Supreme Court of Mauritius, 9 avril 2026, 2026 RDR 67 – Burahee v Police

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Burahee v Police

2026 RDR 67

IN THE DISTRICT COURT OF RIVIÈRE DU REMPART (Criminal Jurisdiction) In the matter of: CN: 41/26 Mohamed Mustapha BURAHEE APPLICANT v Police RESPONDENT RULING 1. The Applicant is provisionally charged with the offence of (1) larceny scaling in breach of Sections 301(1) and 309(1) of the Criminal Code Act and (2) possession of article obtained by means of crime in breach of Sections 40, 301(1) and 309(1) of the Criminal Code Act.

2. The police objected to bail on the ground of risk of reoffending. Applicant was inops consili and Ms Callychurn argued the motion on behalf of the Prosecution assisted by Police Prosecutor. Proceedings were in creole. CASE FOR RESPONDENT 3. The Prosecution called the Enquiring Officer, PS Kunniah (E.O) of CID Pamplemousses who was deputed to resist the bail motion and he stated under oath that:

3.1 On the 06.11.2025, complainant reported a case of larceny at his shop found in Upper Vale whereby foods and articles were lost; 3.2 The value is Rs 406,000

3.3 Applicant was arrested during enquiry and he denied the charge; 3.4 Regarding nature of evidence – EO stated that that the Applicant was positively identified by one witness who saw Applicant going through a barrier; 3.5 Main case already lodged and Accused has pleaded not guilty – present case fixed for trial; 3.6 Applicant is borne on record – he has fourteen cognates; 3.7 Applicant was arrested on 07.11.2025 and evidence is circumstantial; 3.8 Applicant has a fixed place of abode and he is married – his adult son lives together with him.

4. Accused was explained his right to cross. Applicant did not cross examined the E.O.

5. Case was closed for the Respondent. CASE FOR APPLICANT 6. Applicant was explained all his constitutional rights to give evidence from the dock, under oath or to remain silent. He was also explained his rights to call witnesses. Accused chose to give evidence under oath.

7. Applicant solemnly affirmed that he has a wife and two children. He stated that the material witness in this case has a personal grudge against him and this is why the witness made a false accusation against Applicant. He further stated under oath that he could not spend the new year with his family and he is the sole breadwinner. Applicant stated that the case is based on false accusation.

8. Applicant was not cross examined by Counsel and his case was closed. SUBMISSIONS 9. Learned Counsel for the Respondent submitted that Applicant has a lengthy and troubling previous history. There are multiple cases of larceny; larceny by breaking and convictions for attempted larceny and possession of stolen property. Counsel submitted that the previous convictions have served no

deterrence to the Applicant and therefore there is high prevalence of such offences. There is a need to protect society and bail ought to be refused. LAW 10. Enshrined under Section 5 of the Constitution is the right to liberty. Every person is entitled to bail under Section 3 of the Bail Act subject to Section 4 of the said Act which are as follows: “3. Right to release on bail Notwithstanding any other enactment and subject to section 4, every defendant or detainee shall be entitled to be released on bail. […] 4. Refusal to release on bail (1) A Court may refuse to release a defendant or a detainee on bail where – (a) it is satisfied that there is reasonable ground for believing that the defendant or detainee if released is likely to –

(i) fail to surrender to custody or to appear before a Court as and when required; (ii) commit an offence, other than an offence punishable only by a fine; (iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person; (b) it is satisfied that the defendant or detainee should be kept in custody – (i) for his own protection; […]” [Emphasis is mine]

11. The above rationale for bail is that the suspect's remaining at large is the rule and his detention on the ground of reasonable suspicion is the exception. This principle has been established by a string of cases ranging from Sheriff Y. v The District Magistrate of Port Louis [1989 MR 260], Maloupe v The District Magistrate of Port Louis [2000 SCJ 233], Deelchand v DPP [2005 SCJ 215], Labonne J v. DPP [2005 SCJ 38] to Nullatamby v DPP [2011 SCJ 258].

ANALYSIS

12. I have duly considered the evidence on record. The E.O stated that Applicant was arrested on 07.11.2025 and Court notes that the nature of evidence is circumstantial. As at date, Applicant is still in detention – nearly four months.

13. On the risk of re-offending, Court relies on the following extracts in the case of Deelchand (supra): “5.6 It goes without saying that the risk of offending must be a real one, and that there must be adequate reasons to explain its existence. In Clooth v Belgium [1991] ECHR 71 (12 December 1991), at para 40, the Court said that the “danger” of a serious offence being committed by the applicant whilst on bail should be “a plausible one”.

5.7 Several factors may be relevant in the assessment of the seriousness of the risk and the propriety of detention to avert the danger. The criminal record of the applicant is an important consideration. So, too, the nature of the offence or offences which the applicant is suspected to have committed as some offences are more likely to be repeated than others […]

5.11 The character of the applicant, notably a clean or criminal record, is also a relevant consideration in considering the risk of offending (as it may indicate an inclination which increases that risk). So too the nature of the evidence against him: if he happens to be a criminal, then -if the evidence against him appears strong, he is more likely to think he has nothing to lose by re-offending; if the evidence appears weak to him, he will be less likely to take the risk of detection upon re-offending.” (emphasis is mine)”

14. In determining the present application for bail, I am mindful that the Applicant has denied the charges and this is in line with presumption of innocence enshrined in our Constitution. Therefore deprivation of liberty prior to conviction must be approached with caution. Having regards to the previous convictions of the Applicant, I find that the risk of offending if released on bail is not a mere apprehension but rather a plausible one.

15. Having concluded that the risk of re-offending is substantiated, I need to decide on whether such risk may be rendered negligible. I am aware that bail is not to withheld as a form of anticipatory punishment, but rather to secure the attendance of the Applicant at the trial and to safeguard interests of justice.

16. I have given due consideration to the Applicant’s antecedents, which reveal a substantial record of previous convictions mostly offences of larceny and larceny by breaking spanning over serval years. As Counsel submitted, the most recent conviction which resulted in an imprisonment of three weeks is not to be lightly disregarded.

17. However, Court must equally take into account the period of detention already undergone by the Applicant. The offence was committed on the 06.11.2025 and Applicant was arrested on 07.11.2025. The E.O testified under oath that the material witness is not the complainant but in fact it is another witness who allegedly saw Applicant going through a fence. The nature of evidence is circumstantial and Applicant has pleaded not guilty. Applicant has been in police custody for nearly four months now. While the interests of society, including the need to prevent further offences, are of paramount importance as rightly submitted by Learned Counsel for the Respondent, they must be balanced against the Applicant’s constitutional right to liberty and to the principle of presumption of innocence. Prolonged detention in the absence of compelling reasons may not be justified in these circumstances.

18. In Maloupe (supra), the Supreme Court observed that a person should normally be released on bail if the imposition of the conditions reduces the risk of absconding, risk to the administration of justice, risk to society to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance.

19. After anxious considerations, I am of the view that the concerns arising from the Applicant’s criminal records can be adequately addressed the imposition of stringent conditions. Accordingly, I have carried out the balancing exercise and I am of the view that the constitutional right of Applicant to liberty outweighs the risk of re-offending. Interests of justice would be best served by granting bail,

subject to strict conditions designed to ensure the Applicant’s attendance at trial and to protect the public.

CONCLUSION: 20. In light of the above, Applicant is admitted to bail subject to the following conditions:

20.1 Applicant has to furnish a surety in the sum of Rs.20,000/-; 20.2 Applicant has to enter into a recognisance in the sum of Rs.100,000/-; 20.3 Applicant has to reside at a fixed place of residence which is known to the police; 20.4 Applicant has to remain at his place of residence from 9pm to 5am, by virtue of a curfew order hereby imposed upon him, and in case of emergency situation, he has to inform the police of same before leaving his place of residence during the said curfew hours; 20.5 Applicant has to daily report to the police station twice nearest to his place of residence (i) between 8am to 10 am; (ii) between 6pm to 8pm; 20.6 Applicant should have a mobile phone which is in good working conditions and same is to be communicated to the police.

Ms O.LUCHOO Temporary District Magistrate 09.04.2026