Joseph Rogenah v. R., Crim. App. 704-M-69, 9/1/70, Seaton J.

 

Joseph Rogenah  v. R., Crim. App. 704-M-69, 9/1/70, Seaton J.

The appellant, who was a Primary Court Clerk was charged with theft of Shs. 845/-, the property of the North Mara District Court which came into his possession by virtue of his employment. He was convicted and sentenced to 2 years imprisonment plus 24 strokes corporal punishment, the minimum penalty for this offence. It appears from the record that the appellant was twice charged for this same offence. He first came before the District Court in Criminal Case No. 161 of 1967. The case heard by the District Magistrate, Mr. M.A.S. Elbusayd, who recorded the evidence of several prosecution witnesses and, after calling upon the appellant in terms of s. 206(1) of the Criminal Procedure Code, recorded the evidence of the appellant and one defence witness. The trial court was then informed that the appellants’ two other defence witnesses were on safari. At the appellants’ request, the case was therefore adjourned for a fortnight and the appellant was allowed to remain at liberty on bail. When the trial court convened on the 21^st November, 1967, the Magistrate was informed by the prosecutor that the appellant was sick in Musoma Hospital. The case was again adjourned and thereafter there were several more adjournments owing to the absence of the appellant. On 22^nd January, 1968, as the appellant had been discharged from hospital but neither he nor his surety had appeared in court, the Magistrate ordered their arrest. On 6^th March, 1968, the appellants’ surety was brought before the court and his recognizance forfeited under S. 131(1) and (2) of the Code. As all attempts to trace the appellant had been unsuccessful, on 23^rd May, 1969, the prosecution applied to the District Court to withdraw the charge against him under S. 86(a) of the Code. The Court thereupon recorded that the charge was withdrawn under the said section but ordered that the arrest warrant should remain in force. The appellant was eventually arrested and brought before the court on 26^th June, 1969. By this time the former district Magistrate, Mr. Elbusayd, had already been transferred. The case came before another District Magistrate, Mr. F. A. Munyera, who decided to open a fresh case, No. 208 of 1969. The charge was read over again to the appellant who was required to plead thereto. Upon his pleading not guilty the case was adjourned to 10th July, 1969 and again to 11^th July, 1969, when evidence was presented for the prosecution before the District Magistrate, Mr. R. B. Bikongoro. A total of six prosecution witnesses were called who gave their evidence upon examination in chief but the appellant refused to cross-examine them as he had already done so in the previous case No. 161 of 1967. At the close of the prosecution, when called upon to make his defence, the appellant declined to do so. Judgment was delivered by the Magistrate, Mr. Bilongoro who, after analyzing the prosecution evidence, found the appellant guilty as charged.

            Held: (1) A charge can be withdrawn under s. 86(a), Criminal Procedure code, only when the accused has not been called upon to make his defence. In this case, that had already occurred. So the withdrawal under s. 86(a) was irregular. The charge could have been withdrawn under s. 86(b) but that would have involved a cutting the accused. (2) “When an accused person, charged with a felony, does not appear after an adjournment of his case, the trial court is authorized under s. 202 of the Code to issue a warrant of arrest. If, before the accused is brought to court at the resumed hearing the trial Magistrate has been transferred, the procedure to be followed is that set out in s. 196 of the Code [as amended; See G.N. 159/69]. It appears from the above-quoted section that it was within the discretion of the magistrate, who succeeded the former District Magistrate, Mr. Elbusayd, either to act on the evidence already recorded or to resummon the witnesses and recommence the trial. It seems the latter alternative was

Intended to be chosen in this case but the District Court went beyond the intent of S. 196 of the Code by opening a fresh case instead of continuing with the old one.” (3) “There were thus two errors or irregularities but were they such as to occasion any injustice to the appellant? The first error was to discharge the accused under S. 86(a) of the Code when he had already been called upon to make his defence. The prosecution application should properly have been made under S. 86 (b) of the Code whereupon the appellant would have been entitled to an acquittal. Had he been acquitted, he could have pleaded autrefois acquit under S. 139 of the Code if any attempt were made to try him again. He has been deprived of the right to plead autrefois acquit because of the error of the District court. However, I think it may fairly be said that the appellant himself occasioned the error by absconding before criminal Case No. 161 for 1967 was completed. Had he not done so, there would have been no need for an application by the prosecution for withdrawal. With respect to the irregularity in opening new case, No. 208 of 1969, instead o continuing with the old case No. 161 of 1967, the prejudice to the appellant has been caused by his refusal to cross-examine prosecution witnesses after have had already done so in the previous case or the make any offence. Had the old case, No. 161 of 1967, been recommenced or continued, the appellant would have had exactly the same rights and opportunities as those offered to him in the new case, No. 208 of 1969. His declining to exercise his rights or to avail himself of his opportunities may have arisen from a sence of grievance or injustice. Accordingly I am of the view that the proceedings in the case from which this appeal arises, No. 208 of 1969 would be declared a nullity. The conviction is accordingly quashed and the sentence set aside. The case is sent back to the District Court with instructions to re-open the old Criminal Case No. 161 of 1967 before a different Magistrate than Mr. Bikongor, who heard Case No. 208 of 1969. At the resumed hearing of Criminal Case No. 161 of 1967, the trial shall proceed according to S. 196 of the Code, with the appellant being informed of his rights under the proviso to that section.”