K. S. PANDITARATNE, Petitioner, and THE ASSISTANT SUPERINTENDENT OF POLICE, KEGA

058-NLR-NLR-V-72-K.-S.-PANDITARATNE-Petitioner-and-THE-ASSISTANT-SUPERINTENDENT-OF-POLICE-KEGA.pdf


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SIR1MANE, J.— Jayarutne v. Inspector oj Police, Muharaganta
Present : Alles, J.K.S. PANDITARATNE, Petitioner, and THE ASSISTANTSUPERINTENDENT OF POLICE, KEGALLE, and another,RespondentsS. C. 343167—Application for the issue of a Mandate in the nature
of a Writ of Mandamus
Criminal Procedure Code, as amended by Act No. 42 of 1961—Sections 121 (/), 122 (l)r122 A, 14S {]) (6)—Cognizable offence committed against a police officer—Arrest oj offender under Police Ordinance, a. 65—Information given or recorded,and statements made during investigation, in respect of the offence—Right ofaccused to obtain certified copies—First information—Different forms of it.
When proceedings under section 148 (1) (6) of the Criminal Procedure Codohave been instituted in a Magistrate’s Court in respect of a cognizable offencecommitted against a police officer, the fact that the offence was committed
274ALLES, J.—Panditaratne v. Assistant Superintendent of Police, Kegalle
against a police officer does not exempt the “ proper authority ”, when applica-tion is madotohim under section 122A of the Criminal Procedure Code, fromhis duty to furnish to the accused or his proctor certified copies of informationgiven or recorded and statements made in terms of sections 121 (1) and 122 (1)respectively of the Criminal Procedure Code.
The information under section 121 (1) of the Criminal Procedure Code maybo obtained in several ways. It may bo made orally and reduced to writing,or it may be made in writing in the first instance, or it may bo communicatedover tho telephone. Although a police officer who is present at the time ofthe commission of a cognizable offence against him is entitled to arrest thooffender under section 65 of tho Police Ordinance, he would be giving informationunder section 121 (1) of the Criminal Procedure Code when he takes the offenderto tho Police Station and informs tho authorities of the offence.
Application for a writ of mandamus against the AssistantSuperintendent of Police. Kegalle, and the Officer-in-Charge of the PoliceStation, Kegalle.
Nimal Senanayake, with Dharmasiri Senanayake and GemunuSeneviralne, for the petitioner.
V. S. A. Pxdlenayegum, Crown Counsel, with Ranjit Abeysuriya,Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 7, 1967. Arxiss, J.—
This is an application for a mandate in the nature of a writ of mandamusby the petitioner against whom proceedings have been instituted undersection 14S (l) (6) of tho Criminal Procedure Code in the Magistrate'sCourt of Kegalle. The 1st respondent to the application is the AssistantSuperintendent of Police, Kegalle, and the 2nd respondent the Officerin charge of the Kegalle Police Station. In his application, the petitionerprays for the intervention of this Court and seeks an order directing therespondents to furnish hiru or his proctor with certified copies ofinformation given and statements made in terms of section 121 (1) and122 (1) respectively of the Criminal Procedure Code in respect of casesNos. GS125, 6S267 and 6S2G9 filed by the Inspector of Crimes, Kegalle,against the petitioner. In M. C. Kegalle.6SI25, the Police report undersection 14S (1) (b) of the Code alleges that the petitioner intentionallyinsulted M. P. V. Munasinghe, Inspector of Police, Kegalle, an oflcnccpunishable under section 4S4 of the Penal Code ; that he used criminalforce on the said Munasinghe (section 344 of the Code) ; and that hooffered resistance to the apprehension of himself by Munasinghe (section220A). In M. C. Kegalle GS267, the report alleges that the petitionercaused annoyance to N. B. Cyril Gunadasa, while being in a state ofintoxication (section 4SS of the Code), insulted the said Gunadasa,
ALLES, J.—Panditaratnc v. Assistant Superintendent oj Police, Kc'jallc 275
(section 4S4) and committed criminal intimidation on Gunadasa (section4SS). In M. C. Kcgallc GS2G9, the report alleges the commission ofoffences under section 314 of the Penal Code by the petitioner in respect ofhurt caused to P. S. Pietersz and P. C. Karunadasa of the Kcgalle Police.Except for the offence of Insult under section 4S4, the other offences arecognizable offences.
In order to appreciate the question of law that has been argued in thisapplication it is necessary to briefly recount the circumstances that ledto the institution of criminal proceedings against the petitioner.
According to the affidavit of the 2nd respondent between S and S.30 p.m.on .15.6.67, several abusive telephone calls were received at the KcgallePolice Station from the petitioner. It is not known how the Policeofficers were aware that the calls originated from the petitioner, butaccording to the 2nd respondent the calls were traced to the KcgallePest House. A Police party, among-whom were Inspector Munasinglieand P. S. Pietersz, was sent to the Pest House to make investigations.When the Police party arrived at the Rest House, the petitioner, who wasthe worse for liquor, abused the Police officers in obscene language andused criminal force on them. He also caused annoyance to Gunadasawho was apparently a visitor to the Rest House and insulted him. Thepetitioner was thereupon arrested and taken to the Kcgalle PoliceStation and subsequently criminal proceedings were instituted againsthim.
In his affidavit, the 2nd respondent maintains that no informationunder section 121 (1) of the Criminal Procedure Code was given to anyPolice officer nor recorded by any Police officer in respect of the offenceswhich the petitioner is alleged to have committed and that no proceedingshave been instituted in the Magistrate’s Court in pursuance of any suchinformation. Consequently it has been submitted by Crown Counselthat this is not a case to which the provisions of section 122A of theCriminal Procedure Code applied. This section, which was introducedas an amendment to the Code by Act No. 42 of 1961, enabled the accusedor his proctor to obtain from the proper authority a certified cop- of anyinformation given under section 121 (1) of the Code consequent on whichproceedings are instituted against any person and also any statementunder section 122 (1) by the person against whom or in respect of whomthe accused is alleged to have committed an offence.
Section 121 (1) contemplates the first information given orally or inwriting to an officer in charge of a Police Station and is usually the basisfor the commencement of proceedings under Chapter XII of the Code. I
I am not prepared to accept the bare statement of the 2nd respondentthat “no information under section 121 (1) of the Criminal ProcedureCode was given to any police officer nor recorded by any police officer atthe Kegalle Police Station in respect of the offences with which thepetitioner had been charged and that no proceedings have been instituted
276 ALLES, J.—Panditaratne v. Assistant Superintendent of Police, Kegalle
ia the Magistrate’s Court in pursuance of any such information The2nd respondent in his affidavit has admitted that the petitioner did makean application for certified extracts of the information under section121 (1) and the statements recorded under section 121 (2) and that thecertified copies applied for cannot be issued to the petitioner as he was notentitled to obtain them. One can only assume from the averments inthe affidavits of the petitioner and the 2nd respondent that the positiontaken up by the 2nd respondent is that certain statements were recordedby the Police in the course of the investigation but that the petitionerwas not entitled in law to obtain them in spite of the provisions of sectionf 122A of the Criminal Procedure Code. Indeed, having regard to thenature of the charges preferred against the petitioner in the 148 (1) {b)reports one can reasonably assume that statements must have been madeby the persons against whom or in respect of whom the petitioner isalleged to have committed the cognizable offences contained in the reports.It is idle to suggest that Inspector Munasinglu; did not make a recordof the manner, in which the petitioner used criminal force on Ixim andintentionally offered resistance or illegal obstruction to his lawfulapprehension or that P. S. Pietersz and P. C. Karunadasa did not givean account of the commission of the cognizable offence of causinglmrt ofwhich they were the victims or that Gunadasa’s statement of the mannerin which the petitioner conducted himself to his annoyance while beingin a state of intoxication was not a matter of record. Their statementsmay indeed be the first information of the commission of cognizableoffences under section 121 (1). If they were not, then one must assumethat they were statements recorded under section 122 (1) of the Codo andunder section 122A the petitioner would be legally entitled to obtaintheso statements, quite independent of whether information was givenunder soetion 121 (1) or not.
Unfortunately, this Court has been loft completely in tlie dark as toAvliat transpired at the Police Station after the petitioner was broughtto the Station and one is left in the. realm of speculative inquiry as tothe steps taken by the Police before they filed the reports under section148 (1) (6) of the Code. These reports are made entirely on the responsi-bility' of the police officers and after due inquin7 and investigation.
The information under section 121 (1) may be obtained in several ways.
It may be made orally and reduced to writing or it may be made in writingin the first instance, or the information may be communicated overthe telephone. A Police officer who is present at the time of thecommission of a cognizable offence has no doubt the right- to arrest theoffender under section 65 of the Police Ordinance, but when lie takes theoffender to the Station and informs the authorities of the offender’slapse, he would be giving information under section 121 (1) of the Code.Section 121 (1) does not make an exception in the case of Police officers.
I cannot envisage any situation in which a report made under section14S (1) (6) of the Code is not preceded by some information given in termsof section 121 (1) and after statements are recorded under section 122 (1)of the Criminal Procedure Code.
ALLES, J.—Panditaratne v. Assistant Superintendent oj Police, Kcgalle
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I am not prepared to act on the averment of the 2nd respondentin his affidavit that the petitioner is not entitled to the certified extractscalled for by his letter of 4th August 1967 (marked 1C ’). Whether he isentitled to them or not i3 a question of law which must be left for thedetermination of this Court.
The extracts called for by the petitioner have not been furnished tothis Court in order that I may be satisfied that the assertion in the 2ndrespondent's affidavit that the petitioner is not entitled to the extractscalled for in his letter is a claim that can be justified. The amendmentto the Criminal Procedure Code by section 122A has expressly providedthat the accused is entitled in law to obtain the information given undersection 121 (1) of the Code and the statements made under section 122 (1)by the persons against whom or in respect- of whom the accused is allegedto have committed an offence. Justice requires that the Courts shouldbe vigilant that the legal rights of an accusedperson arc not circumventedby any mistaken view of the law by over zealous officials. Pthereforedirect the respondents to forward to the Registrar of this.Court on orbefore 15 th December the Information Book of the Kcgalle Police Stationcontaining all investigations made by the Police in regard to the reportsmade by them under section 148 (1) (b) of the Criminal Procedure Code inCases Nos. 68125, GS267 and 68269 of the Magistrate’s Court of Kegalletogether with certified copies of all statements recorded by them in thecourse of their investigations.
After a perusal of the relevant documents, I will make a final orderwhether the application of the petitioner is one that is entitled to succeedor not.
December 20, 1067.—When I delivered my order on 7th December 1067,1 stated that I wouldmake my final order on this application after a perusal of the relevantdocuments.
I have now perused the notes of the police investigation in relationto this application. According to these notes the Police party consistingof S. I. Munasinghe, P. S. Pietersz and P. C. Karunadasa went to theKegalle Rest House at 0.40 p.m. to enquire into the non-cognizableoffence of Insult alleged against the petitioner. On arrival at the RestHouse the petitioner again commenced to abuse the Police officers andoffered resistance to his arrest. He was then forcibly taken into thepolice land rover and while the vehicle was being driven to the policestation he kicked Police officers Pietersz and Karunadasa causing hurtto them. S. I. Munasinghe, when he returned to the Station at 10.05p.m.,made his observations as to how the petitioner resisted arrest and kickedthe police officers. These observations form the subject matter of the148 (1) (6) report in Case No. 68125 and make mention of the cognizableoffences under ss. 344 and 220A of the Penal Code. These observations
278 ALLES, J.—Panditaralnc v. Assistant Superintendent of Police, Kegalle
would constitute the information relating to the commission of the' cognizable offences referred to in the report and recorded under s. 121 (1)of the Criminal Procedure Code. The petitioner would be entitled to thisinformation.
At 10.55 p.m. after having the petitioner examined by the Doctor andbrought back to the Station, S. I. Munasinghe sent P. S. Pietersz to theRest House to conduct enquiries. On Pietersz’s arrival at 11.10 p.m.he recorded the statement of Cyril Cunadasa. In his statement Gunadasadescribed the manner in which the petitioner caused annoyance to himwhile being in a state of intoxication (s. 4SS of the Penal Code) and howhe was criminally intimidated (s. 4S6). These offences form the subjectof the 148 (1) (h) report in M. C. Kegalle GS267. The offence under s. 4SSis a cognizable offence alleged to have been committed before the Policeparty arrived at the Rest House and would constitute the first informationmade under s. 121(1). The petitioner would be entitled to a certifiedcopy of Gunadasa’s statement.
P. S. Pietersz and P. C. lvarunadasa, the victims of the kicking, havemade statements as to the manner in which the petitioner is alleged tohave caused hurt to them and which form the subject matter of the 14S (l)
report to Court in M. C. Kegalle GS209. The petitioner would beentitled to the statements of these two police officers in relation to theoffences under s. 314 alleged against the petitioner.
I am therefore of the view that the petitioner is entitled to succeedin his application for the issue to him or his proctor certified copies of thefollowing documents in the under-mentioned cases :—
(а)The recoi’ded observations of S. I. Munasinghe made at 10.05 p.m.on 15.6.67 commencing with the words, "x^t the Rest House withthe Police party ” and ending with the words, “ Inside the LandRover he violently struggled and started kicking the Police Sergeantand the party who were in the Land Rover
(M. C. Kegalle 6S125)
(б)The statement of Naragala Vidaiialagc Cyril Gunadasa made to P. S.Pietersz at 11.10 p.m. at the Rest House commencing with thewords, “ He dialled on three or four occasions "and ending with thewords, “ His conduct in the Rest House was such that it causedannoyance to me as well as others and visitors to the Rest-House”.
Or. C. Kegalle GS267)
■(c) The statement of P. C. 2042 Karunadasa recorded by P. S.Pietersz on 16.6.67 commencing with the words, "On 15.6.67 Iaccompanied I. P. Munasinghe and P. S. Pietersz to the RestHouse” and ending with the words. "1 received several kicksall over my body”.
(M. C. Kegalle GS269)
David c. The Ship “ Periotos ”
279
The statement of P. S. Pietersz recorded by S. I. Munasinghccommencing with the words, "At about 9.55 p.m. I accompanied
P. Munasingho and P. C. 2042 and arrived at the Rest Houseat 10 p.m.” and ending with the words, "I received severalkicks on my body”.
(M. C. KegaUe 68269)
The application of the petitioner is allowed with costs which I fix atPs. 105.
Application allowed.