{"id":919224,"date":"2026-05-18T11:17:35","date_gmt":"2026-05-18T09:17:35","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/supreme-court-of-mauritius-28-avril-2026-2026-upw-16-pce-v-diouman\/"},"modified":"2026-05-18T11:17:35","modified_gmt":"2026-05-18T09:17:35","slug":"supreme-court-of-mauritius-28-avril-2026-2026-upw-16-pce-v-diouman","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-28-avril-2026-2026-upw-16-pce-v-diouman\/","title":{"rendered":"Supreme Court of Mauritius, 28 avril 2026, 2026 UPW 16 – PCE V DIOUMAN"},"content":{"rendered":"
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\n

1<\/p>\n

PCE V DIOUMAN<\/p>\n

2026 UPW 16<\/p>\n

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

JUDGMENT<\/p>\n

THE CHARGE<\/p>\n

1. The Accused is being prosecuted for the offence of threatening verbally in breach of Section 226 of the Criminal code.<\/p>\n

2. Accused pleaded Not Guilty. He was represented by Counsel during the trial.<\/p>\n

3. The case for the Prosecution was conducted by the Police Prosecutor.<\/p>\n

CASE FOR THE PROSECUTION<\/p>\n

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: \u201cSi mo trouve toi quite place, mo pou touye toi..\u201d<\/p>\n

5. On trial date, the Prosecution called witness No.1 who produced the defence statement without objection from the defence (Doc A).<\/p>\n

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.<\/p>\n

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\u2019s 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\u2019s 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\u2019s daughter and witness No.2. e. Witness no.1 calmed down accused\u2019s 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\u2019s 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.<\/p>\n

8. He was not re-examined by the Prosecution.<\/p>\n

9. The Prosecution then called witness No.2, the complainant, who deponed as follows:<\/p>\n

a. On 25.02.2021, the accused came with several persons and lorries to take his daughter\u2019s 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 \u2018bousculade\u2019, the accused told him \u201csi mo trouve toi quite place, mo pou touye toi\u201d. d. Witness No.2 went downstairs to his parents\u2019 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<\/p>\n

10. The witness No.2 was cross-examined by Defence counsel and the following was elicited:<\/p>\n

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<\/p>\n

e. When he opened the door to let accused\u2019s daughter inside, he saw many persons trying to come inside. He only allowed accused\u2019s daughter, witness No.1 and a female police officer inside and closed the door so that no one else would get in. f. Accused\u2019s 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\u2019s 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\u2019s daughter and agreed that she made a case of domestic violence against him o. He allowed accused\u2019s 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.<\/p>\n

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.<\/p>\n

12. Witness No.3 was called by the Prosecution and he deponed as follows:<\/p>\n

a. On 25.02.2021 between 17.20hrs to 19.45hrs he was at his cousin\u2019s 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 \u201ctou sa dimoune kin vine faire ici\u201d 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.<\/p>\n

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\u2019s gate and threatened his cousin and told him \u201cSi mo trouve toi quite place mo pou touye toi\u201d. h. He identified accused from the dock.<\/p>\n

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\u2019s 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\u2019s daughter to enter the house. f. He stated that when accused\u2019s 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.<\/p>\n

14. He was re-examined by the Police prosecutor and he confirmed that he saw the accused and heard what he said.<\/p>\n

CASE FOR THE DEFENCE<\/p>\n

15. The Defence Counsel stated that no evidence will be adduced for the defence and closed the case for the defence.<\/p>\n

ANALYSIS<\/p>\n

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].<\/p>\n

17. Section 226 of the Criminal Code provides for the offence of threatening verbally and it goes as follows:<\/p>\n

\u201c226. Threatening verbally<\/p>\n

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.\u201d<\/p>\n

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<\/p>\n

19. It is undisputed that the words averred in the information \u201cSi mo trouve toi quite place, mo pou touye toi\u201d, are of a threatening nature, ex-facie the information.<\/p>\n

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.<\/p>\n

Issue: Were the threats accompanied by an order or condition?<\/p>\n

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 Gar\u00e7on, Code P\u00e9nal Livre III, Notes 6 and 7, \u201cles menaces simples, qui ne sont accompagn\u00e9es ni d\u2019un ordre ni d\u2019une condition, ne sont punissables que si elles sont \u00e9crites et si elles ont pour objet un attentat contre les personnes passible de peines perp\u00e9tuelles. Au contraire, ne sont pas pr\u00e9vues par la loi et, en cons\u00e9quence, ne sont point punissables: les menaces verbales simples,et sp\u00e9cialement une menace de mort verbale qui n\u2019est accompagn\u00e9e d'aucun ordre ou condition\u201d.<\/p>\n

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.<\/p>\n

23. On this issue, the Court in the case of Bon v The State 2017 SCJ 454 held as follows:<\/p>\n

\u201cNow, it appears from notes 25 and 31 to 33 of Gar\u00e7on (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<\/p>\n

32. Cette consid\u00e9ration servira \u00e0 d\u00e9terminer avec exactitude le sens des mots \u00ab avec ordre ou sous condition \u00bb. La menace affectera ce caract\u00e8re lorsqu\u2019elle n\u2019aura pas seulement pour but d\u2019intimider, mais encore de contraindre. L\u2019art. 205 donne comme exemple la menace avec ordre de d\u00e9poser une somme d\u2019argent dans un lieu d\u00e9termin\u00e9 ; cette particularit\u00e9 du texte s\u2019explique historiquement. Nos anciens auteurs citaient cette menace comme particuli\u00e8rement grave, et nous apprennent qu\u2019on l\u2019avait quelquefois punie de mort [Jousse, IV, 221]. Mais le Code p\u00e9nal a g\u00e9n\u00e9ralis\u00e9 en ajoutant \u00ab ou de remplir toute autre condition \u00bb, et permet ainsi d\u2019atteindre toute menace qui a pour but de peser sur la volont\u00e9 d\u2019autrui.<\/p>\n

33. La menace est sous condition lorsqu\u2019elle a pour but de contraindre la personne menac\u00e9e non seulement \u00e0 faire, mais encore \u00e0 s\u2019abstenir de faire. \u00bb<\/p>\n

we read the following from note 81 of Dalloz, R\u00e9pertoire de Droit P\u00e9nal, Tome VI, Vo Menaces \u2013 \u00ab 81. Condition hypoth\u00e9tique. \u2013 Enfin, l\u2019ordre de remplir une condition doit \u00eatre une v\u00e9ritable injonction contraignante et pas uniquement une injonction intimidante ; en cas de condition hypoth\u00e9tique, on doit consid\u00e9rer que la menace n\u2019existe pas. Ainsi, n\u2019a pas \u00e9t\u00e9 retenu comme une menace punissable le fait d\u2019\u00e9noncer : \u00ab je vous pr\u00e9viens que si vous levez encore la main sur moi je vous tuerai comme un chien que vous \u00eates \u00bb (Cass. crim. 14 d\u00e9c. 1912, Gaz. Pal. 1913. 1. 181), de m\u00eame que le fait de dire \u00ab si je te rencontre un jour je te tuerai \u00bb (T. corr. Boulogne-sur-mer, 24 avr. 1915, Gaz. Trib. 1915. 2. 32). \u00bb<\/p>\n

The order to fulfil a condition, which accompanies the threat, must therefore be a real \u201cinjonction contraignante\u201d and not one with a hypothetical condition, creating only an \u201cinjonction intimidante\u201d. \u201d<\/p>\n

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.<\/p>\n

25. In the present case, the words averred in the information are \u201cSi mo trouve toi quite place, mo pou touye toi\u201d. It is clear that the words are not aimed at \u201ccontraindre a faire ou s\u2019abstenir de faire quelque chose\u201d. The complainant therefore cannot be said to have been \u201ccontraint a un certain comportement\u201d.<\/p>\n

26. In fact, the condition of \u201csi mo trouve toi quite place, mo pou touye toi\u201d is akin to the situation mentioned in Garcon above \u201csi je te rencontre un jour je te tuerai\u201d. This is merely a \u201ccondition hypothetique\u201d which is dependent on an event in the future which may or may not happen. Such condition \u201ctrop \u00e9ventuel lui enl\u00e8ve tout aspect contraignant\u201d [Note 29, Encyclopedie Dalloz, Vo Menaces]<\/p>\n

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 \u201cmenaces simples\u201d 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.<\/p>\n

CONCLUSION<\/p>\n

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.<\/p>\n

HH Letizia Y. VEERAPATREN District Magistrate This 28th April 2026<\/p>\n<\/div>\n

\n

Sources officielles :<\/strong> consulter la page source<\/a> · PDF officiel<\/a><\/p>\n

Supreme Court of Mauritius – public domain<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":[],"kji_country":[92666],"kji_court":[92667],"kji_chamber":[92765],"kji_year":[7610],"kji_subject":[7646],"kji_keyword":[8601,92766,15757,15594],"kji_language":[7611],"class_list":["post-919224","kji_decision","type-kji_decision","status-publish","hentry","kji_country-maurice","kji_court-supreme-court-of-mauritius","kji_chamber-ms-l-veerapatren-district-magistrate","kji_year-7610","kji_subject-divers","kji_keyword-avril","kji_keyword-diouman","kji_keyword-mauritius","kji_keyword-supreme","kji_language-anglais"],"yoast_head":"\nSupreme Court of Mauritius, 28 avril 2026, 2026 UPW 16 - PCE V DIOUMAN - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-28-avril-2026-2026-upw-16-pce-v-diouman\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Supreme Court of Mauritius, 28 avril 2026, 2026 UPW 16 - PCE V DIOUMAN\" \/>\n<meta property=\"og:description\" content=\"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. 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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. 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