Victor Juma Shaaban v. R., Crim. Rev. 68-D-69, 14/7/69, Biron Ag. C. J.

Victor Juma Shaaban v. R., Crim. Rev. 68-D-69, 14/7/69, Biron Ag. C. J.

The accused was charged with stealing about 10.558/-. When he first appeared in court, he admitted stealing about 7,000/-. This was entered as a plea of “not guilty” and the hearing was adjourned to another date. Then followed numerous and long adjournments to enable the prosecution to prepare its case and gather enough evidence. Finally, the prosecutor asked for the case to be withdrawn under section 86 or the Criminal Procedure Code, which section reads: “86. In any trial before a subordinate court any public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal – if it is made before the accused is called upon to make his defence, he shall be discharged, but such discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts”. The accused’s counsel objected to this application, and submitted that the cause should proceed or that the charge be dismissed under section 205 of the Criminal Procedure Code, which reads: “205. if at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the charge and acquit the accused person.” The magistrate upheld the application made on the accused’s behalf and acquitted the accused under section 205 of the Code. The magistrate who purported to acquit the accused was not the same one before whom the accused had originally pleaded. On his discovering that the accused had his plea originally admitted to stealing Shs. 7,000/, he referred the matter to the High Court for necessary action and guidance.

Held: (1) “As is abundantly clear from the section, on such an application by the prosecution, all the court can do is to discharge the accused, and such discharge does not operate as a bar to subsequent proceedings on the same facts. It is thus abundantly clear that the court had no power to acquit the accused on an application made under section 86 on the Criminal Procedure Code.” (2) “It is clear from the wording [of s. 205] that the court can only acquit an accused if at the close of the evidence in support of the charge no case appears to be made out against him. In this case, no evidence at all was adduced, let alone was it closed, but an application was made for discharge under section 86 of the Criminal Procedure Code. The purported acquittal under section 205 of the Criminal Procedure Code was, therefore, ultra vires.” (3) Acquittal set aside, and the accused still remains charged with stealing the property, as laid down in the charge-sheet.