In Mauritian law, a provisional charge is a temporary criminal accusation made by the police against a person suspected of committing an offence, pending further investigation and the decision of the Director of Public Prosecutions (DPP) on whether to proceed with a formal charge in court. It is a key feature of the Mauritian criminal justice system, balancing the need for investigation with the protection of individual rights.
Definition
A provisional charge refers to an initial accusation entered before a magistrate, usually upon arrest, to allow the police to continue investigating a case where full evidence is not yet available to file a formal information or charge.
It is not a final charge, and does not in itself amount to prosecution. Its purpose is to legalize the detention of a suspect and preserve the continuity of the investigation.
Legal Basis
While there is no single statutory definition, the practice of provisional charges is grounded in:
Section 72 of the Criminal Procedure Act (Mauritius) – relating to the detention and remand of accused persons;
The Police Act – governing arrest and investigation powers;
Mauritian case law, notably:
R. v. Bholah [2011 SCJ 142]
R. v. Bholah [2011 SCJ 142]
Key Points:
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The Court emphasized the need for clear proof of corrupt intent — mere receipt of money or benefit is not automatically corruption unless linked to an improper motive or advantage.
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It reaffirmed that the burden of proof lies entirely on the prosecution, which must prove guilt beyond reasonable doubt.
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The Court also discussed the importance of credibility of witnesses and admissibility of evidence obtained through surveillance or undercover operations.
Jeetoo v. The Commissioner of Police [2014 SCJ 100]
2. Jeetoo v. The Commissioner of Police [2014 SCJ 100]
This case concerned administrative law and police conduct, particularly the duty of the police in handling citizens’ complaints and the limits of their discretionary powers. The Court underlined that police decisions are subject to judicial review when they are unreasonable, arbitrary, or in breach of natural justice. It also reiterated the constitutional right to fair treatment and protection from abuse of authority.
Key Points:
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The Court held that administrative decisions must follow principles of natural justice, including the right to be heard and to a fair process.
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It criticized any arbitrary or disproportionate exercise of disciplinary powers by public authorities.
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The ruling reinforced the doctrine that public officers should be treated fairly and that disciplinary measures must be based on clear evidence and due process.
State v. Mungroo [2002 SCJ 169]
3. State v. Mungroo [2002 SCJ 169]
Key Points:
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The Court held that for a conviction, the prosecution must prove gross negligence or recklessness that shows disregard for the safety of others.
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The case clarified that simple negligence or error of judgment is not sufficient to establish criminal liability.
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The Court also referred to the importance of causal link — the accused’s act must be the direct cause of death.
Purpose
To allow police to keep a suspect in custody lawfully while investigations continue.
To secure evidence and avoid interference with witnesses or tampering of evidence.
To give the DPP time to decide whether there is sufficient evidence to prosecute.
Process
Arrest: The police arrest a suspect based on reasonable suspicion.
Entry of Provisional Charge: The suspect is brought before a magistrate within 48 hours, and a provisional charge is entered.
Remand or Bail: The magistrate decides whether the suspect is remanded in custody or released on bail.
Investigation: The police continue to gather evidence.
Decision of DPP:
If sufficient evidence is found → a formal charge (information) is filed.
If not → the provisional charge is struck out, and the suspect is released.
Rights of the Accused
Even under a provisional charge, the accused:
Has the right to legal representation;
Must be brought before a magistrate within 48 hours (as per constitutional safeguards under Section 5 of the Constitution);
May apply for bail;
Cannot be held indefinitely — the court monitors the investigation’s progress.
Criticisms and Concerns
The use of provisional charges in Mauritius has been widely criticized by legal scholars, human rights activists, and the judiciary for:
Being overused, sometimes without sufficient basis;
Leading to unjustified long detentions before any trial;
Affecting the presumption of innocence;
Being used as a tool of harassment in certain cases.
The Supreme Court has repeatedly reminded the police and prosecution that a provisional charge cannot substitute for a full charge and must not be maintained indefinitely without progress (Bholah case, 2011).
Key Judicial Statements
In R. v. Bholah (2011), the Supreme Court held that a provisional charge is not equivalent to a formal charge and does not initiate prosecution.
In Jeetoo v. The Commissioner of Police (2014), it was reaffirmed that a person provisionally charged is not an accused in a criminal trial unless and until the DPP files a formal charge.
Reform Discussions
Legal experts and the Law Reform Commission of Mauritius have proposed:
Clear time limits for maintaining provisional charges;
Greater judicial oversight during investigation;
Strengthening the role of the DPP to prevent abuse of the process.
In Summary
| Aspect | Description |
|---|---|
| Nature | Temporary, investigative stage charge |
| Filed by | Police, before a magistrate |
| Purpose | To allow continued investigation |
| Authority | Criminal Procedure Act, Constitution, Case Law |
| Supervised by | Magistrate & DPP |
| Can be withdrawn | Yes, if insufficient evidence |
| Criticism | Risk of prolonged detention, abuse of process |