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IN THE HIGH COURT OF TANZIA, AT ARUSILA .AP-ELL.ATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 250 OF 1974 • ORIGINAL CRIMINAL CASE NO. 137 O 1974 OF THE DISTRICT CO[JRT OF KOROGWE DISTRICT AT KOROGWE BEFORE: B., S.tiQZA, Esq., District Magistrate J . 1JI0 • • • • • • • • • • • • • .' • • •• • o .APPELL.A.IT • (Original Accused) verus .............................RESPONDENT THEREPIJBLIC.1 (Original Prosecutor) JUDGMENT 0 • . •. JONATHAN, J. : 0SEPáATUISO, the appellant was fined the sum of shs.300/= after the District Magistrate, Korogwe found him guilty, of -disobedience to a court summons. . Th undisputed fäct were that, :the appellant on the 2nd July, 1974,by r±±'tue of his office as.the KoI'Ogwe District •inancia1 Controller,. vas served with a court - 0 . summons requiring him' to give eyidencin that court on the 5th July, 1974 in criiiina;1 case. No. 137/74 of that court. It then appears from the record, that on . the day. set for the case to be heardthe.publicprose:cutor, Inspector JOHN applied: foran adjournment, this becäüse, some exhibits had not been received from the Identification Bureau. The appli6ation was granted and the case adjourned to be heard on.July 31Ct, -1974. The court then seems to have noted that the appellant, though duly served with mmons was not present is not clear.what drewthe court's attention to his abseice, but following this Qbservation, presurnably at the inyittion of the court; the prosObutor successfully applied fQr....g•.warr.ant of arrest to isCue against the appellant. Pausing 'there it is to be noted that, by the provisions of Section 147 of the C.P.C.,a warrant of arrest is issued only after the court is satisfied by "evidence on oath that the person will not attend unless compelled to do There was no evidence to this effect, and a proper order o make would have been as provided in the preceding.s.ction namely, to issue a warrant requiring him to be brought before the court. In the event, however, the appellant was arrested and brought before the court on the next day. He had occasion to protest at the arrest to which he had been subjected. He ±hen explained that he had infact turned up on the previous day in obedience to the summons, but he had been allowed to go away by Inspector PETER of the C.I.D. This officer happened to be in court and was allowed to cross-examine the appellant on his claim that he had allowed him ,to go away. In answer to his questions the appellant stressed, although he might deny, he had infact allowed him to go away. The court then seems to have put Inspector PETER in the witness box. He conceded thab he had seen the appellant on the court premises but denied 'that he had allowed him to go away. .. .,2 He added that he did after all have the power to suggest so to him. The learned district magistrate in his ruling was inclined to think that the inspector had not infact allowed him to go6 In fact he went onto find that the appellant had not appeared at all as he had been ordered. This view, with respect, was not in harmony with the circumstances4 As admitted by Inspector PETER, the appellant seems to have been present on the material morning. The inspector was himself there presumably because he had some part to play in the case for which the appellant had'.been summoned to give evidence,and.I.may assume that as an officer then assigned to the Investgation Department, he had himself investigated that case. Ir, such role hë'should have been in a position to know well in advance that the exhibits had not been receiVed and the:.he.aring would have to be ad,journed to another date. It was not unreasonable t2 think, therefore, that, appreciating the appel1ant had a lot to do in his office, and it is not irrelevant to mention that those were the SABA SABA days, the inspector may well have been minded to .uggest to him that he might'. o back to his offie. As the appellant says in his petition,: his office was in the next doorbuilding and he could hävebeen.al.led iave from there shotld herequired by the coirt. InthOse Deen circumstance,s I would consider it quite likel' that' the inspector had allowed him to go. Ineed, it would"be' hard to imagine he could have entioned• him if in fat he had not suggested he might go away. The appellant, a's already noted, must have been there earlier that morning and his departure subsequently would seem compa.rtible with the explanation that he had been allo,ed to go, and at the very least he shoUd have been given the benefit of doubt. That, in my view, would have afforded him a lawful excuse for not being pre.sen' within, the meaning of that expression in . Section 15e(l)' Accordingly, "ch'e appeal isallowed and the fine paid by the appellant shoild be returned to him. , . ., (F M JOUATHA1\) /MTPM. '. '' . . JUDGE. .. ., ... ..