People v Sikwiti & Others (HPBA 6 of 1992) [1994] ZMHC 1 (1 April 1994)

THE PEOPLE v BENJAMIN SIKWITI CHITUNGU, JUSEPH ANTONIO ARTHUR AND DAVID MUZUMA (1992) S. J. HIGH COURT MUZYAMBA W. M., J 1ST APRIL, 1992 HPBA/6/92 Flynote Bail - Whether the Police have powers to cancel a Police Bond - Whether a Court has a duty, where a bond has been cancelled by Police, to inquire into the reasons for the cancellation when considering an application for bail - Whether a Police Bond automatically ceased on an accused person appearing in Court to answer a charge upon which the bond was granted Headnote The accused were charged with motor vehicle theft. On an application for bail, it was alleged by the prosecution that the accused were arrested in Botswana and could therefore not be granted bail. The defence counsel however stated that the accused were arrested in Zambia and were of fixed abode, therefore deserving of bail. The trial court denied the bail application and the accused have appealed. Held: (i) The police have powers to cancel bond if it appears to the police that the accused is about to leave the country or disappear or is interfering with or likely to interfere with witnesses or about to commit a similar offence the police may arrest the accused, cancel the bond and detain him in custody pending appearance in Court The Court has a duty, where it has come to its attention that the accused's bond was (ii) cancelled by the police, to inquire into the reasons for the cancellation when considering bail application and where it is not satisfied with the reasons for cancellation to grant bail to the accused on the same conditions as the bond A police bond does not automatically cease upon an accused person appearing in (iii) Court to answer a charge on which he was granted the bond For the Accused/Applicants: S. Sikota, Central Chambers For the State: M. Chibiya, State Advocate Ruling This is an application on the part of the accused for bail pending trial on a charge of Theft of Motor Vehicle contrary to section 281 subsection (a) of the Penal Code Cap. 146. The application is supported by an affidavit and further affidavit to which are annexed respectively the Court's Ruling below and part of the case record. There is no affidavit in opposition filed. Paragraphs 6 and 7 of the supporting affidavit read: "6 That when the case came up I as Advocate for all the accused persons made an application for bail which application was denied in that the prosecutor had misled the court earlier on when he lied to the court that the accused persons were arrested in Botswana when in actual fact they were arrested in Lusaka, Zambia. To this effect the accused persons are willing to surrender their passports to this Honorable court for verification if at all they were arrested in Botswana. A copy of ruling of the court below is now exhibited and marked "SS1" 7. That the ground on which the bail has been refused is baseless and unfounded in that the accused persons are all Zambians of fixed abode who are willing to provide working sureties and to go further and surrender their passports until the final determination of this case." And in her ruling the learned Magistrate said: "First I would like to state that Police Bond is granted in the discretion of the police and ends at the time the accused appears in court and not before. That being the case and the fact that the police exercised their discretion in favor of the accused and then exercised the same discretion against them is no concern of this court. The conduct of the accused persons up to the time they had their liberty could and may affect the consideration of the court in granting bail, coming to the submissions, the court has carefully considered them and there are of substance. However, the prosecutor has submitted that the accused persons were arrested in Botswana, counsel has submitted that they were arrested in Zambia but willing to surrrender their passports, court considers this point and is of the view that if the accused are left at large they are likely to dishonour the conditions and may not be seen. For this reason the court is unable to grant bail. Accused has the right to appeal to the High Court. Mr. Sikota for the accused submitted that the learned trial Magistrate was wrong to refuse the application because there was no evidence that, if granted bail, the accused would dishonor the bail conditions and disappear. On the other hand Mr. Chibiya objected the application saying that the Court below was right in refusing to grant the accused bail because the offence was prevalent and that the Court had applied the correct principle. This application raises three important issues namely whether or not:- (a) (b) (c) the Police have powers to cancel a Police Bond. a Court has a duty, where a bond has been cancelled by Police, to inquire into the reasons for the cancellation when considering an application for bail. a Police Bond automatically ceased on an accused person appearing in Court to answer a charge upon which the bond was granted. Section 123 subsections (1) and (2) of the Criminal Procedure Code Cap. 160 provide:- "123. (1) When any person, other than a persons accused of murder or treason, is arrested or detained withou warrant by an officer in charge of a police station, or appears before or is brought before a court, he may, at any time while he is in the custody of such officer, or at any stage of the proceedings before such court, be admitted to bail upon providing a surety or sureties sufficient in the opinion of such officer or court, to secure his appearance, or released upon his own recognizance if such officer or court thinks fit. (2) Subject to the provisions of section one hundred and twenty-six, before any person is admitted to bail or released on his own recognizance, a bond (hereinafter referred to as a bail bond), for such sum as the court or officer, as the case may be, thinks sufficient, shall be executed by such person and by the surety or sureties or by such person alone, as the case may be, conditioned that such person shall attend at the time and place mentioned in such bond and at every time and place to which during the course of the proceedings the hearing may from time to time be adjourned." It is quite clear from the section that any Police Officer in Charge of a police station or the Court before whom any person is accused of an offence other than murder or Treason has powers to grant such person a bail. Bail granted by the Police is commonly known as 'police bond'. Do the Police have powers to cancel a police bond? A police bond will normally require an accused person to attend before the police station or Court on a mentioned date, time and place, and if before than it appears to the police that the accused is about to leave the country or disappear or is interfering with or likely to interfere with witnesses or about to commit a similar offence the police may arrest the accused, cancel the bond and detain him in custody pending appearance in Court. The answer therefore to the above question is in the affirmative. Where a bond is cancelled, is a Court duty bound to inquire into reasons for cancellation when considering an application for bail. Since the police and Court have each jurisdiction to grant bail to an accused person, it is my considered view that the Court has a duty, where it has come to its attention that the accused's bond was cancelled by the police, to inquire into the reasons for the cancellation when considering bail application and where it is not satisfied with the reasons for cancellation to grant bail to the accused on the same conditions as the bond. In the instant case the learned Magistrate refused to address her mind to the reasons why the bonds for the accused were cancelled. The fact as it appears from the record is that the bonds were cancelled because of an internal circular that no bonds should be granted in cases of Theft of motor vehicles. No doubt this circular, if it exists, is ultra vires the provisions of section 123 supra and therefore null and void. By failing to address its mind to this fact the Court erred in both fact and law. Does a police bond automatically cease on an accused person appearing in Court to answer a charge upon which the bond was granted. Section 123 supra does not say what happens to a police bond once an accused person on bond appears before the court. I have looked at the sixth (1991) edition of the Magistrates' handbook and it is silent on the issue. The English practice is found in section 129 subsections (2) (a) and (b) of the Magistrates' Courts Act, 1980. The section is reproduced in paragraphs 3 - 19 of Archbold, 42nd Edition and it provides as follows:- "129 (2) Notwithstanding anything in section 128(1) above, the power of a court under subsection (1) above to remand a person on bail for a further time:- Where he was granted bail in criminal proceedings includes power to enlarge the (a) recognizance of any surety for him to a later time; (b) by enlarging his recognizance and those of any sureties for him to a later time." where he was granted bail otherwise than in criminal proceedings, may be exercised Section 128 referred to in this section deals with powers of magistrates either to remand in custody or release on bail an accused person. Subsection (a) above relates to bail granted by other Courts and (b) to bail granted by the police. It is quite clear from the section that a magistrate before whom an accused person is on bail by another court or police has powers to enlarge that bail. In fact, it has always been the practice in Zambia for Magistrates to extend police bonds. I find therefore that a police bond does not automatically cease upon an accused person appearing in Court to answer a charge on which he was granted the bond. The learned Magistrate was therefore wrong in expressing the view that a police beyond ends at the time an accused appeared in Court. And as a matter of practice, I wish to state that once a bond has been enlarged by the Court, it cannot be cancelled by the police without the sanction of the Court. Neither can the Court cancel a Police Bond. It has no such powers. Only the Police can do so on sufficient grounds. For the foregoing, the application is granted. Each accused is granted cash bail in the sum of K10, 000 with one suitable working surety in the like amount. The sureties to enter into recognizances. In passing off I wish to say that no appeal lies against a refusal for bail. Under section 123 supra subsection (3) the course open to such an accused whose bail application has been refused by the Subordinate Court is to apply to the High Court. It is therefore misleading for a magistrate to tell an accused person to appeal to the High Court against such refusal.