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People v Chitungu and Others (C.H.P.B.A./6/92)  ZMHC 3; (1990 - 1992) Z.R. 190 (H.C.) (1 April 1992)
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THE PEOPLE v BENJAMIN SIKWITI CHITUNGU, JOSEPH ANTONIO ARTHUR AND DAVID MAZUMA (1990 - 1992) Z.R. 190 (H.C.)
Criminal law and procedure - Bail - Police bond - Cessation/cancellation of - Powers of police laint.
The accused were charged with theft of a motor vehicle contrary to s.281(a) of the Penal Code. Their application for bail pending trial in the magistrate's court was refused. The accused then applied to the High Court arguing that there was no valid reason to support the refusal. The accused were prior to the commencement of trial on police bond which was cancelled.
Legislation referred to:
Other works referred to:
Archibold 42nd ed. 3-19.
For the State: M. Chibiya, State Advocate.
This is an application on the part of the accused for bail pending trial on a charge of theft of motor vehicle contrary to s.281(a) of the Penal Code Cap.146. The application is supported by an affidavit and further affidavit to which are annexed respectively the Court's ruling below and part of the case record. There is no affidavit in opposition filed.
Paragraphs 6 and 7 of the supporting affidavit read:
And in her ruling the learned magistrate said:
Mr Sikota for the accused submitted that the learned trial magistrate was wrong to refuse the application because there was no evidence that, if granted bail, the accused would dishonour the bail conditions and disappear. On the other hand Mr Chibiya objected to the application saying
that the Court below was right in refusing to grant the accused bail because the offence was prevalent and that the Court has applied the correct principle.
This application raises three important issues, namely whether or not:
Section 123 ss.(1) and (2) of the Criminal Procedure Code Cap.160 provide:
It is quite clear from the section that any police officer in charge of a police station, or the court before whom any person is accused of an offence other than murder or treason, has powers to grant such person bail. Bail granted by the police is commonly known as police bond.
Do the police have powers to cancel a police bond?
A police bond will normally require an accused person to attend before the police station or court on a mentioned date, time and place, and if before then it appears to the police that the accused is about to leave the country or disappear or is interfering with or likely to interfere with witnesses or about to commit a similar offence the police may arrest the accused, cancel the bond and detain him in custody pending appearance in court. The answer therefore to the above question is in the affirmative.
Where a bond is cancelled, is a court duty bound to inquire into reasons for cancellation when considering an application for bail? Since the police and court have each jurisdiction to grant bail to an accused person, it is my considered view that the Court has a duty, where it has come to its attention that the accused's bond was cancelled by the police, to inquire into the reasons for the cancellation when considering bail application and, where it is not satisfied with the reasons for cancellation, to grant bail to the accused on the same conditions as the bond. In the instant case the learned magistrate refused to address her mind to the reasons why the bonds for the accused were cancelled. The fact, as it appears from the record, is that the bonds were cancelled because of an internal circular that
no bonds should be granted in cases of theft of motor vehicles. No doubt this circular, if it exists, is ultra vires the provisions of s.123 supra and therefore null and void. By failing to address its mind to this fact the Court erred in both fact and law.
Does a police bond automatically cease on an accused person appearing in court to answer a charge upon which the bond was granted?
Section 123 supra does not say what happens to a police bond once an accused person on bond appears before the Court. I have looked at the sixth (1991) edition of the Magistrate's Handbook and it is silent on the issue. The English practice is found in s.129 ss.(2)(a) and (b) of the Magistrates' Courts Act, 1980. The section is reproduced in paras.3-19 of Archbold 42nd ed.and it provides as follows:
Section 128 referred to in this section deals with powers of magistrates either to remand in custody or release on bail an accused person. Subsection (a) above relates to bail granted by other courts and (b) to bail granted by the police.
It is quite clear from the section that a magistrate before whom an accused person is on bail granted by another court or police has powers to enlarge that bail. In fact, it has always been the practice in Zambia for magistrates to extend police bonds.
I find therefore that a police bond does not automatically cease upon an accused person appearing in court to answer a charge on which he was granted the bond. The learned magistrate was therefore wrong in expressing the view that a police bond ends at the time an accused appeared in court. And as a matter of practice, I wish to state that once a bond has been enlarged by the court it cannot be cancelled by the police without the sanction of the court. Neither can the court cancel a police bond. It has no such powers. Only the police can do so on sufficient grounds.
For the foregoing, the application is granted. Each accused is granted cash bail in the sum of K10 000 with one suitable working surety in the like amount. The sureties to enter into recognisances.
In passing off I wish to say that no appeal lies against a refusal for bail. Under s.123 supra ss.(3) the course open to such an accused bail application has been refused by the subordinate court is to apply to the High Court. It is therefore misleading for a magistrate to tell an accused person to appeal to the High Court against such refusal.