HALIFAN ABDALLAH v THE REPUBLIC 1986 TLR 226 (HC)

HALIFAN ABDALLAH v THE REPUBLIC 1986 TLR 226 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

15th May, 1986. D

MISCELLANEOUS CRIMINAL CAUSE 15 OF 1986

Flynote

Criminal Practice and Procedure - Bail - Whether an offence of robbery with

violence is bailable -S.148(5)(e) Criminal Procedure Act, 1985 E

-Headnote

This was an application for bail pending trial under s. 149 of the Criminal Procedure

Act, 1985. The accused F were charged with the offence of robbery with violence.

The resident magistrate refused them bail arguing that the offence was not bailable

under s.148(5)(e) of the Criminal Procedure Act, 1985. The only allegation in the

charge was that the accused "did use actual violence" against the victim of the alleged

offence. G

Held: (i) Subject to the statutory restrictions contained in s. 148 of the Criminal

Procedure Act, 1985, the offence of robbery with violence is bailable;

(ii) from the wording of s.148(5)(e) a person can only be denied bail if the

"actual violence" or assault H constituted "a serious assault";

(iii) in the present case it has not been alleged that "actual violence" amounted

to "a serious assault."

Case Information

Application granted. I

1986 TLR p227

CHIPETA J

Case referred to A

1. Abdul Nassor v R. 1 TLR (R) 289.

[zJDz]Judgment

Chipeta, J.: On 7th May, 1986, I granted the applicant's application for bail pending

trial and reserved my reasons for doing so. B

The applicant and two others stand jointly charged with the offence of robbery c/s

285 and 286 of the Penal Code, in Tabora District Court. When they first appeared

before the District Court, the Republic had no objection to bail. However, the

learned magistrate remanded them in custody, and in doing so he stated: C

"On second thought I would think a proper interpretation of section 148 of the

C.P.A. makes me hesitate to grant bail to the accused." D

From the provisions of section 148 of the Criminal Procedure Act, 1985, it is plain

that subject to the statutory restrictions contained in that section, the offence of

robbery with violence is bailable. The restriction which the E learned resident

magistrate had in mind, it would seem, is paragraph (e) of subsection (5) of the said

section which reads:

"(5) A police officer in charge of a police station, or a court before whom an

accused person is brought/appears, shall not admit that person to bail if..... F

(e)the act or any of the acts constituting the offence with which a person is

charged consists of a serious assault on or threat of violence to another person, or of

having or possessing a firearm or an explosive; (Emphasis added). G

In the present case, the question of possession of a fireman or an explosive does not

arise as there is no allegation to that effect. Equally, as rightly pointed out by Mr.

Mussa, learned state attorney, threat of violence does not H arise either in that it is

not alleged that there was threat of violence. The only allegation in the charge is

that the applicant and his colleagues "did use actual violence" to the victim of the

alleged offence.

From the wording of the provisions under consideration, a person can only be denied

bail if the "actual violence" I or assault constituted, in the words of the paragraph, "a

serious assault". In other words, it is not every assault or "use of actual violence" that

1986 TLR p228

would deprive an accused person of his general right to bail. The assault must be of a

"serious" nature. A

The question then arises: what is meant by the expression "a serious assault"? In my

view, those words should be given their natural and ordinary meaning. Those words,

in my view, mean an assault that at least causes B serious bodily hurt or harm,

though not necessarily grievous harm as defined in section 5 of the Penal Code.

In the present case, it has not been alleged that the "actual violence" amounted to "a

serious assault" as defined above. It might have been a mere battery.

On the basis of the foregoing, I take the view that the applicant ought not to have

been denied bail on the basis of C the provisions of section 148 (5) (e) of the

Criminal Procedure Act, 1985. The learned magistrate, therefore, and with respect,

ought to have been guided by general principles applicable in bail applications. In the

absence D of any statutory restriction, the test in a bail application is whether the

granting of the application will be detrimental to the interests of justice and good

order and the keeping of public peace. (See Abdul Nassor v R. 1 T.L.R. (R) 289, at

page 293).

Here, the learned state attorney, to whom I am indebted as a result of his lucid

submissions, did not object to the E application; and from the applicant's affidavit, I

am persuaded that granting the application would not be detrimental to the interests

of justice and the keeping of public peace.

It was for the foregoing reasons that I granted the application on terms contained in

my order. F

Application allowed.

1986 TLR p22