Jayasinghe v. Attorney-General
JAYASINGHE, Petitioner, and ATTORNEY-GENERAL,Respondent
8. C. 65—Application for revision in M. C. Colombo, 1,035a
Criminal Procedure Code—Arrest of suspect without- warrant—-Subsequentproduction before Magistrate—No summary of statements of witnesses-—
Order of remand—Irregularity—Prejudice—Curable—Section 126a
Courts Ordinance—Section 36.
DIAS J.—Jayaainghe v. Atforney-Ceneral
Whore a person arrested without a warrant is produced before theMagistrate under section 126a of the Criminal Procedure Code and thereport is not accompanied by a summary of the statements made by thewitnesses examined in the course of the investigation, an order remandingthe suspect is irregular. Such irregularity however does not vitiatethe order of remand if it has caused no prejudice to the suspect and theSupreme Court can apply the provisions of section 36 of the CourtsOrdinance.
Application to revise an order of the Magistrate, Colombo.
B. Wikremanayake, K.C., with K. C. Nadarajah and M. Markhani,for the petitioner.
Boyd Jayasuriya, Croiim Counsel, for the Attorney-General.
Cur. adv. wit-
February 24, 1949. Dias J.-—
This is an application to revise the order of remand made by theMagistrate, Colombo, on February 17, 1949, in regard to three suspectswho had been arrested without a warrant in connection with an allege#daylight robbery in the city of Colombo of over three lakhs of rupeeswhich were being conveyed from the Ceylon Turf Club by ear for depositin the bank. It is stated that in the same transaction there is an.allegation of attempted murder, and that one person has been murdered-I have been informed that the police are engaged in Island-wide investiga-tions in order to bring the culprits to book. Hitherto eight suspects inall have been arrested. One was admitted to bail, while the other sevenare on remand. The application for revision is in regard to three ofthem, namely, Simon de Silva Jayasinghe, P. Vincent Fernando and.C. E. Sylvester Fonseka, the seventh, third and second suspectsrespectively.
The submission made on their behalf is that the orders remanding themto the custody of the Fiscal under section 126a of the Criminal ProcedureCode must be quashed because the report furnished by the police undersection 126a (1), when the suspects were produced before the Magistrate,does not contain “ a summary of the statements of witnesses examined irethe course of the investigation relating to the case in connection withwhich the suspects had been arrested Counsel argues that even thoughthe police investigation began on January 31, and is still proceeding,nevertheless, it is a condition precedent laid down by statute, that thepolice report which accompanies a person who has been arrested withouta warrant must contain a summary of the statements (if any) made byeach of the witnesses examined in the course of such investigationrelating to the case.- It is contended that this not having been done,the proceedings are vitiated and that, consequently, the remand is bad-It is argued that, even though the statements taken in the course of the
DIAS J.—J ayasvnghe v. Attorney-General
police investigation are voluminous, and incapable of being summarised-within the time available to the police before they produce the suspect.before the Magistrate, this does not matter. If there are statements of-witnesses examined during the course of the investigation relating to the•case in connection with which the suspects' have been arrested, a summaryof such statements must be appended to the report under section 126a.The failure to do so, it is submitted, prevents the Magistrate from remand-ing them to the custody of the Fiscal under section 126a (2). The•question is whether this submission is correct 1
Section 126a was added to the Criminal Procedure Code by Ordinance3STo. 31 of 1919, section 6. Therefore, in Construing that section it isnecessary to consider certain other sections of the Code which have abearing on section 126a.
Section 32 of the Criminal Procedure Code empowers a Peace Officer-to arrest a person without a warrant, and without an order from aMagistrate (inter alia) who has been concerned in the commission of any■cognizable offence, Or against whom a reasonable complaint has beenmade, or credible information has been received, or a reasonable suspicion■exists of his having been so concerned. It is not in dispute that the arrestsin this case were lawful.
Section 36 provides that a person who has been arrested without awarrant shall, without delay, subject to his being enlarged on what iscalled “ Police Bail ”, be taken before the Magistrate. Section 37 makesit clear that the police cannot indefinitely hold an arrested suspect.The section says that no Peace Officer shall detain in police custody aperson who has been arrested without a warrant “ for a longer period-than, under all the circumstances of the case, is reasonable ; and suchperiod shall not exceed twenty-four hours, exclusive of the timenecessary for the journey from the place of arrest to the Magistrate ”In the present case, the three suspects were arrested on February 16,1949, and were produced before the Magistrate on the following day.The contention for the petitioner is that during those twenty-four hours,besides sending the suspects to the Magistrate with a report of the arrest-under section 126a (1), the police should have prepared a summary of-the statements, if any, made by each of the witnesses examined in the•course of such investigation relating to the case. Assuming for argumentthat it is alleged that a conspiracy existed for this robbery, it followsthat this summary must, in the case of each and every suspect as he is-arrested, contain a summary of the statements of the witnesses examinedfrom January 31, 1949, up to February 17, 1949. This may be a taskimpossible of fulfilment within the twenty-four hours available between-the arrest and the production of the suspect before the Magistrate.
Before section 126a was added to the Code, section 126 dealt with thesituation which would arise where ‘‘upon an investigation” under■Chapter XU of the Code the police were satisfied that there “ is notsufficient evidence or reasonable grounds of suspicion to justify theforwarding of the accused to a Magistrate’s Court ”. In such a casethe suspect was to be released on police bail and directed to appearbefore the Magistrate if and when so required. In other words, the
DIAS J.—Jayasinghe v. Attorney-General
police investigation was completed and it was found that there was noevidence against the suspect. Section 127 dealt with the case where“ upon an investigation under this Chapter, it appears to the officer incharge of the police station that there is sufficient evidence or reasonableground as aforesaid In such a case, subject to the taking of policebail in proper cases, the police “ shall forward the accused under custodybefore a Magistrate’s Court Both sections 126 and 127 contemplatethat the police investigation has been completed, within the period oftwenty-four hours allowed to them under section 37. In neither casedo the sections require the police to send a summary of the statementsrecorded at the inquiry.
Section 126a deals with a case where the police investigation could notbe completed within twenty-four hours from the time of the arrest.The section reads as follows :—
“ Whenever an investigation under this Chapter cannot -be com-,pleted within the period of twenty-four hours fixed by section 37,and there are grounds for believing that the information is well founded,the officer in charge of the police station …. shall forthwith
transmit to the Magistrate …. a report of the case, togetherwith a summary of the statements, if any, made by each of the witnessesexamined in the course of sueh investigation relating to the case, andAh a,11 at the same time forward the accused to such Magistrate
In order to bring section 126a into action the following conditionsmust exist:
A suspect must have been arrested without a warrant under section32 of the Criminal Procedure Code.
The police investigation cannot be completed within twenty-fourhours from the time of the arrest as fixed by section 37.
The officer in charge of the police station must have grounds forbelieving that “ the information is well founded ”.
What is the meaning of the word “ information ” as used in section126a (1) 1 A suspect may be arrested without a warrant under section 32(a) if he has been concerned in the commission of a cognizable offence,or (&) against whom a reasonable complaint has been made, or (c) credibleinformation has been received, or (d) a reasonable suspicion exists of hishaving been so concerned—see section 32 (1) (6) of the Criminal ProcedureCode. Sections 126 and 127 refer to “ sufficient evidence or reasonablegrounds of suspicion ”. Section 126 of our Code appears to be derivedfrom section 169 of the Indian Criminal Procedure Code, while section 127is based on section 170 of the Indian Code. Section 126a is modelled onsection 167 of the Indian Code, the relevant words of which are asfollows :—
“ Whenever any person is arrested and detained in custody, and itappears that the investigation cannot be completed within the periodof twenty-four hours fixed by section 61, and there are grounds for.
DIAS JJayasinghe v. Attorney.General
believing that the accusation or information is well founded, the officerin charge of the Poliee Station …. shall forthwith transmitto the nearest Magistrate a copy of the entries in the diary hereinafterprescribed relating to the case, and shall at the same time forward theaccused to such Magistrate ”.
It is puzzling why the draftsman of section 126a while departing fromthe Indian Section, did not refer to the various conditions specified inour section 32 (1) (6). It is quite possible to envisage a case where,as the police inquiry proceeds, the combined effect of the statements ofvarious witnesses and the logic of circumstances may indicate to theinvestigating officer that a particular person, not yet arrested, has beenconcerned in the offence, or that a reasonable suspicion exists of hishaving been so concerned, without any particular person having made acomplaint against him, or without any information having been receivedagainst him. If the police officer reaches such a conclusion he can arrestthat person, as he would be entitled to do under section 32. It is becausethe investigating officer had grounds for believing that his “ information ”was well founded that he forwarded the suspect to the Magistrate. Ifnot, he would have acted under section 126. Of course, one cannot saythat the view of the investigating officer is not well founded, until eitherthe investigating Magistrate discharges the suspect, or until the trialJudge or Jury acquits him. I agree with Counsel that there cannot be“ grounds for believing that information is well founded ” except on someevidence direct or circumstantial.
The officer in charge of the police station must “forthwith ” transmitto the Magistrate “ a report of the case ” and at the same time forward thesuspect to the Magistrate.
A report “ of the case ” does not mean a report “ on the case ”. Porexample a “ report of a death ” means an intimation that a death hasoccurred. A “ report on a death ” means something more. When aperson reports “ on ” something, besides intimating the fact, he givesdetails of the circumstances under which the fact reported took place.There have been five reports in all submitted by the police to theMagistrate up to date. In my opinion section 126a does not expect thepolice officer, in a case like the present, to reiterate in each fresh reportwhat he has already intimated in his earlier reports. The fifth reportwith which alone we are concerned draws attention to the earlier reports.Seven suspects were produced and their remand pending the completionof the poliee investigation was asked for.
The report shall he accompanied by a summary of the statements— .if any—made by each of the witnesses examined in the course of theinvestigation relating to the case.
This is the point stressed by the petitioner, The words “if any”indicate that the Legislature contemplated a case where a suspect hasbeen arrested without any witnesses having been examined. Obviously,in such a case there cannot be a summary of the statements to be sentwith the report. There is no evidence in the report which enables me
DIAS J.—Jayasinghe v. Attorn(ty.General
to say whether any statements of witnesses have, in fact, been recordedimplicating these suspects. What is the position when, from themagnitude of the investigation) or the time available to the investigatingauthorities being insufficient to prepare the summary within the twenty-four hours allowed them, a suspect has to be forwarded without thesummary ? The law does not compel a person to do that which isimpossible of fulfilment. It is argued for the petitioner that this is apenal enactment affecting the liberty of the subject and that, therefore,section 126a should be strictly construed. I agree. As I have pointedout before, there is no evidence before me that there are statementsrecorded in the course of the investigation relating to the cases of thesesuspects. It is to be noted that after the objection was taken in openCourt on February 17, 1949, and the Magistrate had made order remand-ing the suspects till February 25, 1949, the Magistrate, in view of thepoint taken, appears to have called upon the police to produce all thepapers relating to the investigation. He has made a minute, datedFebruary 17, 1949, at 9 p.m., stating that from 7.35 p.m., on that dayhe was engaged in perusing the police investigation files of which therewere a number. He says that he did this in view of the submission madeby learned counsel that a summary of the statements made by eachwitness should also be submitted with the Report made to the Court undersection 126a. The Magistrate proceeds as follows :—“ These suspectswere arrested late last night. They had to be produced in Court withoutdelay …. Considering the circumstances of this matter andthe large number of statements recorded, it was impossible for the policeto have submitted a summary of each one of these statements to theCourt with the report made when the suspects were produced in Court,that is to say, the time at their disposal was too short for that purpose.Another reason for my perusing these statements was to find out if theinformation is well founded. If the information was not well founded,I would have vacated the order remanding these suspects. I am satisfiedthat the information is well founded”. It has been submitted thatsomething done ex post facto cannot regularise something irregu-larly done earlier. I am inclined to agree with that submission as ageneral proposition. I have looked at the Magistrate’s minute not inorder to regularise that which is irregular, but in order to satisfy myselfwhether there were in existence statements of witnesses which shouldhave been summarised and appended to the report under 126a.The Magistrate’s minute indicates that there are such statements.Therefore, the question narrows itself down to this. There has been abreach of the provisions of section 126a inasmuch as the report to theCourt was not accompanied by a summary of the statements of thewitnesses. I am also satisfied that the reason for this omission is thatthe time allowed by law between the arrest of the" suspects and theirproduction before the Magistrate was insufficient to allow such a summaryto be made. Whatever the reason, there has been a breach of theprovisions of section 126a of the Criminal Procedure Code.
But does it necessarily follow that in the circumstances I am face toface with, such an irregularity which vitiates the orders of remand ?T am of opinion that no fatal irregularity has been caused because there
DIAS J.—Jayasinghe v. Attorney-General
has been no prejudice whatever caused to the suspects. Section 36 ofthe Courts Ordinance (Chapter 6) provides :
“ No judgment, sentence or order pronounced by any Court shall onappeal or revision be reversed, altered or amended on account of anyerror, defect or irregularity which shall not have prejudiced thesubstantial rights of either party
In my opinion this is a case to which the provisions of section 36 of the■Courts Ordinance may well be applied.
I consider it is proper to draw attention to a matter which appearsfrequently to be overlooked in Magistrates’ Courts. No police officer orMagistrate investigating a criminal case can be compelled to divulge fromwhence he obtained information as to the commission of an offence—seesection 125 of the Evidence Ordinance. This prohibition extends notonly as regards the identity of the informant, but also to the channelsthrough which such information reaches the authorities. Furthermore,section 122 (3) of the Criminal Procedure Code absolutely prohibits anystatements recorded in the course of a Chapter XII enquiry frombeing seen by or disclosed to an accused person or his agents. I am ofthe view that when a report under section 126a (1) contains a summaryof the statements recorded in the course of a Chapter XII enquiry,this summary must not be inspected by or made available to the suspect,the accused, or their legal advisers ; for the summary of the statementsreferred to under section 126a (1) refers to statements recorded in thecourse of a Chapter XTI enquiry. I am further of opinion that thesummary of the statements referred to in section 126a (1) must not beincorporated in the report and should under no circumstances be stitchedinto or appended or annexed to the Court record. Under no circumstancesshould certified copies of this summary be supplied under section 434 ofthe Criminal Procedure Code. I have been informed that it is thepractice in most Magistrates’ Courts to file such statements in the recordand to furnish copies of them to the defence. In my opinion, this is notonly irregular but illegal as such a practice contravenes the provisions ofthe Criminal Procedure Code. Police officers should record the summaryof the statements referred to in section 126a on a separate sheet of paper,and this together with the report should be forwarded to the Magistrateunder confidential cover and should be in the Magistrate’s personalcustody or in his safe or in some place where neither his staff nor anyoneelse can have access thereto. I note that the proceedings in the presentcase have already been numbered 1035 as a record of the ease. It is aquestion meriting administrative attention as to whether a Magistrate’sCourt case should be numbered as a record until proceedings have beeninitiated under section 148 of the Criminal Procedure Code. I believein District Courts, until the indictment is received from the Attorney-General, no District Court criminal record is opened or numbered, and inmy opinion this is what should be done in Magistrate’s Court cases too.Until proceedings are initiated under section 148 there can be no caserecord.
The application is dismissed.
JAYASINGHE, Petitioner, and ATTORNEY-GENERAL