LAW OF CRIMINAL PROCEDURE

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By 2017-04-21

By Chandra Tilake Edirisuriya

In the case of Wickramasinghe v Coorey (1918) 19 NLR 97 during a period of martial law, following the Sinhala-Muslim Riots of 1915, orders were given by the Officer Commanding the Troops to the Superintendent of Police to practise his men in the drill prescribed for street blocking. The appellant, an Inspector in charge of about 50 constables, was engaged in carrying out the prescribed drill at a spot where it was anticipated that trouble might occur. For the purpose of the manoeuvre two wing men of the company crossed the drain on the respondent's compound. The respondent ordered them off but they refused to go, and a struggle ensued. It was held that the Police were justified in entering on the respondent's compound by the direction of the military authorities and the respondent's act in using force against the Police amounted to a breach of the peace which justified his arrest without warrant.

In the case of Jayen v Allosinno (1893) 2 SCR 78 it was decided, clearly, persons engaged in committing an affray can be arrested without warrant under this provision.

In the case of Simon Appuhamy (1961) 66 NLR 294, a Sub Inspector of Police decided to enter and search a house for explosives. A party of Police constables accompanied him to render assistance in his entry and search. The Sub Inspector was attacked by occupants of the house. The constables were held entitled to arrest them without warrant.

It was held in the case of Kandasamy v Rozairo (1946) 47 NLR 470 that the arresting officer should be able to justify the arrest on one or more of several grounds enumerated in the Code of Criminal Procedure.

In the case of Muttusamy v Kannangara (1951) 52 NLR 324 it was held that the complaint or the suspicion, as the case may be, must be reasonable, or the information credible and in this case, where the Police officer purported to make an arrest on a charge of theft but nowhere in the course of his evidence referred to any complaint or information or suspicion, the reasonableness of which could have been tested by the Magistrate whose function it was to inquire into the officer's state of mind at the time he made the arrest, the Police officer was acting outside the scope of his lawful powers.

In the case of Dumbell v Roberts (1944) 1 All ER 326, quoted with approval by Gratiaen J in the case of Muttusamy v Kannangara, it was held: "The principle of personal freedom, that every man should be presumed innocent until he is found guilty, applies also to the Police function of arrest... For that reason it is of importance that no one should be arrested by the Police except on grounds, which in the particular circumstances of the arrest really justify the entertainment of a reasonable suspicion".

In the case of Corea (1954) 55 NLR 457 it was held that Police officers are entitled to arrest without a warrant only if they are persuaded of the guilt of the accused.

In the case of John Lewis v Tims (1952) AC 676, quoted with approval by Gratiaen J in the case of Corea it was held: "They cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man meanwhile, or taking him to some spot where they can or may find further evidence".

Arrest of offenders without a warrant

It was also decided in Corea's case that an improper motive attributable to the arresting officer vitiates legality of the arrest.

Thus, where the Police officer took exception to the manner in which the accused spoke or behaved and ordered his arrest 'to teach him a lesson', the arrest would be unlawful.

It was held in the case of Baba Appu v Adan Hamy (1900) 1 Browne's Rep 34 that it is a question of fact, to be determined in the light of the circumstances of each case, whether the complaint received by the Police against the accused is a reasonable one.

In the case of Mc Ardle v Egan (1933) 30 Cox CC 67, quoted in the case of Muttusamy v Kannangara, it was held: "A suspicion is proved to be reasonable if the facts disclose that it was founded on matters within the Police officer's own knowledge or on statements by other persons in a way which justify him in giving them credit".

It was also held in the case of Muttusamy v Kannangara that the time when suspicion is entertained by the Police officer is also a relevant factor. The discovery of incriminating evidence after the arrest has no bearing on the matter. The sole issue is the knowledge and state of mind of the Police officer which existed contemporaneously with the making of the arrest.

In the case of Laurensz v Jayasinghe (1913) 16 NLR 505 it was held that a mere verbal refusal to allow a public servant to perform his duty is not 'obstruction'.

It was held in the case of Abeyesekere v de Silva (1945) 46 NLR 449 that a Police officer has the right to demand from a person accused in his presence of committing a non-cognizable offence, the name and address of the alleged offender and clearly, a Police officer will not be able to perform his duty unless he is given the right to demand from a suspect his name and address.

In the cases of Thiedeman v Fernando (1896) 2 NLR 149 and Saffar v Siriwardana (1909) it was held that a Police officer has the right to take into custody without a warrant,whom he finds behaving in a drunken and disorderly manner in a public place or thoroughfare, if his true name and address cannot be ascertained.

In the case of Kumaresu v Divisional Revenue Officer, Vavuniya (1949) 51 NLR 31 Sir Arthur Wijeyewardene CJ held that where the ground of arrest by a private person is the commission of a cognizable offence, it is necessary that the arrest be made either at the time of the cognizable offence or immediately afterwards, and not after a prolonged interval. An interval of four days between the perpetration of the offence and the making of the arrest has been held to be too long.

In Peries v Anderson (1928) 30 NLR 118, a salesman in a boutique to whom a twenty-five cent coin was given for the purchase of cigarettes by a chauffeur employed by the defendant, denied the receipt of the money. Immediately afterwards, on being questioned by the appellant, the salesman pointed to a twenty-five cent coin which lay on the floor of the boutique. The explanation was not accepted by the appellant who found the twenty-five cent coin which he had given his chauffeur in a drawer.

The appellant used some degree of force on the salesman in taking him to the Police station. Drieberg J held, in appeal, that the offence committed by the salesman on these facts was that of dishonest misappropriation of property – a non-cognizable offence.

Consequently, the appellant's action in taking the salesman by force to the Police station was held to be unlawful.

Arrest without an order from a Magistrate

In Part B titled Arrest without a Warrant Section 32 on when peace officers may arrest without a warrant lays down that (1) any peace officer may without an order from a Magistrate and without a warrant arrest any person (a) who in his presence commits any breach of the peace; (b) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned; (c) having in his possession without lawful excuse (the burden of proving which excuse shall be on such person) any implement of house-breaking; (d) who has been proclaimed as an offender; (e) in whose possession anything is found which may reasonably be suspected to be property stolen or fraudulently obtained and who may reasonably be suspected of having committed an offence with reference to such thing; (f) who obstructs a peace officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody; (g) reasonably suspected of being a deserter from the Sri Lanka Army, Navy or Air Force; (h) found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence; (i) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in any act committed at any place out of Sri Lanka, which if committed in Sri Lanka would have been punishable as an offence and for which he is under any law for the time being in force relating to extradition or to fugitive persons or otherwise liable to be apprehended or detained in custody in Sri Lanka; and (2) anything in this section shall not be held to interfere with or modify the operation of any enactment empowering a peace officer to arrest without a warrant.

On powers of arrest in non-cognizable cases Section 33 lays down that (1) when any person in the presence of a peace officer is accused of committing a non-cognizable offence and refuses on the demand of such peace officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such peace officer in order that his name or residence may be ascertained, and he shall within twenty-four hours from the arrest exclusive of the time necessary for the journey be taken before the nearest Magistrate's Court unless before that time his true name and residence are ascertained, in which case such person shall be forthwith released on his executing a bond for his appearance before a Magistrate's Court if so required; and (2) when any person is accused of committing a non-cognizable offence and a peace officer has reason to believe that such person has no permanent residence in Sri Lanka and that he is about to leave Sri Lanka, he may be arrested by such peace officer and shall be taken forthwith to the nearest Magistrate who may either require him to execute a bond with or without a surety for his appearance before a Magistrate's Court or may order him to be detained in custody until he can be tried.

Pursuit of offenders into other jurisdictions

On the pursuit of offenders into other jurisdictions Section 34 lays down that for the purpose of arresting any person whom he has power to arrest without a warrant a peace officer may pursue any such person into any part of Sri Lanka.

On arrest by private persons and the procedure on such arrest Section 35 lays down that any private person may arrest any person who in his presence commits a cognizable offence or who has been proclaimed as an offender, or who is running away and whom he reasonably suspects of having committed a cognizable offence, and shall without unnecessary delay make over the person so arrested to the nearest peace officer or in the absence of a peace officer take such person to the nearest Police station. If there is reason to believe that such person comes under the provisions of Section 32 a peace officer shall re-arrest him. If there is reason to believe he has committed a non-cognizable offence and he refuses on the demand of a Police officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false or is a person whom such officer has reason to believe is about to leave Sri Lanka, he shall be dealt with under the provisions of Section 33. If there is no reason to believe that he has committed any offence he shall be at once discharged.

On how a person arrested is to be dealt with Section 36 lays down that a peace officer making an arrest without warrant shall without unnecessary delay and subject to the provisions herein contained as to bail take or send the person arrested before a Magistrate having jurisdiction in the case.

On the requirement that the period of detention of persons arrested not to be more than twenty-four hours or forty-eight hours Section 37 lays down that notwithstanding anything contained in the Code of Criminal Procedure Act, No. 15 of 1979 other than the provisions of Section 43 A of that Act, any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the presence of the Magistrate:

Provided that, where the arrest is in relation to an offence as is specified in the Schedule to this Act, such period of detention in Police custody may, on production before him of the person arrested and on a certificate filed by a Police officer not below the rank of the Assistant Superintendent of Police submitted prior to the expiration of the said, period of twenty-four hours, to the effect that it is necessary to detain such person for the purpose of further investigations, be extended upon an Order made in that behalf by the Magistrate for a further period not exceeding twenty-four hours, so however, that the aggregate period of detention shall not exceed forty-eight hours: Provided further, that any person arrested and detained for a further period shall be afforded an opportunity to consult an Attorney-at-Law of his choice and to communicate with any relative or friend of his choice during the period of such detention.

On the right of persons arrested, to retain and consult an Attorney-at-Law, Section 37A lays down that (1) any person who has been arrested and detained in Police custody, shall have the right to retain and consult an Attorney-at-Law of his choice at his own expense, after the recording of his statements, in terms of the provisions of Sub-section (1) of Section 110 and prior to being produced before a Magistrate and (2) if the person so arrested informs the officer-in-charge of the relevant Police station that he is unable to retain and consult an Attorney-at-Law at his own expense, the service of an Attorney-at-Law from the Legal Aid Commission of Sri Lanka established under the Legal Aid Law, No. 27 of 1978, shall be provided to him where the Legal Aid Commission is in a position to provide such service.

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