POLICE VS BUNGAROO PRATIMA

Transcription

1 POLICE VS BUNGAROO PRATIMA 2017 INT 86 POLICE VS BUNGAROO PRATIMA Cause Number: 452/15 IN THE INTERMEDIATE COURT OF MAURITIUS In the matter of:- POLICE VS BUNGAROO PRATIMA Judgment INTRODUCTION The Accused stands charged under 2 Counts of the Information with the offence of using an information and communication service for the purpose of causing needless anxiety in breach of sections 46(h)(ii) and 47 of the Information and Communication Technologies Act. She pleaded not guilty to both Counts and was assisted by Counsel. The Prosecution was also assisted by Counsel. It has been alleged under Count 1 of the Information that on the 19 th August 2012, the Accused wilfully and unlawfully used cellular number to send the following message Namaskaram ou trouver eid:). Pls beware of surekha kariman EO and renuka bissessur. They are not what they portray. They will contact u with lots of lies. Pratima Bungaroo to the cellular phone of Mrs Sweta Bhotooa. It has further been alleged under Count 2 of the Information that on the aforesaid date, the Accused wilfully and unlawfully used her cellular phone number to send the following message: To ti croire to pou capav win over truth. Mo mari pou retourne kot moi. Guette bien ki sa kali maa faire toi sauvage to the cellular phone number of Mrs Kariman.

2 Mr Carpen is an IT technician at the Mauritius Telecom. In this capacity, he confirmed that phone number was registered on the name of the Accused. Phone number was registered on the name of Mrs Kariman. Following a Judge s order from the Supreme Court, the Mauritius Telecom provided to police details and the list of incoming and outgoing calls and messages made by sim cards number and This list was produced in Court. THE FACTS Both Mrs Kariman and the Accused were employed at the Ministry of Social Security at the time of the incident. The Accused was a supervisor and Mrs Kariman was a senior officer. Mrs Kariman testified that in the year 2012, a message was circulated through a mobile phone to the effect that she was a liar. Mrs Kariman became aware of the message when her colleagues showed and forwarded the message to her. According to Mrs Kariman, the message read: Namaskaram, demain eid. Beware of Surekha Kariman EO and Renuka Bissessur. They are not what they portray. They will come with lots of lies. Pratima Bungaroo. She added that she received a second message on her phone from phone number which read: To ti croire to pou capave touye sa Sita la are palabre. Truth will win. Mo mari pou retourne avec moi, Guetter sa kali maa ki pou faire toi sauvage, causing Mrs Kariman to feel humiliated and to be caused anxiety and annoyance. Another employee from the Ministry of Social Security, was called to give evidence. Her name is Mrs Bhotooa. She explained under oath that in the year 2012, she received a text on her mobile phone number from phone number saying: please beware of Surekah Kariman and Renuka Bissessur. They are not what they portray. They will contact you with lots of lies. Pratima Bungaroo. When she received the message, she showed same to Mrs Kariman. The version of the Accused is contained in her statements given to the police. She averred that she was friends with Mrs Kariman since the year 2000 and the latter was working under her supervision. The Accused used to come and return from work in Mrs

3 Kariman s car driven by the latter s husband. The Accused shared a good relationship with Mrs Kariman and her husband and would listen to her problcms and advise her. In the year 2012, the Accused met with health problems. Mrs Kariman asker her husband to go meet the Accused. On one night, Mr Kariman called the Accused to inform her that his wife was quarelling with him. It was then that the Accused heard Mrs Kariman yell: to ti al dormi are li. This came as a shock to Mrs Kariman but the latter denied that she sent a message reading: Namaskaram, demain eid. Beware of Surekha Kariman EO and Renuka Bissessur. They are not what they portray. They will come with lots of lies. Pratima Bungaroo to any of her colleagues. Initially, the Accused could not remember if she sent the following message from her phone to Mrs Kariman: To ti croire to pou capav win over truth. Mo mari pou retourne kot moi. Guette bien ki sa kali maa faire toi sauvage. When she was confronted with the list of incoming and outgoing calls and messages from her phone, the Accused confessed that she sent the text message to Mrs Kariman. However, she explained that she reacted to the words which Mrs Kariman said about her and at the time, they used to text each other without any qualms. The Accused contended that she never intended to cause any prejudice to Mrs Kariman who resumed a professional relationship with her. OBSERVATIONS THE CHARGE AGAINST THE ACCUSED IN THE UNSWORN STATEMENT Before I go into the merits of the case, I propose to deal with an issue which has cropt up during the cross-examination of the main enquiring officer in the case. It has been put to the main enquiring officer that the exact charge was not put to the Accused. However, I read from the last line of the 2 nd statement that PS Jeetun recorded from the Accused that the latter was informed that she may be prosecuted for a breach of ICTA which she agreed and apologized for. In the case of STATE VS RUHUMATALLY (2015) SCJ 384, the Court explained that the Accused party

4 must be given an idea which is elaborate enough concerning what is reproached of him and which constitutes a breach of the penal laws of Mauritius and to which he is being asked to answer. Given that the Accused was explained the charge which she had to meet, I find that the charge was duly put to the Accused. Moreover, the Accused was informed of the version of the declarant since she gave her statements in relation to messages allegedly sent by her as complained by the declarant. In the case of SEETAHUL VS THE STATE(2015) SCJ 328, the Appeal Court found that the Appellant was aware of the case against him since the evidence of the Complainant was put to him. Similarly, in the present case, I find that the Accused was aware of the case she had to meet since she was confronted with the alleged impugned messages sent, as per the version of the declarant as well as documentary evidence of incoming and outgoing calls and messages in line with the version of the declarant. I therefore find that the charge was put to the Accused who was aware of the charge that she had to answer. THE LAW The Accused is charged with the offence of using an information and communication service for the purpose of causing needless anxiety in breach of sections 46(h)(ii) and 47 of the Information and Communication Technologies Act. Section 46(h) (ii) reads as follows: Any person who uses an information and communication service, including telecommunication service, - (ii) for the purpose of causing annoyance, inconvenience or needless anxiety to any person; shall commit an offence.

5 In order to prove its case against the Accused, the Prosecution must prove the essential element of the offence. (RE: LOKEE VS THE STATE (2010) SCJ 378). Hence, the Prosecution must not only prove that the Accused was subject to anxiety. It must in fact establish that needless anxiety was caused. COUNT 1 I shall first deal with Count 1 of the Information. In relation to Count 1, Mrs Bhotooa came to depose to state that she received a message on her phone reading: please beware of Surekah Kariman and Renuka Bissessur. They are not what they portray. They will contact you with lots of lies. Pratima Bungaroo. The words as testified by Mrs Bhotooa are consistent with the words in Count 1 of the Information. I have noted that there is no evidence on record, other than the words of Mrs Bhotooa, that the message which she received emanated from the Accused s phone. There is no documentary evidence from the Mauritius Telecom. There is no evidence of this message having been received at all on Mrs Bhotooa s phone since she claimed that she deleted the message when she had to change phone. To make matters worse, Mrs Bhotooa acknowledged that she levelled a declaration against the Accused to support Mrs Kariman, who is her friend. In the circumstances, I find that I cannot rely on the version of Mrs Bhotooa and I cannot connect the message allegedly received on Bhotooa s phone to the Accused. I have to add that the charge against the Accused can only stand if it is established that she used her cellular phone for the purpose of causing needless anxiety to Mrs Kariman. However, in the present case any anxiety caused to Mrs Kariman under Count 1 of the Information is due to a message showed to her by Mrs Bhotooa. There is no evidence that the Accused sent the message or had the mens rea to cause needless anxiety to Mrs Kariman. The blame cannot therefore be laid at the door of the Accused.

6 COUNT 2 I shall now deal with Count 2 of the Information. Under this count, it is not disputed that the Accused did send a message to Mrs Kariman. The question to be asked is whether the message caused Mrs Kariman needless anxiety? On this score, I have noted that when Mrs Kariman received the Accused s message, she went on holidays 2 days after. It was only after 2 months, after her holidays and after she resumed work, that she opted to level a declaration against the Accused. I find that any reasonable person faced with needless anxiety by a message received on her phone, would not have waited 2 months to level a declaration. I have assessed the relationship between the Accused and Mrs Kariman. On this score, I have noted that Mrs Kariman came across as a most evasive witness. Indeed, in cross-examination, when she was asked if she shared a personal relationship with the Accused, she stated they were colleagues. However, as the cross-examination persisted, she acknowledged that they used to travel together in the morning and to go to each other s house. In addition, upon being asked as to the reason behind the message sent by the Accused, Mrs Kariman averred that she had no idea. When it was put to her that the Accused was reacting to her statement to in al dormi are li? referring to the Accused and Mrs Kariman s husband, Mrs Kariman became even more evasive. She answered that she could have been speaking about someone other than the Accused, that she did not think that she said the words, that she could not recall having said the words. In view of the evasive nature of the version of Mrs Kariman and the answers given by her, I can easily conclude that the Accused and Mrs Kariman shared a close relationship which had suddenly turned sour. They were two friends who travelled together and who went to each other s house. They used to text each other. The present incident is a one-off incident which arose in a particular context when the Accused reacted to words used by Mrs Kariman. I therefore cannot find that the Accused had the mens rea to cause needless anxiety to Mrs Kariman since the message was sent in a particular context. In fact, the

7 Information and Communication Technologies Act does not define the term anxiety. According to the Oxford Dictionary, anxiety is defined as a state of feeling nervous or worried that something bad is about to happen. The term needless is defined as something which could have been avoided. In view of the above, I find that the message sent by the Accused could not have caused needless anxiety to Mrs Kariman who went on holidays, resumed a professional relationship with the Accused and opted to give a declaration 2 months after the alleged offence which arose in a particular context between two friends. THE CHARGE IN COUNT 2 OF THE INFORMATION In a criminal case it is normal to assume that the version that is put to an accused party when recording his or her defence is the very complaint that was made by the victim. (RE: P MARDAY VS THE STATE (2000) SCJ 225). PS Jeetun in his capacity as the main enquiring officer has confirmed that the complaint made by Mrs Kariman reads: to ti croire to pou capave touye sa Sita la are palabre mais maya pas capave win over truth. Mo mari pou retourne kot moi. This is not the words which figure in Count 2 of the Information as the charge against the Accused. The impugned words in Count 2 read: To ti croire to pou capav win over truth. Mo mari pou retourne kot moi. Guette bien ki sa kali maa faire toi sauvage. I deem it fit to refer to the case of VIGIER DE LA TOUR VS THE STATE (2009) SCJ 19, where the Court laid down as follows: One of the elementary principles of criminal justice is that a person charged with an offence is entitled to know with certainty and precision all the facts and circumstances so that he may be enabled to judge whether they constitute an offence and to determine the species of offence : (RE: IP FAN YONG V QUEEN [1971 MR 28] AT P. 31). The Information needs to set out with clarity and precision the charge against the Accused and the elements constitutive of that charge. (RE: LOBOGUN D. VS THE STATE (2006) SCJ 277). However, in the present case, the particulars of the charge in the Information, that is the particulars in relation to the message sent by the Accused

8 to Mrs Karimam, which concern the offence against the Accused under Count 2 of the Information, are incomplete and lack precision. I therefore find that this is highly prejudicial to the Accused. CONCLUSION In light of the above, given that I have found that there is a lack of evidence connecting the Accused to Count 1 of the Information and the lack of evidence in relation to the needless anxiety caused by the Accused under Count 2 of the Information as well as the incomplete particulars under Count 2 of the Information, I find that the case cannot stand against the Accused. I find that the Prosecution has failed to prove both Counts against the Accused beyond reasonable doubt. I dismiss both Counts against the Accused. Judgment delivered by: M.GAYAN-JAULIMSING, Ag Magistrate, Intermediate Court Judgment delivered on: 1 st March 2017