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OLITTE M M I v THE STATE

2015 SCJ 268

Record No.: 8441


THE SUPREME COURT OF MAURITIUS
In the matter of:
M. M. I. Olitte
Appellant
v
The State
Respondent
AND
Record No.: 8442
In the matter of:
D. Anacootee
Appellant
v
The State
Respondent
---------JUDGMENT
These two appeals were argued together. There will be a single judgment, a copy to be
filed in each court record. The two appellants are challenging a judgment of the District Court of
Upper Plaines Wilhems, finding them guilty of having wilfully and without lawful authority,
entered a protected area, in breach of sections 13A (3) and 24 (4) of the Police Act coupled with
GN No. 49 of 2009.

The appellants had pleaded not guilty to the charge and they were

represented by Counsel.

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The evidence adduced by the prosecution reveals that the appellants, two reporters from
a local radio station, were at the material time found within the 5,870 square metres area that
surrounded the temple Nilkant Maha Kali Mandir (the Mandir) at Tagore Lane, St. Paul,
Phoenix, which had been declared a protected area pursuant to GN No. 49 of 2009. They were
found coming from a bush near the Mandir.
The appellants denied the charge stating that they did not know that the place where
they were found was a protected area as they did not see any sign post or anything to indicate
to them that they were in a protected area.
After having considered the evidence adduced by the prosecution and the defence
raised, the learned Magistrate found that the fact that the Commissioner of Police had failed to
clearly demarcate the limits and extent of the protected area did not negate the guilt of the
appellants who knew that access to the Mandir was being restricted. Both appellants were
convicted and sentenced by being conditionally discharged upon each of them furnishing a
security of Rs 5,000 to be of good behaviour for a period of one year failing which to undergo
one week imprisonment, and to pay Rs 100 as costs.
The grounds of appeal in respect of each appellant read as follows:
1.

The conviction of the appellant is wrong and should be


quashed because the evidence on record shows that there
was noncompliance with an essential requirement under
section 13 A(2) of the Police Act which imposes a strict
duty on the Commissioner of Police to clearly demarcate
the limits and extent of a protected area by such means as
will make it apparent to persons in or about the area
concerned that the area had been declared a protected
area.

2.

The learned Magistrates finding that failure of the


Commissioner of Police to act within the ambit of the law,
that is to clearly demarcate the extent and limit of the
protected area, is only a mitigating factor for sentencing
purposes is plainly wrong and cannot be allowed to stand
because demarcation of the extent and limit of the
protected area is an essential element that must be proved
in order to determine guilt.

3.

The conviction is wrong and should be quashed in view of


the overwhelming evidence on record coupled with the
finding of the Learned Magistrate that the area was not
demarcated as is required under section 13A(2) of the
Police Act.

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4.

Because it has not been established beyond reasonable


doubt that the appellant had the requisite mens rea for the
offence and that he had wilfully entered the protected area.

5.

Because the Learned Magistrate erred when she held that


the malafide of the appellant is flagrant when there is no
evidence on record to justify such finding.

Learned Counsel for the appellants argued grounds 1 and 3 together. He submitted that
the conviction must be quashed inasmuch as the evidence on record and as found by the
learned Magistrate, confirmed that the protected area was not demarcated in an apparent way
by the Commissioner of Police, as provided by section 13A (2) of the Police Act, so that
members of the public would know that they were entering a protected area.
We propose to deal with all the grounds together.
The relevant provisions of the Police Act (the Act) to be considered are the following:
13A Protected area
(1)

The Commissioner may, where he considers it necessary


or expedient in the interest of public safety or public order
so to do, by Order declare any area to be a protected area.

(2)

The limits and extent of a protected area shall be


demarcated at the site by such means as will, in the
opinion of the Commissioner, make apparent to persons
in or about the area concerned that that area has been
declared a protected area.

(3)

(a) No person shall, without lawful authority, enter or


remain in a protected area.
(b) Any person who fails to comply with this subsection
shall commit an offence.

The prosecution had to establish before the learned Magistrate that the appellants had
entered a protected area without authority, in breach of section 13A (3) of the Act. Pursuant to
section 13A (1) and (2), when the Commissioner proclaims an area as being a protected area,
he has the duty to demarcate the limits and extent of that area to make it apparent to any
person who may find himself in or about the area that the area has been declared a protected
area. The words make apparent are key words which indicate that the prohibited area has to
be delimited in a visible way for the public to become aware of it.

It cannot be gainsaid that

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someone may be aware that an area has been declared a protected area but he may not know
from which point exactly that prohibition starts and where it ends, unless this is indicated in a
visible way. This is precisely why the Act imposes a duty on the police to make the prohibition
apparent to persons in or about the area concerned so that it becomes an offence under
section 13A (3) if they fail to comply with the prohibition. There must be visible indication for
persons to know exactly that entry without lawfully authority is prohibited beyond a demarcated
line or that it is prohibited to remain in the area where there is a notice or any other clear
indication that the area is a protected area.
Therefore, the two important issues are whether there was delimitation of the area and
whether the delimitation was apparent. The evidence shows that people who used to go to the
Mandir could go there either through Tagore Lane or from several tracks through trees and
bushes that led to it from the side of the river as per the plan produced (Document C). The
appellants admitted that they went there to do their job as reporters and that people showed
them a track that led to the Mandir from the river. There were no sign posts or any kind of
noticeable indication that they were in a restricted area. They continued their way unhindered
until they reached the point where they were seen by the police.
It is significant that the police officer, ex ASP Appajee, who was responsible to prevent
access at the site, could not refute the fact that people came to the Mandir through the tracks
from the river. He admitted that he did not demarcate the protected area as required by the Act.
Further, metal barriers had only been placed across Tagore Lane, which terminates at the gate
of the Temple, and across a side lane that joins Tagore Lane. According to that witness, there
was supposed to be police patrol at different points, including the river, to prevent people from
getting access to the Mandir. However, there could not have been any such police patrol which
would have been apparent and adequate in the circumstances since the appellants proceeded
unhindered and were not stopped at any time along the track they had taken.
In the circumstances, it cannot be said that the area was demarcated along its limits and
extent as prescribed by statute and that it was apparent to the appellants, who were
proceedings along the track used generally by people to go to the Mandir, that they were about
to enter or were in a protected area, there being no sign post, notice board or any other visible
indication to inform them of that fact. It follows that the evidence has shown that the area
declared as being a protected area was delimited on paper but was not demarcated on site, as
enjoined by the Act, to make it apparent to people coming from all sides to the Mandir, and not

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only to those coming through Tagore Lane, that access beyond a certain point near the Mandir
was prohibited.
Moreover, it must not be overlooked that the declaration of protected area in this case
was in respect of a place of worship. The effect of such a declaration restrained the citizens
freedom of movement and of conscience which are freedoms that are guaranteed by our
Constitution. Therefore, the statutory provisions allowing such restraint must be strictly
interpreted and applied. The police were aware that people were not only getting access to the
Mandir through Tagore Lane but were also using the tracks from the river to go there. It was
therefore incumbent on them to warn those people also of the said prohibition.
Having found as a fact that the police had not demarcated the area, and in light of the
evidence on record that there was nothing to make apparent to the appellants who came to the
Mandir along the track from the river that they were in or about to enter a protected area, the
learned Magistrate erred in finding the offence proved against them.
We, accordingly, allow the appeal and quash the conviction and sentence against both
appellants, with costs.

S Peeroo
Acting Senior Puisne Judge

A R Hajee Abdoula
Judge

23 July 2015
Judgment delivered by Honourable S Peeroo, Acting Senior Puisne Judge
---------For Appellant in both cases
:
Mr R. Gulbul, of Counsel
Mr Attorney P. A. Nathoo
For Respondent in both cases:

Mr A. Ramdahen, State Counsel


Principal State Attorney