director of public prosecutions vs nuru masud mgawe 1986 tzca 85 21 february 1986

IN THE COURT OF APPEAL OF TANZANIA AT IAR ES SALAAM CORAM! MUSTAFA, J.A.j KISANGA, J.A. And OMAR, J.A. CRIMINAL APPEAL NO. {1 OF 1984 THE DIRECTOR OF PUBLIC PROSECUTIONS.,..APPELLAflf AND NURU MASUD MGAWE...................... ? RESPONDENT (A,ppeal from the ruling of th« High Court *f Tanzania at Dar es Salaam) (Bah»1^j J.) doted the 27th day of August, 1984 in Criminal Revision Casp No. ^5 Of 1984 JUDGEMENT OF ^THE COURT This is an appeal by the Republic. In the Magistraps*f the respondent herein Nuru Mastid Mgawe was charged Vith causing death through dangerous drivingco-icontrary ^S§ sections 4 0 (1 ) and 63(2)(a) cf the Road Traffic Act No, 30 of 1973. 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 ehe Public Prosecutor stated that he was unable to trace the P*lice file and applied to withdraw the charge under section 86(a) of the Criminal Proceudure Code Cap. 20 of the Laws. The Magistrate in his ruling stated inter alia "I object to the prosecution*s prayer of withdraw under Section 86(a) of Criminal Procedure Code and dismiss the case under section 20^ Of Criminal Procedure Code and discharge the accused”. The Republic appealed that order to the High Court by way Of revision. The Judge (Bahati, J. ) dealt with the matter in Sjre^t detail and referred to Sections 198, 202 and 205 of the 'Cy^i&inal Procedure Code as well. He also referred to a number •£ deci*iOns of the High Court, which seem to be in conflict. In the result "the Judge heid thatjthe Magistrate had p*v/er t* dismiss the charge and acquit ,the. accused u n d e f section 205 *f the Criminal Procedure Code, not under section of Criminal’ Procedure Code. He held-that" the error is curable and\h«>:A, upheld the Magistrate's *rderv~ With great respect to the trial -Magistrate, the learted Judge and Mr. Kapinga who appeared for the respondent * u s , the interpretation ef section 86 Criminal Procedure Code » v is a compA. ^tively *simple matter. It seeitis to us that both the courts below confused the issue if withdrawal from pr©*ecu1y| by the Republic with applications for adjournment, "ind inc.-id there are passages in the judgements below which equate r ) i-• i - *» epplications for withdrawal with adjournment appl.ica tion»« - v.- -i- . Section" 8 6 -:°f Criminal Procedure Code reads: "111 •any trial before a 'Subordinate Court any public„.pr?'secut©ri;mayr ;with the consent ' court or on the instructions of the Director - of Public Prosecutions, at any time_.before judg-ment is pronounced, withdrawn from the prosecution of any person, and upon such withdrawal - (a) if it is made before the accused person is called upon to make the defence, he shall be discharged, but such discharge shall n«£ operate as a bar to subsequent proceeding* against him on account.of the same facts <b) if it is made after the accused person is called upon to make his'defence, he shall be acquitted*'*-.' v-‘ ; Section 80a gives ’the Director of Public Prosecution* p o w ' n?} to discontinue criminal proceedings at any stage before judgment, and such powers"are exercisable him in person *r any officer subordinate to him acting under his general or special instructions. Section 2 of Criminal Procedure Code defines a public prosecutor as any person appointed under section 84, and the Attorney General and other judicial officers. ■■ •• • Section 84 relates to the appointment of Public Pr©secutos?a. In the Magistrate* s Court a Public Prosecutor appeared for the Republic. According to Section 86(a) a Public Prosecutor is entitled as of right, on the instructions of the Director Cf Public Prosecutions to withdraw from the prosecution of any per«On. The consent of the court is needed only for instance in the case of a Private Prosecutor. The provisions in Sections 201 , 202, 2^5 or 198 Criminal Prtftedu*© Code have nothihg to do with the provisions in secti#* 86 9f the Criminal Procedure Code. It is clear that the trial magistrate erred in refusiHf the application to withdraw by the Public Pr»sacu-3**V*r,.i'Kl the judge was also in error in upholding the magistrate's ©rdejr t© acquit the respondent in the circumstances. We allow the appeal of the Republic, set aside the %rde* of the magistrate dismissing the case and discharging the accuse*! (i.e, respondent) and substitute therefor an «rder allowing the application by the Public Prosecutor to withdraw from the prosecution under section 86 of the Criminal Procedure Code Cap,20. DATED at D a R ES SALAAM this 21st day of February, 1986 \ 7 - \ ( . - \ o ' 's A. MUSTAFA '- - JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL A. M. A. OMAR JUSTICE Or APPEAL I certify that this is a true copy of the original, -■/ (L. A. A. KYAI'r 0} REGISTRAR COURT OF APPEAL Of TANZANIA.