Magistrate Qasiratul Jannah Usmani Othman said she had freed Nik Suhaimi Nik Hussein as the charge was groundless, describing it as “an offence that is not known in law”.

“The defective charge cannot be regarded as an irregularity and curable under Section 156 of the Criminal Procedure Code (CPC),” she said in her 23-page judgment released last week.

Qasiratul said she communicated to parties her concern about the charge against the accused, but the prosecution had contended that there was no miscarriage of justice.

Nik Suhaimi was charged with using force on a 42-year-old woman with the intention of outraging her modesty at a cafe in Bentong at about noon on March 29, 2021.

Qasiratul said it was a fundamental principle of criminal law that an accused person should be informed or know accurately what offence he or she has been charged with.

“It is also a fundamental principle of criminal law that a charge must precisely specify the elements or ingredients of the offence with which the accused is intended to be charged,” she said.

Qasiratul said any failure to do so might result in a charge embedded with an offence that is not known in law and which could be dismissed by the court due to a groundless charge under Section 173(g) of the CPC.

The prosecution had framed the defective charge in Bahasa Melayu.

Qasiratul said for the offence of outraging modesty, the ingredients that need to be proven by the prosecution against the accused are that he had assaulted or used criminal force against the complainant.

Secondly, she said the accused must have assaulted or used criminal force against the complainant with the intention of outraging the victim.

Qasiratul said after reading the charge against the accused, it was apparent that the word “criminal force” was missing.

She said the words “intended to outrage” were missing as well.

Qasiratul said the word used by the prosecution in the charge was “kekerasan” or “force” in the English translation.

She said the charge did not cite the word “assault” or “criminal force” as expressly stipulated in Section 354 of the Penal Code.

Qasiratul said after scrutinising the meaning of “assault”, “criminal force” and “force”, it could be seen that each meaning differs from one another as each contains a different ingredient or element of the offence that needs to be proven by the prosecution.

Thus, using the word “kekerasan” or “force” alone would render the charge as one that is not known in law, as Section 354 of the Penal Code only recognises the offence of “assault” (“serangan”) or “criminal force” (“kekerasan jenayah”), she said.

It is unclear if the prosecution has filed an appeal.

Deputy public prosecutors S Punitha and Zamharir Zuhid appeared for the prosecution while Shamsul Rijal represented Nik Suhaimi.