Mroso JA: C
The accused Nicolaus s/o Mamuu was charged with murder contrary to s 196 of the Penal Code. While police investigations were still in progress he escaped from custody. About a year later the public prosecutor informed the District Court of Rombo before whom the accused had been charged that the police though it was futile to continue D looking for the accused and, therefore, applied to withdraw the charge of murder against the accused under s 98(a) of the Criminal Procedure Act, 1985. That provision is in the following words-- E
`98. In any trial before a subordinate court any public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of one or more of the offences with which such person is charged; and upon such withdrawal-- F
(a) if it is made before the accused is called upon to make his defence, he shall be discharged, but such discharged of in accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;
(b) ...' (not relevant). (emphasis provided). G
It will be noted that s 98 speaks of `any trial before a subordinate court', which means that it is applicable only in a case which is triable by a subordinate court. It is not resorted to where the offence is not triable by a court other than a subordinate court. H
According to the First Schedule to the Criminal Procedure Act, 1985 the offence of murder (wrongly shown as s 197 instead of the correct s 196 of the Penal Code) is triable only by the High Court (or by a subordinate court with extended jurisdiction under s 173 of the Criminal Procedure Act, 1985). I
The District Court of Rombo was neither a High Court nor a
subordinate Court with extended jurisdiction and, therefore, would not have jurisdiction to A try a murder charge. It follows that since a murder charge is not normally triable by a subordinate court, s 98 of the Criminal Procedure Act, 1985 would not be employed to withdraw it from the court. The appropriate legal provision would be s 91(1) of the B Criminal Procedure Act, 1985 under which the Director of Public Prosecutions can enter a nolle prosequi to terminate any case before a court, at any time before judgment or verdict is given.
The termination of the murder charge against the accused under s 98(a) of the Criminal C Procedure Act, 1985 was incompetent and, therefore, the order of the District Court discharging the accused is quashed and set aside. The charge of murder against the accused is restored. If the D.P.P. is minded to terminate the charge, that would be done according to law. D
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