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1992 MR 197
1992 SCJ 9
The appellant was charged before the District Court of Port Louis on an
information reading as follows:-
"MAURITIUS
Cause No. 2337/90(n)
INFORMATION UPON OATH
CHARGE OF ASSAULT
Breach of Section 230(i) of Criminal Code Act
DISTRICT OF PORT LOUIS
Inspector Rene of the said District Maketh Oath and saith as follows:
That on the 10th day of March one thousand nine hundred and
ninety at Leoville L'Homme Street in the said District one AHMAD
RAJACK BAYJOO, 22 yrs, clerk, residing at No. 5 St Francois Xavier
Street, Port Louis, did wilfully and unlawfully inflict wounds and blows in
and upon the person of one VIJAY RAMRACHIA."
In fact, articles 309 and 311 of the French Code P énal which initially
mentioned only "des blessures et des coups" was amended by the loi du 13 mai
1863 mentioned above to put an end to a controversy which had arisen from the
wide scope given by the French Courts to the interpretation of "blessures et
coups".
In Mauritius the origin of our present Criminal Code can be traced back
to the year 1793 when by an “Arrêté de l'Assemblée Coloniale” of 7 August
of that year the “Code Pénal” was promulgated in what was then a French
colony. That “Arrêté” was abrogated "en termes généraux" by Ordinance 6 of
1838 under the appellation of the ‘Penal Code Ordinance” (subsequently
referred to as the Ordinance) - see Rouillard's “Collection of the Laws of
Mauritius and its Dependencies” - Volume 1 at page 492.
When the Ordinance was passed it contained an innovation the sense that
besides the French text an English translation was also introduced.
230. Lorsque les blessures ou les 231. If such wound or blow shall not
coups n'auront occasionné have occasioned any sickness or
aucune maladie ni incapacité de incapacity from personal labour
travail personnel de l'espèce of the description mentioned in
mentionnée dans l'article 228, le article 228 the offender shall be
coupable sera puni d'un punished by imprisonment not
emprisonnement qui ne pourra exceeding one year, and by a
excéder un an, et d'une amende fine not exceeding five hundred
qui n'excèdera pas cinquante rupees.
livres sterling.
And, if there have been
(a) in the French text, for the words "ou les coups" the
following words and punctuation"", les coups ou autres
violences ou voies de fait"; and
(b) in the English text, for the words "or blow" the following
words and punctuation: ", blow or other violence or
assault:”.
When the laws of Mauritius were revised in 1981, the Penal Code
Ordinance was renamed the Criminal Code. Section 230 was renumbered so as
to contain two subsections and the English text was slightly modified in
compliance with the exigencies of modern drafting. A title denoting the nature
of the offence was also added to the English text at the heading of each Section
of the new Criminal Code. The title of Section 230 which reads "Assault",
although obviously used in its generic sense is, however, infelicitous since the
same section also covers the specific offence bearing the same name
corresponding to the offence of "voies de fait" in the French text.
Again it shows that the word "assault" can mean to aggress generally.
We have considered the evidence led before the trial Court, more
specially the medical evidence and the terms of the Magistrate's judgment. It
appears abundantly clear that the "offence of assault", with which the appellant
was said to be charged and against whom it was found proved, was used by the
Magistrate in its generic sense which covers, inter alia, the offence of simple
wounds and blows expressly spelled out in the body of the information.
We are, however, of the opinion that the use of the word "assault" in the
judgment of the learned Magistrate, although descriptive of an offence with
clearly defined legal elements, was unfelicitous in the circumstances since it was
meant to cover some different offence with different legal components although
the latter could be encompassed by the same word when used in a wider or
generic sense.
The refined distinctions made by learned Counsel for the appellant are,
however, more technical than legal and it cannot be reasonably said that the
appellant suffered any prejudice. We shall merely substitute the Magistrate's
conviction for assault by one of wounds and blows.