D. P. P. v. Mohamedi s/o Lada., Crim. App. 135-D-71; 17/11/71; Onyiuke, J.

 D. P. P. v. Mohamedi s/o Lada., Crim. App. 135-D-71; 17/11/71; Onyiuke, J.

The respondent was charged on he 1^st count with fraudulent false accounting c/s 317 (c) and on Counts (2) and (3) with stealing by public servant c/ss 270 and 265 of the Penal Code. The respondent pleaded guilty to Count (1) and not guilty to counts (2) and (3). He was convicted on his own plea in Count (1) and was sentenced to 6 months’ imprisonment. The trial preceded in respect of counts (2) and (3). At the close of the case for the prosecution the learned Magistrate ruled that the respondent had no case to answer on those counts on the ground that he was not a person employed in the public service since the evidence showed that he was a secretary of a co-operative society and that a person so employed is not in the public service as defined by section5 of the Penal Code. He held that a prima facie case has not been made out for an offence under section 270 of the Penal Code. He stated however

That the facts would support a charge for an offence under section 271 but that since the respondent had not been charged under that section he had no power to convict him of that offence. He cited Joseph Selemani v. R. (1968) H. C. D., 484, to support his view of the law. In the final result the learned Magistrate discharged and acquitted the respondent on counts (2) and (3).

            Held: (1) “Section 206(c) of the Criminal Procedure Code provides that when a court is considering whether a case has been made out against an accused at the close of the evidence in support of the charge it should consider not only the offence with which an accused person was charged but other offences for which under Sections 181 to 189 of the Criminal Procedure Code the accuse was liable to be convicted although he is not specifically charged with one of these offences. In this case the respondent was charged with stealing under Section 270 of the Penal Code. To succeed under this section one must establish stealing defined in Section 265 in the first instance. A person charged with stealing contrary to section 270 of the Penal Code could be convicted of a simple stealing under section 181 of the Criminal Procedure Code although he was not charged with it.” (2) “The learned Magistrate should have ruled that the respondent had a case to answer for simple stealing contrary to section 206(c) of the Criminal Procedure Code for his defence.” (4) Appeal allowed and case remitted to District Court for it to take respondent’s defence and proceed to judgment.