POLICE v SOORNACK NANDANEE

2015 PL3 51
IN THE DISTRICT COURT OF PORT LOUIS (DIVISION III)
Cause Number: 41/15
In the matter of:
POLICE v NANDANEE SOORNACK
Ruling

1. Factual Background
1.1.

An information upon oath (sic) has been laid before this Court on 19 March 2015 which
is essentially to the effect that on or about 03 July 2011 at Coastal Road, Roches Noires,
Mrs. Nandanee Soornack had wilfully and unlawfully agreed with several persons named
in the information so that one of the named persons could give a false statement to the
Police; hence the said named person committed the offence of effecting a public
mischief which was the object of the conspirational agreement (sic).

1.2.

The information further averred that Mrs. Soornack has left Mauritius on 11 December
2014 for Dubai; she is still abroad; and she was in Italy at the time the information was
laid.

1.3.

The police prayed for a warrant of arrest to issue in the light of the information laid.

1.4.

It is against this background and upon being satisfied that the issue of a summons was
not warranted in the present matter but instead a warrant of arrest was justified, that I
ordered for a warrant of arrest to issue.

1.5.

Mr. Nazroo, learned Counsel appearing for Mrs. Soornack, is now challenging the issue
of the warrant of arrest. He has moved this Court to recall and/or revoke the warrant with
immediate effect on the ground that the warrant of arrest had been obtained by the
police through an abuse and/or misuse of the process of this Court given that the police
knew full well that Mrs. Soornack is not in Mauritius and a warrant of arrest can only be
executed in one of the districts of Mauritius. The police objected to the motion and it was

represented by Mr. Baungally, Principal State Counsel who appeared together with Mr.
Armoogum, Ag. Senior State Counsel. Arguments were heard from both sides, hence
the present ruling.

2. Submissions on behalf of Mrs. Soornack

2.1.

The arguments of Mr. Nazroo are four-pronged.

Validity of the Information

2.1.1. Firstly the validity of the information is being challenged on the ground that the defect
therein is a major flaw which goes to the root of the information and renders it null and
void. It was submitted that the body of the information describing the offence allegedly
committed or suspected of having been committed is not one of money laundering as
per the heading of the information. Mr. Nazroo has furthermore highlighted that the
venue of the offence is averred to be at Roches Noires and the information has been
lodged in Port Louis.
Scope of the Warrant of Arrest

2.1.2. Secondly, given the purport of Section 9 of the District and Intermediate Courts (Criminal
Jurisdiction) Act 1888, the warrant of arrest issued can only be executed in Mauritius and
in one of its districts. District is defined as a district of the Island of Mauritius as
described in the Districts Act.1 Hence, it is the submission of counsel that the powers
given to any Magistrate under the District and Intermediate Courts (Criminal Jurisdiction)
Act 1888 is restricted to any district in Mauritius. It is furthermore the contention of
counsel that our law does not provide for what may be termed as an international
warrant of arrest.
Abuse and/or Misuse of the Process of the Court

2.1.3. Thirdly, the main thrust of the argument of Mr. Nazroo is that the police made an abuse
and/or misuse of the process of this Court when it sought for a warrant of arrest against
Mrs. Soornack, knowing full well that she is abroad. Hence, the question of counsel:
Why would the police apply for a warrant of arrest if it knows that the person is not in
Mauritius and there is no indication when the person is coming back? Mr. Nazroo
distinguished the facts of the present matter from one where the date of return of a
1 Section 2 of the Interpretation and General Clauses Act 1974

person against whom a warrant of arrest has been issued is known or where there is any
information of such nature. According to counsel, a warrant of arrest cannot be issued if
a person is not in Mauritius at the time when it is issued for the legislator could not have
contemplated a situation whereby a person is outside Mauritius for many years; whilst
the person is still abroad a complaint is made against him/her to the police; and the
police can apply for a warrant of arrest to apprehend that person. It is submitted on
behalf of Mrs. Soornack that a warrant of arrest which is issued under the relevant
provisions of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 is not
of the same nature as a warrant of arrest issued under the Extradition Act 1970 2. It is the
submission of counsel that (a) in the absence of any extradition treaty between Mauritius
and Italy, the police should not abuse and/or misuse the process of this Court to seek
and obtain the arrest of a person who is not in Mauritius; and (b) the purpose of the
warrant of arrest issued in the present matter is defeated given that the person against
whom it is meant to be used is not in Mauritius.
Can this Court recall the warrant of arrest or revoke it?

2.1.4. Mr. Nazroo submits that this Court can review its decision to issue the warrant of arrest
and recall the same if it is satisfied that there is an abuse of its process. This includes
the power to safeguard the rights of an accused party from oppression or prejudice or
where there has been a misuse or a manipulation of the process of the Court. 3 It is
further submitted that this Court can revoke the warrant of arrest issued in order to (a)
preserve public confidence in the administration of justice and avoid bringing it into
disrepute; and (b) not to tolerate and far less to endorse such a state of affairs as
expounded in the present matter.

3. Submissions on behalf of the Police

3.1.

Mr. Baungally, submitted that the variance between the heading and the body of the
information is not material. In support of his contention he submitted that no objection

2 The main and relevant sections of the Extradition Act 1970 referred to are Section 2 which defines a
foreign warrant; Sections 14 and 15, under Part III in respect of extradition from foreign states, dealing
with the meaning of an extradition crime and the surrender of escaped offenders respectively.
3 Connelly v DPP [1964 AC 1254]

shall be taken or allowed to be taken to a warrant of arrest for any defect therein in
substance or in form of any variance between it and the evidence.4

3.2.

It was further submitted that the provision of the law dealing with the issue of a warrant
of arrest is found in Section 4 of the District and Intermediate Courts (Criminal
Jurisdiction) Act 1888 which provides for the criteria and conditions that are necessary
for the issue of a warrant. Section 4 has been complied with; hence once all the
conditions are satisfied, the Magistrate may proceed to issue the warrant of arrest so
that the person named in the warrant can be apprehended and brought before court.

3.3.

In reply to the argument that the person against whom the warrant has been issued is
not in the country, Mr. Baungally submitted that the law does not provide that the person
has to be present in the district where the warrant of arrest has been issued and there is
no requirement that the whereabouts of the person be known. He added that the
legislator has not made it a condition that the person subject to the warrant has to be
physically present in Mauritius for a warrant of arrest to issue.

3.4.

As far as the execution of the warrant of arrest is concerned, Mr. Baungally is of the view
that the only relevant concern for the magistrate faced with an application for a warrant
of arrest is its issue not its execution5. It is further submitted that a warrant of arrest shall
remain in force until it is executed6; hence there is no time limit imposed for its validity.

3.5.

Mr. Baungally 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 believed to be outside
Mauritius. He is further of the view that the remedy for an alleged abuse of process of
the court is a stay of proceedings; hence not applicable in the present matter.

3.6.

Lastly, it is submitted that the Extradition Act does not find its application in the present
matter as it refers to persons who have been convicted for extraditable offences.

4. The Law
4 Section 8 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888
5 Section 4 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888
6 Section 7(3) of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888

4.1.

Section 4 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 reads
as follows:
4.

Issue of warrant

(1) (a)Where a charge or complaint is made on oath before a Magistrate in

Form A of the Second Schedule that a person has committed or is
suspected of having committed an offence punishable otherwise
than by a fine, the Magistrate may issue a warrant in Form B of
the Second Schedule to apprehend such person and to cause
such person to be brought before him or any other Magistrate of
the district to answer such charge or complaint and to be further
dealt with according to law.
(b)In all such cases the Magistrate may, if he thinks fit, instead of issuing a
warrant in the first instance, issue a summons in Form C of the
Second Schedule directed to such person.
(2)Where any person after being served with any such summons fails to appear
at the time and place mentioned in the summons, the Magistrate may
issue his warrant to apprehend such person.

5. Applying the law to the arguments offered by both parties

5.1.

The jurisdiction of this Court to hear the present application to recall and/or revoke the
warrant of arrest which I issued on 19 March 2015 is not disputed. Mr. Nazroo has
further submitted that this Court has jurisdiction to review its decision where there is an
abuse and/or misuse of its process.

5.2.

It is common ground that the warrant of arrest in the present matter was issued by virtue
of the powers conferred on a Magistrate to do so under Section 4 of the District and
Intermediate Courts (Criminal Jurisdiction) Act 1888.

5.3.

The complaint of the police was made under solemn affirmation before me in the form
prescribed under the law, namely, Form A of the Second Schedule of the District and
Intermediate Courts (Criminal Jurisdiction) Act 1888; it averred a criminal offence, the
wordings of which prima facie disclosed an offence known to the law; and such offence
is not one which is punishable only by a fine. The complaint also averred that Mrs.
Soornack, the person against whom such complaint is made, is not in Mauritius and she
is in Italy; the information did not disclose the exact address of Mrs. Soornack; the
address of Mrs. Soornack was therefore not sufficiently established for a summons to

issue and to be served. Hence, the issue of a warrant of arrest in Form B of the Second
Schedule of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888.

5.4.

The purport of the information and the import of the warrant of arrest which was issued
following the laying of such information in the present matter, is to apprehend the person
named in the information and bring her before me to answer the complaint and be dealt
with according to law.

5.5.

I do not agree with the submissions of Mr. Nazroo that the variance in the heading of the
information which avers a charge of money laundering and the body of the information
which discloses the offence of conspiracy is a fundamental defect which cannot be cured
by an amendment and renders such information null and void. True it is that the
information has been infelicitously drafted, to say the least. This being said, the variance
between the heading of the information and the averment in the body of the information,
is at this stage of the proceedings, not fatal to the validity of the complaint laid before me
given that (a) all the essential elements of the offence of conspiracy under Section
109(1) of the Criminal Code (Supplementary) Act, which is an offence known to the law
and punishable otherwise than by only a fine, have been averred in the information; (b)
the wrong citation of the law is not of itself fatal to the information; (c) a defect in the
citation of the law in the heading of the information will not affect the body of the
information if it discloses an offence known to the law7; (d) the statement of the offence
in the body of the information is as per the enactment creating such offence, and (e) the
statement of the offence is not one which discloses more than one offence known to the
law, hence is not such as to create an uncertainty as to whether it falls under more than
one enactment or different sections of the same enactment. Furthermore, any
technicality regarding the place where the offence is alleged to have been committed
and the court before which the complaint is lodged, is not material. It is settled law that
no information for an offence shall be held defective for want of a proper or perfect
venue8. In any event, a magistrate may grant a warrant for the apprehension of a person
suspected of having committed an offence for which a warrant may issue in another

7 Fong Chan Sin Chung v. The Queen [1990 SCJ 308]; Seegobin v. R. [1969 MR 1]; Boodhun v. R
[1971 MR 296]; Ramsahye v. The State [2009 SCJ 175]).
8 Section 36 (i)(i) of the Criminal Procedure Act 1853

district.9 Hence, the reference to Section 9 of the District and Intermediate Courts
(Criminal Jurisdiction) Act 1888 by Mr. Baungally regarding objections taken to a warrant
of arrest does not find its application in the present matter.

5.6.

Now, it is beyond dispute that the warrant issued in the present matter can only be
executed in Mauritius. The warrant issued in the case in hand is by no means what is
termed as international warrant; and there is indeed neither any legal provision
describing such a warrant nor does a magistrate have the power to issue a foreign
warrant. Our courts of law can only issue a warrant of arrest.

5.7.

Mr. Nazroo referred me to relevant provisions of the Extradition Act 1970 to distinguish a
warrant of arrest issued under the provisions of the District and Intermediate Courts
(Criminal Jurisdiction) Act 1888 from one which is obtainable under the Extradition Act. I
am however of the view that such distinction is superfluous because the issue of a
warrant under Section 10 of the Extradition Act refers to one which is issued in respect of
an offender who is or is suspected of being in Mauritius and there is a request for his
surrender by a foreign state. The submission of Mr. Baungally to the effect that the
Extradition Act does not find its application in the present matter because it deals with
persons who have been convicted of an extraditable offence is not a correct proposition
of the law given that the Extradition Act also applies to a person accused of an
extraditable offence.

5.8.

The point made by Mr. Nazroo boils down essentially to the fact that given that there is
no extradition treaty between Mauritius and Italy, the police is making an abuse and/or
misuse of the process of this Court by seeking for a warrant of arrest through the back
door so that Mrs. Soornack may be arrested whilst she is not in Mauritius. I am however
unable to agree with this proposition for the following reasons:

(a) There is no evidence before this Court to substantiate such a proposition. Matters
which have been brought before me and to my attention in that respect only pertain
to the fact that Mrs. Soornack has left Mauritius for Italy and no mention has been
made of her date of return to the country. There is a presumption of regularity; in the
9 Section 5 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 and Section 103 of the
Courts Act 1945

absence of any evidence to suggest that, the allegations that a criminal offence has
been committed, as solemnly affirmed before me, are not based at the very least on
reasonable suspicion (which is the very basis on which the right to liberty can be
lawfully interfered with), I cannot therefore draw any reasonable inference from such
a fact to find that there has been a misuse or abuse of the process of the Court.

(b) The existence of (a) any extradition treaty and/or (b) any process initiated to arrest
Mrs. Soornack whilst she is abroad is beyond the scope and jurisdiction of the
present application and this Court. Furthermore, I observe that the discretion to
request for the arrest of an offender who is abroad lies with the Executive and the
procedures which follow are subject to a judicial test in the foreign state to enable the
Executive of the foreign state to take a decision in respect of the requested
surrender.

5.9.

I am also unable to agree with the submission of Mr. Nazroo that the presence of person
in Mauritius is a condition precedent for the issue of warrant of arrest. There is no
statutory provision to that effect. Once a magistrate is satisfied that the provisions of the
law have been complied with and the issue of a warrant of arrest is justified, it is for the
police to use lawful means to execute such a warrant and to come back to the
Magistrate if circumstances are such that the warrant cannot be executed.

5.10.

The submission of Mr. Nazroo that the issue of a warrant of arrest cannot be a substitute
to a provisional charge is based on an incorrect premise. The concept of provisional
information is very peculiar and unique to the Mauritian context. A provisional
information is lodged as a matter of approved practice after a suspect is arrested or is
brought into custody to inform the Court about the reason of the arrest of the individual10.

6. Conclusion
6.1.

For all the reasons given at paragraphs 5.1 to 5.7 above, I am satisfied that the warrant
of arrest issued against Mrs. Soornack should not be revoked at this stage of the
proceedings.

10 Alain Gordon-Gentil v State of Mauritius [1995 SCJ 118]

6.2.

I also find that there is at this stage no basis before me to find that the police has made
an abuse and/or a misuse of the process of this court when they laid the information in
the present matter and sought for a warrant of arrest.

6.3.

The motion of Mr. Nazroo to recall and/or revoke the warrant of arrest against Mrs.
Soornack is therefore set aside.

A.HAMUTH (Miss)
[Delivered by: A.HAMUTH (Miss), Senior District Magistrate]
[Delivered on: 23 April 2015]