Supreme Court of Mauritius, 28 avril 2026, 2026 UPW 16 – PCE V DIOUMAN

1

PCE V DIOUMAN

2026 UPW 16

IN THE DISTRICT COURT OF UPPER PLAINES-WILHEMS CN 1959/2023 In the matter of: POLICE V Mohammud Iqbal DIOUMAN

JUDGMENT

THE CHARGE

1. The Accused is being prosecuted for the offence of threatening verbally in breach of Section 226 of the Criminal code.

2. Accused pleaded Not Guilty. He was represented by Counsel during the trial.

3. The case for the Prosecution was conducted by the Police Prosecutor.

CASE FOR THE PROSECUTION

4. The case for the prosecution is to the effect that on or about the 25 th February 2021, the Accused wilfully and unlawfully threatened witness No.2 so accompanied by an order or condition verbally to wit: “Si mo trouve toi quite place, mo pou touye toi..”

5. On trial date, the Prosecution called witness No.1 who produced the defence statement without objection from the defence (Doc A).

6. In his defence statement, the Accused denied having threatened witness No.2. He explained in his statement that on the material date he dropped his daughter at the place of witness No.2 for her to take her belongings and went to park his vehicle at around 30 meters from the house. At a certain point he felt sick and went home. He stated that he was not aware of what happened at the place of witness No.2.

7. Witness No.1 was cross-examined by defence counsel and the following was elicited: a. At 4pm on the material date, he accompanied the accused to the place of witness No.2 following a court order granting police escort to accused’s daughter to take her personal belongings at the place of witness No.2 at Terre Rouge Street Camp Fouquereaux. b. The accused accompanied his daughter in his vehicle and was in his vehicle at around 30 meters from the residence of witness No.2 c. Witness No.1 went inside the house with accused’s daughter and witness No.2. There was no one else inside the house. d. When the daughter of the accused tried to take her fridge, witness No.1 informed her that she cannot take same but only her belongings like clothes. A discussion ensued between accused’s daughter and witness No.2. e. Witness no.1 calmed down accused’s daughter. At 5pm, when he went outside the house, he saw many persons in front of the door who were trying to take the belongings of accused’s daughter. f. Witness No.2 was trying to prevent access and a discussion arose. g. When he was inside the house as well as when he went outside, Witness No.1 did not see the accused and did not see him near the residence of witness No.2. h. He cannot recall if he knows witness No.3 as there were many persons.

8. He was not re-examined by the Prosecution.

9. The Prosecution then called witness No.2, the complainant, who deponed as follows:

a. On 25.02.2021, the accused came with several persons and lorries to take his daughter’s belongings. b. When he gave him the belongings, they did not want to leave and tried to take the cupboard, bed, fridge, washing machine. They stated that they would not leave until they take these items. c. During that ‘bousculade’, the accused told him “si mo trouve toi quite place, mo pou touye toi”. d. Witness No.2 went downstairs to his parents’ house and told police to take all the belongings as he wanted this situation to be over. e. He stated in court that he was scared and until today he cannot see his child. f. He identified accused from the dock

10. The witness No.2 was cross-examined by Defence counsel and the following was elicited:

a. Accused is his ex-father-in-law b. The persons who came were brought by accused c. Accused was on the road at Terre Rouge Camp Fouquereaux when he threatened him. d. The persons came from 17.20 to 19.45hrs

e. When he opened the door to let accused’s daughter inside, he saw many persons trying to come inside. He only allowed accused’s daughter, witness No.1 and a female police officer inside and closed the door so that no one else would get in. f. Accused’s daughter told him that the persons who accompanied her came to protect her and these persons were not police officers. g. When it was put to him that witness No.1 stated that there was no one in front of the door when they reached, witness No.2 maintained his version. h. He disagreed with the version of witness No.1 to the effect that accused was not in front of the door. i. Witness No.3 was inside on the ground floor, and witness No.2, accused’s daughter, witness No.1 and a female police officer were on the first floor. j. He stated that he does not know whether witness no.1 and witness No.3 met when he entered the house. k. He clarified that witness No.3 was inside in the yard on the ground floor. l. When it was put to him that witness No.1 gave a different version, he maintained his version m. Witness No.3 is his cousin and he knows him since a long time n. Witness No.2 conceded he is not in good terms with accused’s daughter and agreed that she made a case of domestic violence against him o. He allowed accused’s daughter to take her belongings after the court order p. There were other persons downstairs in the house, his parents and cousins. Witness No.2 stated that they are not his witnesses. q. He disagreed that accused was in the car and maintained that he was on the road r. He disagreed that he had problems with accused and that he was not in good terms with him. s. He stated that maybe when accused told him these words, witness No.1 was not there. He did not mention same in his declaration. t. He could not recollect what accused was wearing on the material date. u. Police saw accused with his relatives and other persons and told them not to come inside.

11. He was re-examined by the Prosecution and he clarified that he was in his yard and accused was on the road when the incident happened.

12. Witness No.3 was called by the Prosecution and he deponed as follows:

a. On 25.02.2021 between 17.20hrs to 19.45hrs he was at his cousin’s place, Mr Assif Meerun, at Camp Fouquereaux. b. On that day, his cousin told him his ex-wife would come to take her belongings and he requested him to assist him as they often help each other. c. A lorry and a group of persons came with his ex-wife to take her personal belongings. d. Witness No.1 told them “tou sa dimoune kin vine faire ici” and the ex-wife told him that it was for her protection. Witness No.1 told her that he is here for her protection and asked her to come inside to take her belongings e. At that moment, the persons who accompanied her started to yell and wanted to enter the house following which witness No.1 calmed them down.

f. The ex-wife of witness No.2 took her belongings and left when she was done. g. When she went outside, her father, Mr Iqbal, was on the road near his cousin’s gate and threatened his cousin and told him “Si mo trouve toi quite place mo pou touye toi”. h. He identified accused from the dock.

13. He was cross-examined by defence counsel as follows: a. He stated that he works at Sirud company at Pailles and stated that he cannot remember whether he worked on that day. He however added that if he was there on that day he must have asked for permission. b. He could not recollect the time he reached witness No.2’s place as the incident happened 5 years ago. c. He saw witness No.1 on that day when latter asked the persons why there were so many persons. d. When he reached, he went to talk with his cousin at his place. When the persons came, they went outside. e. He cannot recollect when witness No.1 entered the house but latter was near the gate and told accused’s daughter to enter the house. f. He stated that when accused’s daughter came, accused was there. g. When it was put to him that witness No.1 stated in court that he did not see accused when he came, witness No.3 maintained his version.

14. He was re-examined by the Police prosecutor and he confirmed that he saw the accused and heard what he said.

CASE FOR THE DEFENCE

15. The Defence Counsel stated that no evidence will be adduced for the defence and closed the case for the defence.

ANALYSIS

16. The Accused party enjoys a presumption of innocence under Section 10(2)(a) of the Constitution and it is incumbent on the prosecution to prove all the elements of the offence beyond reasonable doubt [vide Boodhoo v The state 2004 SCJ 235].

17. Section 226 of the Criminal Code provides for the offence of threatening verbally and it goes as follows:

“226. Threatening verbally

Where the threat, so accompanied by an order or condition, has been made verbally, the offender shall be punished by imprisonment for a term not exceeding 2 years.”

18. The Prosecution was therefore tasked with proving the following constitutive elements: i) The threatening nature of the words uttered ii) Accompanied by an order or condition iii) The intention of the accused

19. It is undisputed that the words averred in the information “Si mo trouve toi quite place, mo pou touye toi”, are of a threatening nature, ex-facie the information.

20. The real issue to be determined is the second element of the offence that is, whether the words averred were accompanied by an order or condition.

Issue: Were the threats accompanied by an order or condition?

21. The offence of verbal threat, unlike threat in writing, is only created when it is accompanied by an order or condition. Indeed as per Garçon, Code Pénal Livre III, Notes 6 and 7, “les menaces simples, qui ne sont accompagnées ni d’un ordre ni d’une condition, ne sont punissables que si elles sont écrites et si elles ont pour objet un attentat contre les personnes passible de peines perpétuelles. Au contraire, ne sont pas prévues par la loi et, en conséquence, ne sont point punissables: les menaces verbales simples,et spécialement une menace de mort verbale qui n’est accompagnée d'aucun ordre ou condition”.

22. At this stage, it is therefore important to determine what exactly constitutes an order or condition as provided under Section 226 of the criminal code.

23. On this issue, the Court in the case of Bon v The State 2017 SCJ 454 held as follows:

“Now, it appears from notes 25 and 31 to 33 of Garçon (op. cit) that the aim of Articles 305 to 308 of the French Penal Code (on which sections 224 to 226 of our Criminal Code are modelled) was to protect the free will of the individual

32. Cette considération servira à déterminer avec exactitude le sens des mots « avec ordre ou sous condition ». La menace affectera ce caractère lorsqu’elle n’aura pas seulement pour but d’intimider, mais encore de contraindre. L’art. 205 donne comme exemple la menace avec ordre de déposer une somme d’argent dans un lieu déterminé ; cette particularité du texte s’explique historiquement. Nos anciens auteurs citaient cette menace comme particulièrement grave, et nous apprennent qu’on l’avait quelquefois punie de mort [Jousse, IV, 221]. Mais le Code pénal a généralisé en ajoutant « ou de remplir toute autre condition », et permet ainsi d’atteindre toute menace qui a pour but de peser sur la volonté d’autrui.

33. La menace est sous condition lorsqu’elle a pour but de contraindre la personne menacée non seulement à faire, mais encore à s’abstenir de faire. »

we read the following from note 81 of Dalloz, Répertoire de Droit Pénal, Tome VI, Vo Menaces – « 81. Condition hypothétique. – Enfin, l’ordre de remplir une condition doit être une véritable injonction contraignante et pas uniquement une injonction intimidante ; en cas de condition hypothétique, on doit considérer que la menace n’existe pas. Ainsi, n’a pas été retenu comme une menace punissable le fait d’énoncer : « je vous préviens que si vous levez encore la main sur moi je vous tuerai comme un chien que vous êtes » (Cass. crim. 14 déc. 1912, Gaz. Pal. 1913. 1. 181), de même que le fait de dire « si je te rencontre un jour je te tuerai » (T. corr. Boulogne-sur-mer, 24 avr. 1915, Gaz. Trib. 1915. 2. 32). »

The order to fulfil a condition, which accompanies the threat, must therefore be a real “injonction contraignante” and not one with a hypothetical condition, creating only an “injonction intimidante”. ”

24. It can be gleaned from the above principles that for there to be an order or condition, the threats should not only intimidate a person but constrain him to do or to abstain from doing an act. A merely hypothetical condition would only have an intimidating effect and therefore not creating the offence of verbal threat.

25. In the present case, the words averred in the information are “Si mo trouve toi quite place, mo pou touye toi”. It is clear that the words are not aimed at “contraindre a faire ou s’abstenir de faire quelque chose”. The complainant therefore cannot be said to have been “contraint a un certain comportement”.

26. In fact, the condition of “si mo trouve toi quite place, mo pou touye toi” is akin to the situation mentioned in Garcon above “si je te rencontre un jour je te tuerai”. This is merely a “condition hypothetique” which is dependent on an event in the future which may or may not happen. Such condition “trop éventuel lui enlève tout aspect contraignant” [Note 29, Encyclopedie Dalloz, Vo Menaces]

27. Hence, it is clear that the threats were not accompanied by an order or condition and therefore the second element of the offence has not been proved. At most, the threats averred in the information are of the nature of “menaces simples” which do not constitute an offence when verbal. In the circumstances, there is no need for this Court to assess the evidence and credibility of the witnesses. The case for the Prosecution must therefore fail ex-facie the information.

CONCLUSION

28. In light of the above, I find that the Prosecution has failed to prove the case against the Accused beyond reasonable doubt and I therefore dismiss the case against the Accused.

HH Letizia Y. VEERAPATREN District Magistrate This 28th April 2026