R. v. Mashauri Crim. Rev. 19-M-72; 22/3/72; Kisanga, Ag. J.

 

R. v. Mashauri Crim. Rev. 19-M-72; 22/3/72; Kisanga, Ag. J.

The accused was charged with burglary and stealing contrary to Sections 294 (1) and 265 respectively of the Penal Code. At the close of the prosecution case the trial court addressed the accused in terms of Section 206(1) of the Criminal Procedure Code whereupon the accused elected to defend him on oath and had not witnesses to call. The matter was then adjourned to another date for defence case. The accused in the meantime escaped from the Remand Prison and therefore he did not appear on the appointed date. The case was thus adjourned several times On the last occasion it came up for mention before a magistrate other than the magistrate who tried the case and on application by the prosecution that magistrate allowed the withdrawal of the charge under section 86 (a) of the Criminal Procedure Code. Some 6 months later

The accused was traced, re-arrested and brought before the court. The magistrate who had tried the case was in doubt whether he could continue to hear the case after the charge was withdrawn and thus the record was referred to the High Court to consider the propriety of the order of the subsequent magistrate allowing the prosecution to withdraw the charge Section 86(a) as indicated above. For the Republic it was contended that once the accused called upon to make his defence, the Magistrate could no longer allow the prosecution to withdraw under Section 86(a) because that sub-section allows withdrawal from the prosecution only if the application to do so is made before the accused is called upon to made his defence therefore the High Court should set aside the order of the magistrate granting leave to withdraw as being erroneous and remit the case banc to the District Court had not been made.

            Held: (1) “I think that the expression ‘……before the accused person is called upon to made his defence… Which occur in Sub-section 86(a) should not be construed literally; it should be construed in such a way as to give that sub-section its true meaning. It seems to me that that expression should be construed to mean ‘when the accused has not in fact said something in answer to the charge’ and the true test to be applied is whether the accused has made his defence known to the court such that without such a reply or defence the matter before the court could not be determined on its merits. It should be noted that where the accused is called upon to make his defence and he says that he does not wish to say anything, this is his reply to the charge. At that stage the defence position is known and the court can proceed to determine the case on its merits, so that the prosecution could no longer withdraw under Section 86(a) Thus I am of the view that the present case fell within Section 86(a) of the Criminal Procedure Code and that the order of the court permitting the prosecution to withdraw under that provision was properly made.” (2) “To my mind such withdrawal from prosecution under Section 86(a) puts an end to the particular complaint or charge. It means that the complaint or charge is no longer before the court and consequently the accused is discharged. Hence it would seem that there could be no suggestion that this court should make an order directing the trial court to continue the proceedings because at the moment there is not complaint or charge laid before the court against the accused. I therefore think that the course open to the prosecution now is to bring a fresh charge against the accused. Under the same Section 86(a) the prosecution would be entitled o do this because the discharge of the accused in the circumstances did not operate as a bar to subsequent proceedings against him on account of the same facts. Accordingly the case is remitted back to the lower court with a direction that the accused by arraigned afresh on a fresh charge to be filed by the prosecution.