Mandants d’arrêt maintenus contre Nandanee Soornack : découvrez le « ruling »

8/9/2019 Mandants d’arrêt maintenus contre Nandanee Soornack : découvrez le « ruling »

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POLICE v SOORNACK NANDANEE

2015 PL3 51

IN THE DISTRICT COURT OF PORT LOUIS (DIVISION III)

Cause Nume!" #1$15

I% &'e ma&&e! "

POLICE v NANDANEE SOORNACKRu*+%,

1. Factual Background

1.1. An information upon oath (sic) has been laid before this Court on 19 March 201 !hich

is essentiall" to the effect that on or about 0# $ul" 2011 at Coastal %oad& %oches 'oires&

Mrs 'andanee oornack had !ilfull" and unla!full" agreed !ith se*eral persons named

in the information so that one of the named persons could gi*e a false statement to the

+olice, hence the said named person committed the offence of effecting a public

mischief !hich !as the ob-ect of the .conspirational agreement/ (sic)

1.2. he information further a*erred that Mrs oornack has left Mauritius on 11 ecember

201 for ubai, she is still abroad, and she !as in 3tal" at the time the information !as

laid

1.3. he police pra"ed for a !arrant of arrest to issue in the light of the information laid

1.4. 3t is against this background and upon being satisfied that the issue of a summons !as

not !arranted in the present matter but instead a !arrant of arrest !as -ustified& that 3

ordered for a !arrant of arrest to issue

1.5. Mr 'a4roo& learned Counsel appearing for Mrs oornack& is no! challenging the issueof the !arrant of arrest 5e has mo*ed this Court to recall and6or re*oke the !arrant !ith

immediate effect on the ground that the !arrant of arrest had been obtained b" the

police through an abuse and6or misuse of the process of this Court gi*en that the police

kne! full !ell that Mrs oornack is not in Mauritius and a !arrant of arrest can onl" be

e7ecuted in one of the districts of Mauritius he police ob-ected to the motion and it !as


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represented b" Mr Baungall"& +rincipal tate Counsel !ho appeared together !ith Mr

Armoogum& Ag enior tate Counsel Arguments !ere heard from both sides& hence

the present ruling

2. ubmissions on behalf of Mrs oornack

2.1. he arguments of Mr 'a4roo are four8pronged

Va*+-+&. &'e I%!ma&+%

2.1.1. Firstl" the *alidit" of the information is being challenged on the ground that the defect

therein is a ma-or fla! !hich goes to the root of the information and renders it null and

*oid 3t !as submitted that the bod" of the information describing the offence allegedl"

committed or suspected of ha*ing been committed is not one of mone" laundering as

per the heading of the information Mr 'a4roo has furthermore highlighted that the

*enue of the offence is a*erred to be at %oches 'oires and the information has been

lodged in +ort ouis

S/e &'e a!!a%& A!!es&

2.1.2. econdl"& gi*en the purport of ection 9 of the istrict and 3ntermediate Courts (Criminal

$urisdiction) Act 1:::& the !arrant of arrest issued can onl" be e7ecuted in Mauritius and

in one of its districts .istrict/ is defined as .a district of the Island of Mauritius as

described in the Districts Act /1 5ence& it is the submission of counsel that the po!ers

gi*en to an" Magistrate under the istrict and 3ntermediate Courts (Criminal $urisdiction)

Act 1::: is restricted to an" district in Mauritius 3t is furthermore the contention of

counsel that our la! does not pro*ide for !hat ma" be termed as an . international

warrant of arrest /

Ause a%-$! +suse &'e P!/ess &'e Cu!&

2.1.3. hirdl"& the main thrust of the argument of Mr 'a4roo is that the police made an abuse

and6or misuse of the process of this Court !hen it sought for a !arrant of arrest against

Mrs oornack& kno!ing full !ell that she is abroad 5ence& the ;uestion of counsel<

=h" !ould the police appl" for a !arrant of arrest if it kno!s that the person is not in

Mauritius and there is no indication !hen the person is coming back> Mr 'a4roo

distinguished the facts of the present matter from one !here the date of return of a

1 Ȁ ection 2 of the 3nterpretation and ?eneral Clauses Act 19@


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person against !hom a !arrant of arrest has been issued is kno!n or !here there is an"

information of such nature According to counsel& a !arrant of arrest cannot be issued if

a person is not in Mauritius at the time !hen it is issued for the legislator could not ha*e

contemplated a situation !hereb" a person is outside Mauritius for man" "ears, !hilst

the person is still abroad a complaint is made against him6her to the police, and the

police can appl" for a !arrant of arrest to apprehend that person 3t is submitted on

behalf of Mrs oornack that a !arrant of arrest !hich is issued under the rele*ant

pro*isions of the istrict and 3ntermediate Courts (Criminal $urisdiction) Act 1::: is not

of the same nature as a !arrant of arrest issued under the 7tradition Act 19@0 2 3t is the

submission of counsel that (a) in the absence of an" e7tradition treat" bet!een Mauritius

and 3tal"& the police should not abuse and6or misuse the process of this Court to seek

and obtain the arrest of a person !ho is not in Mauritius, and (b) the purpose of the

!arrant of arrest issued in the present matter is defeated gi*en that the person against

!hom it is meant to be used is not in Mauritius

Ca% &'+s Cu!& !e/a** &'e a!!a%& a!!es& ! !ev4e +&

2.1.4. Mr 'a4roo submits that this Court can re*ie! its decision to issue the !arrant of arrest

and recall the same if it is satisfied that there is an abuse of its process his includes

the po!er to safeguard the rights of an accused part" from oppression or pre-udice or

!here there has been a misuse or a manipulation of the process of the Court 3 3t is

further submitted that this Court can re*oke the !arrant of arrest issued in order to (a)

preser*e public confidence in the administration of -ustice and a*oid bringing it into

disrepute, and (b) not to tolerate and far less to endorse such a state of affairs as

e7pounded in the present matter

3. ubmissions on behalf of the +olice

3.1. Mr Baungall"& submitted that the *ariance bet!een the heading and the bod" of the

information is not material 3n support of his contention he submitted that no ob-ection

2 Ȁ he main and rele*ant sections of the 7tradition Act 19@0 referred to are ection 2 !hich defines a.foreign !arrant/, ections 1 and 1& under +art 333 in respect of e7tradition from foreign states& dealing!ith the meaning of an e7tradition crime and the surrender of escaped offenders respecti*el"

3 Ȁ C%%e**. v DPP 6178# AC 125#9


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shall be taken or allo!ed to be taken to a !arrant of arrest for an" defect therein in

substance or in form of an" *ariance bet!een it and the e*idence4

3.2. 3t !as further submitted that the pro*ision of the la! dealing !ith the issue of a !arrant

of arrest is found in ection of the istrict and 3ntermediate Courts (Criminal

$urisdiction) Act 1::: !hich pro*ides for the criteria and conditions that are necessar"

for the issue of a !arrant ection has been complied !ith, hence once all the

conditions are satisfied& the Magistrate ma" proceed to issue the !arrant of arrest so

that the person named in the !arrant can be apprehended and brought before court

3.3. 3n repl" to the argument that the person against !hom the !arrant has been issued is

not in the countr"& Mr Baungall" submitted that the la! does not pro*ide that the person

has to be present in the district !here the !arrant of arrest has been issued and there is

no re;uirement that the !hereabouts of the person be kno!n 5e added that the

legislator has not made it a condition that the person sub-ect to the !arrant has to be

ph"sicall" present in Mauritius for a !arrant of arrest to issue

3.4. As far as the e7ecution of the !arrant of arrest is concerned& Mr Baungall" is of the *ie!

that the onl" rele*ant concern for the magistrate faced !ith an application for a !arrant

of arrest is its issue not its e7ecution5 3t is further submitted that a !arrant of arrest shall

remain in force until it is e7ecuted

6

, hence there is no time limit imposed for its *alidit"

3.5. Mr Baungall" argued that there is no abuse of the process of this Court in as much as

the police has acted in good faith and the suspect is or is belie*ed to be outside

Mauritius 5e is further of the *ie! that the remed" for an alleged abuse of process of

the court is a sta" of proceedings, hence not applicable in the present matter

3.6. astl"& it is submitted that the 7tradition Act does not find its application in the present

matter as it refers to persons !ho ha*e been con*icted for e7traditable offences

4. he a!

4 Ȁ ection : of the istrict and 3ntermediate Courts (Criminal $urisdiction) Act 1:::

5 Ȁ ection of the istrict and 3ntermediate Courts (Criminal $urisdiction) Act 1:::

6 Ȁ ection @(#) of the istrict and 3ntermediate Courts (Criminal $urisdiction) Act 1:::


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4.1. ection of the istrict and 3ntermediate Courts (Criminal $urisdiction) Act 1::: reads

as follo!s<

.4. Issue of warrant

(1) (a)Where a charge or complaint is made on oath before a Magistrate inForm A of the Second Schedule that a person has committed or issuspected of having committed an offence punishable otherwisethan b a fine! the Magistrate ma issue a warrant in Form " ofthe Second Schedule to apprehend such person and to causesuch person to be brought before him or an other Magistrate ofthe district to answer such charge or complaint and to be furtherdealt with according to law#

(b)In all such cases the Magistrate ma! if he thin$s fit! instead of issuing a

warrant in the first instance! issue a summons in Form % of theSecond Schedule directed to such person#

(&)Where an person after being served with an such summons fails to appear

at the time and place mentioned in the summons! the Magistrate maissue his warrant to apprehend such person#/

5. Appl"ing the la! to the arguments offered b" both parties

5.1. he -urisdiction of this Court to hear the present application to recall and6or re*oke the

!arrant of arrest !hich 3 issued on 19 March 201 is not disputed Mr 'a4roo has

further submitted that this Court has -urisdiction to re*ie! its decision !here there is an

abuse and6or misuse of its process

5.2. 3t is common ground that the !arrant of arrest in the present matter !as issued b" *irtue

of the po!ers conferred on a Magistrate to do so under ection of the istrict and

3ntermediate Courts (Criminal $urisdiction) Act 1:::

5.3. he complaint of the police !as made under solemn affirmation before me in the form

prescribed under the la!& namel"& Form A of the econd chedule of the istrict and

3ntermediate Courts (Criminal $urisdiction) Act 1:::, it a*erred a criminal offence& the

!ordings of !hich prima facie disclosed an offence kno!n to the la!, and such offence

is not one !hich is punishable onl" b" a fine he complaint also a*erred that Mrs

oornack& the person against !hom such complaint is made& is not in Mauritius and she

is in 3tal", the information did not disclose the e7act address of Mrs oornack, the

address of Mrs oornack !as therefore not sufficientl" established for a summons to


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issue and to be ser*ed 5ence& the issue of a !arrant of arrest in Form B of the econd

chedule of the istrict and 3ntermediate Courts (Criminal $urisdiction) Act 1:::

5.4. he purport of the information and the import of the !arrant of arrest !hich !as issued

follo!ing the la"ing of such information in the present matter& is to apprehend the personnamed in the information and bring her before me to ans!er the complaint and be dealt

!ith according to la!

5.5. 3 do not agree !ith the submissions of Mr 'a4roo that the *ariance in the heading of the

information !hich a*ers a charge of .mone" laundering/ and the bod" of the information

!hich discloses the offence of conspirac" is a fundamental defect !hich cannot be cured

b" an amendment and renders such information null and *oid rue it is that the

information has been infelicitousl" drafted& to sa" the least his being said& the *ariance

bet!een the heading of the information and the a*erment in the bod" of the information&

is at this stage of the proceedings& not fatal to the *alidit" of the complaint laid before me

gi*en that (a) all the essential elements of the offence of conspirac" under ection

109(1) of the Criminal Code (upplementar") Act& !hich is an offence kno!n to the la!

and punishable other!ise than b" onl" a fine& ha*e been a*erred in the information, (b)

the !rong citation of the la! is not of itself fatal to the information, (c) a defect in the

citation of the la! in the heading of the information !ill not affect the bod" of the

information if it discloses an offence kno!n to the la!7, (d) the statement of the offence

in the bod" of the information is as per the enactment creating such offence& and (e) the

statement of the offence is not one !hich discloses more than one offence kno!n to the

la!& hence is not such as to create an uncertaint" as to !hether it falls under more than

one enactment or different sections of the same enactment Furthermore& an"

technicalit" regarding the place !here the offence is alleged to ha*e been committed

and the court before !hich the complaint is lodged& is not material 3t is settled la! that

no information for an offence shall be held defecti*e for !ant of a proper or perfect

*enue8 3n an" e*ent& a magistrate ma" grant a !arrant for the apprehension of a person

suspected of ha*ing committed an offence for !hich a !arrant ma" issue in another

7 Ȁ F%, C'a% S+% C'u%, v: T'e ;uee% 61770 SC< 30=9 , See,+% v: R: 61787 R 19, >-'u% v: R617?1 R 2789, Ramsa'.e v: T'e S&a&e 62007 SC< 1?59)

8 Ȁ ection # (i)(i) of the Criminal +rocedure Act 1:#


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district9 5ence& the reference to ection 9 of the istrict and 3ntermediate Courts

(Criminal $urisdiction) Act 1::: b" Mr Baungall" regarding ob-ections taken to a !arrant

of arrest does not find its application in the present matter

5.6. 'o!& it is be"ond dispute that the !arrant issued in the present matter can onl" be

e7ecuted in Mauritius he !arrant issued in the case in hand is b" no means !hat is

termed as .international warrant /, and there is indeed neither an" legal pro*ision

describing such a !arrant nor does a magistrate ha*e the po!er to issue a .foreign

!arrant/ Dur courts of la! can onl" issue a !arrant of arrest

5.7. Mr 'a4roo referred me to rele*ant pro*isions of the 7tradition Act 19@0 to distinguish a

!arrant of arrest issued under the pro*isions of the istrict and 3ntermediate Courts

(Criminal $urisdiction) Act 1::: from one !hich is obtainable under the 7tradition Act 3am ho!e*er of the *ie! that such distinction is superfluous because the issue of a

!arrant under ection 10 of the 7tradition Act refers to one !hich is issued in respect of

an offender !ho is or is suspected of being in Mauritius and there is a re;uest for his

surrender b" a foreign state he submission of Mr Baungall" to the effect that the

7tradition Act does not find its application in the present matter because it deals !ith

persons !ho ha*e been con*icted of an e7traditable offence is not a correct proposition

of the la! gi*en that the 7tradition Act also applies to a person accused of an

e7traditable offence

5.8. he point made b" Mr 'a4roo boils do!n essentiall" to the fact that gi*en that there is

no e7tradition treat" bet!een Mauritius and 3tal"& the police is making an abuse and6or

misuse of the process of this Court b" seeking for a !arrant of arrest through the back

door so that Mrs oornack ma" be arrested !hilst she is not in Mauritius 3 am ho!e*er

unable to agree !ith this proposition for the follo!ing reasons<

(a) here is no e*idence before this Court to substantiate such a proposition Matters

!hich ha*e been brought before me and to m" attention in that respect onl" pertain

to the fact that Mrs oornack has left Mauritius for 3tal" and no mention has been

made of her date of return to the countr" here is a presumption of regularit", in the

9 Ȁ ection of the istrict and 3ntermediate Courts (Criminal $urisdiction) Act 1::: and ection 10# of theCourts Act 19


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absence of an" e*idence to suggest that& the allegations that a criminal offence has

been committed& as solemnl" affirmed before me& are not based at the *er" least on

reasonable suspicion (!hich is the *er" basis on !hich the right to libert" can be

la!full" interfered !ith)& 3 cannot therefore dra! an" reasonable inference from such

a fact to find that there has been a misuse or abuse of the process of the Court

(b) he e7istence of (a) an" e7tradition treat" and6or (b) an" process initiated to arrest

Mrs oornack !hilst she is abroad is be"ond the scope and -urisdiction of the

present application and this Court Furthermore& 3 obser*e that the discretion to

re;uest for the arrest of an offender !ho is abroad lies !ith the 7ecuti*e and the

procedures !hich follo! are sub-ect to a -udicial test in the foreign state to enable the

7ecuti*e of the foreign state to take a decision in respect of the re;uested

surrender

5.9. 3 am also unable to agree !ith the submission of Mr 'a4roo that the presence of person

in Mauritius is a condition precedent for the issue of !arrant of arrest here is no

statutor" pro*ision to that effect Dnce a magistrate is satisfied that the pro*isions of the

la! ha*e been complied !ith and the issue of a !arrant of arrest is -ustified& it is for the

police to use la!ful means to e7ecute such a !arrant and to come back to the

Magistrate if circumstances are such that the !arrant cannot be e7ecuted

5.10. he submission of Mr 'a4roo that the issue of a !arrant of arrest cannot be a substitute

to a pro*isional charge is based on an incorrect premise he concept of .pro*isional

information/ is *er" peculiar and uni;ue to the Mauritian conte7t A .pro*isional

information/ is lodged as a matter of appro*ed practice after a suspect is arrested or is

brought into custod" to inform the Court about the reason of the arrest of the indi*idual10

6. Conclusion

6.1. For all the reasons gi*en at paragraphs 1 to @ abo*e& 3 am satisfied that the !arrant

of arrest issued against Mrs oornack should not be re*oked at this stage of the

proceedings

10 Ȁ A*a+% @!-%@e%&+* v S&a&e au!+&+us 61775 SC< 11=9


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6.2. 3 also find that there is at this stage no basis before me to find that the police has made

an abuse and6or a misuse of the process of this court !hen the" laid the information in

the present matter and sought for a !arrant of arrest

6.3. he motion of Mr 'a4roo to recall and6or re*oke the !arrant of arrest against Mrsoornack is therefore set aside

A:HAUTH (+ss)6De*+ve!e- ." A:HAUTH (+ss)B Se%+! D+s&!+/& a,+s&!a&e96De*+ve!e- %" 23 A!+* 20159

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Mandants d’arrêt maintenus contre Nandanee Soornack : découvrez le « ruling »