Basil v. R. Crim. App. 58-A-71; 18/6/71; Kwikima, Ag. J.

 

Basil v. R. Crim. App. 58-A-71; 18/6/71; Kwikima, Ag. J.

The appellant was charged with eight counts of forgery, uttering false documents, false accounting and stealing by public servant. Appellant was first brought to court on 2/7/70 but the trial did not commence until 15/10/70 and only after many adjournments for which no reasons were given except once when the prosecution said that the investigations were incomplete. When the trial did at last start, the prosecution sought leave to withdraw the case after calling no less than seven witnesses. The trial court did order a withdrawal under section 86 (a) of the Criminal Procedure Code and it is against this order that the appeal was lodged. It was argued on behalf of the appellant that since a court of law must act judicially such consent as was sought in this case ought to have been given with reasons. It was argued further that the court should not have allowed the withdrawal because the reason given was insufficient in law and in fact.

            Held: (1) “The reason given by the prosecution for withdrawal may have been insufficient in law and in fact. The interests of justice may have not been served and the consent to withdraw may have been given in a manner prejudicial to the appellant, but there was nothing which the court could have done in the circumstances. The cure for any failure of justice lay with the prosecution itself and not the court, in view of the provisions of section86 C.P.C. which states as follows: “In any trial before a subordinate court any public prosecutor may, with the consent of the court any public prosecutor may, with the consent of the court or on instructions of the D. P. P. at any time before judgment in pronounced, withdraw from the prosecution of any person …………” (2) The relevant section does neither call upon the court to give consent on being satisfied with the reason for the application nor does it call upon the prosecution to give any reason for the application at all. Although the discharge of the appellant would leave him with the possibility vest power in the court to remedy this apparent prejudice on the part of people like the appellant. (3) Appeal dismissed.