Director of Public Prosecutions v. Phillipo Crim. App. 118-M-71; 29/6/71; El-Kindy Ag. J.

 

Director of Public Prosecutions v. Phillipo Crim. App. 118-M-71; 29/6/71; El-Kindy Ag. J.

The respondent was charged with assault causing actual bodily harm c/s 241 of the Penal Code. The charge was dismissed and the respondent acquitted under section 198 of the Criminal Procedure Code. The D. P. P. appealed against the order of the trial court. The record of proceedings before the Magistrate read as follows; Pros; Complainant was around here but has now disappeared. I wonder if the provision lay down in section 198 C. P. C. could apply. Order: It appears that complainant who is the important witness in this case is not interested in this case and that is why he has absented himself from Court. Therefore under section 198 C. P. C. the charge is dismissed and accused is acquitted.

            Held: (After quoting the provisions of section 198 C. P. C.) (1) “….. one Karim, who was referred to in this case as the “complainant”, in a Sworn affidavit, said that he was neither Served with a Summons to give evidence on the date fixed for hearing nor was he in the vicinity of the Court as alleged by the public prosecutor. This evidence is not challenged. I accept it ……… even if it was accepted as it seemed to have been accepted by the appellant that the witness-victim Karim, was the complainant, although I do not accept this interpretation, the order …… was misconceived in that, inter alia; the magistrate did not satisfy himself that Karim was served with a Summons or not or by any other reasonable means.” (2) “In my view the provisions of section 198 of the Criminal Procedure Code apply to complainants. For the sake of convention the victim of crime has often been referred to as the complainant in practice and this position was commented on in the case of R. v. Ranilal Pandit, Arusha Registry Cr. App. No. 71 of 1968 (unreported); but in fact the complainant is the Republic which, as it were, complains to the Court of Law when it files charges ……… or, where it is the case of private prosecution brought under section 87 of the Criminal Procedure Code Cap. 20, the person who complained and who is permitted to prosecute his case. therefore, strictly speaking, the  complainant as represented by the Public Prosecutor was present and in attendance on the date fixed for hearing and the person who was alleged as absent was the alleged victim who was a mere witness in the case.” (3) Order of district Court set aside and a direction made that case be returned to the said Court for proceedings to continue according to Law.