R. v. Tribhon Gokaldas, Crim. Rev. 8-Z-66, 9/10/66, Saidi Ag. C. J.

 R. v. Tribhon Gokaldas, Crim. Rev. 8-Z-66, 9/10/66, Saidi Ag. C. J.

The accused was initially, charged with shop breaking and stealing, c/ss. 269(a) and 248(1) of the Penal Decree. When the case came for hearing, the prosecutor who had the case file and was to handle the case was not in court. For want of prosecution evidence the trial magistrate dismissed the charge and discharged the accused. The prosecutor was only out of court for a short while doing other work, and he appeared to try the case only a few minutes after its dismissal. When the present action was then herd, the charge being based on the same facts, the accused argued that the earlier dismissal was a bar to the present action. The trial magistrate held that the earlier dismissal was not a bar to the present action.

Held: (1) the Criminal Procedure Decree, Cap. 14, s. 184 reads: “the production of a copy of the order of dismissal, certified by the clerk or other officer of the court, shall  without other proof be a bar to any subsequent information of complaint for the same matter against the same accused person.” The language of section 184 clearly indicates that the present action was mis-conceived, and should have been dismissed by the court.

            (2) The prosecution adopted the wrong course in opening a fresh case in this matter. It should have petitioned the High Court for revision of the first dismissal order by the magistrate. Had it done so, it would have succeeded because the order of dismissal of the charge was made rashly, without allowing the Republic a reasonable period of time to find its prosecutor to present the case.