DIRECTOR OF PUBLIC PROSECUTIONS v NURU MASUD MGAWE 1984 TLR 266 (CA)

DIRECTOR OF PUBLIC PROSECUTIONS v NURU MASUD MGAWE 1984 TLR 266 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Kisanga JJA and Omar JJA

February 21, 1986

CRIMINAL APPEAL 51 OF 1984 D

Flynote

Criminal Practice and Procedure - Withdrawal of prosecution under s. 86(a) Criminal

Procedure Code - Withdrawal by public prosecutor - Whether consent of court to

withdrawal necessary. E

-Headnote

The respondent was charged in court on 15.12.81 and on 12.8.83 the public

prosecutor stated that he was unable to trace the police file and applied to withdraw

the charge under s.86(a) of the Criminal Procedure Code. The trial magistrate refused

his consent to such withdrawal and dismissed the case F under s.201 of the Criminal

Procedure Code and dismissed the accused.

On appeal to the high court the learned judge held that the trial magistrate had power

to dismiss the charge and acquit the accused under s. 205 not under s. 201 of the

Criminal Procedure Code but that the error was curable. G

On further appeal it was argued before the Court of Appeal that withdrawal of a

charge by a public prosecutor under s. 86(a) does not need consent of the trial court.

H

Held: (i) According to section 86(a) a public prosecutor is entitled as of right, on the

instructions of the Director of Public Prosecutions, to withdraw from the prosecution

of any person;

(ii) the provisions in sections 201, 202, 205 or 198 of the criminal Procedure

Code have nothing to I do with the provisions in section 86 of the Criminal

Procedure Code.

1984 TLR p267

MUSTAFA JA

Case Information

A Order accordingly

No case referred to.

[zJDz]Judgment

B Mustafa, J.A. delivered the following judgment of the court: This is an appeal by

the Republic. In the Magistrate's Court the respondent herein Nuru Masud Mgawe

was charged with causing death through dangerous driving contrary to sections 40(1)

and 63(2)(a) of the Road Traffic Act No. 30 of 1973.

C The commencement of the trial was inordinately delayed, mainly because the

prosecution was unready or without its file. The respondent was charged in Court on

15.12.81, and on 12.8.83 the Public Prosecutor stated that he was unable to trace the

Police file and applied to withdraw the charge under section 86(a) of the Criminal

Procedure Code Cap. 20 of the Laws. The Magistrate in D his ruling stated inter alia

"I object to the prosecution's prayer of withdrawal under Section 86(a) of Criminal

Procedure Code and dismiss the case under section 201 of Criminal Procedure Code

and discharge the accused".

E The Republic appealed against that order to the High Court by way of revision.

The Judge (Bahati, J.) dealt with the matter in great detail and referred to Sections

198, 202 and 205 of the Criminal Procedure Code as well. He also referred to a

number of decisions of the High Court, which seem to be in conflict. In the result the

Judge held that the Magistrate had power to dismiss the F charge and acquit the

accused under section 205 of the Criminal Procedure Code, not under section 201 of

Criminal Procedure Code. He held that the error is curable and he upheld the

Magistrate's order.

With great respect to the trial Magistrate, the learned Judge and Mr. Kapinga who

appeared for the G respondent before us, the interpretation of section 86 Criminal

Procedure Code is a comparatively simple matter. It seems to us that both the courts

below confused the issue of withdrawal from prosecution by the Republic with

applications for adjournment, and indeed there are passages in the H judgments

below which equate applications for withdrawal with adjournment applications.

Section 86 of Criminal Procedure Code reads:

In any trial before a Subordinate Court any public prosecutor may, with the

consent of the court or on the I instructions of the Director of Public Prosecutions,

at any time before judgment

1984 TLR p268

MUSTAFA JA

is pronounced, withdraw from the prosecution of any person, and upon such

withdrawal: A

(a) if it is made before the accused person is called upon to make the

defence, he shall be discharged, but such discharge shall not operate as a bar to

subsequent proceedings against him on account of the same facts. B

(b) if it is made after the accused person is called upon to make his defence,

he shall be acquitted.

Section 80A gives the Director of Public Prosecutions powers to discontinue criminal

proceedings at C any stage before judgment, and such powers are exercisable by him

in person or any officer subordinate to him acting under his general or special

instructions.

Section 2 of Criminal Procedure Code defines a public prosecuter as any person

appointed under section 84, and the Attorney General and other judicial officers. D

Section 84 relates to the appointment of Public Prosecutors.

In the Magistrate's Court a Public Prosecutor appeared for the Republic. E

According to section 86(a) a Public Prosecutor is entitled as of right, on the

instructions of the Director of Public Prosecutions to withdraw from the prosecution

of any person. The consent of the court is needed only for instance in the case of a

Private Prosecutor.

The provisions in sections 201, 202, 205 or 198 Criminal Procedure Code have

nothing to do with the F provisions in section 86 of the Criminal Procedure Code.

It is clear that the trial magistrate erred in refusing the application to withdraw by the

Public Prosecutor, and the judge was also in error in upholding the magistrate's order

to acquit the respondent in the circumstances. G

We allow the appeal of the Republic, set aside the order of the magistrate dismissing

the case and discharging the accused (i.e. respondent) and substitute therefor an order

allowing the application by the Public Prosecutor to withdraw from the prosecution

under section 86 of the Criminal H Procedure Code Cap. 20.

Order accordingly. I

1984 TLR p269

A