Chipeta, J.: On 7th May, 1986, I granted the applicant's application for bail pending trial and reserved my reasons for doing so. B
The applicant and two others stand jointly charged with the offence of robbery c/s 285 and 286 of the Penal Code, in Tabora District Court. When they first appeared before the District Court, the Republic had no objection to bail. However, the learned magistrate remanded them in custody, and in doing so he stated: C
"On second thought I would think a proper interpretation of section 148 of the C.P.A. makes me hesitate to grant bail to the accused." D
From the provisions of section 148 of the Criminal Procedure Act, 1985, it is plain that subject to the statutory restrictions contained in that section, the offence of robbery with violence is bailable. The restriction which the E learned resident magistrate had in mind, it would seem, is paragraph (e) of subsection (5) of the said section which reads:
"(5) A police officer in charge of a police station, or a court before whom an accused person is brought/appears, shall not admit that person to bail if..... F
(e)the act or any of the acts constituting the offence with which a person is charged consists of a serious assault on or threat of violence to another person, or of having or possessing a firearm or an explosive; (Emphasis added). G
In the present case, the question of possession of a fireman or an explosive does not arise as there is no allegation to that effect. Equally, as rightly pointed out by Mr. Mussa, learned state attorney, threat of violence does not H arise either in that it is not alleged that there was threat of violence. The only allegation in the charge is that the applicant and his colleagues "did use actual violence" to the victim of the alleged offence.
From the wording of the provisions under consideration, a person can only be denied bail if the "actual violence" I or assault constituted, in the words of the paragraph, "a serious assault". In other words, it is not every assault or "use of actual violence" that
would deprive an accused person of his general right to bail. The assault must be of a "serious" nature. A
The question then arises: what is meant by the expression "a serious assault"? In my view, those words should be given their natural and ordinary meaning. Those words, in my view, mean an assault that at least causes B serious bodily hurt or harm, though not necessarily grievous harm as defined in section 5 of the Penal Code.
In the present case, it has not been alleged that the "actual violence" amounted to "a serious assault" as defined above. It might have been a mere battery.
On the basis of the foregoing, I take the view that the applicant ought not to have been denied bail on the basis of C the provisions of section 148 (5) (e) of the Criminal Procedure Act, 1985. The learned magistrate, therefore, and with respect, ought to have been guided by general principles applicable in bail applications. In the absence D of any statutory restriction, the test in a bail application is whether the granting of the application will be detrimental to the interests of justice and good order and the keeping of public peace. (See Abdul Nassor v R. 1 T.L.R. (R) 289, at page 293).
Here, the learned state attorney, to whom I am indebted as a result of his lucid submissions, did not object to the E application; and from the applicant's affidavit, I am persuaded that granting the application would not be detrimental to the interests of justice and the keeping of public peace.
It was for the foregoing reasons that I granted the application on terms contained in my order. F
Application allowed.
1986 TLR p228
