(CRIMINAL REVISION(

SUDAN GOVERNMENT v. CHARLY MOUSALLI

AC-CR-REV-295-1967

Principles

  Criminal Procedure—Absence of complainant—Code of Criminal Procedure, s. 554— Applicable in cases where personal element is more obvious

            When on the day fixed for hearing the case the complainant does not appear, then the court, according to Code of Criminal Procedure, s. 554, and before the charge has been framed, may discharge the accused. This section is applicable only in cases where the personal element is more obvious than that of the public.

Judgment

           Advocate: Amin T. El Shibli……………………………………for accused.

           Abdel Mageed Hassan 1. July 1, 1967:—The facts of this case are clear and simple. On December 29, 1965, complainants had lodged information No. 3794 Southern Police Station, Khartoum, against accused under the Sudan Penal Code, s. 348. The Police Magistrate Khartoum started trial and on October 17, 1966, adjourned trial to November 12, 1966. On November 9, 1966, complainant applied for adjournment as he would be outside the Sudan. On November12, 1966, the magistrate was engaged in other urgent duties and therefore adjourned the trial to December 13, 1966. The adjournment was made on the case diary cover I have marked in red. On November 14, 1966, advocate for accused appeared before the court and he convinced the magistrate that complainant was in town and that he did not appear in court and according to Code of Criminal Procedure, s. 154, the magistrate acquitted accused.

      On appeal, His Honour the Acting Judge of the High Court, Khartoum, quashed the order under Code of Criminal Procedure, s. 154, and ordered resumption of trial; hence this appeal.

       It is clear to me that the order dated November 14, 1966, was wrong as the case was adjourned on November 12, 1966, to December 13, 1966. This mistake was the result of the case being handled by more than one magistrate, which led to the oversight of the order of adjournment. Moreover, I am convinced that both parties appeared in court on November 12, 1966, the date fixed for trial; but one came after the other and accused and his advocate were lucky to find a magistrate while complainant went off after the accused was acquitted.

     As to the application of Code of Criminal Procedure, s. 154, I am of opinion that it does not apply in such cases. The preliminary charge against accused is under the Sudan Penal Code, s. 348, which is a recognisable offence and this could not be dismissed on failure of complainant to appear. I am of opinion that the application of Code of Criminal Procedure, s. 154, should be confined to cases in which the personal element is more obvous than that of the public cognisaple and compounuaoie onences are the best guide to such cases.

           I am of opinion therefore that the order of the Acting Judge of the High Court, Khartoum, should be confirmed and the case be sent back for immediate resumption of trial as a prosecution witness is about to leave the country for good.

El Rayah El Amin, A/C.J., July 2, 1967—I agree.

           M. E. Mobarak, J., July 2, 1967—I agree. Code of Criminal Procedure, S. 154, is applicable only in proceedings which “have been instituted upon complaint.” The word “complaint” is defined in Code of Criminal Procedure, s.5 (1) (b). I refer in this respect to Chapter XV, Code of Criminal Procedure, and in particular to sections 135 (1) (d), 136 and the following sections. In this case the proceedings were instituted by information to the police.

           ORDER: Abdel Mageed Hassan 1. July 2, 1967—We confirm the order of the Acting Judge of the High Court, Khartoum, and order that the case be sent back for immediate resumption of trial as a Witness is about to leave the country.