Yasin s/o Selemani v. R., Crim. App. 457-D-69, 1/10/69, Georges C. J.

Yasin s/o Selemani v. R., Crim. App. 457-D-69, 1/10/69, Georges C. J.

The appellant was convicted of burglary c/s 294(1) and theft c/s 265, Penal Code. He had broken into the house of a woman prison officer and made off with various articles, including eight mini-skirts, a school-leaving certificate, five photographs of boyfriend and Shs. 140/- cash. On appeal, a defence was advanced of “autrefoes acquit” that he had already bee tried and acquitted for the same offences. It appears that he had in fact been formerly charged for these offences in Primary Court, and had been acquitted due to the failure of the complainant to appear, under rule 24, Primary Courts Criminal Procedure Code. This provision, which corresponds to s. 198. Criminal Procedure Code states: “Where a complainant fails to appear at the time and place appointed for the hearing of any charge, the court may dismiss the charge and acquit the accused person, unless it shall think proper to adjourn the hearing to some other day ……..” it was argued that an acquittal under this rule operated as a bar to further proceedings against the accused, by virtue of s. 138, Criminal Procedure Code.

            Held: (1) There appears to be no Tanzania authority on this subject. However there are a number of Kenya cases on the corresponding provision in the Kenya Criminal Procedure Code. In R. v. Juvani Nathu and Amrik Singh, (1944) 11 E.A.C.  62, the Court of Appeal stated in an obiter dictum that a dismissal for non-appearance of the complainant under s. 200, Kenya Criminal Procedure Code, was no bar to further proceeding. However there is a significant difference between the Kenya and Tanzania provisions. Whereas the Kenya section states that “the court shall dismiss the charge unless for some reason it shall think proper to adjourn the hearing of the case,” the Tanzania provision states that “the court shall dismiss the charge and acquit the accused.”  A reading the decision in the case makes it clear that had the Kenya section included the words” and acquit the accused”, the rule of “autrefois acquit” would have applied. At any rate, in a subsequent Kenya case, Re Application of Ajit Singh, (1959) E.A 782, the Kenya Supreme Court declined to follow the dicta in Jiwani Nathu, and adopted the following holding of Rudd J. in the lower court: “If the dicta in R. v. Jiwan Nathu and Amrik Singh be correct it would follow that notwithstanding that charge had been duly and properly dismissed under section 200, a 

Malicious complainant could repeatedly file complainants in the same terms as the original complaint and that the magistrate would be bound to frame a charge and issue a summons in respect of each complaint, notwithstanding that the complainant never appeared on any of the days on which the accused was summoned to appear …… I do not think that that can possibly be the correct legal position ….. Notwithstanding the dicta in the judgment in R. v. Jiwan Wathu and Amrik Singh I am respectfully inclined to the view that when a charge is dismissed that is the end of that charge or any resubmission of that charge unless the dismissal is in accordance with some provision of  law which provides that the a dismissal shall not have that effect or unless the court which orders the dismissal had power to dismiss on terms that the dismissal shall not prevent a fresh charge for the same offence in relation to the same facts being subsequently presented, which is not the case under section 200, Criminal Procedure Code ……..” There is East African authority, therefore, for the view that a discharge and acquittal for non-appearance of the complainant can support a plea of “autrifois acquit” (2) The position appears to be the same in India, as we see in Sohoni’s Code of Criminal Procedure, 13^th edition (1931), at pp. 858, and 613-614. “I think it has been accepted that the Criminal Procedure Code of Tanganyika was to a large extent based on the Indian Criminal Procedure Code and It is not unreasonable to assume that tin reproducing almost the exact words of that Code the framers of this Code must have been aware of the interpretation which had been placed on those words …….” (3) However, in English law it has sometimes been said that an acquittal on the merits is necessary to support a plea of autrefois acquit”. See for example, the dissent of Lusha J. In Haynes v. Davis, (1915) 1 K.B. 332. The majority there, however, held that no matter what the way a person obtains an acquittal he is entitled to protection from further proceedings. “I am of the view, however, that even within the principles set out by Lusha J. and acquittal under section 198 of the criminal Procedure Code or Rule 24 of the Primary Court Criminal Procedure Code, would be an acquittal on “the merits”. The magistrate before acting under this section would have had to consider whether or not he should adjourn the matter. If, having considered all the circumstances, he thought it not reasonable to grant adjournment then he would dismiss the charge and acquit the accused. He would then, in the words of Lush J., be ruling “upon the construction an act of Parliament that the accused was in law entitled to be acquitted as in law he was not guilty”, because the complainant had not appeared to prove the case …… I am much inclined, therefore, to hold that even on the principles underlying the English law of double jeopardy the accused would be entitled to succeed on a plea of autrefois acquit in circumstances such as those under consideration. The Primary Court Magistrate was undoubtedly competent to try the charge. From the moment the appellant appeared he was in peril of being convicted. The provision which permitted his acquittal could hardly be described as a technicality of law. Accordingly this appeal must be allowed. The appellant is to be released unless otherwise lawfully detained.” (4) “Magistrates should not, however, that the effect of  dismissing a charge under Rule 24 of Primary Courts Criminal Procedure Code of section 198 of the Criminal may well, in the final analysis, result in failure of justice. A complainant may not appear for reasons which are perfectly valid, and, an accused person as in this case, whose guilty could otherwise be clearly established, is released. The section should be used sparingly and adjournments should normally be granted unless it is clear

That the prosecution is delaying the final determination of the matter to such extent that it can be said that the accused person is being treated oppressively.”