Supreme Court of Mauritius, 1 avril 2026, 2026 INT 76 – J. M. Bongtemps v Pce

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J. M. Bongtemps v Pce

2026 INT 76

CN 15/26

IN THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division)

In the matter of: –

Jean Marcel BONGTEMPS

v/s

Police

RULING

The applicant stands charged before the Intermediate Court for an offence of rape in breach of section 249(1) & (1A) of the Criminal Code. The applicant has been remanded jail in the present matter up to the trial date which is scheduled on 14 May 2026.

The law

The rationale behind bail as expounded in the case of Hurnam v The State (2004 PRV 53) and reaffirmed in the case of Deelchand v The Director of Public Prosecutions and Others (2005 SCJ 215), calls for the need to reconcile “on the one hand the need to safeguard

the necessary respect for the liberty of the citizen viewed in the context of the presumption of innocence and, on the other hand, the need to ensure that society and the administration of justice are reasonably protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be.” [Emphasis added].

Section 4(2) of the Bail Act provides that in making a determination for the release on bail, the Court shall have regard to such considerations as appear to be relevant, including: the nature of the offence and the penalty applicable thereto; the character and antecedents of the defendant or detainee; the nature of the evidence available with regard to the offence; and the time already spent in detention by the defendant or detainee.

Given that the presumption of innocence of an accused party, as guaranteed under the Constitution, should prevail, it follows that the release on bail of a detainee is a right. Any detention pending trial is an exceptional measure which can only be justified by substantiated risks which cannot be adequately reduced to a negligible level by the imposition of conditions.

Analysis

The bail application is being resisted on the ground of risk of absconding and PS Laperoutine was deputed to resist the present bail application after having been handed over the file after the transfer of the then enquiry officer.

I note that in the case of Deelchand (supra) the Supreme Court highlighted that whilst assessing the risk of absconding, “The Court must ask itself: what would be likely to motivate the applicant to abscond and what would be likely to make him refrain from absconding?” The Supreme Court also highlighted that the “… the strength, weakness or absence of family, community, professional or occupational ties and financial commitments as such ties, if strong, might be strong incentives not to abscond and, if weak might increase the risk of absconding …” [Emphasis added].

PS Laperoutine explained that the offence was reported to have been committed in December 2010. The applicant was incriminated in the commission of the offence by the said confederate and was being looked for by police over a period of 6 months. He could only be arrested and provisionally charged for the present offence in June 2011 as he could not be traced

by police. Thereafter, he was positively identified by the declarant. The applicant was subsequently released on bail and was requested to provide a fixed place of abode which he gave as being EDC, Sebastopol. The confederate was arrested, prosecuted and sentenced in connection with the present matter. However as from 2017 up to December 2025, the applicant could not be prosecuted as he was untraceable. Several operations were conducted at his last known address in Sebastopol but to no avail.

The execution of the warrant of arrest against him was difficult despite the publication of the warrant of arrest and none of his relatives could indicate his whereabouts. PS Laperoutine denied being aware of any statement given to police by the applicant’s brother in relation to the applicant’s place of residence. The applicant was ultimately arrested in December 2025 in Rose- Hill after an operation conducted by police at his dwelling house. PS Laperoutine was part of the team at the time of the operation and explained that the applicant bolted away through the back door of the house and was arrested after being chased in his backyard.

The applicant gave evidence in Court to support his motion. He explained that for the period 2010-2011, he was at all times residing with his wife at EDC Sebastopol. However, his marriage broke down and he went to reside at his sister’s place in Rose-Hill. Thereafter, he got married to another lady and has been residing for the last 13 years at Cité Corps de Garde, Avenue Ravinal, Camp Levieux with his wife.

The applicant confirmed that in February 2012 he was granted bail whilst he was subjected to a provisional charge in the present matter. One of his conditions of release was a weekly reporting condition which he had to comply with every Saturday. However, when he moved out of Sebastopol, he stopped complying with the said reporting condition. At that time, he was working in Riviere Noire and residing in Rose-Hill. He informed the police station, where he used to report, of his change of address over the phone. He conceded that the Court was not informed of the change of his residential address and denied that he was avoiding to be traced by police.

The applicant denied having bolted away on the day of his arrest in December 2025. He stated that he opened the door to allow the police in and went towards them as he was about to leave for work. He undertook to abide with any condition likely to be imposed on him for his release. He is married and has children.

The applicant’s wife was called as a witness for the purposes of the bail application. She confirmed residing in Camp Levieux with the applicant and their children. She confirmed being present at the time of the applicant’s arrest in December 2025. However, her account of the arrest was different from that of the accused. She explained being the one who opened the door for the police. She confirmed to them the presence of the applicant who was sleeping whilst the applicant’s version is that he was preparing to leave for work. She further explained that at the time the police officers went into the room to arrest the applicant, the latter had moved to use the toilet facilities. She confirmed that before the arrest, she was not aware of the charge against the applicant and was not aware that he had to comply with reporting conditions to police.

Conclusion

I have duly considered the evidence adduced by the respondent and that of the applicant in relation to the bail application. I consider that the testimony of PS Laperoutine stood unrebutted. On the contrary, the evidence of the applicant cannot be given much weight as his credibility was seriously tainted inasmuch as his version of the sequence of events on the day of his arrest in December 2025 was in contradiction with the version given in Court by his wife.

I do take note that the applicant has family ties and is in employment. However, given the difficulties in ensuring the availability of the applicant to stand trial, the applicant’s attempt of bolting away upon arrest and the admission made in Court by the applicant that he failed to comply with previous bail conditions imposed on him, I am of the view that the risk of absconding as raised by the respondent has been substantiated.

Having upheld the risk of absconding, I have carried out a balancing exercise between the risk highlighted by the respondent and the applicant’s right to liberty vide Hurnam (supra) applying Maloupe v The District Magistrate of Grand Port (2000 MR 264). I note that the imposition of security, fixed place of residence, and reporting conditions on the applicant in the past has proven to be inefficient. After a careful analysis, I consider that no condition can be imposed on the applicant to render such risk negligible.

For the reasons highlighted above, I decline to grant the applicant bail and set aside the application.

Delivered by

M. Lambert-Henry (Mrs) Magistrate Intermediate Court 01 April 2026