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Police v Navinchandra Ramgooolam

2017 UPW 150

IN THE DISTRICT COURT OF UPW

PROV CN 210/15

POLICE

NAVINCHANDRA RAMGOOLAM

RULING

By virtue of a provisional information lodged on 9 February 2015, accused stands provisionally


charged with the offence of money laundering, contrary to sections 3(1)(b) and 8 (1)(a) of the
Financial Intelligence and Anti Money Laundering Act 2002. Accused is being reproached of having,
on 6 February 2015, being criminally, knowingly and unlawfully in possession of money which is
in whole or in part directly or indirectly represent the proceeds of a crime, to wit, over four million
rupees composed of Mauritian rupees and foreign currencies and another huge amount of around
200 million rupees, suspected to be proceeds of corruption and bribe, found in two safes seized by
the CCID, which had to be forced open, as access there was not available.

The court record shows that the case was called on various occasions since 9 February 2015, on
which date accused was bailed out, upon conditions imposed by Court. The case was thereupon
called on various dates in relation to the bail conditions, amongst others. On 7 November 2016,
Counsel for the Defence moved that the provisional information be struck out on the ground of
inordinate delay, to which the Prosecution objected. The case was then fixed to 5 December 2016
for arguments to be heard on the said motion. On 5 December 2016, the motion was not pressed
upon by Learned Counsel for the Defence and the case was fixed for Prosecution to take a stand on
25 January 2017. On 25 January 2017, the motion was renewed by Counsel for the Defence and fixed
for arguments on 7 February 2017, on which date Counsel for the Defence, stated that he was not
insisting on the argument. The case was fixed for Pro Forma Stand on 16 March 2017. On 16 March
2017, the case was fixed anew for stand to 28 June 2017. When the case was called on 28 June 2017,
Counsel for Prosecution stated that he needed 3 more months to lodge the main case. Counsel for
the Defence objected to the said motion and the case was finally fixed for Arguments on 19 July
2017.

On 19 July 2017, submissions were offered by both Counsel for the Prosecution and Defence on the
said motion.

In essence, Prosecution represented by Me Denis Mootoo, submitted the following:

(1) The concept of striking out a provisional information does not exist and that it can only be
struck out upon a motion made by the prosecutor. Unlike a provisional information, only a
trial can be stayed whenever there was a need to safeguard the right to a fair trial.

(2) Since there was an undertaking by the Prosecution that the main case was going to be
lodged by the end of September 2017, it was futile to strike out the provisional information
against accused.

The Defence, represented by Sir Hamid Moollan, Me Gavin Glover and Me Showkat Oozeer, argued
that:
(1) A provisional charge cannot be equated to criminal proceedings, which can only be lodged by
the DPP pursuant to section 72 of the Constitution, whereas a provisional charge is initiated by
the Police.

(2) The present information was lodged as far back as 9 February 2015, that is, since 29 months and
all along the prosecution has been requesting for more time either to complete the enquiry,
seek further information in relation to the Mutual Legal Assistance or to take a stand.

(3) It would be fallacious to assume that the Court has no power to strike out or stay a provisional
information since the Court has the power to initiate an action by signing the information.
Furthermore, the Court acts as an arbiter to arrest, to detain, to impose conditions on an
accused party since his arrest.

Counsel for the Defence further quoted-

(1) Section 6 of Police Act 1974, which empowers the Commissioner of Police to make Standing
Orders to be observed by the police officers in the performance of their duties. He further
filed copies of the relevant Standing Orders under the Heading Role and Responsibilities of
Chief Police Prosecutor, namely 4(o) which provide for Ensuring that Divisional
Commanders and Branch Officers comply with the three months limit for early trial, in cases
where suspects/accused parties are on remand or bail on provisional charges..

(2) An extract of the Law Reform Commission Report Bail and other Related Issues dated August
2009 at page 3, were it was stated at footnote 10 that it was up to the Law Reform
Commission which is looking at the implications of arrest and bail, to recommend whether
or not the concept of provisional information should be brought within the ambit of the
law.
(3) Various pronouncements of the Supreme Court on the purpose and purport of a provisional
information, namely the cases of Mootoosamy v Queen (1981) MR 476, Shaik v State
(1994) MR 149, Alain Gordon Gentil and Ors v State of Mauritius (1995) MR 38, DPP v IOIB
(1989) MR 110, State v Rome (2009) SCJ 139A, Darmalingum v State (2000) UKPC 30,
Dahall v State (1993) MR 220 and to sections 5 and 10 of the Constitution.

Finally Counsel alluded to the fact that accused was an ex-Prime Minister of Mauritius before moving
that the provisional charge be struck out.

I have given due credence to the rival submissions made by Counsel on both sides.

First of all, it is paramount to understand the concept and purport of a provisional information in the
Mauritian context, as propounded by our case law.

As far back as 1981, in the case of Mootoosamy v The Queen (1981) MR 476, the Supreme Court
referred to the distinctive features of a provisional charge as follows:

The well-established practice of lodging a provisional information apparently evolved from an


application of s.5 of Ordinance 23 of 1888 (although the same practice probably already existed
under Ordinance 35 of 1852), and was continued under s. 4 of the Intermediate and District
Courts (Criminal jurisdiction) Ordinance (Cap 174). Its distinctive features are that it is
fundamentally a process to bring a suspect before the Court, and at the same time to inform him
of the charge against him. If the enquiry results in a prosecution, the suspect is never tried under
the provisional information, which is struck out and replaced by a regular information. Sometimes,
the provisional information is struck out without being replaced, and the case is filed, in a number
of cases because the answer of the suspect to the provisional information shows a good defence.
By reason of its nature, the provisional information is normally lodged in the early stages of the
enquiry, before the evidence of all the material witness has been collected, and frequently (as in
this case) before the suspect has given any statement. It follows that if no statements could be
taken from a suspect after a provisional information, the enquiry would stop before it had started,
to the great benefit of all criminals. In fact, the provisional information has the advantage of
informing the suspect distinctly of the nature of the charge, and is no more a bar to a statement
being recorded than the other modes of conveying to a suspect the purpose of the enquiry.

In the case of Director of Public Prosecutions v. Indian Ocean International Bank (1989) MR 110,
the Court stated that,

"As everybody knows, a provisional information is entered when a suspect is arrested or is


brought into custody. Its purpose is to bring the detention of the individual under judicial
supervision and control so as to prevent an administrative detention and to enable a judicial
authority to decide whether the detainee should be released on bail or not and, if not, for how
long he should be detained. No detainee pleads to a provisional information and no trial takes
place."

In the case of Shaik v. The State (1994) MR 149, the Supreme Court noted that,

"Now we have judicial notice of the fact that, having regard to certain constitutional and legal
provisions, it has been, and is, the constant practice, when bringing a person suspected of a
serious offence before a magistrate soon after his arrest, to do so by exhibiting an information
which is marked "Provisional", and to ask that he be remanded in custody, or admitted to bail,
pending the completion of the enquiry. The person charged will then periodically come up before
the magistrate, to be further remanded or to have the bail enlarged. Eventually, unless the charge
is not proceeded with at all, the magistrate will, in a case where he has no jurisdiction to deal with
the matter, be invited to hold committal proceedings, or the accused will be formally charged
before the Intermediate Court, or before a Judge sitting without a jury.
In the case of Alain Gordon-Gentil and others v State of Mauritius (1995) MR 38, the Court held
that,

A provisional information is a mechanism whereby a court is informed of the reason for the
arrest of an individual. The police may well inform the Magistrate verbally but the use of a
provisional information is now a well-established practice. Only an offence known to the law and
not any act not sanctioned as an offence should give birth to the provisional information.

In State v Bundhun S (2006) SCJ 254, the Supreme Court held that, A provisional charge in the
Mauritian context is simply an indication of the offence which a person is suspected of having
committed and is normally lodged at a very early stage of the enquiry, when investigation may
have hardly started and is certainly not over. The purpose of such a charge is to serve as a basis for
the detention or conditional release of the suspect. Accordingly when only a provisional charge
has been laid against a suspect, he cannot be considered as a person charged within the meaning
of Rule III (b).

Finally in the case of State v Rome (2009) SCJ 139A, it was stated that,

The 2004 information was only, what is termed in our criminal justice system, a provisional
charge for the purpose of compliance with section 5 of the Constitution that requires the
prosecution authorities to bring a person arrested on suspicion of having committed a serious
criminal offence before a Magistrate within the least possible delay. No trial takes place on such
an information see DPP v. IOIB (1989) MR 110, and Shaik v. State (1994) MR 149.

This is the settled position of our law and there is no legal maelstrom about it. True it is that I have
my own doubts about this whole notion of provisional information, however this is entrenched in
our judicial system and unfortunately, no effort to whittle it down can be entertained at this stage.
And until the matter is duly decided by higher judicial authority, we are bound to cohabit with it.
I shall now deal with the first limb of the submissions of the prosecution, namely that the Court has
no power to strike out a provisional charge, which can only be done upon a motion made by the
prosecutor.

Counsel for the Defence on his part argued that a provisional information did not amount to criminal
proceedings since it was lodged by the police and not by the DPP, pursuant to section 72 of the
Constitution and referred to the case of DPP v IOIB (1989) MR 110.

As rightly submitted by Learned Counsel for the Defence, this argument is fallacious since a
provisional information is signed by the Court before it is lodged and its purpose is to bring the
detention of the individual under judicial supervision and control so as to prevent an administrative
detention. Indeed, once a case comes under judicial supervision, it is the duty of the Court to ensure
that its process is not being abused by any other authority. I shall here refer to the case of DPP v
IOIB (1989) MR 110, where the Court noted that in connection with the term legal proceedings, as
used under section 34 of the defunct Banking Act, it was argued that there was already a provisional
information in court against the respondent. The Court however held that this did not constitute
legal proceedings for evidential purposes. Our law does not permit administrative detention, the
more so since the inscription of the fundamental right to personal liberty in section 5 of the
Constitution. Any interference with this right requires the supervision and control of the Courts.
And where this supervision and control are sought to be avoided, the writ of habeas corpus will
run.

Likewise in the case of Alain Gordon-Gentil v The State of Mauritius (1995) MR 38, the Court in
dealing with the powers of arrest, amongst others, quoting an article entitled "Le Directeur des
Poursuites Publiques" published in Mauritius Law Review No. 2 at page 145, stated that the author
had this to say on the relationship between the office of the Director of Public Prosecutions and the
police at the enquiry stage (page 151):

"Il faut souligner, en effet, la complmentarit de l'enqute et de la poursuite. Que deviendrait


l'accusation sans une enqute srieuse, et rapidement mene, permettant non seulement de
qualifier exactement ds le dbut, mais aussi d'apporter des preuves solides? Inversement, quoi
sert-il d'enquter si aucune poursuite ne vient prolonger la phase policire?

Dix ans d'exprience permettent de constater qu'aprs toutes les relations entre les deux organes
ont t harmonieuses et raisonnablement fructueuses. Cet tat de choses, si rjouissant soit-il,
n'empche pas de se poser une question: quel est le rle, quel est le pouvoir du D.P.P. en matire
d'enqute?

Deux solutions extrmes viennent tout de suite l'esprit. Selon la premire, l'enqute n'est pas du
ressort du D.P.P., ni lui ni son bureau ne sont quips cette fin; l'enqute est l'oeuvre du policier
et donc elle est mene sous la responsabilit de ce dernier. Selon la seconde, la poursuite ne peut
que suivre l'enqute, et l'on conclut que le D.P.P. est par ncessit super-contrleur judiciaire de
l'enqute.

A la vrit, ces deux positions ne sont pas contradictoires; il faut distinguer entre le processus
administratif de l'enqute et le contrle judiciaire de cette dernire. Le D.P.P., me semble-t-il, n'a
rien voir avec le premier aspect et quant au second, il jouit de pouvoirs limits."

The Court further added that, When a person is arrested, he must be taken before the Magistrate
who is informed by the prosecutor of the reason for the arrest. This is but a prolongation of the
initial process of arrest. Whereas at the initial stage the person arrested should be told the reason
for his arrest, the next important step is to inform the court why the person is detained and taken
before the court. This is not merely a formality. The court acts as arbiter between the executive
and the citizen and, in such cases, may control the regularity of an arrest if the need for it arises.

In the light of the above extracts, this Court is of the opinion that it acts as an arbiter to ensure that
the rights of the accused are protected whenever a provisional information is lodged before it. It
would therefore be incorrect to submit that the Court has no power to strike out a provisional
information.
Furthermore, it is trite law that proceedings may be stayed, when it amounts to an abuse of the
process of the court vide Connelly v DPP (1964) AC 1254. This power includes the power to
safeguard an accused party from oppression or prejudice. It was also stressed that the Court has an
inherent power to protect its own process from being abused. The matter was given much
consideration in the case of R v. Horseferry Road Magistrates Court, ex parte Bennett (1994) 1 A.C.
42 where Lord Lowry stated that:

the Court, in order to protect its own process from being degraded and misused, must have the
power to stay proceedings which may have come before it and have only been made possible by
acts which offend the courts conscience as being contrary to the rule of law. Those acts, by
providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect, taint
the proposed trial and, if tolerated will mean that the courts process has been abused.

The Courts may stay proceedings where the issue before them directly affects the fairness of the
trial of the accused, such as unconscionable delay in instituting and disposing of the case against him
or where there has been a misuse or a manipulation of the process of the Court and in cases where a
fair trial becomes impossible. In R. v. Derby Crown Court ex p. Brooks. 80 Cr. App. R. 164, at 168
Lord Roger Ormrod C.J summarized the position of the law on the issue of abuse of process by
stating that:

"The power to stop a prosecution arises only when it is an abuse of the process of the court. It
may be an abuse of process if either:

(a) the prosecution has manipulated or misused the process of the court so as to deprive the
defendant of a protection provided by law or to take unfair advantage of a technicality, or

(b) on the balance of probability the defendant has been, or will be, prejudiced in the
preparation or conduct of his defence by delay on the part of the prosecution which is
unjustifiable... The ultimate objective of this discretionary power is to ensure that there
should be a fair trial according to law, which involves fairness both to the defendant and
the prosecution".
The role of the Courts is to ensure that the integrity of the criminal process is protected and a fair
treatment is meted to any person charged with a criminal offence in conformity with the norms
prescribed in the Constitution, vide State v Wasson S J and Ors (2008) SCJ 209.

This Court therefore holds that it has an overriding duty to see to it that the provisional charge
against an accused party is fully justifiable at all times, failing which, it has all the power to strike it
out at any given stage, even proprio motu.

As regards the second limb, namely that the striking out of the provisional charge is but futile, since
there has been an undertaking by the DPPs office to lodge the main case against accused by the end
of September 2017. This argument is in itself futile, since the record shows that the Prosecution has
been moving for postponements on various occasions to take a stand and has up till now failed to
come up with a valid reason as to why the main case has not been lodged up to now. At any rate,
nothing prevents the DPP from lodging the main case at the end of September as undertaken by the
Prosecution.

In his submissions, Counsel for the Defence referred to section 6 of the Police Act and order 4(o) of
the Standing Orders which provide the following-

Section 6 of the Police Act:

Orders and directions


(1) Subject to the other provisions of this Act, the Commissioner may make standing orders
and give administrative directions to be observed by police officers in the performance of
their duties.
(2) Every police officer shall obey all lawful orders given verbally or in writing, and shall
comply with standing orders and administrative directions issued, by the Commissioner.
Order 4(o) of the Standing Orders: Role and Responsibilities of Chief Police Prosecutor provides
for Ensuring that Divisional Commanders and Branch Officers comply with the three months limit
for early trial, in cases where suspects/accused parties are on remand or bail on provisional
charges...

It is clear from a reading of the above provisions that there is a duty imposed on the Police to comply
with the standing orders made by the Commissioner of Police, which includes the lodging of a main
case within a delay of 3 months regarding accused parties who are on remand or bail on provisional
charges. The Court is alive of the fact that the Standing Orders are administrative directions meant
for the efficient running of the Police, internally, however in this case, a delay of 30 months has
elapsed since the lodging of the provisional information and the lodging of the main case is still
being awaited.

Notwithstanding the Police Act and the Standing Orders, Counsel for the Defence also alluded to
sections 5 and 10 of the Constitution, which deal with the right of a suspect and accused to be tried
within a reasonable time.

It is the contention of the Defence that this case has been dragging for 29 months now and the
prosecution has up to now failed to lodge the main case and in so doing, has breached the
reasonable time guarantee provided by sections 5 and 10 of the Constitution.

Now section 10 (1) of the Constitution provides that,

Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the
case shall be afforded a fair hearing within a reasonable time by an independent and impartial
Court established by law.
The right to a speedy trial flowing from section 10 encompasses the investigation stage, trial, appeal,
revision and re-trial (Darmalingum v State (2000) UK PC 30). As pointed out in the case of Dahall v
State (1993) MR 220, the word charge includes the delay which has occurred since the beginning of
an enquiry.

The right to speedy trial equally extends to all prosecutions and is not confined to any particular
category of cases. The delay varies with the complexity of the case, the manner of proof as well as
the gravity of the alleged crime. This, again, depends on a case-to-case basis. There cannot be any
universal rule in this regard. It is a balancing process while determining as to whether the accused's
right to speedy trial has been violated or not.

As has been observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a
system where justice is supposed to be swift but deliberate". However, an inordinate delay may be
taken as presumptive proof of prejudice.

In the case of State v. Bissessur and Others (2001) SCJ 50, the Supreme Court held that there is no
mathematical calculation for how long is too long. It differs from jurisdiction to jurisdiction and
each case has to be decided on its own facts.

Whenever Defence makes a motion to have a case struck out on the ground of unreasonable delay,
it is primarily for the prosecution to explain the reasonableness of the delay and its raison dtre. At
the same time, it is the duty of the Court to weigh all the circumstances of a given case before
pronouncing upon same.

In the present case, this Court finds that the delay of 29 months is inordinate and has remained
unexplained in the light of the chronology of events together with the above findings.
I therefore order that the provisional information lodged against accused be struck out. This will, in
no way, prevent the prosecution from lodging a main case in the future.

Finally, this Court notes that in substantiating his motion to have the case struck out, Counsel for the
Defence submitted that the accused was an ex-Prime Minister. I, however, wish to place on record
that this Court would have reached the same conclusion irrespective of the status of the accused or
of the fact that he was an ex- Prime Minister.

I so order.

Meenakshi Bhogun
Senior District Magistrate
Delivered on 28 August 2017