Mroso, J:
C The Senior Resident Magistrate in charge of Kilimanjaro Region has forwarded to the High Court a court record titled:
`In the Court of Resident Magistrate at Moshi Criminal Rev C No 1/94
D C/F Same D/C Cr C No 110/93
D 4527 D/C Ashery
E 5535 P/C Jacob
E 5953 P/C Mugendi
Richard Muhanza.'
E The proceedings in that record are dated 23 February 1994 and were before Mr BM Muilla, SRM in charge with Applicant and Respondent shown as absent. The proceedings are entitled:
`Reference to the High Court Made under Section 30(2) of the Magistrates' Courts Act No 2 of 1984' F
It would appear that there have been criminal proceedings in the District Court of Same in which four accused persons, three of whom are policemen, were charged with the offence of conversion not amounting to theft, contrary to s 284 of G the Penal Code. The four accused person are alleged to have unlawfully converted a motor cycle belonging to CCM to their own use without authority from CCM. In the course of the trial the question was raised whether conversion of a motor cycle is an offence under the section cited in the charge sheet, since it was not a `draught or riding animal or any mechanically propelled cycle of any description or any vessel....' H
I gather from the senior resident magistrate in charge in his reference proceedings that the trial district magistrate ruled that according to the Road Traffic Act, No 30 of 1973, a `motor cycle' is a `motor vehicle' by definition and that having so found, the district magis- I
trate dismissed the preliminary point which had been raised, questioning the A propriety of the charge.
Before I proceed any further, let me point out to the senior resident magistrate in charge that, in the first place, he has employed the wrong section of the Magistrates' Courts Act, 1984 in this reference. Section 30(2) which he employed does not relate to proceedings originating in District Courts. If the learned senior B resident magistrate in charge would care to look again at the provision he will note that it says:
`A resident magistrate in charge may call for and inspect the record of any proceedings under C this Part.... (emphasis added).
The words `this Part' refer to Part III of the Magistrates' Court Act which is on - D
`Jurisdiction and power of, And Appeals, Etc from Primary Court'.
That part starts with s 18 and ends with s 39.
Proceedings in the District Court of Same referred to in the reference do not therefore fall under Part III of the Magistrates' Courts Act, 1984 Original proceedings in District Courts and Courts of Resident Magistrate came under Part IV of the Act and the relevant section would have been s 44(2) of Act. There it is E provided:
`A resident Magistrate in charge may call for an inspect the record of any proceedings in a F district court and may examine the records or registers thereof for the purpose of satisfying himself as to the correctness, legality or propriety of any decision or order and as to the regularity of any proceedings therein; and may, in any case in which he considers that any decision or order is illegal or improper or any proceedings are irregular, forward the record with a report to the High Court in order that it may consider whether or not to exercise its powers of revision' (emphasis added). G
So, in the second place, the senior resident magistrate in charge does not himself open a revision record in his court as he did in this case. Rather, as the words I H have underlined show, he forwards the subject record (that of the District Court) together with his report (regarding that record) to the High Court for that court to consider whether or not revise those District Court proceedings, decision or order believed to be irregular, illegal or improper. In the present matter the District Court record was not forwarded to the High I
A Court. What was forwarded is a record of the Court of Resident Magistrate at Moshi titled Criminal Revision No 1 of 1994. Indeed, the contents in that record were not even revision proceedings as one would have expected but a reference report, albeit under the wrong section of the Magistrates' Courts Act, 1984. Now back to the substance of the record. B
I presume the senior resident magistrate in charge found the proceedings or ruling of the District Court on the question whether the charge which faced the accused persons in Same District Court Criminal case No 110 of 1993 was not correct.
C Unfortunately the District Court record, as I already said, was not forwarded to the High Court and from the report of the senior resident magistrate in charge, I am unable to understand how if the presiding district magistrate found that a `motor cycle' is a `motor vehicle' he would proceed to dismiss the preliminary point raised by the advocate that the charge under s 284 of the Penal Code was D inappropriate. In the absence of the District Court record, therefore, I am unable to give the requested guidance.
Even so, let me hazard to say that a `motor cycle' is indeed a motor vehicle of some sort because it is self propelled, compared to, say a bicycle, which is E usually mechanically propelled. I do not know the state to which the proceedings in the District Court have reached but a motor cycle being a self propelled vehicle, does not fall under s 284 of the Penal Code.
F Since the senior resident magistrate in charge should not have opened a revision record in his court in respect of Same District Court Criminal Case No 110 of 1993, that revision record is quashed and set aside. If the learned senior resident magistrate still needs the opinion of the High Court on the propriety of the proceedings in Same District Court, he should follow the guidance I have given above. G
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