SIREVIANE, J.—GuncUunga v. Attorney-General
1976 Present: Sirimane, J., and Wanasundera, J.
A. GUNATUNGA—Suspect-Petitioner and THE ATTORNEY-GENERAL.—Complainant-Respondent
S. C. Application—85/76
Criminal Procedure—Administration of Justice Law S. 75(5)—Right ofPolice Officer to have access to suspect during investigation.
75(5) of the Administration of Justice Law reads, “During theperiod that a suspect is in the lawful custody of a Superintendentof prisons, a Magistrate may upon application made by the policeofficer in charge of the investigation authorize such officer to
SIBIMANE, J.—Ghmatunga v. Attorney-General
have access during reasonable hours to such suspect for thepurpose of the continuation of the investigation and may likewiseauthorize such officer to take the suspect from place to place ifin the opinion of the Magistrate such action is considerednecessary for the purpose of the investigation
Held : that these provisions do not empower a Magistrate toauthorize a police officer to take the suspect out of prison to apolice station or a Criminal Investigations Department office forthe purpose of questioning. When the section lays down that aMagistrate may authorize the police officer “ to have access duringreasonable hours to such suspect ” it clearly means that thepolice officer may be permitted to have access to the suspect whowill remain in the prison.
The second part of the section does provide for a situationwhere a suspect may be taken out of the prison “ from place toplace This, however, can be permitted by the Magistrate onlyif upon sufficient material in his opinion such action is considerednecessary for the purpose of the investigaton.
Per Sirimane J : “ Under the earlier law there was no specificprovision to permit a police officer to have access to a suspectwho has been remanded. The new Administration of Justice Lawhowever has made such provisions so that the police may not behampered in their investigations but has at the same timeprovided adequate safeguards to ensure that a suspect may notbe subjected to any undue influence or coercive methods to makeany statement by providing that a Magistrate should considersuch an application on its merits and satisfy himself that such“ access ” or the taking of the suspect “ from place to place ” isnecessary for the purpose of the investigation . This new sectiondoes not empower a Magistrate to make any order which wouldresult (as it did in this case) to handover the factual custody of asuspect to the police by enabling them to take such suspect toa police station or Criminal Investigation Department Office
Per Wanasundera, J : “ S. 75(5) seeks to strike a balancebetween the rights of the police conducting an investigation in theinterests of society and the rights of freedom and liberty enjoyedby every subject in this country. For the purpose of aninvestigation the police are clearly entitled to meet the suspectand record his statement. Normally this would be a case wherea suspect surrenders to Court and is remanded to Fiscal’s custodybefore the police had an opportunity of questioning him. When thelaw lays down that the Magistrate can authorize the police officerin charge of the investigation to have access during reasonablehours to such suspect, it can only mean that the police officer isgiven the right to approach and come into the presence of thesuspect in whatever prison or place of custody the suspect islodged and to have his statement recorded at that place
Likewise, in respect of an application to take out a suspect, theMagistrate should satisfy himself that such a taking out isnecessary. An order under this section should be specific and sodrawn as to restrict to the actual needs of the Police investigation.”
^application in Revision.
Eardley Perera with I. Mohamed for Suspect petitioner.
S. Wijesinghe, Senior State Counsel, with P. Ramanathan,State Counsel for complainant, respondent.
March 25, 1976. SiRiMAisrE, J.—
This is an application for revision of an order dated 6.2-76 madehy the Magistrate of Gangodawila in case No. B|2144.
SIRIMANE, J.—Qunatunga v. Attorney-General
The petitioner in this case had surrendered to the Magistrate’sCourt in connection with an alleged offence of murder as hefeared to go to the Police Station because “ the police would usecoercive pressure and third degree methods on him to get aconfession. ” The Magistrate remanded him to Fiscal’s custody.Thereafter the Criminal Investigations Department had takenover the investigation and made an application to the Magistrateto take the petitioner out of the remand prison and to the fourthfloor of the Criminal Investigations Department for the purposeof questioning him and continuing further invsetigations. Thisapplication was allowed by the learned Magistrate by his orderof 6|2|76 and consequently it is admitted that the petitioner wastaken from the prison to the fourth floor of the Criminal Investi-gations Department for questioning. The validity of the orderof the learned Magistrate and the subsequent action depends onthe interpretation of Section 75(5) of the Administration ofJustice Law which reads :
“ 75 (5). During the period that a suspect is in the lawfulcustody of a superintendent of prisons, a Magistrate mayupon application made by the police officer in charge of theinvestigation authorise such officer to have access duringreasonable hours to such suspect for the purpose of thecontinuation of the investigation and may likewise authorizesuch officer to take the suspect from place to place if in theopinion of the Magistrate such action is considered necessaryfor the purpose of the investigation. ”
This section empowers a Magistrate when a suspect is in thelawful custody of the Superintendent of Prisons upon an appli-cation made by the Police Officer in charge of an investigation,
to authorise such officer to have access during reasonable
hours to such suspect for the purpose of the continua-tion of the investigation, and
to authorise such officer to take the suspect from place
to place if in the opinion of the Magistrate such actionis considered necessary for the purpose of the investi-gation.
These provisions do not empower a Magistrate to authorise apolice officer to take the suspect out of prison to a police stationor Criminal Investigations Department office for the purpose ofquestioning. Learned Senior State Counsel submitted that thefirst part of the section which refers to “ access ” is wide enoughto allow a police officer to take the suspect to a police station orCriminal Investigations Department office for questioning. I amunable to agree with this submission as in my view that is indeed
SIRIMANE, J.—Gunatunga v. Attorney-General
what is expressly sought to be prohibited by these provisions.When the section lays down that a Magistrate may authorise thepolice officer “ to have access during reasonable hours to suchsuspect ” it clearly means that the police officer may be permittedto have access to the suspect who will remain in the prison. Itis only the second part of the section that provides for a situationwhere a suspect may be taken out of the prison “ to take thesuspect from place to place. ” This however can be permitted bythe Magistrate only if in his opinion such action is considerednecessary for the purpose of the investigation. In other wordsan application to take the suspect from place to place must havesufficient material to enable the Magistrate to consider thereasons for such application and form an opinion as to whetherit is necessary that the suspect should be taken out of prison toany place or from place to place. Thus for instance if a suspectsurrenders to Court (as in this case) and is remanded to Fiscal’scustody and the police have not been able to record his state-ment, then the earlier part of this section may well apply andif an application is made for “ access ” for that purpose it wouldnormally be allowed. The police officer will then be in a positionto visit the prison where the suspect is confined during reasonablehours and record his statement. If again for instance the state-ments so recorded (or any other statements recorded in thecourse of the investigation) require that the suspect be taken“ from place to place ” to point out a particular place or recoversomething from a particular place, then an application can bemade under the second part of the section. There must howeverbe sufficient material placed before the Magistrate in such anapplication to enable such Magistrate to consider such materialand form the opinion that it is necessary for the purpose of theinvestigation to take the suspect out of prison to one or moreparticular places. In either case the suspect must continue toremain in the custody to which he has been remanded. Thelearned Senior State Counsel submitted that though the suspectwas taken to the Criminal Investigation Department office hewas in Fiscal’s custody as a prison officer accompanied thesuspect. Though that may be technically so, still, when a suspectis taken to the police station or Criminal Investigation Depart-ment office he is factually in the custody of the police thoughthere may be a prison officer present who accompanied thesuspect from the prison. This is no guarantee that such officerwould be in the immediate presence of the suspect throughouthis stay at such police station or Criminal Investigations Depart-ment office. The police officer may well take the suspect intoa room or some other place at such station or office for question-ing and though the accompanying Fiscal’s officer may know thatthe suspect is within the premises of such station or office he
tsIRlMANE, J.—Ounatunga v. Attorney-General
would be totally unaware of what is happening to the suspect.Even the presence of a large number of police officers may welloverawe the suspect in such circumstances.
Under the earlier law there was no specific provision to permita police officer to have access to a suspect who has been remand-ed. The new Administration of Justice Law however has madesuch provision so that the police may not be hampered in theirinvestigation but has at the same time provided adequate safe-guards to ensure that a suspect may not be subjected to anyundue influence or coercive methods to make any statement byproviding that a Magistrate should consider such an applicationon its merits and satisfy himself that such “ access ” or the takingof the suspect “ from place to place ” is necessary for the purposeof the investigation. This new section does not empower aMagistrate to make any order which would result (as it didin this case) to handover the factual custody of a suspect to thepolice by enabling them to take such suspect to a police stationor Criminal Investigations Department office.
The provisions of Section 75 and other similar provisions ofthe Administration of Justice Law are of great importance inthat they not only provide the necessary assistance to the policein the continuation of an investigation in the interests of justicebut also ensure to the suspect the safeguard that the police willnot be in a position to use undue influence, coercive or torturousmethods in the course of such investigation. The learned SeniorState Counsel submitted that there is no reason to assume thatall police officers yvill resort to such methods. Whilst I agreethat the large majority of police officers especially the moresenior officers act with a due sense of responsibility and propri-ety the same unfortunately cannot be said of all of them andhence the need for these salutory provisions. Even the EvidenceOrdinance enacted in 1895 prohibits the proof of a confessionmade to a police officer (as there may be instances (isolatedthough they may be) of such confession being obtained by undueinfluence or coercive methods. These provisions are still neces-sary safeguards in the larger interests of justice. The trend inrecent times has not helped to inspire any greater degree of confi-dence as the abuse of power, especially by the more subordinateofficers has become increasingly frequent. In these circumstan-ces the very salutory provisions of Section 75 and other similarprovisions of the Administration of Justice Law enacted by thelegislature must be carefully noted by Magistrates as it is theirresponsibility to see that these provisions are translated intomeaningful action for the benefit of both the inquiring officerson the one hand and the safety and protection of the suspect onthe other. It is therefore the duty of Magistrates to examine and
SEEUMANE, J.—Ounatunga v. Attorney-General
consider each application under this section on its merits beforethey exercise the discretion vested in them and not to allow suchapplications as a matter of course without much scrutiny.
The learned Magistrate was of the view that though there isno specific provision in the Administration of Justice Law toauthorise the suspect to be taken to the Criminal InvestigationDepartment office, still the provisions of Section 74 which requirea Magistrate to assist the conduct of an investigation when appli-cation is made to him, were wide enough to justify the order hemade. It is sufficient to state that the assistance referred to inthat section is to make and issue “ appropriate orders andprocesses of Court. ” It is needless to state that such ordersmust be ones that a Magistrate is empowered by law to makeand not any order.
For these reasons I am of the view that the order made by thelearned Magistrate dated 6.2.76 permitting the suspect to betaken by the police to the fourth floor of the Criminal Investi-gation Department for questioning is not warranted under Section75 aforesaid and J therefore set aside that order.
W ANASUNDERA, J.
While I agree with the judgment of my brother and the orderhe proposes to make, I think this is a matter of some impor-tance in the administration of criminal justice, that it may beuseful if I were to add my own views to what he has stated.
The facts are briefly stated in my brother’s judgment, andthere is no need for me to recapitulate them. This matter con-cerns the powers of the Police conducting an investigation inrespect of a person who is suspected of committing an offenceand is remanded to fiscal custody. This is provided for insection 75 (5) of the Administration of Justice Law.
Senior State Counsel who appeared for the Police stated thatin this matter, on the authority of an order made by thelearned Magistrate, the suspect had been taken out of . tlieprison to the office of the CI.D. on more than one occasion forinterrogation, and his statement recorded at such latter place.
It would appear that the State claimed this power beforethe learned Magistrate and sought to justify it before us on thebasis that the provisions of section 75 (5) were wide enough toallow it- Learned Senior State Counsel argued that the rightof access to the prisoner and the right to take him fromplace to place enabled the Police to remove the suspect from
WANASTJNDERA, J.—Gunatunga v. Attorney-General
the precincts of the prison to their own office for the purposeof the investigation, and this would include the interrogationand the recording of his statement.
Such an argument is not warranted by the plain meaning oftne words in section 75 (5), nor does it take into account thereform this law seeks to achieve in comparison to what obtain-ed prior to it.
Section 75 (5) seeks to strike a balance between the rightsof the Police conducting an investigation in the interests ofsociety and the rights of freedom and liberty enjoyed by everysubject in this country. For the purpose of an investigation thePolice are clearly entitled to meet the suspect and record hisstatement. Normally this would be a case, as my brother pointsout, where a suspect surrenders to court and is remanded tofiscal custody before the Police had an opportunity of question-ing him. When the law says that the Magistrate can authorisethe police officer in charge of the investigation to have accessduring reasonable hours to such suspect, it can only mean thatthe police officer is given the right to approach and comeinto the presence of the suspect in whatever prison or place ofcustody the suspect is lodged and to have his statement recordedat that place.
In the course of his submissions, Mr. Wijesinghe arguedthat as the suspect was accompanied by a prison official whenhe was removed to the C.I.D. headquarters for questioning, thesuspect continued to remain de jure in fiscal custody. We indi-cated to counsel that in a matter of this nature we would liketo view it realistically in the light of experience rather thango by appearances, and mere concepts. Section 75 (5) must beconsidered against the background of the imperative provisionsof the law which declare that the maximum period a suspectcan be allowed to remain in the custody of the Police is 24hours exclusive of the time taken for the journey to the nearestMagistrate. Section 75 (5) gives the Police only certain limitedrights in respect of the suspect. An order under this sectioncannot effect a change of custody so as to return the suspectback to the custody of the Police. A Magistrate must thereforebe careful to see that the order he makes complies with thelaw and will not leave room for the Police to exercise de jureor de facto custody over the suspect.
Section 75 (5) also enables the Police to get authority froma Magistrate to take a suspect from place to place. These arenecessary powers for the purposes of a thorough and efficientinvestigation. The Police owe a duty to the community, andthe lack of proper investigation may even militate against theinterests of the suspect. Apart from the recording of the sus-
WANASTTNDERA, J.—Gunatunga v. Attorney-General
pect’s statement, there are other steps which are adjuncts to a.proper inquiry, such as the checking of statements and thesearch for other evidence. The Legislature mindful of theseneeds has in its wisdom provided for a suspect to be taken,from place to place for these purposes. But this is a limited,power and cannot be allowed to be used as a lever for gainingwider powers than permitted by the law.
Those salutary provisions of our law, which ensure that a>suspect will not be detained by the Police but should be placedin fiscal custody, will be nullified if Magistrates deal withthese matters cursorily in a routine manner. In exercising thesepowers it is not intended that the Magistrate should actmechanically like a cog in a machine on the mere applicationof the Police, once proceedings are set in motion. In this sectionthe Magistrate is interposed as an arbiter over competing,rights and it is his duty to bring to bear an independentjudgment when called upon to exercise the powers reposed inhim. To safeguard the citizen from being deprived of his consti-tutional and lawful rights is a duty of the Courts and thishas a bearing not only in regard to the administration of justice,,but go to the foundation of our civil and political institutions.
A Magistrate should reali^p that a weighty and serious res-ponsibility is cast on him in the exercise of these discretionarypowers. He should remind himself that it is incumbent on ..thosewho may be called upon, in the discharge of their duties, tomake orders, which may have the effect of encroaching on thepersonal liberty of others, to see that those duties are performedcarefully and conscientiously as intended by the Legislature.
Accordingly, when an application is made under the provi-sions of section 75 (5), the Magistrate must scrutinise thatapplication and see whether the material placed before himjustifies the making of an order. Where access to the suspectis sought, he should, as far as possible, ascertain the purposefor which, and the period during which, access is required.Likewise, in respect of an application to take out a suspect,the Magistrate should satisfy himself that such a taking outis necessary. An order under this section should be specific andso drawn as to restrict it to the actual needs of the Police inves-tigation.
The order of the learned Magistrate in this case falls shortof these standards. Since the Police have already taken actionin pursuance of the order, I would pro forma set aside theorder dated 6th February 1976.
Order set asides
A. GUNATUNGA_Suspect – Petitioner and THE ATTORNEY-GENERAL_Complainant-Respond