19750321 TZHC Mwanza

HIGH COURT CRIMINAL APPLAL NO. 536/74 IRE DIRBGeOR OF PUBLIC PROSECUTION --AFPELLAHT DEOGIUMIAS FRARGIS - POELENT. CHARG-E: Reckless and negljgont acts c/s 233 (g) of the Penal Code Cap 16 of the laws as reviacci. JUIDGI hil KATITI, AG.J. This is err aopeal Ov the I)irector of Public Prosecution. The facts loading he this appeal, appear to ho that the respond.ent was provous1y lacing ane charge of attcnptcd murder in Criminal Case N0 1383 of 1973. The preliminary inouiry tas conducted and tht respondent was duly Committed to high court f or trial. Subsequently, however, the charge appear he have beo4l witidrawn under section 222 of the Criminal Procedure Code anda lesser charge above was preferred against the accusd respondent. Hence the accused was charged as above and charge was road over and explained to him on the 14th of Iie.y, 1974. The hearing was fixed for 16th July, 1974. On thid date the prosecutor prayed before the court that the magistrate 'who held the preliminary inquiry, try the case and accordingly the caso was adjourned to 13th August, 1974 for hearing and the case was betore rir. Nutaki. On the 13th of Augmat, 1974 2 the case came before Ur. Butaki for trial and one Ruth Clement recorded as the coripiainant suthiitod told the court that sIre was no longer interesteD, in the respondent being prosecuted and she. prayed that. •thc charge be dropped. It would appear that the prosecutor, could not make up iris mind ar he sought to consult his own srL ; ..eriors and hence the case s, adjourned again. The record as a whole, is silent on whether or not a decision by the prosecucion to witndraw from the prosecution under Section 86 (a) of the Criminal Procedure Code was ever nade. Subsequent ajournmonts appear to have boon made )intar alia because the police case file was missing. On the 15th of September, 1974 this case come be±'oro hr. Rugaimui.camu 1 the Dis'brici i.iagistr&.te. Again the prosecutor ha no Police case file • The magistrate a±'er a long prearible, in which as roviewed the causes . of adjournmcnts 1 pointing out that some adjourumenis have been made because the file was missing, proceed to show that this case has been pending for a long time and 'th:ut prosecution did not appear to ce ) tho need for finaiisthg it fast. Ho concluded that for the above reasons the com nlnint ,i should be considered as withdrawn and he acquitte d the respondent wrdor Section 2O The Director of Public Prosecution being inevitably agrievcd by this order, appeals to this courts contending that the magistrate's order acquitting —2- kz S - the accused under section 20- of tin. i,.J .C. wn incovoctunt in law. I1r. Ali State., Attornoy for Director ?e.biic Prosocution construcb.vcly CUbTL1IJtLa with ampAasis in -11 direction of the ground of appeal filed and I am indebted, for the submission he made. The question is therefore wieti -ier or not the magistrate I s order acquitting the respondent under section 200 of the Criminal Procedure Code was cc;iopetent in law. For completeness, I reproduce hereunder or below section 200 of the C,F.C. it reds:- "If a complainant at anytine before a final order is passe in any case under this part satisfio the court that there are sufficient grounds for permttipg him to withdraw hiq complaint, the court may penit him to withdraw the- same and shall thereupon acquit the accused. ' This section ord.inarly inte:preted means that it is the complainant who nay apply to the ccurrt to withdraw the complaint. The complaint's application must be veighty kith sufficient and convincing reasons and react show and satisfy the court that those grounds are sufficient to allow him to withdraw his complaint. In so dccding, the cour -U has discretionary power which it must exercise judiciay and once the court has alle.-'eJ the complainant to withdraw his complaint 9 then the accused must be discharged and' acquitted. The question is who is the complainant for the purpose of , this section? It is trto law that the complainant in Crinnal Prosecution is the Ropullin represented by the prosecutor or 'by the director of public prosecution. I come to this conclusion because of the provisions of section 87, 88, 89, and 85 of the C.P.C. Section 88 provide from the institution of Crithinal Proceed- ings in the court of law. These proceodngs are instituted by the making of a complaint before or by bringing before a magistrate a person arrested without warrant. This ccmplaiat is nomally signed by the poi.ice officer wo invariably is the person who makes the complaint before the court. Since that police officer in so doing is doing it for and on behalf of thcuhlic, it must be' the Republic which, has the locus stand to withdraw the complaint before a court. It therefore follows that this Republic cras't; be the cocip- lanant contemplated by seci;bon 200 of tao C.P.C. It may well be that you have a pilvaic prosecutor wno vmde the provisions of section 87 oi the 6.110, utitled to ndt t the rosecution when he has uecm peuitLd so to to by the court -3-- -, d .13. otwitIasTbanaIng tnis lie,is stLfl subject 'to 'tne powers of the public prosecutors and'thtir directions. Section 0 5 of the C.P.C. has then to say. ;n this regard.: "A pubijc arosècutor may appear and i1ead vi -bbout any written aathority before any court in which any case of which he has charge is under incuiry0 trial or appeal and if any private person instructs an advocate o prosecate in any such case 9 the public prosoutor may condact the prosecution and the vocate so instructed shall act therein under his directions." There are situations Whereby tho police or for that matter the DPP 4\ t declines to procoea.in wnicir case the victira insis s oii on procoed;' ing' privately. In such situa:t.ons I cannot say the coiopi:.ainant is the Republic as the Republic has already washed its hand of it. This shows that when tha complaint has been ,lo'ded 'by a private person, hi 8 prosecutiOn of the same is not dome, for on behalf of the Republic and invariabl; this takes place when the police have for certain rOasons decl -'LnedtO procecd On the a:bovo.provisions whereby proceedings have been institUted by Police or Puftlic Prose- cutor or DPP; the complainant contemplated by section 200 of the C.P.C. is the Republic Po. should avoid the corirLusion between be- tween complainant before the police and the complainant before the court of law. The 'sOtion does not contemplate withdrawal of comp- laint from the police but it contemplates withdrawal of the comp- laint from the court of law, to which the complaint has been lodged by the Republic, and not by the victim of the crime, \'flioSe only role in the court is of a prpsscaticn witness. In so concluding, my view his cemented by the case Director of public Prosecutions vs. Philipo (1971) "H.0.D. i\To.295 in v'rhich El-Kindy, Acting Judge (as flu t inn was) construed socom 198 of the C.P.C. whose meaning of complainant is to my mind not diffe- rent from one meant for the same in section 200 of the 0.0 C. He approvingly applied the case of P. vs. Ranilal Fandit Aruteha registry criminal appesi No. 71 of 1968 (unreported) He relevantly hold in PhillipOs case (supra) as hereunder:- 'In my view the provisions of section 198 of the C.P.C. apply to complainants. For the sake of convention the victim of a crime has often been referred to Is the complaint in practica and this position was ocnaiented on (case çuotod above) but infact the complainant is the republic which as it were cenp1,ins to the court of law when it files charges ......-or / whore it is in th cas f Iriva1 prosocation reu4at undeec;:.Len 2 7 Of the 0.i-C. tho perSon - - who d a lain:d and \..Thc is permitted to prosecute his case Therefore, strictly speaking, the ac ainaut is r rescnted by the republic • prosecater :as piesent and in attendance on the data fixod far arinf ci the person orho was the alleged victiinuas a -acre witness in the case." Coining back to the case in point, it is observed that no complainant over made an appljcation to withdraw th complaint, and it would appear obvious on this same record that the magistrate thend.ealing with the case acted on his own . initiat-ive, Consideriflg - hoever, that no application was over madf icr or by the complainant to withdraw the complaint uader section 200 of thu C.F.C. and bear- ing in mind that section 200 of thu 0.2.0. does not give thO ::trial riistrato power to initiate withdraw of complaint himsel as he is not the complainant 9 I IiuJd that the nagistrate's order purporting to he mdo under this some- suctii - ii was incompetent in law. It was, therefore made without juridition and it is -therefore set aside. An order is hereby mado iha this record be sent back to the District Court for the coutinuaticn of trial. It is sc ordered. Delivered on the 21st day-of March,.l975. Sgd. E.W. KATITI AG. JUDGI.