Supreme Court of Mauritius, 16 avril 2026, 2026 FLQ 60 – Police v M A Soobrattee

1

Police v M A Soobrattee

2026 FLQ 60

IN THE DISTRICT COURT OF FLACQ

Cause No: 196/2023

In the matter of: POLICE

V MUHAMMAD AADIL SO OBRATEE

JUDGMENT

THE CHARGE

1. The accused has been charged with the offence of insult in breach of section 296(a) of the Criminal Code. He pleaded not guilty and was not legally represented.

THE PROSECUTION’S CASE

2. Witness no.1, PC 2613 Chotoo, stated that he interviewed the accused on 08.08.2021 after the latter was duly informed of his constitutional rights, the charges against him and cautioned. The accused denied the charge and declined to give a defence statement.

3. Witness no.2, Mrs. Jocelyne Brigitte Phillipe, explained under oath, inter alia, that on 05.01.2021 at 10 00 hours, she was at her house in Bel Air when a man came outside and swore at her by uttering “to aine salter to enn traineuse, to pas 1 dimoun convenable.” She was not sure if the accused was the said man when asked to identify the latter from the dock.

4. The accused did not cross-examine witness no.2 and the prosecution closed its case.

THE CASE FOR THE DEFENCE

5. The accused deponed under solemn affirmation and denied the charge against him. His version is that he never even talked to witness no.2 and the latter husband used to work with him. The prosecutor duly cross-examined the accused, who denied swearing at witness no.2.

THE LAW

6. Section 296 (a) of the Criminal Code provides that:

“Any injurious expression or any term of contempt or invective, or other abusive language, not carrying with it the imputation of a fact, is an insult (‘injure’) and any person who is guilty of the offence shall be liable to the following penalties –. where the offence is committed by means of words, exclamations or threats not made use of in public, a fine not exceeding 50,000 rupees”

7. The constitutive elements of the offence of insult are that there must be an injurious expression; or a term of contempt; or invective; or abusive language addressed to some person or corporation by means of words, exclamations or threats.

8. The words used must not carry with them the imputation of a fact (Bundhoo v The State ( 2001) SCJ 60).

9. It was held in Coonjan v. The Queen (1978) MR 137 that “an ordinary sensible man knows an insult when he sees or hears it.”

10. The requisite mens rea is a malicious intent which is however presumed in expressions which are injurious or offensive per se «jusqu’à ce que l’auteur du propos eût prouvé qu’il ne voulait pas injurier la personne à laquelle il l’a adressée» ( Morel v. Couve 1912 MR 78).

ANALYSIS

11. I have duly considered all the evidence on record.

12. First and foremost, witness no.2 very clearly stated that she was not sure if it was the accused who swore at, which seriously sheds doubt on the case for the prosecution.

13. Secondly, with respect to cases of insult, our jurisprudence has established that prosecution witnesses do not need to repeat verbatim the words averred in the information, especially when taking into account the time lapse between the commission of the alleged offence and the time that a witness depones in court. The court needs to be satisfied that the words mentioned by the witness in court are essentially to the same effect and convey the same idea and expression of abuse as the words set out in the information (Rumjon M. R. V The State 2016 SCJ 315). In the information in the present matter, it has been averred that the accused allegedly used invective words against witness no.2- to wit: “to aine fam larue to aine fam pitin”. In court, the witness explained that a man told her “to aine salter to enn traineuse, to pas 1 dimoun convenable”. The question is whether the above variance is ‘slight’ or

‘substantial’. In comparing what has been averred in the information and what witness no.2 stated in court, it is obvious that the variance is substantial. I find it very pertinent to quote the following extract from the judgment of Seelochun S. G. V The State 2018 SCJ 178 at this stage:

“Should trial Courts hide behind the empty formula that there was only ‘a slight variance’ between the words of the information and what a complainant said in Court when such variance was actually substantial, there is a high risk of convicting accused parties against whom the case of the prosecution has not been proved beyond a reasonable doubt. This, in our view, would open the floodgates and set a wrong precedent in the practice of criminal law.”

14. In light of witness no.2 being unsure whilst identifying the accused in court, the variance coupled with the denial of the accused under solemn affirmation, I find that the prosecution has not been able to establish its case beyond reasonable doubt.

CONCLUSION

15. In the given circumstances, for all the reasons given in this judgment, I accordingly dismiss the charge against the accused.

Y. Ramsohok Senior District Magistrate Date: 16.04.26