R. v. Sylvester s/o Kasigara, Crim. Rev. 9-M-72, 22/3/72, Kisanga, Ag. J.

 

R. v. Sylvester s/o Kasigara, Crim. Rev. 9-M-72, 22/3/72, Kisanga, Ag. J.

The accused was charged with malicious damage to property contrary to Section 326 (1) of the Penal Code. When he appeared in Court the Trial Magistrate formed the opinion that he was of unsound mind and consequently incapable of making his defence. Acting on the provisions of Section 164(1) of the Criminal Procedure Code he permitted the prosecution adduce evidence in support of the charge. At the close of the prosecution case he held that a case was made out against the accused. Then he proceeded to inquire into the unsoundness of mind of the accused and for this purpose he committed the accused to Kahama Government Hospital for observation. He went on to say that because the accused had not relatives or proper persons to take care of him the accused should be remanded in custody pending receipt of the medical report. The case was then mentioned several times and at the last occasion a report from the District Medical Officer was received in evidence which shows that the accused was of unsound mind. Pursuant to this report the Trial Magistrate ordered the accused person be detained at Kahama Prison and that the record be transmitted to the Minister for his further directions.

            Held: (1) “It seems that the correct procedure was not followed when ….. The Trial Magistrate remanded the accused in custody. The law applicable at that stage is contained in section 164(3) of the Criminal Procedure Code which provides; - ‘If at the close of the evidence in support of the charge it appears to the court that a case has been made out against the accused person it shall then proceed to inquire into the fact of the unsoundness of mind of the accused and for this purpose may order him to be detained in a mental hospital for medical examination or, in a case where bail may be granted, may admit him to bail on sufficient security as to his personal safety and that of the public and on condition the submits himself to medical examination or observation by a Medical Officer as may be directed by the Court.’ On reading that sub-section it seems clear that where the trial Magistrate in the exercise of his discretion decides not to release the accused on bail but to detain him for the purpose of the medical examination then he can only order the detention of the accused in a mental hospital. There is nothing in that subsection which appears to authorize the detention of the accused in a remark prison during such medical examination. I am therefore of the view that the order of the trial court remanding the accused in custody during such medical examination was irregular. However, I do not think that this error was fatal. It did not occasion a miscarriage of justice ………….” (2) “It should be noted that the trial Magistrate after finding the accused to be of unsound mind, properly acted under Section 164 (6) of the Criminal Procedure Code and remanded the accused in custody. For, that sub-section authorizes him to order the detention of the accused in safe custody in such place and manner as he may think fit. He also properly transmitted the record of the proceedings to the Minister”.