19770321 TZHC Dodoma 1

IN THE HIGH COURT OF TANZLN IA

AT DOJXML

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 13 OP 1977 ORIGINAL CRIMINAL CASE NO. 163 OF 1976 OF TEE, DISTRICT COURT OF NANYONI DISTRICT AT MANYONI BEFORE S. U. S. MWAILUNGA ..... RESIDENT MAGISTRATE DIRECTOR OF PUBLIC PROSECUTOR .......... APPELLANT

VERSUS PROTASS/ONG.'ImWA .0..........0...RESPONDENT CHARGE: Stealing by person employed in the public service c/ss 270 and 265 of the Penal Code. .LJ! _B G N E N T

MNZAS In this case the Director of Public Prosecutions is appealing against the decision of the resident magistrate in Manyoni Criminal Case Nc. 163 of 1976, in. which the trial court acquitted the respondent u/s 205 of the 4 Crrñnal Procedure Code on the ground that the prosecutor had failed to appear and pro- ceed with the case on 20/11/76 the day the case'twas fixecT for hearing. The respondent was charged with stealing by person employed in the public service c/ss 265 and 270 of the Penal Code. There were a number of m.ntions and finally on 13/10/76 the case was fixed for hearing on 20/11/76. On that day the prosecutor did not turn up. Another prosecutor told the court: "The prosecutor from Railways Police has left thinking this case was also to be adjourned". Mr. Chambakare, advocate for the accused objected to an adjoument saying: "There are no reasons why this case shild be adjourned." In his ruling the learned trial magistrate said inter alia: "I had the cpportunity of talking to the prosecutor from the Railway Police on 18/11/76 about this case. I told him to appear before this court on 19/11/76 so that we could fix a day for mention in respect of Criminal Case No. 67/76 because, as he told me, exhibits in that case were not seen at Manyoni Police station. His absence today re'.mins unex- plained. He cannot be hoard ...... saying that I told him that this case was also

to be adjourned.... I decline to adjourn because the prosecutor from Railways Police hEis shown gross negligence in dealing 4 ....2 - 2 - with these matters. Any adjournment is in court's discretion. And when adjournment has been refused the Republic has to adduce evidence. The Republic has adduced no evidence in this Case. Because no evidence has been adduced I hold that no prima facie case has been established against the accused who, in torus of section 205 of theCrirainal Procedure Code is acquitted." Mr. Lyimo, who appeared for the Republic argued that the learned resident magistrate erred in acquitting the accused u/s 205 of the Criminal Procedure Code. It was the learned state attorney's submission that the provisions of section 205 of the Criminal Procedure Code can only be invoked after the prosecution has adduced evidence in support of the charge and closed its case. It was argued that in the present case the prosecution did not adduce evidence at all and therefore, it was argued, the trial magistrate was wrong in holding that the prosecution had failed to establish a prima facie case against the respondent. In support of this argument, the Court was referred to the recent decision by the Court of Appeal in MARTIN NGUT U. and two others V .R.- Criminal pals Nos. and 49 of jj7. Mr. Chambakare for the respondent conceded that the learnc' magistrate erred in acquitting

the respondent u/s 205 of the Criminal Procedure Code; but, it was argued that the trial magistrate actually meant acquitting the respondent is/a 198 of the Criminal Procedure Code but that he by mistake acquitted him u/s 205. With respect to the learned defence counsel, the argumont that the magistrate had in mind the provisions of section 198 of the Criminal Procedure Code when he acquitted the respondent u/s 205 of the Criminal Procedure Code has no leg to stand On. As rightly argued by the learned state attorney in acquit ting the respondent the learned igistrate amply shows that he based the acquittal u/s 205. He says: "I do hold that no prima facie case has been established against the accused who in terms of section 205 of the Criminal Procedure Code is acquitted". Such language leaves no doubt that the trial coi.t based the acquittal u/s 205 of the Criminal Procedure Code. Dealing with acquittals which were based u/s 205 of the Criminal Procedure Code the Court of Appeal in the recent decision - above quotted,had this to say: "We have no doubt in our mind that this section presupposes that the )rosecution has adduced evidence, whether by calling witnesses or other- ...3 rZ W.. 4 Op - 3 - wise, in sujDport of the charge and has, closed its case. It is then that on considering the evidence before him the magistrate may, if he considers the e±denco insufficient to require

the accused to defend himself acquit the accused at that stage of the trial. In other words the magistrate must be satisfied that no prima facie case has been made out against the accused". S / This decision binds this court. As I have, I hope, amply demonstrated above, in this case the trial magistrate erred in holding that the prosecution had closed its case whereas no evidence was adduced against the respondent. Indeed no withesses for the prceecution were present. I agree with the learned state attorney's argument, that the magistrate had no power to acquit the respondent u/s 205 o: the Criminal Procedure Code.. As our courts are creatures of Statute they exercise such powers as are given to them by Statute. The provisions of section 205 of the Criminal Proco:.r. Code do not give a court power to acquit an accused person the way the learned resident magistrate did. As to the question whether the trial magistrate could have acquitted the respondent u/s 198 of the Criminal Procedure Codc? I would say that an acquittal u/s 198 is only permissible wherc there is evidence that the complainant having had notice of th; time and place appointed for hearing of the case fails to turn up. In the present case it would appear that there was a mis- understanding between the trial magistrate and the Railway Police prosecutor regarding the hearing of the case - Criminal Case No. 163 of

1976. The prosecutor was of the impression that both cases against the respondent - Criminal Case No. 163/76 and Criminal Case No. 67/76 'wore to be adjourned on 20/11/76 hence his departure to Ta1ora leaving one of the prosecutors in Manyoni to appear on his behalf on 20/11/76 when, as he believed, the cases would be adjourrd. The trial magistrate on the other hand believed that he had allowed adjournment in Criminal Case No. 67/76 only and that Criminal Case No. 163/76 the subject matter of this appeal was th be heard on 20/11/76. in these facts the respondent could also not have been acquitted u/s 198 of the Criminal Procedure Code. In the circu. stances I agree with the Republic's argument that the learned resident magistrate's order of acquittal should be set aside and I so order.. The trial in Manyoni Criminal Case No. 163 of 1976 to continue in the lower ôourt before another magistrate. DODOMA . . N. s/rin' 21st March, 1977 .. JUDGE Lyimo for the Republic. Charjbakare for the respondent.