|HADDEN, J.: This is an application by the applicants that they be admitted to bail pending their trial.
The applicants were arrested on the 5th January 1979, on suspicion of theft or fraud of an amount involving K56,000. They did not appear in court when the police said they would and following representations by their advocate, they eventually appeared on the 10th. Their detention, according to the police, was under s. 33 of the Criminal Procedure Code. Application was then made to the court that they be admitted to bail, but the court deferred consideration of the application to the 18th, on the ground that the applicants might interfere with prospective prosecution witnesses.
For the applicants Mr Chaane has submitted that s. 33 should not be used to detain persons indefinitely, that the court should have adjudicated upon the application for bail when it was made and should not have deferred it and that the applicants were unlawfully in the custody of the police from the 5th to the 10th January. Finally it was submitted that it is quite improper for the police to detain persons while investigations are being carried out and that it is unreasonable to refuse bail to persons against whom no charge has been preferred.
Learned state advocate has informed the court that accomplices are still at large and the applicants are being detained while these other suspects are being located; that should the applicants be permitted bail there is every likelihood that certain material documents would go missing; that there is evidence that a cheque has already been lost or
destroyed and that it is in the public interest, in the particular circumstances of this case and bearing in mind the amount of money involved, that the applicants be detained while the investigations are finalised.
Although the State does not condone the delay in arranging to bring the applicants before the court, it contends that s. 33 (1) of the Criminal Procedure Code was complied with in that the applicants, who were not and are not accused persons, were brought before the court; that the court thereupon remanded the applicants in custody and their subsequent detention is as a result of a court order and not by the police under s. 31.
Lord Denying, M.R., in Wiltshire v Barrett (1), at p. 325 noted that s. 38 of the Magistrates Courts Act 1952, which is similar although not identical to s. 33 of the Criminal Procedure Code deals with cases where the inquiry at the police station discloses a case to be answered and those where an inquiry cannot be completed forthwith. Lord Justice Lawton, in R. v Houghton, and R. v Franciosy (2), said that their Lordships wished to state in the clearest possible terms that police officers could only arrest for offences; if they thought there was any difference between detaining and arresting, they were mistaken. They had no power to arrest anyone so that they could make inquiries about him. Having made an arrest for a specific offence they could hold the arrested person in custody while they made inquiries; but when they had enough evidence to prefer a charge they should do so without delay and comply with s. 38 (4) of the 1952 Act. The court added that the rules could hinder the police in bringing criminals to justice and the report continues:
Maybe the police should have power to detain for inquiries in such cases. They did not have them at present. Parliament might have to decide whether they should have them. The courts could not do so.
The State has openly admitted that the applicants are being detained while further inquiries are being carried out and it is the intention of the police to charge them with an offence on the 18th January. This shows that the State could prefer a charge but does not intend to do so until such time as it suits their convenience.
I find this conduct on the part of the State quite improper. The Judges Rules provide that a person should be charged with an offence, or informed that he may be prosecuted for an offence, without delay when enough evidence to prefer a charge is available. The applicants could and should have been charged with an offence. On the evidence available before the court the reason why this was not done shortly after the arrest was for the reasons already mentioned which I find to be wholly unjustified, and a fragrant abuse of the powers contained in s. 33.
I grant the applicants bail on the ground that they have not been charged with an offence when this should have been done soon after their arrest on the 5th January.
Each of the applicants is to deposit the sum of K500 cash with the clerk of the court before which they are to appear; each applicant is
required to obtain two sureties acceptable to the court, no such sureties to be a surety of any other of the applicants; such sureties to enter into recognizance in the sum of K2,000 each. The terms of bond are that the applicants will appear before the Senior Resident Magistrate, Lusaka at 0900 hours on the 18th January, 1979, and thereafter to be subject to whatever order that court may make with regard to the continuation of bail or the remand of the applicants in custody.