REPUBLIC v SEMPETO VINCENT 1985 TLR 202 (HC)

REPUBLIC v SEMPETO VINCENT 1985 TLR 202 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

April 21, 1982

CRIMINAL REVISION 8 OF 1981

Flynote

Criminal Practice and Procedure - Reconciliation - Power of the court to order E

reconciliation in lieu of penalty - Whether court may order reconciliation in respect

of a felony - Criminal Procedure Code, s. 134.

-Headnote

The accused, aged 12, pleaded not guilty to a charge of doing grievous harm contrary

to F s. 225 of the Penal Code. On the day fixed for hearing, the court, endeavouring

to foster reconciliation under s.134 of the Criminal Procedure Code, ordered stay of

the proceedings pending the outcome of the reconciliation. In the end, the court

ordered G payment of sh.300/= as compensation by the accused's father. The High

Court revised the proceedings.

Held: (i) The offence of doing grievous harm contrary to s. 225 of the Penal Code is a

H felony and therefore it is outside the scope of those offences in respect of which

the court may promote reconciliation in lieu of a penalty;

(ii) the court had no power to promote reconciliation in this case and

therefore the trial court magistrate, his good intentions notwithstanding, acted in

excess of I jurisdiction;

1985 TLR p202

Case Information

Order accordingly. A

No cases referred to.

Editorial Note: The Penal Code (Amendment) Act, No. 14 of 1980, s.2 abolishes the

distinction between felonies and misdemeanours 'in the Penal Code and any other

written B law." It is provided that any reference to a felony or misdemeanour shall

be construed as a reference to "an offence". However, this provision has some

practical problems. The learned judge makes no reference to this provision in this

case. It will also be noted for example that s.388 of the Penal Code provides for

punishments of accessories after C the fact to felonies and s. 389 provides for

punishments of accessories after the fact to misdemeanours. Many other examples

can be given to illustrate that the distinction between felonies and misdemeanours is

still of practical significance. D

Judgment

Sisya J.: On 16.2.81 the accused person, Sampeto s/o Vincent, a twelve year old

school boy, appeared before the District Magistrate, Pangani, and pleaded not guilty

to a single count charging him with doing grievous harm contrary to section 225 of

the Penal Code. Hearing was then fixed on 4/3/81 "in a juvenile Court". E

Hearing did not proceed as scheduled. Instead the learned District Magistrate made

the following order and I quote from the record of proceedings:

Order: The Court having explained to the parties the procedure of

reconciliation u/s 134 of F C.P.C. The parents have undertaken to go back and try to

be reconciled. So the trial is suspended pending the outcome of the conciliation.

Case to be mentioned on 25/3/81 and accused's bail extended.

On the date fixed for mention the complainant's father is recorded to have informed

the G District Magistrate that he and the mother of the accused had failed to agree

on the amount payable to him, apparently, as compensation. He wanted sh.300/=

whereas she was prepared to pay only a third of that. Finally, the learned Magistrate

made the H following order:

Sh.300/= to be paid by the accused's father within a period of 3 months from

now and should he fail to do so the amount shall be levied from him in the normal

manner. I

1985 TLR p203

SISYA J

Section 134 of the Criminal Procedure Code under which the learned District

Magistrate A purported to act provides as follows:

134. In the case of proceedings for common assault or for any other offence of

a personal or private nature not amounting to felony the Court may, if of the opinion

that the public interest B does not demand the infliction of a penalty, promote

reconciliation, and encourage and facilitate the settlement, in an amicable way, of the

proceedings on terms of payment of compensation or other terms approved by the

Court, and may thereupon order the proceedings to be stayed. C

The offence of doing grievous harm contrary to section 225 of the Penal Code is a

felony and therefore it is outside the scope of section 134 of the Criminal Procedure

Code. Although, on my part, I have no doubt whatsoever as to the learned District D

Magistrate's good intentions in his endeavour to foster reconciliation between the

parties to this proceeding I, however, regret to say, which I must, that in doing what

he did the learned District Magistrate acted in excess of jurisdiction. He simply had

no power to promote reconciliation in this case where the offence allegedly

committed is a felony. E The end result is that all his exercises towards

reconciliation were a nullity ab initio and they are hereby so declared. The same are

quashed and set aside.

I take judicial notice of the fact that the District Magistrate concerned, Mushumbusi

Esq., has since ceased to exercise jurisdiction in Pangani District by reason of transfer

to F another District. In the event it is hereby directed that the record should now

be sent back to Pangani with directions that the matter proceeds before any other

Magistrate of competent jurisdiction according to law.

G Order accordingly.

1985 TLR p204

A