Court name
High Court of Tanzania

Republic vs Suleiman Saleh Ali () [1985] TZHC 13 (24 May 1985);

Law report citations
1985 TLR 96 (TZHC)
Media neutral citation
[1985] TZHC 13
Ramadhani, C.J.

Ramadhani, C.J.:  The accused, Suleiman Saleh Ali, was charged with one count of receiving by false pretences contrary to section 275 of the Penal Decree, Cap 13.  It was alleged that he had received an electric iron worth Shs.200/=.  The I accused denied this

charge.  The prosecution adduced four witnesses and closed its case.  The accused A defended himself on oath.  He said that he had witnesses but on the day that was fixed for hearing them, they never turned up.  So the accused requested the court to summon them for him.  The next time the case was to continue the accused himself was absent.  The public prosecutor applied for an arrest warrant.  The case was adjourned again B three more times but the accused was still at large.  On the fourth time the accused had been found.  The prosecutor then requested the court to remand the accused.  That was 15th April, 1985.  Then on the 27th April, when the case was to proceed the Prosecutor C withdrew the charge under section 81(a) of the Criminal Procedure Decree, Cap 14.  The Magistrate granted the request.
Section 81 permits a prosecutor with the consent of the court or on the instructions of the Attorney-General, at any time before judgment is pronounced [to] withdraw from the prosecution of any person; D
If the prosecutor does so before the accused person is called upon to make his defence, the withdrawal is under paragraph (a) where upon the accused is discharged but can be re-charged.  But if the accused has already been called upon to make his defence the withdrawal is under paragraph (b) and the accused is acquitted: R. v Jiwan Nathu & Another (1944) 11 E.A.C.A. A62 I will deal with this case later on. E
In the present case the accused had already made his defence on oath.  The court was awaiting his witnesses only.  Therefore the appropriate paragraph was (b) and not (a) as was requested for and granted by the magistrate. F
Apart from the foregoing discrepancy I feel there is a need to talk on this section 81.  There are two ways by which a prosecutor may withdraw a case.  The prosecutor may have instructions from the Attorney-General to withdraw a case.  In such a situation the court has no discretion but to discharge the case:  The Queen v The G Comptroller-General of Patents, Designs and Trade Marks [1899] 1 Q.B. 909, at 194.  Alternatively the prosecutor might have the consent of the court to withdraw a case.  In this case before me, the second method has been used.
My observation is that the courts have been treating these two alternatives as one and H the same.  Without any instructions from the Attorney-General, a prosecutor will be allowed to withdraw a case.  But as in the second alternative where the consent of the court is required then the court has to satisfy itself of the appropriateness of the application before granting it.  Even in the case of The Queen v The IComptroller-General, the learned judge has said at page 914:

   I do not say that when a case is before a judge a prosecutor may not ask the judge to allow the A case to be withdrawn, and the judge may do so if he is satisfied that there is no case... (emphasis is mine.)
It is obvious from the above quoted passage that the court is duty bound to hear the B reasons of the prosecutor for the application to withdraw.  When the court is satisfied as to the reasons, only then would it grant its consent.  It is essential that there be a record of the reasons and the decision of the court instead of merely recording the application and without any reasons at all recording the consent. C
I have not been able to find out any cases of Zanzibar on this point.  Likewise my efforts to obtain East African cases bore no fruits.  I have seen only two East African cases which have been reported.  The first one was that of R. v Jiwan Nathu & Another already cited.  But that case dealt with the issue of which paragraph of section 87 of the D Criminal Procedure Code of Kenya, which is in pari materia with our section 81, was used and so whether the accused could be charged again or not.  The second one is of Mwangi Macharia v R. (1959) E.A. 955 which again is not on the issue before me.  Therefore I have to resort to Indian cases. E
There are two conflicting decisions that have been made by the Indian courts.  First In re Sadayan 5 Mad. L.T. 216 it was decided that it is not necessary that a magistrate gives his reasons for granting his consent.  Unfortunately these reports are not in the Library therefore I have not been able to read the proceedings for myself.  But in another case of F Umesh Chunder Roy v Satish Chundra Roy & Others 22 C.W.N. 69 the High Court of India differed from that decision and the learned judges said at page 71:
   The only prosecutor who may under the provision of the Code of Criminal Procedure withdraw G from a prosecution without giving reasons is the Advocate-General.  No other Public Prosecutor is placed in that privileged position; and if the consent of the Court is to be regarded as a ministerial act or merely an executive act we do not understand why it should have been necessary for the legislature to insert such a provision in the section of the Code H with which we are now dealing.  It is clear to our clear  minds that in either withholding consent or in according consent the Court is acting in a judicial capacity, and for its order as for every order judicially made it ought to give and record its reasons. I

This decision was followed in the case of Rajani Kanta Sheha v Idris Thakur 48 C. A 1105.
I am in agreement with their lordships.  It is absolutely necessary that a Public Prosecutor gives reasons for his application to withdraw and it is the duty of the Court to record the same and to give its decision with its reasons. B
There was a need to follow the above prescribed procedure in the present case.  The accused was remanded for twelve days and then the Prosecutor applied for the withdrawal of the case.  Admittedly the accused person himself was at fault for not making an appearance.  But there was no new discovery made and the Public C Prosecutor could have made the application immediately after the accused person had made his defence on the 8th September, 1984 or even on the 12th September when the witnesses of the accused did not turn up and when the case was adjourned to the 20th September when accused person himself became absent.
It is my hope that the present habit of the Public Prosecutor standing up and making an D application for withdrawing a case under section 81 without giving any reasons at all and for the Court according consent without discussing and being satisfied with the reasons but making the whole thing a mere formality will cease.  The Public Prosecutor must give reasons and the Court must make a decision to accord or to withhold its E consent giving its reasons.
Order Accordingly