DPP v JUMANNE RAJABU 1988 TLR 144 (CA)

 

DPP v JUMANNE RAJABU 1988 TLR 144 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Omar JJA, Makame JJA and Kisanga JJA

6 August, 1988

Flynote

Criminal Practice and Procedure - Discharges - Accused discharged under s. 225(5) of

the B Criminal Procedure Act - Whether discharge lawful.

-Headnote

This appeal is against the High Court ruling in which the respondent was discharged

C upon a charge of murder. The accused and six - co accused were still in remand

while investigations were being carried out. Mr. Tendwa for the appellant argued that

the High Court cannot apply s. 225(5) of the Criminal Procedure Act as it concerns

trials by D subordinate courts which in the case murder was not triable by a

magistrate. Kwikima, for the respondent, impressed on the court that if the

investigation was dragging the respondent cannot remain in remand indefinitely.

Held: Section 225(5) of the Criminal Procedure Act cannot be used to release a person

E who is unduly kept in remand pending the completion of investigations as to do so

would be inconsistent with the meaning of that provision.

Case Information

Appeal allowed. F

No case referred to.

Jandwa, for appellant

Kwikima, for respondent. G

[zJDz]Judgment

Omar, Makame and Kisanga, JJ.A.: This is an appeal by the Director of Public

Prosecutions against the ruling of the High Court in Miscellaneous Criminal Cause

No. 1 H of 1987, which discharged Respondent Jumanne Rajabu from the case of

murder facing him. Repondent's six co-accused awaiting P.I. like Rajabu were also

ordered to be discharged.

Appellant Republic represented by Mr. Tendwa, learned State Attorney, in arguing

his grounds of appeal said that discharge was confined to trial only and there was no

trial at I the District Court, only adjournments for more than a year. The Magistrate

could not

1988 TLR p145

OMAR JJA, MAKAME JJA AND KISANGA JJA

have discharged the accused person under section 225 (5) Criminal Procedure Act A

because there was no trial and the offence of murder is not triable by him. And High

Court cannot act under section 225 (5) Criminal Procedure Act because this provision

concerns trials by subordinate Courts (See part VII of the Criminal Procedure Act). B

High Court has inherent powers to grant bail but there was no "information" before

the High Court, therefore the case was not ready for trial yet.

Mr. Kwikima learned Counsel for the respondent who made his first application to

the District Court and then appealed to the High Court against the ruling of the

District Court C admitted that for him it was a shot in the dark because he felt if the

investigations were not ready or were dragging on indefinitely the accused person

cannot be made to suffer being in remand indefinitely. The Court must have powers

to rescue the accused person faced with this situation. D

We are of the considered view that the Republic can be persuaded by the Court to

withdraw the charge against the accused if investigations are not ready and the

accused is unduly kept in remand custody. But to invoke section 225(5) of Criminal

Procedure Act for this purpose is to misconstrue the meaning of this section. Neither

the High Court E nor the District Court in the circumstances of this case could have

used this particular provision of the law.

We order that the respondent who had been wrongly discharged be arrested and

remanded in custody together with his six co-accused so that they may await their

trial in this case. F

Appeal allowed.

1988 TLR p146

A