has been no hearing of the case at all.

The case before the trial court had not commenced hearing at all; no any evidence

had been adduced from either side. Under those circumstances, the trial court could

not act under section 230 of the Criminal Procedure Act, 1985 in dismissing the

charge and acquitting the accused. The I provisions of section

1992 TLR p274

NCHALLA J

230 C.P.A., are quite simple, clear, and straightforward; they require no legal A

qualification to interpret and understand them. They are those:

230. If at the close of the evidence in support of the charge, it appears to the

court that a B case is not made out against the accused person sufficiently to require

him to make a defence either in relation to the offence with which he is charged or in

relation to any other offence of which under the provisions of sections 312 - 321

inclusive of this Act, he is liable to be convicted, the court shall dismiss the charge

and acquit the accused C person. (underlining mine).

It is evident from the underlined part of the above quoted section that before a

subordinate court can invoke the provisions of that section in dismissing a charge and

acquitting the accused, it must first hear evidence from the prosecution side, and at D

the close of that evidence, the court shall make a ruling supported by legal reasons to

the effect that the evidence in question has established no case sufficiently to require

the accused person to enter his defence.

So, the presiding Senior District Magistrate in this case wrongly applied the E

provisions of section 230 C.P.A. that was a serious misdirection which is an error of

law which involved a miscarriage of justice on the prosecution side. Consequently,

the dismissal of the charge and the acquittal of the accused are wrong and invalid, the

same F are hereby quashed and set aside. It is further ordered that the case before

the subordinate court be heard de novo before another magistrate of competent

jurisdiction, preferably a resident magistrate. The accused be arrested forthwith and

be produced before the trial subordinate court at Monduli District Court to answer

the G charges for which he was wrongly acquitted. The record of the trial court be

remitted back to it together with this ruling/order for it to comply with that order

expeditiously.

H Order accordingly.

1992 TLR p275

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