( The National Supreme Court )

The Northern And River Nile Circuit

Judges:

President

 Hon Justice: Khalid Ahmed Kheir Elseed         Supreme Court Judge

Member

 Hon Justice: Eljayly Elseddig Abu groon          Supreme Court Judge

Member

 Hon Justice:Mohammed Abdel Rahman Mustafa Supreme Court Judge

Parties:

Sudan Gover. VS  A. M. A. N.

SC/CA/141/2018

Criminal Procedure Act 1991-S.35 – Courts Permission to open Criminal Proceedings in offenses affecting the course of justice.

The Principle:

Courts Permission to open a criminal case is not required when the case ends in the investigation stage.

Judgement

Judge: Khalid Ahmed Kheir Elseed        

Date: 12/11/2018

Accused appeared before the Merowe Criminal Court charged by the prosecution under S.114 of the criminal Act, 1991. After hearing the investigator the court ordered dismissal of the case on the ground that the complainant had not obtained permission from the court according to S.35 of the Criminal Procedure Act 1991. The court of Appeal, Northern state, affirmed this decision.

This is an appeal presented to us against the judgment of the court of appeal on the ground that the prosecution opened the case and proceeded with the investigation without directing the complainant to take the necessary legal steps . and that he is therefore not responsible for the fault of the prosecution . He therefore asked for the dismissal. of the decision of the court and for the return of the case to the court of first instance for trial.

He had filed his application within the due limit of time lawfully specified , so it is formally accepted.

The facts of the case are that accused instituted a case against complainant under S.182 the criminal act for destroying transplants belonging to the accused. The prosecution dismissed the case before reference to the court.

Complainant raised a case against accused under S.114 of the criminal act 1991. The prosecution took preliminary action under S.47 of the Criminal Procedure Act after which the district attorney ordered dismissal of the case on the ground that there was no permission from the court to open the case. An appeal was   made to the senior district attorney who set aside the order of dismissal on the ground that the previous case had no relation with the court since it was dismissed in the investigation stage and that the required permission has to be obtained not from the court but from the prosecution.

 Accordingly the case was opened under S.114 of the criminal act 1991(false prosecution) And a charge was framed and accused referred to the criminal court.

To resolve this appeal we have to decide first whether when a case is dismissed in the investigation stage permission of the court is necessary to open the case under S.35 of the criminal procedure act 1991.

  S.35 (b) lays the following:-

The criminal case can not be opened except with the permission of  the court as regards offenses relating to the course of Justice.

The offense under S.114 of the criminal act 1991 is an offense affecting the course of justice since it comes under  chapter 11 of the  criminal Act 1991 ( whoever takes criminal action against  any person  or causes it to be taken  or falsely accuses that person  of committing an offense knowing  that   action  is groundless shall be punished  with imprisonment for a term not exceeding three years  or with fine or with both ). From this definition it appears that the commission of the offense does not depend on the initiation of criminal proceedings before the court but may be committed after opening the case and before reference to the court for trial because the taking of criminal proceedings against any person or causing it to be taken constitutes the material side of the offense and the criminal action is any action taken in the criminal case from the start until the final decision.

Accordingly if the offense under S.114 has been committed before reference to the court by causing the accused to be arrested and charged by the prosecution the dismissal of the case for lack of evidence the requirement of a permission from the court to open the case is a forfeiture of right because no court will grant a permission to open a case in relation to any action not taken by it.

Accordingly since the permission to open the case has been invoked in the investigation stage and the district attorney granted the permission and the case referred to the court for trial the proceedings taken are lawful and the court has no right to dismiss the case for lack of a permission not required from it since the case has ended in the investigation stage. Accordingly the decision of the court is set aside and the case returned to the court for proceeding with the trial.

Judge: Eljayly Elseddig Ali Abu groon     

Date: 13/11/2018

I concure.

Judge: Mohamed Abdel Rahman Mustafa 

Date: 15/11/2018

I concure.

The Final Order:

The decisions of the courts of first and second instance are set aside and the case returned to the court of first instance for proceeding with the trial.

Khalid Ahmed Kheir Allseed

      Judge of the supreme Court

President of the Circuit

1711/2018