016-NLR-NLR-V-79-1-THE-DIRECTOR-OF-PUBLIC-PROSECUTIONS-Petitioner-and-W.-GODAGE-and-two-others-.pdf
WUES U KDERA, J.— Director of Public Prosecutions v. Qodage
115
1977Present: Wijesundera, J.. and Sharvananda, J.
THE DIRECTOR OF PUBLIC PROSECUTIONS, Petitioner
and
W. GODAGE and two others, RespondentsS.C. 35/77-M. C. Matara 2827
Sail—Scope of the Magistrate’s power to order bail—Administration of
Justice Law No. 44 of 1973, sections 75, 77, 78, 103.
The three respondents were produced before the Magistrate,Matara, as suspects in a case of robbery of articles valued at Rs. 1,500and the murder of four persons. The Magistrate, pending policeinvestigation remanded the accused for a period of three monthsin the aggregate. After the period of three months was over, therespondents were produced before the High Court of Matara, whichacting on the application of the petitioner made order under section78 of the Administration of Justice Law extending the period foranother three months.
After this period was over, the respondents were produced beforethe Magistrate of Matara. The Investigating Officer in terms ofsection 77 (2)(a) of the Administration of Justice Law moved
that the suspects be remanded for a period of three months to enablethe Director of Public Prosecutions to consider his final report. TheMagistrate refused the application taking the view that he had nopower to order further detention. He accordingly released the sus-pects on bail in a sum of Its. 1,500
Held : (1) That the Magistrate had misdirected himself in refusingto order the detention of the suspects when application for deten-tion was made under section 77 (2) (a) of the Administration ofJustice Law. The statutory scheme of the law is that the Magistrateand the High Court could each order the detention of a suspect oraccused for the maximum period of three months, aggregating sixmonths, during the phase of investigation of the offence and bothcould make order of detention for a further period of three monthseach, during the stage of consideration of the report made by thePolice Officer in charge of the investigation, thus totalling anothersix months.
(2) That in any event the respondents in the present case weresuspected of committing the offence of murder. The discretion ofCourt to release the suspects or accused on bail within the periodsabove referred to is curtailed in such cases by virtue of the provisoto section 103 (3). In such cases no bail can be granted without theconsent of the Director of Public Prosecutions.
.A.PPEAL from an Order of the Magistrate’s Court, Matara.
Ranjith Abeysuriya, Director of Public Prosecutions, withT. Wickramasinghe, State Counsel, for the petitioner.
Daya Perera, with S. J. Gunasekera for the respondents-
Cur. adv. vult.
March 30, 1977. Wijesundera, J.
At the end of the arguments in this application the Court madethe following order : —
“ The order of the Magistrate of Matara dated 5.1.77 releasingthe 3 respondents on bail is set aside. The 3 suspects will beremanded forthwith for a further period of three months, as the
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WIJESUNDERA, J.— Director of Public Prosecutions v. Godage
Magistrate was empowered to order under sec. 77 (2) (o) ofthe Administration of Justice Law. Reasons later. ”
I now give the reasons.
The three respondents were produced before the Magistrate^Matara, the 1st' on the 4th July and the 2nd and the 3rd on 5thJuly as suspects in a case of robbery of articles valued at Rs. 1,500and the murder of 4 persons committed on the 12th June, 1976.The learned Magistrate extended their remand till 4th October,1976. On the 4th October, 1976, on the application of the petitionerthe High Court Judge of Matara acting under the provisions ofsec. 78 of the Administration of Justice Law extended the periodfor another three months. While that order was pending the^respondents applied to this Court for bail. On the 12th ofDecember, 1976, that application was refused by Pathirana J.and Colin Thome J. On the 5th January the day after the periodof three months was over, the respondents were produced beforethe Magistrate of Matara. The Investigating Inspector in terms ofsec. 77 (2) (a) of the Administration of Justice Law movedthat the suspects be remanded for a period of three months toenable the Director of Public Prosecutions to consider his finalreport'. The Magistrate however released them on bail in a sumof Rs. 5,000 and directed the respondents to report to the Akuressa.Police once a week. The petitioner now seeks to have that orderrevised.
The consideration of the petition was delayed because therecord was delayed. The record in this case was called for bytelegram on the 11th Februaxy, 1977. But the record was notreceived by the Registrar of this Court till about the middle ofthe month due to postal difficulties. I earnestly hope that therewill be no such delays in the future because the purpose ofrevision can be defeated by delay.
Whenever a person suspected of having committed an offenceis produced before a Magistrate under sec. 75 (1) of Adminis-tration of Justice Law, if he considers that there are groundsfor believing that the information is well founded he can havethe suspect detained in any prison f;or 15 days and no more ifhe finds it is expedient to do so for reasons to be recorded by him,pending the completion of investigations. If however the offenceunder investigation is one that is not triable by a Magistrate,the period the Magistrate is empowered from time to time toauthorise, under the proviso 1 to sec. 75 (2) of Administration odfJustice Law, the detention of a suspect for successive periodsof 15 days for a period not exceeding 3 months. So that in thiscase that period came to an end on the 4th October, 1976. Th«-
WIJESUNDERA, J. — Director of Public Prosecutions v. Qodage
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purpose of the remand or detention is to complete the investi-gations. There can be cases where the investigations cannot becomplete within three months and where it is also necessarythat suspects should be detained. Sec. 78 of Administration ofJustice Law provides for that eventuality and the High Courtof Matara extended that period till 4th January, 1977.
When that period came to an end on 4th January, 1977, on the5th January, 1977, the Investigating Officer informed the Magis-trate that the investigations were completed and that under sec.77 (1) (b) of Administration of Justice Law he had forwarded areport to the Director of Public Prosecutions and to the Magis-trate, and further moved for an extension of the period of remandby another three months under sec. 77 (2) (a) of the Administra-tion of Justice Law to enable the Director of Public Prosecutionsto consider the report and take action under sec. 77 (3) of theLaw. The Magistrate under sec. 77 (2) (a) is empowered wherehe considers it expedient for reasons to be recorded by him, todetain the suspect for a further period of 3 months to enable theDirector of Public Prosecutions to consider the report' of theInvestigating Officer. The period of three months is to commence“ upon receipt of a report in terms of sub-sec. (1) (b) ” which inthis case is 5.1.77.
It was the contention of the learned Attorney for the respon-dents that the report after the completion of investigations hadbeen filed on 29.9.76 and the period of three months should comm-ence from that date and that period had expired. In the record ofthe proceedings there is a report dated 29.9.76. But it is a copysent to the Magistrate of a report by the Assistant Superinten-dent of Police to the Director of Public Prosecutions under sec.80 of the Administration of Justice Law which requires theAssistant Superintendent of Police of the area to report to theDirector of Public Prosecutions in respect of all offences com-mitted in his area. The report contemplated in sec. 77 (1) (b) ofthe Law is the report by the Investigating Police Officer not bythe Assistant Superintendent of Police. So that the report dated29.9.76 is not the report filed by the Investigating Inspector afterthe completion of the investigations. The Attorney’s submissionfails.
It was next submitted that the Magistrate had no power on5.1.77 to extend the remand after the High Court had made anorder. Upon the application of the Director of Public Prosecutionsfor good reasons sec. 78 empowers the High Court to order theextension of the period of remand of a suspect in twosituations : — (1) Where a Magistrate had remanded under theproviso 1 to sec. 75 (2) of the law a suspect for three months
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WIJESU.NUERA, J. — Director o] Public Prosecutions v. Qodage
pending the completion of the investigations and it is found thatthat lime is insufficient, a High Court is empowered to extend theperiod by 3 months for the purpose of completing theinvestigations.
(2) Where a Magistrate has under sec. 77 (2) (a) remanded asuspect for 3 months pending the consideration by the Directorof Public Prosecution of the report filed under sec. 77 (1) (b)a High Court is again empowered to extend that Period byanother 3 months for that purpose.
A Magistrate can remand a person suspected of committingan offence which he cannot try, under the proviso 1 to sec. 75 (2)for the completion of investigations and under sec. 77 (2) (a)for the consideration of the report of the investigation by theDirector of Public Prosecutions. The Magistrate is empowered tomake the order under sec. 77 (2) (a) only upon receipt of thereport after the completion of the investigations. Investigationsmay be long and an Investigating Officer may require the periodof remand order by a Magistrate under the proviso to sec. 75 (1)extended by the High Court under sec. 78 to complete the investi-gations, as in this case. Therefore the law contemplates the situ-ation where an order under sec. 77 (2) (a) is made by a Magis-trate after an extension of the period of remand for completionof the investigations by the High Court. Then the Magistratewas empowered to extend the period of remand on 5.1.77 undersec. 77 (2) (a) of the Law.
The application for the extension of remand of 5.1.77 was madeon behalf of the Director of Public Prosecutions. The report ofthe Investigating Inspector and of the Assistant Superintendentof Police to the Director of Public Prosecutions were before theMagistrate. The respondents are suspected of committing fourmurders. The offence of murder is non-bailable and is punish-able with death. In terms of the proviso to sec. 103 (3) the res-pondents could have been admitted to bail by the Magistrate onlywith the consent of the Director of Public Prosecution^. Therewas no such consent. For all these reasons the order made by theMagistrate is wrong. In the only affidavit filed in this Court theInvestigating Officer has stated that the suspects if released onbail “ would abscond ” and will interfere with the witnesses asthey are from the same village. In the exercise of the powers ofrevision this Court sets aside the order of the Magistrate anddirects that the suspects be remanded for a further period of threemonths commencing from 5.1.77.
SHAJRVAlfANDA, J. — Director of Public Prosecutions v. Qodage
lln
Sharvananda, J.
I agree with the order and reasons given by Wijesundera J.
As there appears to be a misapprehension regarding the scopeof a Magistrate’s power to order detention where the offenceunder investigation is not one triable by a Magistrate, I havesought to clarify the position by an analysis of the relevantsections of the Administration of Justice Law, No. 44 of 1973.
When application was made under section 77 (2) (a) of theAdministration of Justice Law for the detention of the suspectsfor a period of 3 months, pending consideration of the investiga-ting Police officer’s report by the Director of Public Prosecutions,the Magistrate refused the application with the elliptic remarkthat he had no power to order further detention. The Magistrateappears to have been under the misapprehension that he couldauthorise the detention of the accused, if the offence underinvestigation is not one that is triable by a Magistrate’s Courtfor the maximum period of 3 months only as directed by thesection 75(2) proviso and that once he had ordered detentionof the accused for that period in the exercise of his power underthe proviso to section 75 (2), he had become functus to exerciseany jurisdiction to make further order for detention even undersection 77(2) (a). This is an erroneous view.
An accused or suspect may be kept in custody pending investi-gation and pending consideration of the report of the Policeofficer in charge of the investigation. During the investigationstage, the Magistrate may, in terms of section 75 (2) proviso,authorise the detention of the accused for a period not exceeding3 months in the aggregate. If the investigation is not completedby the end of that period, the Director of Public Prosecutionsmay, in terms of section 78, apply to the High Court that thesuspect who is held in custody upon an order by a Magistratemade in terms of the proviso to section 75 (2) be held in furthercustody for a further period not exceeding 3 months pendingthe completion of the investigation. Thus, a suspect may be heldin custody upon an order by a Magistrate in terms of the section75 (2) proviso for the maximum period of 3 months, and uponan order of the High Court on the application of the Directorof Public Prosecutions for a further period of 3 months pendingcompletion of the investigation in terms of section 78.
Section 77 (1) provides that on completion of the investigation,the Police officer in charge of the investigation shall forward areport to the Director of Public Prosecutions and to theMagistrate. Pending the consideration of that report by theDirector of Public Prosecutions, section 77(2) vests jurisdiction
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in the Magistrate to order the detention of the suspect or accusedfor a period of 3 months, and section 78 empowers the HighCourt to make a further order of 3 months.
Thus, the statutory scheme of the law is that the Magistrateand the High Court could each order the detention of the accusedfor the maximum period of 3 months, aggregating 6 months,during the phase of investigation of the offence and both couldmake order of detention of the accused for a further 3 monthseach, thus totalling another 6 months, during the stage of consi-deration of the report made by the Police officer in charge ofthe investigation. Thus, a suspect could be kept in custody onthe orders of the Magistrate for 3 months maximum under thesection 75(2) proviso, and for a further 3 months under section77 (2) (a), and by the High Court for a further period of 3 monthsduring the investigation stage, and another 3 months pendingconsideration of the investigating officer’s report on applicationmade for that purpose by the Director of Public Prosecutions.
On the above clarification, it would appear that the Magistratemisdirected himself in refusing to order the detention of thesuspects when application for such detention was made undersection 77 (2) (a).
The discretion of Court to release the suspects or accused onbail within the periods referred to above is however curtailedin cases where the person is suspected or accused of an offencepunishable with death. The proviso to section 103 (3) makes itimperative that such a person can be admitted to bail only withthe consent of the Director of Public Prosecutions. The consentof the Director is a sine qua m i in such cases.
Application allowed.