REPUBLIC v SULEIMAN SALEH ALI 1985 TLR 96 (HC)

REPUBLIC v SULEIMAN SALEH ALI 1985 TLR 96 (HC)

Court High Court of Zanzibar - Zanzibar

Judge Ramadhani CJ

May 24, 1985

CRIMINAL REVISION 21 OF 1985 E

Flynote

Criminal Practice and Procedure - Charges - Withdrawal of - Withdrawal after the

accused has been called upon to make his defence - Effect of withdrawal - Criminal

Procedure Decree, Cap.14, s.81. F

Criminal Practice and Procedure - Charges - Withdrawal of - Duty of prosecutors to

give reasons for seeking to withdraw charges - Criminal Procedure Decree, Cap 14,

s.81.

-Headnote

The accused appeared before a magistrate's court charged with receiving by false G

pretences c/s 275 of the Penal Decree, Cap.13. The prosecution, having called four

witnesses, closed its case. Subsequently, the accused gave evidence, on oath, in his

defence and then the court adjourned to allow for his witnesses to come and give

further H evidence. Despite several more adjournments the said witnesses never

appeared and the court never came to hear them. Then suddenly, the prosecutor

applied for withdrawal of the charge under s.81(a) of the Criminal Procedure Decree,

Cap. 14, and I the magistrate readily granted the application. The High Court

considered this on revision.

1985 TLR p97

RAMADHANI CJ

Held: (i) Withdrawal of charges may be made under paragraph (a) of s.81 of the A

Criminal Procedure Decree, Cap 14, only if the accused person has not been called

upon to make his defence; if the accused has already been called upon to make his

defence, the withdrawal is done under paragraph (b) of the section, and the

consequence of the withdrawal is acquittal; as the accused in this case had already

made his defence, the appropriate provision for withdrawing the charge was s.81(b)

and not B s.81(a) of the Decree;

(ii) withdrawal of charges unders .81 of the Criminal Procedure Decree,

Cap.14, can be done in two ways. One is by the Attorney - General withdrawing a

charge or instructing that it be withdrawn, and the other is by the prosecutor

applying to C court for consent to withdraw the case; those two ways are not one

and the same;

(iii) the Attorney-General is the only public prosecutor with the privileged

position whereby he can withdraw charges without assigning any reasons and the

courts D must readily comply with his move; no other prosecutor enjoys that

privilege;

(iv) any public prosecutor, other than the Attorney-General wishing to

withdraw a case must give reasons for his intention, to do so and must seek the

consent of the court and, accordingly, the court must record those reasons and make a

decision, with its reasons, to accord or to withhold consent; E

(v) the practice of public prosecutors withdrawing charges without assigning

reasons and courts according consent as a mere formality, as happened in this case, is

improper and should cease. F

Case Information

Order accordingly.

Cases referred to:

1. R. v Jiwan Nathu and Another, [1944]11 E.A.C.A. 62.

2. The Queen v The Comptroller-General of Patents, G Designs and

Trade Marks, [1899] 1 Q.B. 909

3. Mwangi Macharia v R, [1959] E.A. 955

4. Re: Sadayan, 5 Mad. L.T. 216

5. Umesh Chunder Roy v Satish Chudra Roy and Others, 22 C.W.N. 69.

H

6. Rajani Kanta Sheha v Idris Thakur, 48 C. 1105

Judgment

Ramadhani, C.J.: The accused, Suleiman Saleh Ali, was charged with one count of

receiving by false pretences contrary to section 275 of the Penal Decree, Cap 13. It

was alleged that he had received an electric iron worth Shs.200/=. The I accused

denied this

1985 TLR p98

RAMADHANI CJ

charge. The prosecution adduced four witnesses and closed its case. The accused A

defended himself on oath. He said that he had witnesses but on the day that was

fixed for hearing them, they never turned up. So the accused requested the court to

summon them for him. The next time the case was to continue the accused himself

was absent. The public prosecutor applied for an arrest warrant. The case was

adjourned again B three more times but the accused was still at large. On the fourth

time the accused had been found. The prosecutor then requested the court to remand

the accused. That was 15th April, 1985. Then on the 27th April, when the case was

to proceed the Prosecutor C withdrew the charge under section 81(a) of the

Criminal Procedure Decree, Cap 14. The Magistrate granted the request.

Section 81 permits a prosecutor with the consent of the court or on the instructions of

the Attorney-General, at any time before judgment is pronounced [to] withdraw from

the prosecution of any person; D

If the prosecutor does so before the accused person is called upon to make his defence,

the withdrawal is under paragraph (a) where upon the accused is discharged but can

be re-charged. But if the accused has already been called upon to make his defence

the withdrawal is under paragraph (b) and the accused is acquitted: R. v Jiwan Nathu

& Another (1944) 11 E.A.C.A. A62 I will deal with this case later on. E

In the present case the accused had already made his defence on oath. The court was

awaiting his witnesses only. Therefore the appropriate paragraph was (b) and not (a)

as was requested for and granted by the magistrate. F

Apart from the foregoing discrepancy I feel there is a need to talk on this section 81.

There are two ways by which a prosecutor may withdraw a case. The prosecutor may

have instructions from the Attorney-General to withdraw a case. In such a situation

the court has no discretion but to discharge the case: The Queen v The G

Comptroller-General of Patents, Designs and Trade Marks [1899] 1 Q.B. 909, at 194.

Alternatively the prosecutor might have the consent of the court to withdraw a case.

In this case before me, the second method has been used.

My observation is that the courts have been treating these two alternatives as one and

H the same. Without any instructions from the Attorney-General, a prosecutor will

be allowed to withdraw a case. But as in the second alternative where the consent of

the court is required then the court has to satisfy itself of the appropriateness of the

application before granting it. Even in the case of The Queen v The I Comptroller-

General, the learned judge has said at page 914:

1985 TLR p99

RAMADHANI CJ

I do not say that when a case is before a judge a prosecutor may not ask the

judge to allow the A case to be withdrawn, and the judge may do so if he is satisfied

that there is no case... (emphasis is mine.)

It is obvious from the above quoted passage that the court is duty bound to hear the B

reasons of the prosecutor for the application to withdraw. When the court is satisfied

as to the reasons, only then would it grant its consent. It is essential that there be a

record of the reasons and the decision of the court instead of merely recording the

application and without any reasons at all recording the consent. C

I have not been able to find out any cases of Zanzibar on this point. Likewise my

efforts to obtain East African cases bore no fruits. I have seen only two East African

cases which have been reported. The first one was that of R. v Jiwan Nathu &

Another already cited. But that case dealt with the issue of which paragraph of

section 87 of the D Criminal Procedure Code of Kenya, which is in pari materia with

our section 81, was used and so whether the accused could be charged again or not.

The second one is of Mwangi Macharia v R. (1959) E.A. 955 which again is not on the

issue before me. Therefore I have to resort to Indian cases. E

There are two conflicting decisions that have been made by the Indian courts. First

In re Sadayan 5 Mad. L.T. 216 it was decided that it is not necessary that a magistrate

gives his reasons for granting his consent. Unfortunately these reports are not in the

Library therefore I have not been able to read the proceedings for myself. But in

another case of F Umesh Chunder Roy v Satish Chundra Roy & Others 22 C.W.N. 69

the High Court of India differed from that decision and the learned judges said at page

71:

The only prosecutor who may under the provision of the Code of Criminal

Procedure withdraw G from a prosecution without giving reasons is the Advocate-

General. No other Public Prosecutor is placed in that privileged position; and if the

consent of the Court is to be regarded as a ministerial act or merely an executive act

we do not understand why it should have been necessary for the legislature to insert

such a provision in the section of the Code H with which we are now dealing. It is

clear to our clear minds that in either withholding consent or in according consent

the Court is acting in a judicial capacity, and for its order as for every order judicially

made it ought to give and record its reasons. I

1985 TLR p100

This decision was followed in the case of Rajani Kanta Sheha v Idris Thakur 48 C. A

1105.

I am in agreement with their lordships. It is absolutely necessary that a Public

Prosecutor gives reasons for his application to withdraw and it is the duty of the

Court to record the same and to give its decision with its reasons. B

There was a need to follow the above prescribed procedure in the present case. The

accused was remanded for twelve days and then the Prosecutor applied for the

withdrawal of the case. Admittedly the accused person himself was at fault for not

making an appearance. But there was no new discovery made and the Public C

Prosecutor could have made the application immediately after the accused person had

made his defence on the 8th September, 1984 or even on the 12th September when

the witnesses of the accused did not turn up and when the case was adjourned to the

20th September when accused person himself became absent.

It is my hope that the present habit of the Public Prosecutor standing up and making

an D application for withdrawing a case under section 81 without giving any reasons

at all and for the Court according consent without discussing and being satisfied with

the reasons but making the whole thing a mere formality will cease. The Public

Prosecutor must give reasons and the Court must make a decision to accord or to

withhold its E consent giving its reasons.

Order Accordingly

1985 TLR p100

F