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Present: Lascelles C.J. and Middleton J.
THE ATTORNEY-GENERAL v. CAPTAIN SKINNER.
39—fP. C. Colombo, 31,506.
Police officer—Arrest without warrant—Non-cognizable offence—Policecannot admit to bail—Must take person arrested to Police Magis-trate—CriminalProcedureCode,s.SB(2)—PoliceOrdinaltee,
No. 16 of 1865, s. 65.
Wherea police officerarrestedwithouta warranta person
charged with a non-cognizable offence, and released him on hisexecutinga bailbond witha surety,itwas held that thebond was
invalid, and was not enforcible, as the provisions of section 33 (2)were j not complied with.
Section56 ofOrdinanceNo. 16of' 1865applies onlyto cases
where a person is lawfully taken into custody by a police officerwithout a warrant. These cases are derailed in section 32 of theCriminal Procedure Code.
HIS was an appeal by the Attorney-General against an orderof the Police Magistrate of Colombo. The facts are set out
in the judgment.
Walter Pereira, K.C., S.-G. (with him Akbar, C.C.), for theAttorney-General.—The Superintendent of Police. Colombo, on thereceipt of the warrant for the arrest of Captain Harrison, sent atelegram to the Superintendent of Police, Kandy, to arrest him.The Superintendent showed the telegram to Inspector Peris, andordered him to arrest Captain Harrison. The Inspector had sufficientreason to believe that Captain Harrison, who had no permanentresidence in Ceylon, was about to leave it. Though the offence wasa non-cognizable one, the arrest was legal under section 33 (2) of theCriminal Procedure Code.
Under section 55 of the Police Ordinance (No. 16 of 1865) theofficer in charge of a police station may admit the person arrested bythe police to bail. That section is still law, and cannot be ignored.Section 55 of the Police Ordinance and section 33 (2) of the CriminalProcedure Code must be read together. Under section 33 (2), whenthe peace officer makes an arrest for a non-cognizable offence,he must take the person arrested forthwith to the nearest PoliceMagistrate. But if the person arresting is a police officer, section55 of the Police Ordinance applies, and the officer in charge of thepolice station may admit the person arrested to bail.
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The term '* peace officer " includes a police officer. Section S3 (2)of the Criminal Procedure Code applies to the case of peace officerswho are not police officers; when the officer arresting is a policeofficer, section 55 of the Police Ordinance applies.
The sections of the Criminal Procedure Code regarding arrest donot render obsolete the provisions, of the Police Ordinance. SeeCornells v. Cookson, 1 where it was held that section 59 of the PoliceOrdinance is not superseded by chapters IV and V of the CriminalProcedure Code.
Where the warrant has been directed to the police, it does notmatter which officer makes the arrest. A police officer may performhis duties over the whole Island (see Oressy v. Perera2).
Elliott, for the respondent, not called upon.
February 2, 1912. Lascelles C.J.—
This is an appeal from an order of the Police Magistrate of Colomborefusing to forfeit the bail bond marked X 3. The material facts ofthe case, shortly stated, are as follows. Two warrants were issuedby the Police Court of Colombo for the arrest of a Captain Harrison.One of these was issued to the Superintendent of Police, Colombo,for the arrest of the offender within the jurisdiction of the PoliceCourt of Colombo, and the other was issued to the Superintendent ofPolice, Kandy. The warrants were both issued on December 2.3,1911. Captain Harrison was arrested by the Police in Kandy;and it is admitted that the officer who arrested him had not eitherof the warrants issued in Colombo, or a copy of either of them. Thearrest was in effect an arrest without a warrant at all. The officerwho' arrested Captain Harrison released him on the security bondX 3 being executed with Captain Skinner as surety. The PoliceMagistrate has held that, inasmuch as Captain Harrison wasarrested without a warrant, the bail bond for his release is invalidand of no effect. The question seems to turn upon the constructionof section 33 of the Criminal Procedure Code and section 55 orOrdinance No. 16 of 1865—the Police Ordinance. Under the formersection it is provided by sub-section (2) that if a police officer hasreason to believe that a person who is accused of committing anon-cognizable offence is about to leave the Colony, he may bearrested by the police officer, and thereupon he may be takenforthwith to the nearest Police Magistrate, who may either requirehim to execute a bond with or without a surety, or may order himto be detained in custody until trial. Now, if the police of Kandyhad acted under sub-section (2) of section 33 -of the CriminalProcedure Code, their action would have been beyond question.Captain Harrison on arrest would have been immediately taken
* (1902) $ N. L. R. 40.
* (mi) S N. L. B. 116.
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before the Police Magistrate at Kandy, who in all probabilitywould have admitted him to bail, and the surety bond would havebeen a perfectly good and enforcible security. But the policehave not conformed to the procedure prescribed by the sub-section.If Captain Harrison was in fact arrested under the provisions of thi3sub-section, which provides for caseB of emergency, then the policeought to have strictly complied with the provisions of the sub-section.It is contended that the arrest, and therefore the bail bond, is validunder section 55 of the Police Ordinance. But this section seemsto me to apply only to cases where a person is lawfully taken intocustody by a police officer without a warrant. These cases aredetailed in section 33 of the Criminal Procedure Code, and itseems to me that section 55 must apply to cases of this character.Otherwise there would be a serious discrepancy between section 55and section 33 of the Criminal Procedure Code. It is urged thatthere is a distinction between the two sections, on the ground thatsection 33 deals with peace officers, and section 55 refers onlyto police officers of the regular police. But as the term “ peaceofficer ” in the Code includes all police officers, I do not see thatanything can be based on this distinction. The decision of the PoliceMagistrate is in my opinion correct, and should be affirmed.
Middleton J.—I agree.
THE ATTORNEY – GENERAL v. CAPTAIN SKINNER