Court name
Court of Appeal of Tanzania

Director of Public Prosecutions vs Nuru Masud Mgawe () [1986] TZCA 3 (21 February 1986);

Law report citations
1984 TLR 266 (TZCA)
Media neutral citation
[1986] TZCA 3

  B Mustafa, J.A. delivered the following judgment of the court: This is an appeal by the Republic.  In the Magistrate's Court the respondent herein Nuru Masud Mgawe was charged with causing death through dangerous driving contrary to sections 40(1) and 63(2)(a) of the Road Traffic Act No. 30 of 1973.
  C 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 the Public Prosecutor stated that he was unable to trace the Police file and applied to withdraw the charge under section 86(a) of the Criminal Procedure Code Cap. 20 of the Laws.  The Magistrate in   D his ruling stated inter alia "I object to the prosecution's prayer of withdrawal under Section 86(a) of Criminal Procedure Code and dismiss the case under section 201 of Criminal Procedure Code and discharge the accused".
  E The Republic appealed against that order to the High Court by way of revision.  The Judge (Bahati, J.) dealt with the matter in great detail and referred to Sections 198, 202 and 205 of the Criminal Procedure Code as well.  He also referred to a number of decisions of the High Court, which seem to be in conflict.  In the result the Judge held that the Magistrate had power to dismiss the   F charge and acquit the accused under section 205 of the Criminal Procedure Code, not under section 201 of Criminal Procedure Code.  He held that the error is curable and he upheld the Magistrate's order.
With great respect to the trial Magistrate, the learned Judge and Mr. Kapinga who appeared for the   G respondent before us, the interpretation of section 86 Criminal Procedure Code is a comparatively simple matter.  It seems to us that both the courts below confused the issue of withdrawal from prosecution by the Republic with applications for adjournment, and indeed there are passages in the   H judgments below which equate applications for withdrawal with adjournment applications.
Section 86 of Criminal Procedure Code reads:
   In any trial before a Subordinate Court any public prosecutor may, with the consent of the court or on the I instructions of the Director of Public Prosecutions, at any time before judgment

   is pronounced, withdraw from the prosecution of any person, and upon such withdrawal: A
   (a)   if it is made before the accused person is called upon to make the defence, he shall be discharged, but such discharge shall not operate as a bar to subsequent proceedings against him on account of the same facts. B
   (b)   if it is made after the accused person is called upon to make his defence, he shall be acquitted.
Section 80A gives the Director of Public Prosecutions powers to discontinue criminal proceedings at  C any stage before judgment, and such powers are exercisable by him in person or any officer subordinate to him acting under his general or special instructions.
Section 2 of Criminal Procedure Code defines a public prosecuter as any person appointed under section 84, and the Attorney General and other judicial officers. D
Section 84 relates to the appointment of Public Prosecutors.
In the Magistrate's Court a Public Prosecutor appeared for the Republic. E
According to section 86(a) a Public Prosecutor is entitled as of right, on the instructions of the Director of Public Prosecutions to withdraw from the prosecution of any person.  The consent of the court is needed only for instance in the case of a Private Prosecutor.
The provisions in sections 201, 202, 205 or 198 Criminal Procedure Code have nothing to do with the  F provisions in section 86 of the Criminal Procedure Code.
It is clear that the trial magistrate erred in refusing the application to withdraw by the Public Prosecutor, and the judge was also in error in upholding the magistrate's order to acquit the respondent in the circumstances. G
We allow the appeal of the Republic, set aside the order of the magistrate dismissing the case and discharging the accused (i.e. respondent) and substitute therefor an order allowing the application by the Public Prosecutor to withdraw from the prosecution under section 86 of the Criminal  H Procedure Code Cap. 20.
Order accordingly. I

A