“It will be an interesting legal battle…

The court will have to decide whether a private party can file a private prosecution against another party for allegedly swearing a false affidavit”

Private Prosecution – Dayal vs Jugnauth & The DPP

By Lex

Lex provides his legal insight in the case entered by Suren Dayal against candidate Pravind Jugnauth on the grounds that the latter would have allegedly filed a false affidavit regarding his electoral expenses during the 2019 elections in constituency No.8. This private prosecution, to which the Office of the DPP has been included, may raise interesting legal arguments in the Supreme Court, on the scope of private prosecutions by aggrieved parties and the stand of the DPP in this high-profile case will certainly be awaited, as much as the Court ruling.

* Suren Dayal has levelled allegations in his Private Prosecution lodged against MSM candidate Pravind Jugnauth to the effect that the latter would have sworn a false affidavit in relation to his electoral expenses in Constituency No. 8 at the last general elections. His contention is that he has a locus standi in this matter. The DPP has been roped into the case, as ordered by the Supreme Court. What’s the reasoning behind this ruling of the Court?

Under section 72 of the Constitution, the DPP is vested with the powers ofinitiating a prosecution either by himself or through other persons. When the DPP alone can put a stop to a case and he cannot delegate that power, it is right that the DPP should be put into cause and take a stand.

* Was it necessary for the Supreme Court to make that order, or was it to be expected that the DPP could and would of his own volition have stepped in and taken over the case before the Court?

The DPP is not and should not be perceived as an interfering busybody who would poke his nose into every matter. If a party who is seeking to put a stop to a private prosecution does not know whether he has to put the DPP into cause, then that is his problem.

* The exchange of affidavits between the two parties in this case point to an unprecedented legal battle. That’s the comment that has been made in the media. Is that indeed the case? Why so?

Of course, it will be an interesting legal battle. The court will have to decide whether a private party can file a private prosecution against another party for allegedly swearing a false affidavit or leave it to the discretion of the DPP to do that on the basis of a police investigation.

* Why is it necessary for the Supreme Court to take cognisance of the decision of the DPP with regard to this matter when Section 82 of the Constitution empowers the Court to “… have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court…”?

That’s because the person most concerned with prosecutions and non-prosecutions should be given an opportunity to express his views before the Court exercises its power of supervision on the powers of prosecution of a private individual.

It cannot be the law that the Supreme Court will exercise its powers without having the benefit of the presence of all parties concerned. Jurisdiction is not exercised in a vacuum.

* Does that particular section of the Constitution empower the Supreme Court to order the discontinuance of the Private Prosecution lodged by Suren Dayal?

The court can only give a directive that the prosecution is valid or not valid. It would be for the DPP to take whatever action he deems fit in the circumstances of the case and in light of the ruling of the court.

 * What are the options available to the DPP with regard to this matter in light of the Supreme Court order?

If the Supreme Court is of the view that the prosecution is wrongly entered, then the DPP will put a stop to the case and may ask the police to investigate and submit the file to him. But will the police exercise diligence in its investigation? If it is properly investigated, the DPP will decide whether the case should be allowed to proceed or not.

* What would go into the reasoning of the DPP for him to take over the Private Prosecution?

The DPP has all the powers to take over and conduct a case filed by a private party. He has no reasons to give, but we can surmise that if the case is a complex one and the private party is having difficulties to proceed further, the DPP may take over.

The law also provides that “where a private prosecutor abandons the prosecution or willfully neglects (in the opinion of the Magistrate) to carry on the prosecution in a proper manner, the Magistrate may stay proceedings and refer the matter to the Director of Public Prosecutions who may direct any officer to continue the prosecution and thereupon such prosecution may be continued by such officer without any change in the record being necessary.”

* Is it also your view that justice would be best served if the DPP were to take over the case?

It is not a question of justice or not. It is a question of whether the private prosecution is being properly conducted. Since it is the responsibility of the DPP to order and put a stop to prosecutions, he has the power to take over a private prosecution at any time and put a stop to it.

* Without prejudging the final outcome of the case and the reasoning of the Court, one particular point raised by Pravind Jugnauth in his defence is that he is not and cannot be held responsible for expenses incurred by other persons and groups in support of his candidature – since he is not the one who paid for them. What’s your take on that?

The Representation of the People Act provides as follows: ‘A candidate shall not be guilty of an illegal practice by reason of any other person having incurred any expenditure in connection with his candidature in contravention of section 51,52 or 54 unless it is proved that the expenditure was incurred with his consent.’

* Published in print edition on 25 March 2022

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