Nchalla, J.: The accused one Pallangyo s/o Kaanandumi had been charged before C Monduli District Court with a traffic offence in respect of reckless driving a motor vehicle on a public road c/ss 42(l)(c) and 63(l)(b) of the Road Traffic Act No. 30/1973. The charge facing the accused was filed in the trial subordinate court on 5/8/91, and D on the same day the said charge was read over and explained to the accused who pleaded not guilty to it. On that day the Public Prosecutor informed the court that the investigation of the case was complete, and applied for a hearing date. The presiding magistrate Mr. A.A. Ngowi, learned Senior District Magistrate, fixed the case for hearing on 22/8/91, and accordingly adjourned the case. E
The record, however, shows that the case was called up for hearing on 16/8/91 instead of the 22/8/91 to which it had earlier been fixed. No reason was recorded for this abrupt change of the date of hearing.
Be that as it may, on 16/8/91 the Public Prosecutor reported to the court thus: F
I have no police file as the case is not shown in the case list.
It seems to me that the Public Prosecutor's submission on 16/8/91 was genuine and G was well founded as, indeed, the case was not scheduled for hearing on that date, and the Republic was not expected to have summoned its witnesses to appear to testify before the court on that date, which was not a hearing date for the case. Naturally, the H Public Prosecutor did not have the police file with him on that day in respect of the case.
Mr. Ngowi, learned Senior District Magistrate, adjourned the case for hearing on 6/9/91, but did not make any order revoking his previous order which he had made to the effect that the case be heard on 22/8/91. This means that there were now two I subsisting but conflicting orders as to the date the case was supposed to come
up for hearing. There was the order that the case be heard on 22/8/91, and the A second order that the same case be heard on 6/9/91. This was a confusion for which the presiding District Magistrate (Mr. Ngowi) was squarely to blame.
The case was not called up for hearing on 22/8/91, but was called up on 6/9/91 in consonance with the second order of the court as follows: B
P.P.: I have no police file.
Then the court made the following order which has given rise to these revisional C proceedings:
Court: The case is for hearing. No application for witness summons made to court. The witnesses are resident of Monduli. There are no good reasons as to why should the D prosecution not to proceed with the case as per section 223 C.P.A.
In this respect, the accused has no case to answer and as such he is hereby acquitted under Section 230 Criminal Procedure Act. E
Right of Appeal explained.
Sgd. Ngowi, A.A. SDM. F
6/9/91.
From the above synopsis of the proceedings in this case, it is an elementary part of criminal procedure for one to realize that the order of the presiding District Magistrate G in acquitting the accused under section 230 of the Criminal Procedure Act, 1985 was basically premature, hence quite wrong and invalid. What the presiding magistrate did in this case was quite prejudicial, and therefore quite injudicious. The provisions of section H 230 of the Criminal Procedure Act, 1985 cannot be invoked in a situation where there has been no hearing of the case at all. The case before the trial court had not commenced hearing at all; no any evidence had been adduced from either side. Under those circumstances, the trial court could not act under section 230 of the Criminal Procedure Act, 1985 in dismissing the charge and acquitting the accused. The I provisions of section
230 C.P.A., are quite simple, clear, and straightforward; they require no legal A qualification to interpret and understand them. They are those:
230. If at the close of the evidence in support of the charge, it appears to the court that a B case is not made out against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which under the provisions of sections 312 - 321 inclusive of this Act, he is liable to be convicted, the court shall dismiss the charge and acquit the accused C person. (underlining mine).
It is evident from the underlined part of the above quoted section that before a subordinate court can invoke the provisions of that section in dismissing a charge and acquitting the accused, it must first hear evidence from the prosecution side, and at D the close of that evidence, the court shall make a ruling supported by legal reasons to the effect that the evidence in question has established no case sufficiently to require the accused person to enter his defence.
So, the presiding Senior District Magistrate in this case wrongly applied the E provisions of section 230 C.P.A. that was a serious misdirection which is an error of law which involved a miscarriage of justice on the prosecution side. Consequently, the dismissal of the charge and the acquittal of the accused are wrong and invalid, the same F are hereby quashed and set aside. It is further ordered that the case before the subordinate court be heard de novo before another magistrate of competent jurisdiction, preferably a resident magistrate. The accused be arrested forthwith and be produced before the trial subordinate court at Monduli District Court to answer the G charges for which he was wrongly acquitted. The record of the trial court be remitted back to it together with this ruling/order for it to comply with that order expeditiously.
H Order accordingly.
A
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