Sher Singh Shekhawat v Uganda (Criminal Miscellaneous Application No. 11 of 2023) [2023] UGHC 43 (22 March 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO CRIMINAL MISC. APPLICATION NO. 11 OF 2023 (ARISING FROM CRIMINAL CASE NO. AA 009 OF 2023)

SHER SINGH SHEKHAWAT :::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA :::::::::::::::::::::::::::: **RESPONDENT**

# BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

### **RULING**

- 1. The Applicant filed this application for bail pending trial. The application was brought by Notice of Motion under Articles 23 (6) (a) & 28 (3) (a) of the Constitution of the Republic of Uganda, 1995 and section 14 (1) of the Trial on Indictments Act, Cap. 23, seeking for release on bail upon such conditions this honourable court deems fit pending the hearing and determination of Criminal Case No. 009 of 2023. - 2. The grounds of the application are briefly set out in the Notice of Motion and amplified by the Applicant's supporting affidavit and supplementary affidavit dated 20th February, 2023 and 27th February, 2023 respectively. The grounds were that: - (a) the Applicant is a resident of Casa Gloria Apartments, Nalya Estates, Wakiso District and he has been a resident in that area for over 3 years where he ordinarily resides with his wife Neetu

Shekhawat, their children and aged mother and therefore he has a fixed place of abode in Uganda;

- (b) prior to being arrested and charged in court, the Applicant was working as a Managing Director of Steema Transformers & Electricals (U) Ltd, a company which is a going concern and located in Namanve Mukono District: - (c) the Applicant was arrested on the $14th$ February, 2023, charged with the offence of rape c/s 123 & 124 of the Penal Code Act and arraigned before the Magistrate in the Chief Magistrates Court of Mukono and remanded at Kauga Prison and later transferred to Luzira Prison; - (d) although the offence with which the Applicant is charged is categorized to be in the nature of capital offences, it is bailable and this court is vested with both jurisdiction and discretion to grant him bail pending his trial; - (e) the Applicant is 45 years old married with 2 children to Neetu Singh Shekhawat, all of Indian origin, who entirely depend on him for their livelihood and his continued stay in prison has and will continue to adversely affect them; - (f) the Applicant is also living with his mother who is 70 years of age and of ill-health and is currently depending on him for her medical care;

- (g) the Applicant has 7 sufficient, sound and substantial sureties ready and willing to stand in for him and will abide by whatever conditions set by this honourable court. - (h) the sureties are all residents and work within Uganda who are well conversant with their obligations as sureties and have undertaken to ensure that the Applicant comply with the conditions of his bail; - (i) the Applicant's lawyers have explained to the Applicant the obligations he shall bear and what it means to be released on bail and he is ready to abide by the terms set by this court and the Applicant undertakes to comply with the bail conditions; - (j) the Applicant has no previous criminal record, no other charges pending against him and there is no likelihood that he may commit any other offences while on bail or interfere with the prosecution investigations or witnesses; - $(k)$ the Applicant has so far appeared for mention before the Magistrate twice for mention of the matter and he is currently remanded at Luzira Prisons and this honourable court has not yet fixed a date for his trial; - (I) the offence alleged against the Applicant being of a capital nature, might not be heard in the normal course of hearing matters but in a criminal session which is currently not known and it is therefore not certain as to when his trial shall begin and there is a possibility of

substantial delay of his trial, hence this application to be released on bail pending his trial:

- (m) since prosecution investigations aren't completed yet, it is unlikely to tell when the matter shall be heard and the Applicant undertakes not to interfere with the investigations or prosecution witnesses: - (n) the Applicant is willing and ready to deposit his passport in court to allay any fears of ever departing from jurisdiction before conclusion of the matter; and - (o) the Applicant prays that the discretion of this honourable court in granting bail be exercised in his favour. - 3. Through an affidavit in reply sworn by Nanteza Anne, a State Attorney with the Office of the Director of Public Prosecutions, the Respondent opposed this application on the grounds that: - (a) the L. C.1 letter attached by the Applicant showing his place of residence does not clearly prove whether he is a permanent resident or not and that the Applicant has not proved whether he rents in this area and has not attached either his water or electricity bills to prove this; - (b) the Applicant has presented 7 sureties, 4 of whom are not citizens of Uganda and that they are not substantial and might not take up their responsibilities as sureties;

- (c) investigations in this case are still on-going and there is a likelihood that if the accused is released on bail, he will interfere with investigations; and - (d) the Applicant is charged with the offence of rape which is grave in nature and since he is not a citizen of this country, there is high likelihood of absconding from bail. - 4. In rejoinder, the Applicant deposed that the L. C.1 introductory letter introducing him and his wife as his surety clearly indicate that they are residents of Cassa Gloria Apartment, Nalya which is located within the jurisdiction of this honourable court. That since he is the Managing Director of Steema Transformers and Electricals, on 22nd November, 2019, the company rented for him the above said apartment as his place of residence. - 5. The Applicant further rejoined that though the tenancy agreement attached to the application is signed by his co-director on behalf of the company, he is the one occupying the premises as the Managing Director of the company which is confirmed by the L. C.1 letter. That to further confirm his place of residence he has payment receipts for rent for the period of December, 2022 to March, 2023 as attached to the affidavit in rejoinder. - 6. The Applicant added that his visa in Uganda is still valid up to 5th May, 2024 and therefore, this confirms that he is resident in Uganda legally.

That if not granted bail, he will lose his position as the Managing Director of Steema Transformers and Electricals, the company will stop paying his rent and his family which comprising his wife, children and elderly and sickly mother will be rendered homeless.

- 7. During the hearing of this application, the Applicant was represented by Counsel Joseph Kyazze and Counsel Jackline Natukunda from Magna Advocates. The Respondent was represented by Counsel Ninsiima Emily, a State Attorney from the Office of the Director of Public Prosecutions. Both counsel filed the parties' written submissions and the Applicant filed submissions in rejoinder. - 8. On 9th March, 2023, before the hearing of this application commenced, this court noticed that there was a letter dated 6th March, 2023 and filed in this court on $7th$ March, 2023, purportedly written and signed by the complainant Ms. Apoya Caroline requesting to withdraw the charges against the Applicant in Criminal Case No. AA. 009 of 2023. The letter was read in court. The Applicant's counsel reacted that if the letter is proved to be true there would be no need to argue this application. The Respondent's counsel responded that they had received a copy of the letter but were not sure whether the complainant is the one who wrote the letter. On the 10th March, 2023, when the said Apoya Caroline was produced before this court to confirm the letter's authenticity, she denied on oath having written any letter of such a nature. The court proceeded to hear the application on merit.

- 9. The Applicant's counsel submitted that a person whose liberty has been curtailed by imprisonment before trial or when not serving a sentence is free to apply for bail and that the discretion to grant or not to grant bail lies with court, which has to take all interests of justice of the parties and the society as a whole into account. - That it is trite law that every person who is charged with a criminal $10.$ offence shall be presumed innocent until proved guilty or until that person has pleaded guilty. Further, that in an application for granting bail pending trial, proof of exceptional circumstances is no longer a mandatory requirement for release on bail. That the court retains its discretion to either grant or not grant bail even where exceptional circumstances listed under section 15 (3) of the Trial on Indictments Act are not proved. - As to whether the Applicant has a fixed place of abode within 11. Uganda, the Applicant's counsel contended that proof of a fixed place of abode is not limited to the fact that the Applicant owns the named place of abode. That the onus that the law puts on the Applicant is to satisfy that he or she has a permanent place of abode in a particular known village, sub-county and District and that this is to enable court exercise jurisdiction over the Applicant while on bail being able to trace his whereabouts whenever it is necessary. - That in this application, the Applicant has attached to his 12. supplementary affidavit, an introductory letter dated 27th February, 2023 written and signed by the L. C.1 Chairperson of Naalya Estate

Cell, Kireka Ward, Namugongo Division confirming that indeed the Applicant and his wife have been and are residents within the area. That the Applicant has further attached his work permit valid from 3rd May, 2021 to 5th May, 2024 which further confirms his past and current residence in Uganda and that he is legally in Uganda.

- Learned counsel argued that the Applicant having adduced 13. evidence of his place of abode, he prays that this honourable court be pleased to find that the Applicant has satisfied the condition pertaining to a fixed place of abode within the jurisdiction of this court. - $14.$ Counsel averred that save for Criminal Case No. AA. 009 of 2023 from which this application arises, there are no other charges or pending investigations against the Applicant. Counsel added for the Applicant that it is judicial notice that the practice of courts is to line up trials by taking up the oldest pending cases first for purposes of clearing backlog. That by necessary implication, unless the policy is revised or modified, it is unlikely that even if the investigations were closed and a criminal session set, the Applicant who was committed in February, 2023 would be tried first. - 15. That the Applicant and his dependents live in a rental apartment and that his continued remand shall result in rendering his family homeless since he is the only bread winner of his family capable of paying rent. The Applicant's counsel added that the Applicant is a family man, whose family has no other source of livelihood without him.

- At the hearing of the application, the Applicant's counsel 16. presented seven (7) sureties as follows: - (a) Mrs. Neetu Shekhawat born on 11th August, 1977 who is about 45 years of age, the Applicant's wife, a bearer of the Republic of India Passport No. SO735257 expiring on 22nd March, 2028, resident of Naalya Estate Cell, Kireka Ward, Namugongo Division, Kira Municipality, Wakiso District; - (b) Mr. Owoko Ben, 44 years old, the Applicant's close friend and a business associate and a farmer, resident of Kasenge L. C.1 Zone 'A', Nama Sub-County, Mukono District, with mobile telephone No. 0771 031216/0705 332136: - (c) Mr. Sanghani Gaurang, 39 years old, the Applicant's close friend. a Ugandan and holder of Ugandan Passport No. A00274028 expiring on 15th September, 2030, resident of Upper Mawanda Road Village, Mulago Parish, Kawempe Division, Kampala Capital City; - (d) Mr. Nuwamanya Andrew, 44 years old, the Applicant's close friend and a contractor in their business being one of the Directors of Antra Tech Systems Limited, resident of Gwafu West L. C.1, Seeta Ward, Goma Division, Mukono Municipality, Mukono District, with mobile telephone No. 0772 914998/0701 334444;

- (e) Mr. Tada Sunil Kumar, 48 years old, the Applicant's close friend and businessman, an Indian national with Passport No. V9064245 expiring on 5th May, 2031 and work permit valid up to 24th February, 2026 employed as a director of Intaz Uganda Ltd, resident of Upper Mawanda Road L. C.1 Village, Mulago 1 Parish, Kawempe Division, Kampala City, with mobile telephone No. 0759 984301/0780 716227; - (f) Mr. Sam Engola, 62 years old, the Applicant's close family friend, a Senior Presidential Advisor for Lango Region with Passport No. D00001939 expiring on 24th April, 2032 and national identity card NIN CM58022105Q2AG expiring on 2nd March, 2025, resident of Mbuya 1, Mbuya Hill Village, Nakawa Division, Kampala Capital City; - (g) Ms. Atebata Sylvia, 38 years old, a workmate and Applicant's friend working as a Human Resource Manager at Steema Transformer & Electricals Uganda Ltd, a holder of Ugandan national identity card NIN CF 8404110425AJ expiring on 22nd February, 2025, resident of Kiwanga-Lwanda L. C.1, Goma Division, Mukono District, with telephone numbers 0703 334006 /0776 334009. - 17. The Applicant's counsel prayed that this honourable court finds that the Applicant has satisfied the conditions for grant of bail. - 18. For the Respondent, it was argued that there is no exceptional circumstance presented by the Applicant warranting this honourable court to release him on bail. That however, the paramount question that any court should consider when determining whether to grant or not to grant bail is: if the accused is released from safe custody, can he be trusted to appear in court whenever required? - 19 Counsel added that once this question is answered in the affirmative, then bail should be granted but if court has any slightest doubt that causes fear that the accused may abscond from the jurisdiction of the court, then this will justifiably be a ground to deny bail to an Applicant. Counsel referred to section 15 (4) of the Trial Indictments Act, Cap. 23 and the case of Aganyira Albert v. Uganda, Criminal Miscellaneous Application No. 0071 of 2013. - The Respondent's counsel orally submitted that the $1^{st}$ & $5^{th}$ 20. sureties are not citizens of Uganda and that they are not substantial as they may not take up their responsibilities as sureties. Counsel prayed that this honourable court balances the constitutional rights of the Applicant against the need of the society to be protected from lawlessness as it exercises its discretion to make a decision. - $21.$ In rejoinder, the Applicant's counsel stated that the law does not prescribe an exact period of residence as amounting to permanent residence and that what it requires is consistent residency proved by among others tenancy agreement and utility bills and proof of payment of rent which have all been provided to this court. Further, that the law

does not require that the sureties must be citizens as long as they are not illegally in Uganda and have understood their responsibility as sureties. That their legal status in Uganda is not in dispute.

## Issue: Whether the Applicant is entitled to be granted bail.

## **Court's consideration**

22 Article 23 (6) (a) of the Constitution of the Republic of Uganda, 1995, states thus:

> "Where a person is arrested in respect of a criminal offence—" (a) the person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable."

$23.$ Article 23 (1) of the Constitution of the Republic of Uganda, 1995 as amended provides that no person shall have their freedom of movement restricted unless it is lawful. This, coupled with the principle of presumption of innocence stipulated in Article 28 (3) (a) of the Constitution, are the basis for release of an accused person on bail. Article $28(3)$ (a) provides thus:

"Every person who is charged with a criminal offence shall (a) be presumed to be innocent until proved guilty or until that person has pleaded guilty;

The benefit of doubt is given to the accused that he or she is innocent until proved guilty and that their freedom of movement

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should not be limited since they have not yet been found guilty of the offence with which they are charged.

- The moment an accused person exercises his or her right by $24.$ applying for bail, the court must weigh the arguments for and against the application and apply the law before the court grants or denies the accused person bail. Where the judge is not convinced that the accused person will abide by the bail conditions, he or she has discretion not to grant bail. Therefore, the discretion to grant or deny bail lies with the court - 25. The Trial on Indictments Act, Cap. 23, gives the High Court unlimited power to grant or deny accused persons bail and it provides for the procedure adopted by court in doing so. Bail may be granted by the High Court at any stage of the proceedings according to sections 14 and 15 of the Trial on Indictments Act, Cap. 23. Section 14 (1) of the Act states thus: - (1) The High Court may at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a recognizance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date and at such a time as is named in the bond."

26. Paragraph 13 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 (Legal Notice No. 8 of 2022) states the considerations for bail. It states thus:

> "The court shall consider the following in handling a bail application –

- (a) the gravity of the offence: - (b) the nature of the offence: - (c) the antecedents of the applicant so far as they are known: - (d) the possibility of a substantial delay of the trial: - (e) the applicant's age, physical and mental condition: - (f) the likelihood of the applicant to attend court; - (g) the stage of the proceedings. - (h) the likelihood of the applicant to commit an offence while on bail: - (*i*) the likelihood of the applicant interfering with witnesses; - (j) the safety of the applicant, the community and complainants; - (k) whether the applicant has a fixed place of abode within Uganda or whether he or she is ordinarily resident outside Uganda; - (I) whether the applicant has substantial sureties within Uganda to undertake that the applicant shall comply with the conditions of his or her bail: - (*m*) whether the applicant has on previous occasion when released on bail, failed to comply with his or her bail terms:

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(n) whether there are other charges pending against the applicant; or

(o) whether the offence for which the applicant is charged involved violence."

- 27. In the instant case, the Applicant has provided evidence in support of his application to prove that he has no previous criminal record which was not controverted to by the Respondent. This court also finds that the Applicant has sufficiently proved that he has a fixed place of abode at Naalya Estate Cell, Kireka Ward, Namugongo Division, Kira Municipality, Wakiso District by attaching to his application, the introductory letter from his area L. C.1 Chairperson showing that he has been residing in that area for over 3 years. Copies of the tenancy agreement, water bill payments, rental payment voucher and cheque for the apartment where he is residing with his family and dependents were presented before the court. - 28. Another consideration by court before granting bail is whether the accused will not interfere with the witnesses or investigations in his or her case. In my view, before denying bail to an accused on grounds of interference with the prosecution case, the prosecution has to specifically prove that and court should not act on mere suspicions of such interference. Where the prosecution fails to prove this, the court may grant the accused person bail subject to other considerations.

29. The Respondent has alleged in this application that there is a likelihood of the Applicant interfering with investigation in the main case since the investigation is still on-going but it has not adduced evidence to prove the same. The letter dated 6/3/2023 purportedly withdrawing the charges against the accused (referred to in this ruling) which was copied to court was denied by the complainant on oath and its author has to be investigated by the Respondent. It cannot be attributed to the applicant who has been under incarceration since 14th February, 2023. Therefore, this court cannot rely on it as evidence of interference by the accused. Should any interference with investigation be presented by the prosecution to the satisfaction of the court, the court would revoke the order for bail, if granted.

30. To further guarantee his return to this court whenever required, the Applicant has deposited his original passport with this court and to prove that he is legally residing and working in Uganda, he has attached copies of his staff identity card with I. D No. STL: 009 and work permit expiring on 5th May, 2024.

31. The Applicant presented seven sureties. The role of sureties is stated in Halsbury's Laws of England 4th Edition Vol II page 112 -113 para 166, thus:

> "The effect of granting bail is not to set the defendant free, but to release him from the custody of the law and to entrust him to the custody of his sureties, who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize

their principal at any time and may discharge themselves by handing him over to the custody of the law, and he will then be imprisoned, unless he obtains fresh bail. A surety who believes that the principal is likely to break the condition as to his appearance may have him arrested by a constable."

32. As to the suitability of a surety, paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, Legal Notice No. 8 of 2022, is of great importance. It provides as follows:

> "(1) When considering the suitability of a surety, the court shall take into account the following factors-

- (a) the age of the surety: - (b) work and residence address of the surety: - (c) character and antecedents of the surety; - (d) relationship to the accused person; and - (e) any other factor as the court may deem fit. - (2) Subject to sub-paragraph (1), the proposed surety shall provide documentary proof including- - (a) a copy of his or her national identity card, passport or aliens identification card: - (b) an introduction letter from the Local Council 1 Chairperson of the area where the surety is ordinarily resident; or - (c) asylum seeker or refugee registration documents issued by the Office of the Prime Minister."

33. In considering the suitability of sureties, courts attach almost equal importance to the age, relationship and social standing of the proposed surety with the accused. As submitted by the Applicant's counsel, the law does not limit the requirements of being a surety to only citizens. It applies to both citizens and non-citizens who are residents in Uganda. The bottom line is that the intended surety must meet all the legal requirements of standing as a surety and must understand his or her responsibilities. I have carefully examined the 7 sureties presented by the Applicant.

Although the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $7^{th}$ sureties qualify to stand as 34. sureties, they are all younger than the Applicant and considering the fact that they have no close proximity and kinship with the Applicant, this court is reluctant to saddle them with the responsibility and control over the Applicant to ensure that he appears before court as and when required to do so. Moreover, the 7th surety is also an employee of Steema Transformer & Electricals Uganda Ltd, who is under direct supervision of the Applicant who is the managing director of the said company. Court therefore finds the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $7^{th}$ sureties not substantial.

This court finds the 1st surety to be substantial considering that 35. she is the legally married wife of the Applicant who is residing together with the Applicant and they are of the same age. But, being non-Ugandans, the couple could do a disappearing act and frustrate the criminal case against the Applicant.

Since the $5$ th and $6$ th sureties are close family friends and older 36. than the Applicant, this court is satisfied that they would be able to have influence, supervisory power and control over the Applicant. This court is further convinced that the documents presented for these two sureties are enough for court to trace them in case they fail to compel the Applicant to appear before court as and when required. However, since the 6th surety, Hon. Sam Engola, was presented as a substitute to Mr. Jigar Chandaranha Bhgavanjibhai who was presented as surety on 9th March, 2023 but the next day, he was reported to have flown to Dubai, this court would have to order that each surety deposits his or her passport in court as one of the conditions for bail. This is permissible under article 23 (1) (b) of the Constitution of the Republic of Uganda, 1995 as amended. But ordering the deposit of each surety's passport in court would curtail their movements and jeopardize their work and businesses because the criminal case is in its premature stages of investigation.

37 Therefore, this court finds it inappropriate to order for release of the Applicant on bail as the case of rape is in its early stages of investigation. No exceptional circumstances as provided for under paragraph 14 of the Constitution (Bail Guidelines) (Practice) Directions, 2022 were proved to warrant release of the Applicant prior to the period of mandatory release under article 23 (6) (c) of the Constitution of the Republic of Uganda, 1995 as amended. The Director of Public Prosecutions should follow up with police and

expedite the investigation and prosecution, if any, of the criminal case against the accused for the ends of justice to be made.

Pursuant to the foregoing analysis, this application is dismissed. 38. Each party shall bear their own costs of this application.

I so rule. I so rule. This ruling is delivered this day of March 2023 by

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**FLORENCE NAKACHWA** JUDGE.

*In the presence of:*

- (1) Counsel Kamukama Alex from M/s Magna Advocates, for the Applicant; - (2) Counsel Ninsiima Emily from the Office of the Director of Public Prosecutions, for the Respondent; - (3) *Mr. Sher Singh Shekhawat, the Applicant;* - (4) Ms. Pauline Nakavuma, the Court Clerk.