19860221 TZCA Dar es Salaam

IN THE COURT Op AP?Ell,I., Op TANZANIA _,,_,,.,_ A'J' DAR ES SALAAM CRIMINAL APPEAL NO~ 51 OF 1984 THE DIRECTOR Op PUBLIC PR0SECUTI0Ns •••• APPELLANT AND NURU MASUD MGAWE. a . . . • • • • • •• RESPONDEN! (Appeal from the ruling of the High court ~f Tanzania at Dar es Salaam) (Bahatit J.) dated the 27th day of August, i984 in JUDGEMENT OF THE COURT MUSTAFA, ,!£._W J.A.: This is an appeal by the Republic. In the Magistrat,•1 Court the respondent he.rei.n Nuru Masud Mgawe was char9ed with cr;:iusing death througJ:-: dangerous drivingco-,contrary tt·~ sections 40(1) and 63(2) (a) uf the Road Traffic Act No. JO Of 19730 The commencement of the trial was inordina.tely delaye41, . mainly because the prosecuticn was unready Or with~ut itsfile. The respondent was charged 5.n court on 15.12 .81, and on 12.8.83 the Public Prosecut::,r. stated. that he was unable to trace the Police file and applied t.o wi t:hdraw the charge under section 86 (a) of the Cr:i.minal Proceud~re Code, Cap. 20 Of the Laws • . The Magistrate in h:is ruU.;:g stated inter alia "I Object t,:, "the prosecution's prayer of w:tthdr.aw under Section 86(a) of Criminal Procedure Code and dismiss the case under section 201 of Criminal, Procedu:::-e Cod-2 and discharge the accused". The Republic appealed that ord~r to the High Court by way Of revisiono The J 1,1dqe ,;Eah 0 ti, J.) dealt with the matter in gnat detail and referrec1 to Sections 198, 202 and 205 of the Criminal Procedure ~Ode as well. He also referred to a n\lfflber Of decisions of the Higl, C'.nuri:·., which seem to be in conf1to/ ooo-leoeo/2o . 2 - In the result the Judge held that the Magistrate had p•wer t• dismiss the charge and acquit the accused under section 205 •f the Criminal Procedure Code, not under section 201 of C~imiftal Procedure Code. He held that the error 1s., curable and he upheld the Magistrate's ~rder. With great respeet to the trial Magistrate, the leape• Jud9e and Mr. Kaptnga who appeared for the respondent "'•re u1, 1:1\e interpretatiQI ff section 86 Criminal Procedure <;ode 1, a cemy.~:.Fttively dmpie ft\atter. It seems' -to us that 1'0\11 the eeurts below cQnfu1ed the issue •f withdrawal from pres•~ by the Republic wi'tJ\ appU.c:ations for adjournment, ~d inr}.. :'"IQ ... th•~• are passages 1n -e judgements belew which equate epp11cations for withd~awa+ with adjournment applications, f Se~tion 86 et C~1m1"al Procedure Code reads: ''In any trial hefere a Subordinate Court any public i,reseeut•r 1may, with the consent of the court or on i;he instructions of the Direct•r Of Public Prosecutions, at any time before judg-rnent is p~onounced, withdrawa from the prosecution of any person, and upon such withdrawal - ·• (a) if it is made before the accused person is I I called upon to make the defence, he shall be discharged, but such discharge shall net operate as a bar to subsequent proceedings against him on account of the same facts (b) if it is made after the accused person is ca,lled -..ipOft to make his defence, he shall be acquitted". Section 80A gives the Director of Public Prosecutions ~- ,... powers to discontinue criminal proceedings at any stage before judgment, and such powe~s are exercisable by him in person ~r any office:subordinate to him acttn, under his general or speci3l instructions. Seetion 2 uf Criminal Prf!Cedure Code defines a public praseeuto..r as any person. appointed unde~ section 84, and the Attorney General and •ther judicial officers. ·····••13. -~ j I ' .... 3 - Section 84 relates to the appointment of Public Pr~$ecµto~:a~ tn the Magistrate~ s Court a Public Prosecutor ~ppeare.4 f•r tile Republic. Acc:o.rding to Set:tion 86{a) a Public Prosecutor is e11,f,tl,eC a• Of -right, on the instructions of. the Direct,{ •f Pu1ti"1: Elrosecutions to withdraw from the prosecut~~~ of anv: pe1'1t11, The consent of the court is needed only fe,:, ;t._l•li'IIO :a,n the ca;se of a Private Prc,secutor. 'l"l\e p,ovisions in Sections201, 202, 205 or 198 Crimiaal F'lf'd,UH Cede have nothing to do with the prc·. lsions 11\ secii,ta ,, ~:,;)~.:_;;;.,.~ 86 tf ;1\e Crimtnal Procedure Code. ';; ;ts clear that the trial magistrate erred in refuaiw the· •PP14,tation to withdraw by the Pubi'ici P>::-:5;1:~~~.c..i, ~1~11'. \ _.._ju4ge was also in error in upholding the magist:Z::ate's order "if -,«!\&it the respondent in the circumstances. We allow the appeal of tLe Rer,ublic, set aside the $rde~ ' ._., ~ Of i:J1.eJ14agistrate dismissing the case and discharging the accused .· g,e. •spondent) and substitute therefor an order alloWing the -~PPl~a,i_~>~y--th~---:Public ·prosecutor to withdraw from the· prt-eJif\,tn undQ.t'. se~:tion 86 of the Criminal Procedulre CGl.de C~r,.20. /{. ,_.,. > ~OATSD at DAR ES SALAAM i ~- '. .: " . ' this 21st day of February, ~. 1986 ·.,·' ' ~·: R. ~. KISANGA JUSTICE OF AP~EAL -·- A. M., Ao OMAR JUSTICE or APPJE& ,: r