Jaffer v. R. Misc. Crim. Cause 1-Dodoma-72; 25/2/72; Mnzavas, J.

 

Jaffer v. R. Misc. Crim. Cause 1-Dodoma-72; 25/2/72; Mnzavas, J.

The accused was charged with corrupt transactions c/s 3 (2) and (3) of the Prevention of Corruption Act No. 16 of 1971. His application for bail was rejected by the trial magistrate. The accused being dissatisfied with the ruling, appealed to the High Court contending that the trial magistrate had taken into consideration irrelevant factors such as to whether the applicant was a citizen of Tanzania or member of TANU. The prosecution had alleged (the magistrate did not examine the allegations) that the applicant would if released on bail, tamper with three prosecution witnesses and might even leave the jurisdiction of the court.

            Held: (1) “This was by any standards a gross misdirection by the learned district magistrate and, if I may add in passing, the worst I have yet to encounter. For the learned district magistrate to imply in his ruling that he was not prepared to grant bail to the applicant because the alleged offence fell under the Minimum Sentences Act, and because such offences involve civil servants is, to say the least, beyond my comprehension. Offences falling under the Minimum Sentences Act are bailable offences. When dealing with the question of bail where a scheduled offence

Is involved, as was in this case, the usual considerations whether to grant or refuse bail should apply. The fact that an alleged offence is one under the Minimum Sentences Act should not form the basis of a court’s ruling on the question of whether to grant or refuse bail. The magistrate is saying …… ‘and if the accused person is really citizen of Tanzania, he should have not offered the bribe as alleged, because it is said by the TANU PARTY, and I hope, the accused is also a member of TANU, that “I will not give or receive bribe.” So this should have been remembered before committing such an alleged offence’ (The emphasis is mine).

(2)”The primary object of remanding an accused in custody is to ensure that he will appear to take his trial and not seek to avade justice by leaving the jurisdiction of the court. This is, in my view, the main and most important consideration to be examined before an application for bail pending trial is granted or refused. In paraphrasing this main consideration there come such less important considerations as the nature and seriousness of the alleged offence, the severity of punishment involved and if available at the time of application for bail the strength of evidence in support of the charge. These are the considerations the learned district magistrate should have taken into account before coming to his decision. The learned district magistrate should know, and I hope he knows, that it is not part of our law to keep a man in goal because he is not a citizen of Tanzania or for that matter a member of TANU. To do so would be going counter to the very principles enshrined by TANU as well as the country’s constitution.”  (3) “Time and again this court has said that the true test of a bail application is whether the granting of the application will be detrimental to the interests of justice. It is for the prosecution to satisfy the court that this would be so if bail was granted. Dealing with the question of tampering with witnesses Wilson Ag. C. J. (as he then was) said in Bhagwaji Kakubhai vs. Rex ITLR page 143 ….. ‘The tests laid down (in English cases) were that there should be a definite allegation of tampering or attempted tampering with witnesses  supported by proved or admitted facts showing reasonable cause for the belief that such interference with the cause of justice was likely to occur if the accused was released’. In the present case there was no more than a mere assertion by the prosecutor that the applicant would interfere with prosecution witnesses if released on bail. There were also fears that he would abscond. There was no evidence whatsoever to support these hypothetical fears”. (4) “The learned district magistrate was clearly wrong in his ruling. I accordingly order that the accused be admitted to bail on his furnishing a bond of Shs. 5,000/= cash and two substantial and independent sureties in like sum as suggested by the learned state attorney. The court further orders the accused to surrender his pass-port to the police. The resident magistrate should see that the above orders are complied with before the accused is allowed on bail.”