TUNNAYA ALIAS GUNAPALA v. OFFICER IN CHARGE , POLICE STATION , GALEWELA

004-SLLR-SLLR-1993-1-TUNNAYA-ALIAS-GUNAPALA-v.-OFFICER-IN-CHARGE-POLICE-STATION-GALEWELA.pdf


SC Tunnaya alias Gunapala,v. Officer in Charge, Police Station, Galewela
61
TUNNAYA ALIAS GUNAPALA
v.OFFICER IN CHARGE, POLICE STATION, GALEWELA
SUPREME COURT.
BANDARANAYAKE, J., FERNANDO. J..
AND KULATUNGA, J.
S.C.APPEAL NO. 22/90.
OCTOBER 23 1990.
Criminal Procedure – Investigation – the Code of Criminal Procedure Act, Section115 (3). 116, 120 and 136.
Section 116(1) requires that a suspect be sent in custody to a magistrate's courtwith jurisdiction when the information is well founded in the case of a non-bailableoffence i.e. when the Police Officer or inquirer comes to a conclusion that thereis sufficient evidence in the sense that a substantial case is made out at anearly stage of an investigation which can properly be sent before a Magistrate.Thereafter it is necessary for the Magistrate to make an order for the detentionof the suspect. On the other hand, if the offence is bailable, the section evenpermits the Police Officer or inquirer to take security from the suspect for hisappearance before Court. The section also provides for productions to be sentto the Court immediately without being kept at the Police Station for furtherinvestigations if necessary, and for witnesses to be bound over to appear andtestify at the trial. The fact that the Police can take bail and release the suspectif the offence is bailable under sub-section (1) and the fact that investigationscan continue under sub-section (3) and the use of the word’suspect" and not"accused" in the language of sub-section (1) used to refer to this person dearlypoint to the feet that no proceeding has yet been instituted against that personas an accused. Producing a suspect before a Magistrate's Court in custodyin terms of Section 116 (1) has nothing to do with the institution of proceedingunder Section 136 (1) (d) of Chapter XIV or any other clause of that section.The purpose of producing a suspect before a Court for a non-bailable offenceunder Sedion 116 (1) is both for the purpose of detaining such a person aswell as enabling the Court to take cognisance of the matter enabling it to makefurther orders under the Section, as a Court order is necessary for expertsto examine productions and express opinions. The provisions of Section 116(1) usually denote the completion of a Policeman's investigative endeavours.
When a susped is produced before a Magistrate under Section 116 (1) of theCode in resped of a non-bailable offence it is necessary for the Magistrate tomake an order for the detention of the susped until the final report under Section120 of the Code is filed. This he can do under the provisions of Section 120(1) and the investigation can continue.
62
Sri Lanka Law Reports
(1993) ISriLR.
A final report made under Section 120 will be filed upon conclusion of theinvestigation. It is to be noted that Section 115 (3) does not permit a Magistrateto release on bail in the first instance a person arrested for the offence of murder.This means he must make a consequential order of detention when a suspectis produced in custody in connection with an alleged murder under Section 116(1). The point is that one is still at the investigative stage when a suspect isforwarded under custody to the Court in terms of Section 116 (1). It is wrongto treat it as an automatic institution of proceedings.
When proceedings are instituted under Chapter XIV on the other hand theMagistrate takes cognisance of the accusation contained in the Police report orin a written complaint or upon the taking of evidence as the case may be interms of Section 136 (1).
Section 136 (1) is read with the provisions of Section 135 when appropriate.It is to be noted that the language of all the clauses in Section 136 (1)contemplates a person accused of an offence and not a mere suspect.
Equating a report under Section 116 (1) to an institution of proceedings is wrong.
Where no proceedings are in fact instituted upon the report under Section 116(1) the Magistrate had jurisdiction to release the suspect on bail subject to theterms of the proviso to Section 115 (1) of the Code if a period of three month'ssince the suspect's arrest has expired. The provisions of Section 115 (3) speakof a suspect being entitled to bail if proceedings are not instituted within 3 monthsof the date of his arrest.
Cases referred to :
Attorney-General v. Punchl Banda (1986) 1 Sri LR 40 (C. A.)
Regina v. Perera alias Madawatte 57 NLR 35
Lamanatissa de Silva v. Sub-Inspector of Police Matara 62 NLR 92
Perera v. Sub-Inspector of Police, Kirulapone 67 NLR 125
Muttiah v. Regina 74 NLR 313
Ceylon Insurance Company v. Perera 74 NLR 553
Romulus Fernando v. O.I.C. Marawlla (1982) 1 Sri LR 400
APPEAL from a judgment of the Court of Appeal.
Jayampathy Wickremaratne with Kapila Elikewela, H. Vithanachchi andA. Panditharatne for Appellant.
Upawansa Yapa, Deputy Solicitor-General with D. de Livera State Counselof Attorney-General.
Cur. Adv. vult.
sc
Tunnaya alias Gunapala.v. Officer in Charge, Police Station, Galewela
(Bandaranayake, J.)
63
February 01, 1991.
BANDARANAYAKE, J.
This appeal involves the interpretation of certain provisions of theCriminal Procedure Code. I.G. Ananda, the 2nd suspect was arrestedby the Galewela Police for having committed or being concerned incommitting the murder of one E.J. Jasinghe. There is no indicationof the date of arrest. Ananda was produced before the DambullaMegistrate on 1.9.89 and remanded to prison custody. Thefirst suspect, I.G. Weerasinghe has not been arrested. On 20.12.89i.e after the expiration of a period of three months from the dateon which he was first produced before the Magistrate, an applicationfor bail was made on behalf of Ananda to the Magistrate. Thisapplication was refused by the Magistrate on the footing that therewas a report before the Magistrate setting out facts clearly showingthat the suspect committed an offence and proceedings had thereforebeen instituted against him. The Magistrate went on to hold that asthere was a "definite allegation" that Ananda had committed anoffence, proceedings had been instituted and therefore the Court waswithout jurisdiction to grant bail under the proviso to s. 115 (3) ofthe Code. The Magistrate stated he was following the dicta of adecision of the Court of Appeal in Attorney-General v. PunchiBanda and Others
An application was next made on behalf of Ananda to the Courtof Appeal to revise the aforesaid order of the Magistrate and grantbail. The Court of Appeal held that "the filing of a report making adefinite allegation that a suspect committed the offence complainedof is sufficient to constitute an institution of proceedings within themeaning of s. 115 of the Criminal Procedure Code" and dismissedthe application for bail. The correctness of that decision is presentlyimpugned before us. Leave to appeal to the Supreme Court wasgranted by the Court of Appeal on an application made that certainquestions contained in Paragraph 7 of the application filed beforethe Court of Appeal be treated as substantial questions of law tobe determined by the Supreme Court which the Court of Appealupheld. The contents of the said Paragraph 7 of the petition filedbefore the Court of Appeal were as follows :
64
Sri Lanka Law Reports
(1993) 1 Sri L.R.
Did the Court of Appeal err in holding that the filing of a reportof the progress of investigations which made a definiteallegation that the suspect committed an offence was sufficientto constitute an institution of proceedings within the meaningof s. 115 (3) read with s. 136 (1)(d) of the Code of CriminalProcedure?.
Did the Court of Appeal err in not holding that nothing butthe filing of the "plaint" at the conclusion of investigationsamounts to an institution of proceedings within the meaningof s. 115 (3)?.
Did the Court of Appeal err in holding that the Magistratemay proceed to hold a preliminary inquiry under s. 145 of thesaid Act even when investigations have not admittedly beenconcluded?.
Did the Court of Appeal err in holding that the application forbail on behalf of the 2nd suspect should be made unders. 403 of the Act?.
Before answering these questions I must say that it was notsufficient for the Court of Appeal to merely refer to averments in anapplication before it and state they are fit for adjudication by theSupreme Court when granting leave to appeal to the Supreme Courtunder Article 128 of the Constitution. The Court of Appeal must applyits mind to the questions that arise and formulate what the Courtthinks are substantial questions of law in a proper manner. What hasbeen done is far from satisfactory as the formulation of the questionsset out in paragraph 7 of the said petition are themselves vague andconfusing. However, having regard to the issue as presented by theMagistrate in his order and the reasoning in the judgment of the Courtof Appeal I am of the view that the grounds on which bail has beenrefused raise substantial questions of law to found an appeal in thisCourt.
To get back to the order of the Magistrate, it reads as follows:
Quoting from the order the relevant portion translates as* Punchi
Banda's case (Attorney-General v. Punchi Banda) aforesaid clearlylays down how proceedings may be lawfully instituted. What it saysis that where there is a report setting out facts clearly showingthat he (the suspect) committed the offence, then, proceedings
sc
Tunnaya alias Gunapala,v. Officer in Charge, Police Station, Galewela
(Bandaranayake, J.)
65
are deemed to have been instituted against himNext, the
Court of Appeal held that – quote – " The ways in which
proceedings shall be instituted in a Magistrate's Court are given ins. 136 of the Code. Section 136 (1)(d) provides that when any personis brought before a Magistrate in custody without process accusedof having committed an offence which such Court has jurisdiction tohear or inquire into, proceedings are instituted. There must thereforebe a definite allegation that the suspect has committed the offence
complained of for this condition to be satisfiedIn the circumstances
I hold that the filing of a report making a definite allegation that thesuspect committed the offence complained of is sufficient to constitutean institution of proceedings within the meaning of s. 115 of the Code.I therefore dismiss the petitioner’s application to revise the order ofthe Magistrate dated 20.12.89".
That then is the issue before us; as to whether the filing of areport before a Magistrate's Court making a definite allegation thatthe suspect committed the offence complained of is by itself sufficientto constitute an institution of criminal proceedings in a Court and whichconsequently may affect the grant of bail under s. 115 (3). Such adefinite allegation could be made when the investigation is completedand a report is made in terms of s. 120(3) or when an officer incharge of a Police Station thinks that an information is well foundedand reports in terms of s. 116 (1) of the Code. It is apparent fromthe judgment in Attorney-General v. Punchi Banda (supra) and theMagistrate's order and the judgment of the Court of Appeal that allthose Courts were dealing with a report under s. 116 (1) of theCode. Counsel for the State confirmed that that is what the Stateis contending for.
Learned Counsel for the State supporting the grounds on which thedecisions of the Courts below were founded submitted :
The commencement of non-summary proceedings is not a barto the continuation of investigations by the Police – cited.Regina v Perera alias Medawatte. <2)
It is the content of the report that matters in consideringwhether proceedings have been instituted ; and not anyparticular provision under which it purports to have been filed;
66
Sri Lanka Law Reports
(1993) 1 Sri L.R.
If the report is in accordance with s. 116, the Magistrate cannotact under s. 115 (3).
The requirement of s. 136 (1)(d) is bringing a person accusedof having committed an offence which such Court has juris-diction to inquire into or try before the Court ; A condition ofs. 136 (1)(d) is that there should be an accusation ; thatcondition is satisfied when there is a definite allegation.
When there is a definite allegation the condition contained ins. 136 (1)(d) is satisfied i.e there is then an accusation.
No formal plaint need be filed. Plaint is a convenient term.A Magistrate can commence an inquiry at the scene of anoffence.
As the Magistrate has held that the s. 115 stage had passedhe should have commenced non-summary proceedings whichhe has failed to do.
In any event the suspect is not without remedy as the Courtof Appeal could admit a person to bail under the provisionsof s. 404 of the Code.
A consideration of the meaning and scope of s. 116 and ofs. 136 (1)(d) of the Code thus becomes necessary. Section 116 isa section contained in that part of the Code dealing with theinvestigation of offences and the powers of Police Officers andinquirers to investigate. It is a step in the process of investigation.It is the counterpart of s. 114 which permits the release of an accusedif evidence is deficient. Section 116 (1) requires that a suspect besent in custody to a Magistrate's Court with jurisdiction when theinformation is well founded in the case of a non-bailable offence. Thatis to say that the suspect should be so forwarded when the PoliceOfficer or inquirer comes to a conclusion that there is sufficientevidence in the sense that a substantial case is made out at an earlystage of an investigation which can properly be sent before a Magistrate.Thereafter it is necessary for the Magistrate to make an order forthe detention of the suspect. On the other hand, if the offence isbailable the section even permits the Police Officer or inquirer to takesecurity from the suspect for his appearance before Court. The section
SC Tunnaya alias Gunapala.v. Officer In Charge, Police Station, Galewela
(Bandaranayake, J.)67
also provides for productions to be sent to the Court immediatelywithout being kept at the Police Station for further investigations ifnecessary, and for witnesses to be bound over to appear and testifyat a trial. The fact that the Police can take bail and release thesuspect if the offence is bailable under sub-section (1) and the factthat investigations can continue under sub-section (3) and the useof the word “suspect" and not “accused" in the language ofsub-section (1) used to refer to this person clearly point to the factthat no proceeding has yet been instituted against that person asan accused. Producing a suspect before a Magistrate's Court incustody in terms of s. 116 (1) has nothing to do with the institutionof proceedings under s. 136 (1)(d) of Chapter XIV or any other clauseof that section. The purpose of producing a suspect before a Courtfor a non-bailable offence under s. 116(1) is both for the purposeof detaining such a person as well as enabling the Court to takecognisance of the matter enabling it to make further orders underthe section as a Court order is necessary for expert witnesses toexamine productions and express opinions. The provisions of s. 116(1) usually denote the completion of a Policeman's investigativeendeavours. The Magistrate once seized of the matter may thenrequire further probing by forensic experts of evidence alreadygathered; the findings and opinions of such specially skilled personsmay tend to confirm the State’s case against the prisoner.
Now, when a suspect is produced before a Magistrate unders. 116 (1) of the Code in respect of a non-bailable offence it isnecessary for the Magistrate to make an order for the detention ofthe suspect until the final report under s. 120 of the Code is filed.This he can do under the provisions of s. 120 (1) and the investigationcan continue. For instance, the Police may have been making inquiriesover a period of time upon a complaint. Having gathered evidencewhich justifies an arrest a suspect is taken into custody andincriminating evidence such as a weapon of offence or a documentconnecting the suspect to the crime is found and it is necessary totake blood or saliva samples or specimens of nails or hair forcomparison. In such a case it may be said that the Police havesufficient grounds to believe the information is well founded and beforethe expiry of 24 hours in compliance with the provisions of s. 37transmit the suspect in custody to the Magistrate. Furtherinvestigations regarding the productions will continue under s. 116.A final report made under s. 120 will be filed upon conclusion of
68
Sri Lanka Law Reports
(1993) 1 Sri L.R.
the investigation. It is to be noted that S. 115 (3) does not permita Magistrate to release on bail in the first instance a person arrestedfor the offence of murder. This means he must make a consequentialorder of detention when a suspect is produced in custody inconnection with an alleged murder under s. 116 (1). The point isthat one is still at the investigative stage when a suspect isforwarded under custody to the Court in terms of s. 116 (1). It iswrong to treat it as an automatic institution of proceedings.
When proceedings are instituted under Chapter XIV on the otherhand the Magistrate takes cognisance of the accusation containedin the Police report or in a written complaint or upon the takingof evidence as the case may be in terms of s. 136 (1). Section 136(1) is read with the provisions of s. 135 when appropriate. It is tobe noted at this stage that the language of all the clauses in s. 136(1) contemplates a person accused of an offence and not a meresuspect. The next step is for the Magistrate to take cognisanceof the offence complained of and decide whether there is sufficientground to issue process if the person is not in custody or takea necessary step if already detained ; or conduct the examinationrequired by s. 139 (2) wherever necessary when an accused personis brought before the Magistrate in terms of s. 136 (1)(d) of the Codeand make other consequential orders pending inquiry or trial. Thebringing of a person before the Court without process accused ofhaving committed an offence in terms of s. 136 (1)(d) can happenfor example, when a drunken person is arrested for misconduct inpublic causing annoyance to any person, an offence punishableunder s. 488 of the Penal Code and produced in custody before aMagistrate who then may act under s. 139 (2). This provision inclause (d) should not be confused with the other situation of asuspect being taken before a Magistrate in custody during aninvestigation in terms of s. 116 (1) when the investigating authorityis of the opinion that the information in his possession that thesuspect has committed a non-bailable offence is well founded. Insuch a situation that suspect is detained pending further investigationand the Magistrate is obliged to assist the further investigation bymaking appropriate judicial orders. That is all s. 116 (1) contemplates.It is a step prior to the institution of criminal proceedings. Equatinga report under s. 116 (1) to an institution of proceedings is wrong.The submissions of counsel for the State in the Court of Appeal inthe case of Attorney-General v. Punchi Banda aforesaid appearingat pages 42, 43, 44 & 45 of that report as to whether proceedings
SCTunnaya alias Gunapala.v. Officer in Charge, Police Station, Galewela
(Bandaranayake, J.)69
have been instituted or not with reference to s. 116 (1) ands. 136 (1)(d) of the Code are unwarranted. The statements on thelaw (obiter) in the case appearing at page 44 of the report towit:-…." If after investigations the officer in charge of a Police Stationfinds that a definite allegation could be made against the suspectthen the Police would produce the suspect before the Magistrate with
that allegation proceedings are automatically instituted under the
provisions of s. 136 (1)(d)", and at page 45 of the report“ once
a suspect is taken before the Magistrate on the basis that
information is well founded then by virtue of s. 136 (1) (d) proceedingsare instituted and the Magistrate is directed to start an inquiryunder s. 145", are wrong in law and should not be followed. Thesestatements of that Court are obiter dicta as the issue that had tobe decided in that appeal was whether the Magistrate could havegranted bail under s. 403 (2) of that Code in the context of the factsof that case. It would appear that the Court has failed to examinethe provisions of s. 116 as a whole, but looked only at that part ofsub-section (1) dealing with non-bailable cases. The Magistrate in theinstant case has followed that judgment.
Learned Counsel for the appellant relied on the following casesin support of his submission that in a case of murder investigatedby the Police it is only when the Police have completed investigationand submitted a report to Court alleging that the suspect hascommitted or been concerned in committing the offence of murdercould it be said that proceedings have been instituted against suchperson. Such a report is often referred to as a plaint. Counsel reliedon the following cases in support of this submission: Lamanatissade Silva v. Sub-Inspector of Police, MatarsPK Perera v. Sub-Inspectorof Police, Kirulaponef4), Muttiah v. Regina(5), Ceylon Insurance Companyv. Perera (6), Romulus Fernando v. O.l.C Marawila (7>.
In this view of the law it is seen that the appellant has been keptin custody for over a period of three months without proceedings beinginstituted against him. It is to be noted that the application for bailhas been made after three months from the date on which he wasproduced before the Court and remanded. No material is availablebefore us as to the date on which the suspect was arrested.The provisions of s. 115 (3) speak of a suspect being entitled tobail if proceedings are not instituted within three months of the dateof his arrest. As this is a relevant matter in the context of the
70
Sri Lanka Law Reports
(1993) 1 Sri L.R.
issue before us it is regrettable that the State was unable to informthis Court of the date of arrest of the suspect. In fact no proceedingshave been properly instituted before the Magistrate on the materialbefore this Court. The State has been content to take the positionthat the suspect has his remedies if he wants to be released fromcustody on bail under other provisions of law, to wit: s. 403 of theCriminal Procedure Code. Counsel for the State resting upon hisproposition that proceedings have begun contends that the Magistrateshould have proceeded under s. 145 of the Code. The matter seemsto rest at that.
This Court is unable to accept the submissions of the DeputySolicitor-General as they are patently wrong in law.
As no proceedings were in fact instituted upon the report unders. 116 (1) the Magistrate had jurisdiction to release the petitioner onbail on 20.12.89 subject to the terms of the proviso to s. 115 (1)of the Code as a period of three months since the suspect's arresthad expired. No reasons as to why bail should not be granted havebeen urged before us. No steps as far as this Court is aware havebeen taken so far as to institute proceedings against the petitioner.
The appeal is allowed. The order of the Magistrate dated 20.12.89and the judgment of the Court of Appeal are set aside. Thepetitioner is admitted to bail upon his entering into a bondin a sum of Rs. 2000/- with one surety to attend Court as directed.Magistrate to take necessary steps accordingly.
FERNANDO, J. – I agree.
KULATUNGA, J. – I agree.
Appeal allowed.