166-NLR-NLR-V-47-KANDASAMY-Petitioner-and-ROSAIO-S.-I.-POLICE-Respondent.pdf
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Kandasamy v. Rosairo (S. I., Police).
1946Present: Dias J.
KANDASAMY, Petitioner, and ROSAIRO (S. I., POLICE),Respondent.
In revision—M. C. Point Pedro, A 40.
Criminal procedure—Arrest of person under Fugitive Offenders Act, 1881,Part II—Subsequent discharge owing to want of proper materials—Propriety of ordering bail until arrival of proper materials—CriminalProcedure Code, ss. 32 (1) (i), 39—Provisional warrant.
Where a person who was alleged to have been convicted of an offencein British India was arrested in Ceylon on an Indian warrant issuedunder the provisions of Part U of the Fugitive Offenders Act, 1881,but was subsequently discharged owing to failure of proper identificationand because the warrant was defective—
Held, that recourse could not be had to the provisions of sections32 (1) (i) and 39 of the Criminal Procedure Code to prevent him fromleaving Ceylon before the proper proof and papers arrived.
A
PPLICATION to revise an order of the Magistrate’s Court, PointPedro.
H. V. Perera, K.jC. (with him N. Nadarajah, K.C., H. W. Thanibiah,and H. W. Jayewardene), for the petitioner.
H. H. Basnayake, K.C., Acting Attorney-Genital (with him H. Dehera-goda, C.C:) for the respondent. 1
Cur. adv. wit.
1 (1841) 8 M db W 234 ; 151 English Reports 1024 at 1027.
DIAS J.—Kandasamy t>. Rosaire (S. /., Police).
471
October 21, 1946. Dias J.—
One Kandasamipillai was convicted by the Sessions Judge of Naga-patam of the offence of criminal intimidation under section 506 of theIndian Penal Code and was sentenced to undergo two years’ rigorousimprisonment and to pay a fine of Rs. 1,000.
The convict having appealed, he was admitted to bail pending thehearing. The Appellate Court deleted the sentence of fine, but affirmedthe conviction and sentence of imprisonment. It is alleged that theconvict absconded to Ceylon and failed to surrender and serve his sentencein India. It is asserted that that convict is this petitioner, and that heis now unlawfully at large in Ceylon before the expiration of his sentence.
The proceedings I am asked to revise are the record of the attemptsmade by the Indian authorities with the assistance of the local policeto obtain the surrender of the alleged convict under the provisions ofPart H. of the Fugitive Offenders Act, 1881 ■*.
The warrant PI which was issued by the Indian Court appears to bedefective. In fact, the petitioner after his arrest has been dischargedfrom his detention under P 1 and the proceedings under the Act abandonedwhile the Indian escort has returned to India without the alleged fugitive.The learned Attorney-General who appeared to assist the Court statedthat the Indian authorities have been requested “ to supply properpapers ”. We are particularly concerned with what happened afterthe proceedings under the Fugitive Offenders Act were abandoned.
Under Part II. of the Act certain British territories which lie in closeproximity to each other are “ grouped ” for the purpose of that partof the Act. British India and Ceylon are members of one such group a.
S. 34 of the Act provides that where a person convicted by a Courtin any part of His Majesty’s dominions of an offence is unlawfully atlarge before the expiration of his sentence, each part of the Act shallapply to such person in like manner as it applies to a person accusedof the like offence committed in the part of His Majesty’s dominions inwhich such person was convicted. If a convict in British India escapesto Ceylon before the expiration of his sentence and is unlawfully atlarge here, the Indian authorities can therefore demand his surrenderunder the simple procedure provided by Part II. of the Act.
The escort arrived in Ceylon, the warrant P 1 was endorsed by thelocal Magistrate, and the petitioner was arrested and produeed beforethe Court. It was at this stage that the trouble began. At that pointof time the officer of the escort had left Ceylon. He was therefore notavailable to identify the petitioner. It also seems as if the warrantP 1 under which the petitioner was arrested is itself defective.
When the case was taken up before the Magistrate on September 9,1946, the local police moved for a summons on Abdul Rahiman. theIndian escort, to depose to the authenticity of the warrant P 1 and theidentity of the petitioner. It was stated that the Ceylon police badcabled to the Indian authorities to produce further evidence in supportof the application for surrender.
1 44 and 45 Viet, c 69.
* See Proclamation dated March 21, 1918, published in Government GezcitaNo. 6,932 of March 28, 1918.
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DIAS J.—Kandasamy v. Bosairo (S. J., Police).
The Magistrate then adjourned the case until September 12. Onthat day the police again moved for a date to enable them to producedocuments proving the identity of the petitioner. It then becameclear that the petitioner could not be held in custody indefinitely on adefective warrant and without adequate proof of identity.
An application for a writ of habeas corpus or in revision might leadto the unconditional release of the petitioner, so that when the evidenceand papers arrived in Ceylon (as the authorities hoped they would)the petitioner might not be in Ceylon to be rearrested. Therefore,the question arose how the petitioner could be prevented from leavingCeylon before the proper proof arrived.
The Magistrate appears to have drawn the attention of the policeofficer to the provisions of s. 32 (1) (i) of the Criminal Procedure Codeat which that officer appears to have grasped as a drowning man clutchesat a straw.
This is how the record reads :—
“ In view of these submissions of counsel, Mr. Bandaranayaka(the police officer) now relies on s. 32 (1) of the Criminal ProcedureCode read with the Fugitive Offenders Act, 1881, for the arrest ofKandasamy present in Court, or in support of an adjournment. Hedoes not now rely upon the warrant PI already produced. Mr. Bandara-nayaka now moves under sec. 39 of the Criminal Procedure Codethat R. A. Kandasamy present in Court be discharged on bail beingfurnished.”
In other words, the police abandoned their claim for surrender underthe Indian warrant. Until a proper warrant and sufficient evidencewas received from India, the accused was to be deemed to have beenarrested under s. 32 (1) (i) of the Criminal Procedure Code and releasedon bail under s. 39, so that he could not leave the Island although notunder physical detention.
Of course, if this procedure is sanctioned by law there is nothing moreto be said about it; but the validity of the order made by the Magistratein discharging the petitioner from arrest on his furnishing bail in Rs. 20,000“ to appear in Courts on September 28,1946, and thereafter when directedon every date of adjournment of hearing at this Court and in the higherCourt ”, has been strongly called in question and criticised by Mr. Pererafor the petitioner as a gross abuse of procedure and an invasion on theliberty of the subject.
I agree with Mr. Perera that when the police stated they were notproceeding under the Indian warrant P 1, the detention of the petitionerunder that warrant came to an end. I think it is idle to suggest thatthe arrest of the petitioner on September 5, 1946, was both underthe warrant P 1 as well as under s. 32 (1) (i) of the Criminal ProcedureCode, and that while the detention under the wax-rant P 1 ceased, thedetention under s. 32 (1) (i) continued. I also agree with Mr. Pererathat there has not been a new arrest of the petitioner under s. 32 (1) (i)
DIAS J.—Kandasamy v. Bosairo (S. /., Police).
473
after the police abandoned their case under the warrant P1. The effectof that abandonment is that the petitioner automatically became free,and there has been no subsequent arrest.
To suggest that s. 39 of the Code applies (assuming it is an enablingsection) is meaningless if the petitioner was not under lawful arrestwhen the order for bail was made.
Mr. Perera has taken the further objection that for the applicationof s. 32 (1) (i) certain conditions must exist at the time of the arrest.To justify the arrest of a person under that sub-section he must havebeen concerned in, or he must be one against whom a reasonablecomplaint has been made or credible information has been received or areasonable suspicion exists of his having been concerned in any actcommitted in any place out of this Island, which if committed in thisIsland would have been punishable as an offence, and for which he isunder the Fugitive Offenders Act, 1881, liable to be apprehended or detain-ed in custody in this Island
There is no proof that at the time this petitioner was arrestedon September 5, 1946, the arresting officer had such information, orthat he made the arrest for any reason other than that he had an endorsedwarrant P 1 authorising the arrest.
I hold that it is impossible to contend ex post facto that the arrest ofthis petitioner on September 6, 1946, was also made under s. 32 (1) (i)of the Criminal Procedure Code. There having been no subsequentarrest, the applicability of s. 39 is ousted.
I entertain doubts whether s. 39 of the Code is an enabling sectionat all. It merely declares the law. When a person is arrested, unlessit is a case where police bail may be taken, the police officer can detainsuch person for twenty-four hours, after which it is his duty to take orsend the man to the nearest Magistrate—s. 126a. It is then open to theMagistrate either to remand the suspect to the custody of the Fiscal orto admit him to bail. S. 39 merely draws attention to these provisions ofthe law to indicate that the police after making an arrest cannot themselvesdischarge the prisoner unless it is a case in which police bail can betaken.
In my opinion, the proceedings are irregular. It is for the Indianauthorities to place the proper materials before our Courts. In orderto enable them to do so, the local authorities and the Ceylon Courtswill render every assistance lawfully possible. But to strain the lawin the way that has been here attempted, in order to keep under controla person who may leave the Island before the escort and the perfectedpapers arrive is an encroachment on the liberty of the subject whichcannot be countenanced.
If before the arrival of the escort armed with the proper papers theIndian authorities desire to have a suspected fugitive arrested or detained,the Act provides a simple procedure for the issue of a provisional warrantunder s. 16 of the Act. This has not been done and I need not discussthe matter further.
474 WIJEYBWARDESTE J.—-Raman v. The Superintendent of Poli ee, Ratten.
1 set aside the order of the Magistrate dated September 12, 1946,calling upon the petitioner to furnish security, and direct that the bailbonds be forthwith discharged, and that the petitioner shall be freedfrom all restraint so far as these proceedings are concerned.
Order set aside.