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SRI LANKA JUDGES INSTITUTE

SOME IMPORTANT ASPECTS OF

CRIMINAL JURISPRUDENCE

By :

DEPUTY DIRECTOR SRI LANKA JUDGES INSTITUTE

P.H.K. KULATILAKA

TABLE OF CONTENTS
Criminal Law Introduction.. Substantive Criminal Law. Penal Code. Categories of offences in the Penal Code. General Exceptions... Unlawful Assembly. Concept of Common Intention. Abetment. Criminal Jurisdiction of the Magistrates Court and the High Court. Relevancy of statements of witnesses... Use of the Information Book Provisions Relating to arresting a person.. Production of suspects before the Magistrate .. 1 3 5 7 15 30 32 34 36 40 45 47 53

Identification Parade.. Recording of a confession by the Magistrate Inquests of death Non summary inquiry. The charge.. Legal objections available to an accused against his prosecution Summary trial in the Magistrates Court. Judgments.. Claim inquiries in respect of productions in a Criminal Case. Appeals from the Magistrates Court to The High Court. Sentencing Policy in our Criminal Justice System Bail ...

56 62 70 74 80 90 95 103 106 113 115 130

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Criminal Law
Introduction During the period of Dutch occupation of the Maritime Provinces regard to the application of Roman Dutch Law to the native Sinhalese inhabitants the position seems to be that the Dutch left the native Sinhala inhabitants to themselves but the Roman Dutch Law would have prevailed in fact or by tiction in those parts of the island where they had settlements. Nevertheless the British rulers went on the basis that during the Dutch regime Roman Dutch Law applied to all the inhabitants of the Maritime Provinces. This includes administration of both the Civil law as well as the Criminal jurisprudence. It is said that the Roman Dutch Laws were absorbed into our legal system by the English Judges and it was their approach to the scope and application of the Dutch Laws during Dutch time that ensured the reception of Roman Dutch Law into the islands legal system. Kandyan Provinces had their own indigenous Criminal Laws which are referred to by Armour and Robert Knox. These laws remained intact so long as the Kandyan Kingdom survived as a distinct and independent territory. In theory the Dutch Criminal Law had a wider application in this country under the British rule than it ever did during the Dutch rule. However while the applicability of the Roman Dutch Criminal Law within an extended territorial area covering the former Kandyan Kingdom as well received formal legislative sanction, the English Criminal Law superseded the Roman Dutch Criminal law in practice during the early part of the English rule. The resulting position was at the end of a century of British rule. The resulting position

was that at the end of a Century of British rule no more than barely identifiable traces of Dutch influence remained in the Criminal Law of the island. This process came to a climax with the enactment of the Penal Code in 1883. After that year Roman Dutch Law jurisprudence ceased entirely to constitute a source of Criminal Law in the island. Anyway, it is the stark truth that a substantial body of English Criminal Law and Juris prudence had been insidiously introduced into the island prior to the enactment of the Penal code eg. English legal terms like high treason, petty treason, felonies, misdemeanours at common law, burglary, manslaughter, petty larceny etc.

Substantive Criminal Law


There are certain central principles in Criminal Law. One principle is that there is no criminal liability for simple thought (Chamelin and Evans, 1972 Handbook on Criminal Law); there must be a guilty act, for example, if you plan to steal a car, you have not committed a crime, you must have actually attempted to steal it. Another principle is that criminal liability must be accompanied by a guilty mind on the part of the offender. (Edwards 1955 Mens Rea in statutory offences) For example, if without your fault you accidentally run down some person with an automobile, there is no crime. The definition of crime requires intent to harm the victim or actions so reckless as to suggest a willingness to harm the victim. Crimes are often classified into degrees for example grievous hurt is more serious than casing simple hurt. Hence the extent of punishment differs. Most crimes are classified such as crimes against the persons, property, habitation, government, health and safety or the public peace and order. Basically Criminal Law is a means of social conduct. Generally a crime has the following characteristics : (a) A crime involves the imposition of sanctions of a particular character. The Penal Code mentions of imposition of several punishments to which offenders are liable. Eg. Death, life imprisonment, rigorous, imprisonment, suspended sentences, conditional release of offenders, Community service orders.

(b) A special procedure is prescribed for the investigation, apprehension and trial of perpetrator of crime.

(c) Very often the prosecution is conducted by the State (State Counsel or Police) for the reason that the state has a vital interest in the prevention and punishment of crime.

Penal Code

The Penal Code was enacted in 1933.

The draftsmen of our Penal Code

followed the corresponding Indian Law drafted by the Macaulay commissioners. It reflected mostly the general approach and policy of English Criminal Law, appropriately modified and re-oriented to suit the local conditions.

As regards its application a full Bench decision in

Kachcheri Mudaliyar

vs. Mohamadu 24 NLR 369 held that the Penal Code abolished both
the English and whatever Roman Dutch Criminal Law which were prevailing until then. The whole of the contemporary Criminal Law of Sri Lanka is contained in the Penal code and in other principle and subsidiary legislation. The general provisions of the Penal Code are not limited in their application only to offences created by the Penal Code but also to cover whole range of offences created by other statutes as well. Section 38 (2) of the Penal Code read as follows the word offence denotes a thing punishable in Sri Lanka under this code or any other than this code . The law relating to general exceptions from Criminal liability ensconced in chapter IV are equally applicable to offences created by other statutes as well. Principles of liability relating to abetment, unlawful assembly and common institution are other examples of universal application. Code of Criminal Procedure Act No. 15 of 1979 governs the procedure relating to the crime investigation, apprehension of offenders and trial. Hence our criminal

law is centred round exclusively in the statute law namely the Penal Code and the Code of Criminal Procedure Act, No. 15 of 1979. Professor G.L. Peiris in his book General Principles of Criminal liability makes the following observation. The criminal law of Ceylon is contained in a variety of statutes, chief of which is the Penal Code enacted in 1883. This is a comprehensive statute modeled on the Indian Penal Code and serves as the main repository of the substantive Criminal Law of Ceylon.

Categories of offences in the Penal Code


The variety of offences dealt with in the Penal code have been specifically recognized with clarity of content and limit of their liability. Particular categories of offences embodied in the Penal Code are set out in the code in the following manner. Chapter V deals with Abetment. Provision relating to abetment are not restricted in their application to particular offences referred to in the Penal Code but governs all offences. which reads thus If two or more persons are guilty of the offence of conspiracy for the commission or abetment of any offence, each of them shall be punished in the same manner as if he had abetted such offence. Chapter VI contains a series of provisions dealing with offences against the state. The offence of waging or attempting to wage war against the Queen are punishable with death. In terms of section 450 as amended by Code of Criminal Procedure (Amendment) Act No. 21 of 1988 trials in respect of offences punishable under sections 114, 115 or 116 of the Penal Code are held before the High Court at Bar without a Jury. Chapter VII deals with offences relating to the Army, Navy and the Air Force. Offences against the Public Tranquility are enumerated in Chapter VIII. The purpose of having these provisions is to protect the society against certain risks which may arise from the gathering of a large number of persons. However, an Chapter V A deals with conspiracy. Liability of each person for the criminal act committed by another are set our in section 113 B

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assembly of persons becomes the concern of the criminal law only when the objects of the assembly are incompatible with the maintenance of social order and peace. assembly. Section 138 of the Penal Code gives a definition of unlawful Penal Code recognizes three primary offence against the public

tranquility, namely unlawful assembly rioting and affray. Some other offences falling under this Chapter are as follows. Hiring or conniving at hiring of persons to join an unlawful assembly (section 147) assaulting or obstructing a public servant when suppressing a riot or affray, wantonly giving provocation with intent to cause riot, harbouring persons hired for an unlawful assembly etc. Chapter IX deals with offences committed by or relating to public servants section 158 to section 161 deal with offences which now comes under the ambit of the Bribery Act. The objectives of the offences in this chapter are : (a) Discouraging improper interference with the official work of public servants, (b) (c) making punishable fraudulent, dishonest or reckless acts of public servants while performing public duties personation of public servants by other persons.

Chapter IX A speaks of offence relating to elections. These offences are now governed by statutes dealing with Election Law. Hence these provisions are not applicable now. Offences relating to contempt of lawful authority of public servants are dealt with in Chapter X. These offences includes absconding to avoid being served with summons, notice or order proceeding from a public servant, preventing the service of such summons notice or order proceeding from such public servant, non attendance in obedience to an order from a public servant, omission to produce a document to a public servant by a person legally bound to produce such document or omission to give notice or information to a public servant by a

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person legally bound to do so, making false statement or oath to public servant or person authorized to obtain an oath furnishing false information, obstructing public servant in the discharge of his public functions. Offences against public justice is found in Chapter XI. Penal code recognizes the following categories of offences. Giving or fabricating of false evidence, improper suppression of evidence, improper use of judicial process, offences relating to the involvement of public officials in design to defeat the ends of justice, resistance or obstruction of lawful arrest or detention. The offences recognized by this chapter have as their object the imposition of liability for improper interference with the apprehension and punishment of those who have committed offences. Offences relating to Coins and Government Stamps are dealt with in Chapter XII of the Penal Code. The words Coin and Current Coin are defined in section 225 of the Code. Counterfeiting coin, counterfeiting coin and current coin, abeting in Sri Lanka the counterfeiting of coin out of Sri Lanka are included in the list of offences falling under this category of offences. Sections 248 to 256 A deal with offences relating to Government stamps. Offences relating to weights and measures namely fraudulent use of false weighing or measuring instruments, being in possession of false weights or measures, making or selling false weights or measures are enumerated in Chapter XIII. Offences affecting the public health, safety convenience, decency and morals are dealt with in Chapter XIV. Such offences as public nuisance rash or negligent conduct, offences relating to adulterations of food, drink or drugs or sale of noxious food, drink or drugs deliberately or negligently introducing a source of danger have been brought in under this chapter. In addition offences involving obscene books and songs, obscene publications, exhibitions relating to children, willful omissions of statutory duty, cruelty of children (308 A) are also included here. A separate chapter namely chapter XV has been provided for to include offences relating to

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religion. Injuring or defiling a place of worship with intent to insult the religion of any class, acts in relation to place of worship etc. with intent to insult the religion of any class, disturbing a religious assembly, lettering words etc. with deliberate intention of wounding the religious feelings, deliberate and malicious acts intended to outrage religion or religious beliefs, trespassing a burial places etc. are offences falling into that category. Chapter XVI deals with offences affecting the human body. This is an important chapter because it deals with some of the gravest crimes categorized in the Penal code. Certain offences are categorized as offences affecting life. What is culpable homicide amounting to murder and culpable homicide not amounting to murder have been interpreted in the section 293 and 294 of the Penal code. Offence of murder in terms of Section 296 entails a death sentence. Instances of reduction of murder to culpable homicide not amounting to murder are found in the four exceptions to Section 294. Causing death by negligence, abetment of suicide which is punishable with death, attempted murder, attempt to commit culpable homicide, attempt to commit suicide come within the category of offences affecting life. Offences relating to the causing of miscarriage, or injuries to unborn children, offences relating to exposure of infants and of the concealment of death also come within this chapter. Offences relating to different kinds of hurt eg: voluntarily causing hurt (definition in Section 312), voluntarily causing grievous hurt (definition in Section 313) are also fall within the category of offences referred to as the offences affecting human Body. A new section enumerating kinds of grievous hurt has been introduced in place of Section 311 of the Principal enactment by the Amendment Act No. 22:1995. Chapter XVI includes offences relating to wrongful restraint

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and wrongful confinement (section 330 to 339 fall into the categories of offences listed under this chapter) Offences of wrongful restraint and wrongful confinement are defined in section 330 and section 331 respectively. Section 340 to section 349 deals with criminal force and assault. What is Criminal force is defined in section 340 and section 341. What is assault is defined in the section 342. Penal Code (Amendment) Act No. 22 of 1995 repealed section 345 of the principal enactment and a new section 345 has been introduced, where the marginal note reads as sexual harassment. In fact the new offence, is wider in scope and imposes a heavier sentence. Offences relating to kidnapping abduction and slavery have been dealt with in the sections 350 to 362 D. Penal Code (Amendment) Act No 22 of 1995 replaces the heading which read as of kidnapping Abduction and Slavery with a new heading which reads as of kidnapping and Abduction. This is understood for the reason that slavery is not existing in Sri Lanka now. Penal Code (Amendment) Act No. 22 of 1995 replaces the section 360 A with a new section. The new section gives a new scope to the definition of the term : Procuration. A mandatory sentence has been introduced Two new sections have been introduced by the aforesaid Amendment Act. Carrying mandatory sentences. They are : B Sexual exploitation of Children 361 C Trafficking

The aforesaid Amendment Act repealed section 361 and section 362 of the principal enactment. 362 B of the principal enactment make bigamy an offence punishable under the Penal Code.

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Penal Code (Amendment) Act No. 22 of 1995 repeals the heading of Rape in the principal enactment and replaces it with a new heading which reads of Rape and Incest. These offence too fall within the category of offences listed under chapter XVI. Section 363 of the principal enactment which defined the offence Rape has been replaced with a new section with a new definition. An interesting feature in the amended section is that it introduces the concept of Marital rape ie. 363 (a) . without her consent even where such woman is his wife and she is judicially separated from the man. Under the new law evidence of resistance such as physical injuries to the body is not essential to prove that sexual intercourse took place without consent. Punitive section 364 of the principal enactment has been repealed and has been replaced with a new punitive section Mandatory sentencing has been brought in and the section has brought in the concept of gang rape as well. The heading of carnal intercourse with young girls has been repealed. Further section 364 A of the Principal enactment has been repealed and a new section Incest has been introduced. offence. The new section defines the offence incest and introduces a mandatory sentence. Attempt to commit incest too has been made a punishable Any way the Attorney Generals sanction is required to institute a prosecution under the section. The heading unnatural offences has been repealed and replaced with a new heading of unnatural offences and Grave Sexual Abuse. Section 365 of the principal enacted which defines the offence Unnatural offence has been amended. The amendment introduces a mandatory sentence. Section 365 A which refers to Acts of gross indecency between male persons has been repealed by the aforesaid Amendment Act and a new section with the offence reading Acts of gross indecency between persons has been substituted. A new section 365 B introducing a new offence Grave sexual abuse has been brought into the statute book. Immediately after the Section 365 B a new heading which

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reads as of publication of matters relating to certain offences and a new section bringing in a new offence publication of matter relating to certain offences has been introduced as section 365 C. Offences against property are grouped together under Chapter XVII. It includes offences of theft, receiving of stolen property, extortion, robbery, criminal mis -appropriator of property, criminal breach and trust, cheating, offences relating to fraudulent deeds and disposition of property, mischief and illegal removal of wrecks, criminal trespass. Theft is defined in section 366. Stolen Property is defined in section in 393. Extortion is defined in section 372. In all robbery there is either theft or extortion. Robbery is defined in section 379. Section 388 defines Criminal Breach of Trust. Section 398 defines cheating, Criminal Trespass is defined in Section 429. House breaking falls into the category of offences coming under Criminal Trespass. Section 430 defines house breaking. There are punitive section covering each of these categories referred to above. Offences relating to documents, Property marks, Currency Notes and Bank notes have been dealt with in Chapter XVIII. In this chapter penal code recognizes a variety of offences relating to documents namely forgery (definition in Section 452) making a false document, using as genuine a forged document, making or possessing a counterfeit seal, plate or other instrument, being in possession of a forged record, valuable security or will known to be forged, counterfeiting a device or mark used for authenticating documents or possessing counterfeit marked material, sending a false message by telegraph, fraudulent cancellation or destruction of a will, falsification of accounts, possession of any imitation of any currency note, bank note or coin.

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It is interesting to note that in respect of the public Property the legislation has introduced a separate statute namely : Offences against Public Property Act No. 12 of 1982 as amended by Amendments Act Nos. 76 of 1988, 28 of 1999. Penal Code (Amendment) Act No. 12 of 2002 has repealed chapter XIX (Defamation) of the Principal Enactment. It also repeals section 118 (Chapter VI) of the principal Enactment, which deals with attempt by contumacious, insulting or disparaging words or signs to bring the President into contempt. Chapter XX of the Code deals with offences of criminal intimidation insult and annoyance. Offence of criminal intimidation is defined in section 483. Chapter XXI provides the penal provisions for the offence of unlawful Oaths. Attempt to commit an offence punishable by the Penal Code is dealt within Chapter XXII.

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General Exceptions
The law relating to General exceptions are enumerated in Chapter IV of the Penal Code. Series of exceptions from Criminal liability found in this Chapter apply to the whole range of offences recognized by the law in Sri Lanka. They are relevant to all offences and not merely to offences constituted by the Penal Code. This chapter is one of the most important chapters in the Code because it controls the whole code. It consists of 31 sections (69 99) and deals with the facts which negative or reduce criminality. Referring to the relevant provisions in the Indian Penal Code which are the same as ours Dr. Sri Hari Suigh Gours Penal Law of India (11th edition) in Volume 1 at page 28 observes These sections are in a sense elaborations of the general principle no criminality without intention, but they are not quite obvious deductions from it. This chapter as a whole deals with two classes of exceptions, those in which the offence, though committed, is excusable, and those in which, though committed it is justifiable. Examples of the first are the sections dealings with accident, mistake, non-mentality due to either immaturity of derangement, benevolence, duress or triviality. Examples of the second category are these comprised in the right of private defence etc.. The effect of the general exceptions is stated in Section 5 in the following terms : Throughout this code every definition, of an offence, every penal provision and every illustration of every such definition or penal provision shall be understood subject to the exceptions contained in Chapter IV entitled General Exceptions; through these exceptions are not repeated in such definition, penal provision or illustration.

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Illustration (a) to section 5 elaborates the contents of the section. It reads thus The sections in this code which contain definition of offences do not express that a child under eight years of age cannot commit such offences; but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under eight years of age. Illustration (b) reads as follows : A, a police officer, without warrant, apprehends Z, who has committed

murder. Here A is not guilty of the offence of wrongful confinement, for he was bound by law to apprehend Z, and therefore, the case falls within the general exception which provides that nothing is an offence which is done by a person who is bound by law to do it. Mistake of fact Plea of mistake of fact is available to an accused whose action falls under the provisions found in Section 72 of the Penal Code. It reads thus : Nothing is an offence which is done by any person who is justified by law or by reason of a mistake of fact and not by reason of a mistake on law in good faith believes himself to be justified by law in doing it. It is pertinent to mention that a mistake of law is not an exculpatory factor Proof of good faith also should be established. The illustration given exemplifies the meaning of the section namely : A sees Z commits what appears to A to be a murder. A in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives

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to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence though it may turn out that Z was acting in self defence. Here the seizure A intentionally causes, is believed by him to be permitted by the law.

In

Gunasekera vs. Dias Bandaranaike 39 NLR 17 the

driver of an omnibus was charged with plying his bus on a route not approved by the licensing authority. It was established that the accused was unaware that the licensing authority had withdrawn his approval. Soertz J held that the accused plea falls within the scope of the exception from liability. In this regard please see :

Medaduka vs. Mutucaruppan 24 CLW 59 Abeysekera vs. Manik Naide 4 C W R 126 Attorney General vs. Rodriguez 19 NLR 65
General exception 69 exculpates an accused of an act which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. Here too mistake of law is not an exculpatory factor. Proof that the accused acted in good faith also must be established. contents of the Section. (a) A, a soldier, fires on a mob by the order of his superior officer in conformity with the commands of the law. A has committed no offence. (b) A, an officer of a court of Justice, being ordered by that court to arrest Y, and after due inquiry, believes Z to be Y arrests Z. A has committed no offence vide Tajudeen 6 NLR 16, Corea 55 NLR 417 There are two illustrations which exemplifies the

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The operation of mistake as an exculpatory ground is restricted by objective elements. Hence both sections 69 and 72 of the Penal Code good faith is an integral element of the doctrine of mistake. It is further provided in Section 51 of the Code that nothing is said to be done or believed in good faith which is done or believed without due care and attention. Therefore, a lapse on the part of the accused in this respect will preclude the application of the defence of mistake. Duress In Suane (1947) 1K.B. 997 a page 2005 speaking of the offence of duress Lord Goddard C J said Duress is a matter of defence where a prisoner is forced by fear of violence or imprisonment to do an act which in itself is criminal. If the act is a criminal act the prisoner may be able to show that he was forced into doing it by violence actual or threatened and to save himself from the consequences of that evidence. The aforesaid principle has been explicitly accepted and included in the acts falling within the ambit of General Exceptions. It is found in Section 87 of the Penal Code, namely, act to which a person is compelled by threats. It reads as follows : Except murder and offences against the state punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise be the consequence, provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanations 1 and 2 clarity the situation envisaged in the section.

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Explanation 2 reads thus :A person seized by a gang of housebreakers and forced by threat of instant death to do a thing which is an offence by law for example a Smith compelled to take his tool and force the door of a house for the house breakers to enter and plunder it is entitled to the benefit of this exception. According to the section duress must have operated at the time of commission of the offence. The time at which the effect of duress on the accused is mind has to be assessed is the time when the offence was committed. Further our law requires that the fear entertained should be reasonable. The threats envisaged in this section as the basis of the apprehension entertained by the accused are unlawful threats. Cases in which a defence analogues to that of superior orders may be invoked fall outside the purview of this section. They are cases where the accused is either bound or mistakenly believes himself to be bound by law to commit the act in question section 69 of the Penal Code provides for such exception. Necessity Necessity as a defence where circumstances are present arise from the general exception envisaged in section 74 of the Penal Code. It is to the following effect. Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm if it be done without any Criminal intention to cause harm and in good faith for the purpose of preventing or avoiding harm and good faith for the purpose of preventing or avoiding other harm to person or property.

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The section speaks of the presence of certain elements : They are as follows 1) The accused must have been compelled by the exigency of the situation in which he finds himself to make a choice between two alternative courses of action. 2) Absence of any Criminal intention on his part, 3) Absence of any fault or negligence on his part, 4) Acts in good faith for the purpose of preventing or avoiding other harm to person or property. Two illustrations given in the section exemplify these circumstances. They are as follows : (a) A, the captain of a steam ship, suddenly and without any fault or negligence on his part finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that by changing his course, he must incur risk of running down a boat, C, with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C, and in good faith for the purpose avoiding the danger to the passengers in boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C.

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(b)

A, in a great fire pulls down houses in order to prevent the conflagration from spreading. He does this with the intention, in good faith, of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse As act, A is not guilty of an offence.

Plea of Accident in doing a lawful Act : General Exception 73 refers to a situation where plea of accident is taken as a defence. It reads as follows : Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner, by lawful means and with proper care and caution. Illusion exemplifies the contents of the section. A is at work with a hatchet, the head flies off and kills a man who is standing by. Here if there is no want of proper caution on the part of A, his defence will fail. Hence imputability of negligence would seem inconsistent with the acceptance of the defence of accident.

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Section 77 Penal Code


Acts of a Person of Unsound Mind. A ground of exemption from criminal liability. Point of time at which unsoundness must exist at the time of commission of the crime. Effect Incapable of knowing (a) The nature of the act, i.e., physical act or (b) that he is doing what is wrong or (c) that he is doing what is contrary to law. This section lays down the legal test of responsibility in cases of alleged unsoundness of mind. This section is interpreted as governing only those cases, where the cognitive faculties of the accused are completely impaired. For the application of the section following matters have to be established :1. 2. The accused was of unsound mind, he was of unsound mind at the time of committing the act and not merely before of after the act. Time of doing the act is the

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crucial point of time

Kesheorao vs. State of

Maharashtra 1979 Cr.L.J. 403 (406)


3. As a result of unsoundness he was incapable of knowing the nature of the act, or, he was doing what was either wrong or contrary to law. Presumption every person is presumed to be sane and to be accountable for his action until the contrary is proved.

Ogami Cr.L.J.305

vs.

State

of

M.P.

1974

To attract the section issue is whether the accused was suffering from such incapacity at that point of time. On this question the state of his mind before and after the crucial time would be relevant. On the other hand the fact that the accused was in sound state of mind on a medical examination held about a month after the act or at the time of trial does not mean that he must have been of sound mind at the time of doing the act. Vide Re P. Suriyanarayana (1965) 1 Cr.L.J.138 (141) Whose Burden ? Burden is on the accused to establish that he was of unsound mind and his cognitive faculties were so impaired that he did not know the nature of the act done by him or what he was doing was either wrong or contrary to law. It is a question of fact to be decided on merits of each case on facts. The pattern of the crime, the circumstances under which it was committed, manner and method of its execution, behaviour before and after the act are clues to ascertain whether

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the accused had no cognitive faculty. Court must come to a definite conclusion that his cognitive faculty of the mind was lost at the time of the act. Burden of Proof : Supreme Court of India has held that the Burden of Proof is not soonerous as that upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher that that resting upon a plaintiff in Civil proceedings

Tarzeem vs. State 1978 J & K 53

(55).
Accused may rely upon prosecution evidence which may show that he was not same. It is usual but not essential to call the medical expert.

Satvani Singh vs. State of Panjab 1975 Cr.J.L.1605 (Punj)


The opinion of a medical expert on the Accuseds state of mind at the crucial time is merely relevant as being helpful. It cannot supercede the Judge.

State

vs. Koli Jeram 1955 Cr. L.J.1628 (1633).


But Judge should be slow to brush aside the reports of medical men lightly. Other Exceptions There is a series of other general exceptions contained in the Penal Code section 70 refers to an act of a Judge when acting judicially and section 71 deals with an act done pursuant to the judgment or order of a Court of Justice. Section 75 exonerates an act of a child under eight years of age while section 76

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exempts of criminal liability an act of a child above eight and under twelve years of age, who has not sufficient maturity of understanding. Section 78 and 79 deals with cases of intoxication the former deals with involuntary intoxication. Section 80 refers to an act not intended and not known to be likely to cause death or grievous hurt done with consent. Illustration to the section exemplifies the contents of the section. An act not intended to cause death done with consent in good faith for the benefit of a person is exempted from liability in terms of section 81 of the code. Illustration reads as follows : A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Zs death, and intending, in good faith, Zs benefit performs that operation on Z with Zs consent. A has committed no offense. Section 82 deals with an act done in good faith for the benefit of a child or person of unsound mind by consent of the guardian. Consent may be expressed or implied. In this section illustration reads thus :A, in good faith for his childs benefit without his childs consent has his child cut for the stone by a surgeon knowing it to be likely that the operation will cause the childs death, but not intending to cause the childs death. A is within the exception inasmuch as his object was the cure of the child. Consent known to be given under fear or misconception and consent of a child or person of unsound mind in terms of section 83 will not be considered as a consent. Section 84 specifically states that the exceptions in section 80, 81 and 82 do not extend to acts which are offences independently of any harm which they may

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cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. Section 85 refers to acts done in good faith even without the persons consent if the circumstances are such that it is impossible for that person to signify consent or if that person is incapable of giving consent for the benefit of that person. In terms of section 86 no communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person. Triviality of an offence is an exculpatory factor from criminal liability in terms of section 88 of the code. The Right of Private Defence The right of private defence of body and of property is contained in Chapter IV of the Penal Code titled General Exceptions. Section 90 of the Penal Code lays down ; Every person has a right, subject to the restrictions contained in Section 92, to defend Firstly His own body, and the body of any other person, against any offence affecting the human body. Secondly The property, whether movable or immovable of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief, or which is an attempt to commit theft, robbery, mischief or criminal trespass. When the right of private defence of the body extends to causing death is laid down in section 93 which is to the following effect.

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The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely Firstly Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault : Secondly Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault : Thirdly An assault with the intention of committing rape : Fourthly An assault with the intention of gratifying unnatural lust ; Fifthly An assault with the intention of kidnapping or abducting ; Sixthly An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. When such rights extend to causing any harm other than death is dealt with in section 94 of the Penal Code. It is to the following effect ; If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 92, to the voluntary causing to the assailant of any harm other than death. Commencement and the continuance of the right of private defence of the body are dealt with in section 95 and it is to the following effect ;

30

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arise from an attempt or threat to commit the offence, though the offence may not have been committed ; and it continues as long as such apprehension of danger to the body continues. When the right of private defence of property extends to causing death is dealt with in section 96 of the Penal Code and when such right extends to causing any harm other than death is dealt with in section 97 ; Section 96 The right of private defence of property extends, under the restrictions mentioned in section 92, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the rights, be an offence of any of the descriptions hereinafter enumerated, namely Firstly Robbery ; Secondly House-breaking by night ; Thirdly Mischief by fire, or explosives committed on any building, tent, or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property ; Fourthly Theft, mischief, or house-trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised. Section 97 - If the offence the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death,

31

but does extend, subject to the restrictions mentioned in section 92, to the voluntary causing to the wrongdoer of any harm other than death. The right of private defence of property commences when a reasonable apprehension of danger to the property commences Vide section 98 of the Penal Code. The right of private defence of property against criminal trespass of mischief continues as long as the offender continues in the commission of criminal trespass or mischief Vide section 98 of the Penal Code. Excess of the right of private defence In this regard please see Exceptions to 2 section 294 of the Penal Code. The relevant provisions of law relating to the exercise of the right of private defence lead to the following positions. 1) Where the accused acts in the exercise of private defence within his legitimate right, any harm caused to the aggressor including infliction of his death would absolve the accused of any criminal liability. It is a complete exculpatory plea. 2) Where the right of private defence could properly have been availed of but the accused in killing the deceased exceeds the right in good faith without premeditation and without the intention of doing more harm than is required he would be liable to the lesser offence of Culpable Homicide not amounting to murder. In this regard please see Muttu

47 NLR 516

32

Unlawful Assembly
An Assembly of people becomes the concern of the criminal law only when the object of the assembly are incompatible with the maintenance of social order and peace. Section 138 of the Penal Code defines an unlawful assembly. Three basic requirements are necessary to constitute the offence of unlawful assembly. Unlawful assembly itself is a substantive offence. The basic requirements are : 1. The assembly should consist of five or more persons. 2. The existence of a common object among the members of the assembly. 3. Nature of the common object. It must fall within the six cases referred to in the section ; i) ii) iii) iv) To overawe the Government or Parliament or a Public Servant by criminal force or show of criminal force To resist the execution of any law or of any legal process To commit any mischief, or criminal trespass or other offence By criminal force or show of criminal force to any person to take or obtain possession of any property, or to deprive any person or the public of the enjoyment of a right of way or other incorporeal right. v) By means of criminal force or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. vi) That the person assembled or any of them may train or drill themselves or be trained or drilled to the use of arms, or practicing military movements or evolutions without the consent of the President of the Republic.

33

Section further provided that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. It is not essential that all the offenders should be connected or named in the charge or indictment so long as there is reliable evidence that the total membership of the assembly constituted five or more persons. Following principles have been laid down in Dias (1935) 17 C.L. Rec 16. 1) Although there must be at least five persons inspired by a common

object, it is not necessary that they should all be brought to trial, for some of them may abscond, but this has no bearing on the remaining accuseds liability. 2) If there is evidence to establish that five or more persons

assembled for the objects specified an indictment can be presented against any one of them on the basis that he was a member of an unlawful assembly. See Jayaram

vs. Saraph 56 NLR 22

Penal Code creates several further offences based on membership of an unlawful assembly.

34

Concept of common intention


Our law relating to the concept of common intention is embodied in section 32 of the Penal Code. It reads thus : When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. It must be borne in mind that this section merely lays down a principle of law but does not create a substantive of fence. It envisages a sharing of similar intention entertained by the accused persons. It simply means if two or more persons intentionally commit a criminal act jointly it is just the same as if each of them had done it individually. See

Narayam Singh Avur Sigh vs.

Emperor 42 Cr.L.J. 660


This section is intended to meet a case in which it may be difficult to distinguish between the acts of individual member of a party who act in furtherance of the common intention of all or to prove exactly as to what part was played by each of them. The prerequisites for the application of this rule of evidence are firstly, the existence of a common intention to commit the offence. Secondly, participation, however minimal by each accused to the actus reus. It is not sufficient for the application of the principle that each accused person separately entertained the

35

same criminal intention. But it should be established that the series of separate intentions should have been united in a shared intention common to them all. A common intention is meeting of minds. It must be followed by participation in action. The crucial test to be applied is couched in the phrase in furtherance of the common intention of all. The prosecution will have to establish through evidence the following matters : (i) (ii) (iii) A criminal act was done by two or more persons. All of them intended that the criminal act should be done. The criminal act was done in furtherance of the common intention.

Please see

Omprakesh vs. State (1956) All 242

(244)
Professor G.L. Peiris in his book General Principles of Criminal Liability in Ceylon observed : There is no doubt that it is his own act and his own state of mind which renders each accused person criminally liable under section 32. The only special feature of this provision is that the causative potency of the act or acts committed by each accused person in relation to the harm caused by them collectively, becomes an irrelevant consideration so long as some form of physical participation by each of them is established.

36

Abetment
In our Penal Law concept of Abetment is embodied in section 100 of the Penal Code. Abetment in our law is classified into three forms : (i) (ii) (iii) Instigation Conspiracy International aid

Instigation (Read Explanation I) Kenuman J in

Rooyer vs. Obeysekera (1938) 3 C.L.J.XIX

interpreted word instigate in the following terms to urge forward or to provoke, incite, urge or encourage to do an act by using an evil act. Conspiracy In

Cooray 51 NLR 433 Court of Criminal Appeal stated

that in order to establish the offence of Abetment of Conspiracy an agreement is an essential prerequisite. See Toussaint

Vs. Dharmadasa 48 NLR 445

A conviction of abetment by conspiracy in the absence of clear evidence of agreement would not be allowed to stand.

Podisingho 53 NLR 49.


Commission of the Offence of Conspiracy does not require that abettor should concert the offence with the person who commits it. Ex 5 to section 101 vide

(1) Kadirgarman 41 NLR 534 (2) Kapurala 2 NLR 330

37

Courts of Sri Lanka have consistently acted on the principle that an accused person cannot properly be convicted of the abetment of an offence different from the one with which he was charged.

De Silva vs. Vaas 38 NLR 158


In our law abetment of any offence punishable by the Penal Code or any other law, is itself a distinct offence Vide section 140 of the Penal Code. Whether the accused participated in the crime by instigating, by being a party to a conspiracy or by assisting intentionally the commission of a crime, he would be guilty of that same offence. Our Penal Code contains several sections which recognize liability for abetment of a particular offence. Section 101 of the Penal Code defines who an abettor is : (1) (2) Person who abets the commission of an offence. Person who abets a doing of an act, which would be an offence if committed by a person capable by law of committing an offence with the same intention/knowledge as that of the abettor. A positive act is not an indispensable requirement. Vide illustrations to section 101. According to Ex I an abettor of an illegal omission may be criminally liable not withstanding that a legal duty to act did not devolve on him. Person abetted may be exempt from liability because he is protected by a general or special exception. Eg. Child under 12 years. Exculpation of the person abetted will have no bearing on the criminal liability of abettor. He acts through the instrumentality of an innocent agent. See illustrations to Explanation 3 to section 101.

38

Criminal Jurisdiction of the Magistrates Court and the High Court


Criminal Jurisdiction is conferred on the Magistrates Court by virtue of section 30 of the Judicature Act and Sections 9, 10 and 11 of the Code of Criminal Procedure Act. Section 30 of the Judicature Act reads as follows : Every Magistrates Court shall have and exercise all powers and authorities and perform all duties which Magistrates Courts are empowered and required to have, exercise and perform by virtue of the provisions of the Penal Code or of the law relating to Criminal Procedure or of any other enactments for the time being in force in any way empowering or requiring them in that behalf. This section brings into operation the powers conferred on the Magistrates Court to determine and dispose of matters and offences referred to in the Penal Code, Code of Criminal Procedure Act or any other enactment. Section 9 (a) refers to the Criminal Summary Jurisdiction. Eighth column of the First schedule of the Code of Criminal Procedure Act specifies the offences which are triable by a Magistrates Court. Vide section 10(b) of the Code of Criminal Procedure Act. Section 11 (a) (ii) of the Code of Criminal Procedure Act empowers the Magistrates Court to try offences under any law other than the Penal Code where the Court mentioned is the Magistrates Court or in relation to an offence punishable with imprisonment for a term not exceeding two years or with a fine not exceeding one thousand five hundred rupees.

39

Section 11 (b) (ii) enables a Magistrates Court to try any offence under any law other than the Penal Code where a Court is not mentioned and where the offence is punishable with imprisonment not exceeding two years or with a fine not exceeding one thousand five hundred rupees. Section 9 (b) (ii) gives power to issue search warrants and require persons to furnish security for the peace or for other good behaviour according to law. Section 9 (b) (iii) confers power to hold inquests of death. CRIMINAL JURISDICTION OF THE HIGH COURT Article 111 (1) and 154 P of the Constitution, sections 9 of the Judicature Act, sections 11,12 of the Code of Criminal Procedure Act No. 15 of 1979 deal with Jurisdiction of the High Court. Article 111(1) of the Constitution reads as follows : The Highest Court of First Instance exercising criminal jurisdiction and created by law shall be called and known as The High Court of the Republic of Sri Lanka and shall exercise such jurisdiction and powers as Parliament by law vest or ordain. The High Court of the Provinces established by Article 154 P of the Constitution is an institution administering justice which is quite district from the High Court of Sri Lanka established by Article 111 of the Constitution. Article 154 P (Thirteenth Amendment to the Constitution) created a High Court for each Province with conferring jurisdiction referred to therein. It created a High Court for each Province and each such High Court has been designated as the High Court of the relevant Province. jurisdictions to the following effect :(3) Every such High Court shall Article 154 P confers the following

40

(a)

exercise according to law the original criminal jurisdiction of the High Court of Sri Lanka in respect of offences committed with the Province,

(b)

not withstanding anything in Article 138 and subject to any law, exercise, appellate and revisionary jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrates Court within the Province,

(c)

exercise such other jurisdiction and powers as Parliament may, by law provide,

It may be noted that apart from the jurisdictions referred to above Article 154 (P) confers jurisdiction to issue, according to law (a) (b) Orders in the nature of habeas corpus, in respect of persons illegally detained within the Province, and Orders in the nature of Writs of Certiorari prohibition, procedendo, mandamus and quo warranto against any person exercising, within the Province, any powers under (i) (ii) any law or any statute made by the Provincial Council established for the Province/in respect of any matter set out in Provincial Council list. Section 9 of the Judicature Act confers Criminal Jurisdiction on the High Court to hear, try and determine all prosecutions on indictment instituted therein; namely, (a) (b) (c) any offence wholly or partly committed in Sri Lanka, any offence committed by any person on or over the territorial waters of Sri Lanka, any offence committed by any person in the air space of Sri Lanka,

41

(d) (e)

any offence committed by any person on the high seas where such offence is piracy by law of nations, any offence wherever committed by any person on board or in relation to any ship or any aircraft of whatever category registered in Sri Lanka or

(f)

any offence wherever committed by any person who is a Citizen of Sri Lanka, in any place outside the territory of Sri Lanka or on board or in relation any ship or aircraft of whatever category.

In terms of Section 12 of the Code of Criminal Procedure Act No. 15 of 1979 High Court shall not take cognizance of any offence unless the accused person has been indicted before it for trial by or at the instance of the Attorney General. In terms of section 10 of the aforesaid Act the High Court has criminal jurisdiction to try any offence under the Penal Code subject to the other provisions of the Code. It also has power to try any offence under any law other than the Penal Code where the Court mentioned in that behalf in the law is the High Court.

42

Relevancy of statements of witnesses


When there is an offence committed and information to that effect, procedure laid down in Chapter XI of the Code of Criminal Procedure Act No. 17 of 1979 comes into operation. It sets out how the investigations are to be carried out subject to judicial control and supervision. The purpose is to achieve a balance between public interest demand relating to the discovery and punishment of the offender on one hand and the demand for a fair trail by the accused which is his fundamental right under the Constitution on the other. First Information : This refers to the first information the Police have received relating to the Commission of the offence with which the accused is charged. Such information may be given orally or in writing. If given orally it will be reduced to writing by the Police Officer and read over to the informant. The latter will thereafter place his signature. The book where such information is recorded is referred to as the Information Book. Vide section 109 of the Act. The Accused is entitled to a certified copy of the first information relating to the commission of the offence with which he is charged. His Attorney-at-Law can apply for it. These provisions are found in section 444 of the Act. He is also entitled to any statement made by the person against whom or in respect of whom the accused is alleged to have committed the offence. In

Wijepala
Fernando J

vs. The Attorney General (2001) 1 Sri LR 46

expressed the view that at the trial the fact the first information had neither been disclosed nor furnished to the accused and to the Court is a serious irregularity. It meant an impairment of the right of the Accused to a fair trial which was his fundamental right under Article 13(3) of the Constitution.

43

Justice Fernando further stated : The failure to disclose to an accused the existence and contents of the first information which might have cast severe doubt on the informants credibility may well result in a miscarriage of justice.

In the case of to it.

A.G. vs. Geetin Singho 57 NLR 289

view was

expressed that the first information is a public document and accused has access

Hearsay evidence will not be allowed to come in the guise of a first statement.

The King v. Seneviratne (1936) 6 C.L.W. 51.


Admissibility in Evidence : Production of a certified copy of a statement referred to in the Section 444(1) of the Act is prima facie evidence that such information was given or such statement was made. It is not necessary to call the Police Officer who recorded it. Statements referred to in section 444 of the Act becomes relevant in terms of section 157 of the Evidence Ordinance for the purpose of corroboration. It would establish that the witness in Court had spoken to the same fact at or about the time when the fact took place. This will satisfy the Test of spontaneity or contemporaneity.

In this regard Weerasuriya, S.P.J. in at 506 following Lord Heward in

Queen vs. Julies 65 NLR 505

Rex vs. Whitehead (1929) 1 KB

99 expressed the view that such statements are not Corroboration in the true

44

sense of the term Corroboration must be extraneous to the witness who is to be corroborated. See

Keerthi Bandara vs. Attorney General (2000) 2 Sri


at 262 The informant must be called as a witness unless it was

L.R. 245
declaration. Vide King In

tendered in terms of section 32 of the Evidence Ordinance as a dying

vs. Kathiragesu 47 NLR 234 50 NLR 256


it was held that a first

King vs. Atukorale

complaint by the prosecutrix to the Police implicating the accused cannot be considered as corroboration because it lacks the essential quality of coming from an independent source. But such statement may be used to satisfy the test of spontaneity and contemporaneity and also to satisfy the test of consistency per se. Statements recorded under section 110 of the Act After recording the first information, the Police would commence their investigations in the course of which statements of the persons who are acquainted with the facts and circumstances of the case are recorded. No oath or affirmation shall be administered to them. Thereafter the statement will be read over to the person who is making the statement after which, he will place his signature. The officer who recorded the statement will then certify to the accuracy of the statement recorded by him. These statements cannot be used for the purpose of corroborating the witness in Court. But the defence is entitled to use this to contradict a prosecution witness vide section 155 (c ) of the Evidence Ordinance.

45

ACCUSEDS STATEMENT Statements made by an Accused whether made under section 109 or section110 will not be permitted to prove against him in terms of section 25 of the Evidence Ordinance if it amounts to a confession. Such statements cant be used to contradict an accused if he elects to give evidence.

King v. Kiriwasthu 40 NLR 289 Seyadu v. King 53 NLR 253


Section 27 of the Evidence Ordinance : It is an exception to the Rule laid down in section 25 of the Evidence Ordinance. It states so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. Actual words used by the accused which led to the discovery must be disclosed.

Queen vs. Albert 6 NLR 543


Rationale : Truth of the statement is guaranteed by the discovery of the fact. Effect : That the Accused had the knowledge of the whereabouts of the fact discovered. Vide

Chuin Pong Shiek vs. The Attorney General

(1999) 2 SR L.R. P. 280 at 285.

46

In this case consequent to a section 27 statement the fact discovered was a bag. It was not just the bag without contents but six screws were discovered inside a jacket in the bag. (removed from the window grill) It is highly incriminating circumstance which cast an evidential burden on the accused to explain away how he acquired the knowledge. Vide Ellenborough Principle

Rex vs. Cockraine


Gurneys Rep. P. 479

47

Use of the information book


Informations relating to crimes are entered in the Information Book. Section 110(4) of the Code of Criminal Procedure Act No. 15 of 1979, specifies that such statements/ information may be used to aid it at the Inquiry or Trial. Such material cannot be used a evidence.

In

King vs. Cooray 28 NLR 74 Garvin A.C.J. at page 83 quoted from Empress Vs. Manu

an Indian case Queen

A Court is entitled to use the I.B. to assist it in elucidating points which appear to require clearing up and are material for the purpose of doing justice. Eg : (i) Would disclose a witness whom neither side has called but

whose evidence would be material Provision to call such witness is in section 439 of the Act. (ii) Finds a witness giving evidence speaks of a story materially different to what he has told the Investigating officer. In

Bartholomeuz Vs. Velu 33 NLR 161 where the Magistrate Paulis Vs. Davith K.V.

after all the evidence was led sent for the IB. In appeal it was held that such procedure was irregular and quashed the conviction. In

32 NLR 335

after evidence was concluded reserved judgment stating that

he wished to peruse the IB. In appeal the conviction was set aside. See

Soysa 26 NLR 324 66 NLR 1

In

Queen vs. Raymond Fernando

It was laid down that an omission to mention in a Police Statement a relevant fact narrated by the witnesses in evidence subsequently, does not fall within the

48

ambit of the expression former statement in section 155 of the Evidence Ordinance.

In

Muttu Banda vs. The Queen 73 NLR

8 at p. 11 Alles J.

giving his attention to the question whether in the interest of Justice the Court is entitled through its use of the IB to bring such vital omissions to the notice of the Jury observed. If a Police Officer who records the statement of a witness in the course of a police investigation was asked whether there was any mention in the statement of the material fact and he answers in the negative after refreshing his memory from the written record, we see no reason why the oral evidence so elicited should not be admissible without the necessity of the record being proved and marked. Liberal Approach in Recent Times :

F.N.D. Jayasuriya, J. in

Keerthi Bandara vs. Attorney General


if wholly

(2002) 2 Sri L.R. 244 at 256, 257 dissented and disagreed with
such procedure and held that such procedure advocated by Alles J 257. In that case the Court of Appeal laid down that it is for the judge to peruse the IB in the exercise of his overall control of the IB and use it to aid Court. When the defence contends that there is a vital omission the Judge ought personally peruse the IB, interpret the contents in the statement in his mind and determine whether there is a vital omission or not, same principle could be applied to the contradictions as well. Such an approach is necessary because an accused person is entitled to anything and everything necessary for a fair trial. irregular and illegal because it is repugnant to the Best Evidence Rule Vide

49

Vide Fernando J in

Wijepala vs. The Attorney-General

(2001) 1 Sri L.R. 46 at page 49.

Provisions relating to arresting a person


In this regard, section 23 of the Code of Criminal Procedure Act will have to be read with Article 13 of the Constitution. Article 13(1) No person shall be arrested except according to procedure established by law. arrest. Under section 23 of the Act it is mandatory to inform the person to be arrested the nature of the charge or the allegation upon which he is arrested. How the arrest to be done is specified in 23 (i) of the Act. (i) (ii) (iii) By touching his body. Confine the body of the person to be arrested. There is a submission to the custody by word/action. Any person arrested shall be informed of the reason for his

Explanation when deemed to be an Arrest. Keeping a person in confinement or restraint without formally arresting him or under the colourable pretention that no arrest has been made when to all intents and purposes such person is in custody.

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Offences where the Police may arrest the offender without a warrant are referred to as cognizable offences. Offences where the Police may not arrest without a warrant are called non-cognizable offences. Section 32 of the Code of Criminal Procedure Act specifies when a peace officer can arrest without a warrant. e.g. (i) In his presence commits any breach of the peace. (ii) a. A person concerned in any cognizable offence. b. There is reasonable complaint or credible information. c. There is reasonable suspicion. (iii) (iv) (iv) Being in possession of implements of house breaking A person proclaimed as an offender. A person who obstructs a Police Officer etc. Section 33 deals with powers to arrest a person concerned in committing a non-cognizable offence. Section 35 refers to arrest by private persons ;

Production of a suspect arrested without a warrant Constitution Article 13 (2) reads :Every person held in custody detained or otherwise shall be brought before the Judge of the nearest competent Court according to procedure established by law. Sections 36 & 37 of the Act specify that a Police Officer making such arrest without unnecessary delay produce him before a Magistrate having

51

jurisdiction in the case. Such person cannot be detained in custody for a period exceeding 24 hours. This period will exclude the time necessary for the journey from the place of arrest to the Magistrate.

Exception to the Rule. In terms of section 43 A of the Act as amended by Amendment Act No. 28 of 1998 provisions of section 36 and 37 will not apply to persons suspected or accused of child abuse. What are specified as child abuse offences are referred to in section 2 of the same amendments. Under the provisions of section 43 A such suspect once arrested must be produced before the Magistrate having jurisdiction within 24 hours of arrest. Then upon a certificate by a police officer not below the rank of a Superintendent of Police stating that it is necessary to detain the suspect in custody for the purpose of investigation the Magistrate may make an order permitting the suspect to be detained for a period not exceeding 3 days. Arrest under a Warrant of arrest issued by Court Application to the Magistrate for the issuance of a Warrant of Arrest would arise under two different stages. Firstly, at the stage when proceedings are instituted in terms of 136 (1) (a) (b) (c) when the accused is absent and in terms of the First Schedule Fourth column, Court has power to issue a Warrant in the first instance. Vide section 139 of the Act. summons. Nevertheless Magistrate may in his discretion issue

52

Secondly, at the investigation stage in terms of section 124 of the Act. In the issuance of a Warrant when proceedings are instituted under section 136 (1)(a) , (b) or (c) of the Act it is mandatory for the Magistrate to examine on oath the complainant or some material witness. If institution is under section 136 (1) (c), the Magistrate must give a brief statement of the facts which constitute his means of knowledge as grounds of his suspicion. Issuance of a Warrant while investigations are proceeding in terms of s. 124 of the Act. Purpose (1) To obtain the appearance of a person in Court.

(2) To compel a suspect to attend Court for Identification Parade etc. (3) Compel attendance for finger printing etc. under section 123 of the Act. If the Magistrate decides to issue a Warrant in order to assist the conduct of an investigation should act in terms of the provisions of Chapter V of the Act. Section 50 provides that every warrant issued must be in the prescribed form. In the case of

Mahaname Tilakeratne vs. Bandula Wickremasinghe (1999) 1 Sri L.R. 372 at 380
Dheeratne J. observed thus :

Issuing a Warrant is a judicial act involving the liberty of an individual and no Warrant of Arrest should be lightly issued by a Magistrate simply because a prosecutor or an investigator thinks it is necessary. It must be issued as the

53

law requires, when the Magistrate is satisfied that he should do so on the evidence taken before him on oath. It must not be issued by a Magistrate to satisfy the sardonic pleasures of opinionated investigator or a prosecutor. Recording of evidence is a sine quo non, before issuing a Warrant of Arrest of a suspect, unless that Warrant is issued for the failure to obey summons. Vide Sampayo Js judgment in

Willis vs. Sholay Kangani 18

NLR 443
Read page 380 of the Judgment

Mahanama

Tilakaratna

vs.

Bandula

Wickremasinghe and others.


Duty of the Magistrate in Issuing a Warrant. Under section 51 issuing a Warrant if it is a bailable offence must make an endorsement regarding bail. May do so in a non-bailable offence too. Endorsement : (a) (b) (c) Number of Sureties. Amount. The day the suspect should attend Court.

Section 52 states that If warrant is directed to be executed by a Police Officer by name he should execute it unless endorsed by name Read page 389 in

Mahanama

Tilakaratne v. Bandula Wickremasinghe.

54

Section 56 requires that If Warrant is to be executed outside jurisdiction forward it to the Magistrate in whose jurisdiction the arrest is to be made. That Magistrate will endorse his name and take steps to execute it. Once the Accused produced if bailable grant bail, If not bailable, direct his removal to the Court which issued it. Under 56 (3) If publicity or delay in obtaining the endorsement of the

Magistrate within whose jurisdiction arrest is to be made, may direct it to be executed by a Police Officer specified by him, unless the Court which issued the Warrant is within 20 miles of the place of arrest or nearer than the Magistrate Court within whose jurisdiction the arrest is made must produce the suspect before last mentioned Court. Such Court if the offence is bailable and Accused is ready to furnish bail grant bail, if non-bailable direct his removal in custody to the Court which issued the Warrant. Effect of Article 11 of the Constitution. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. If the Magistrate observe any injuries, or peculiar behaviour must question the accused and (i) (ii) make a note of it. Magistrate must be satisfied re identity. Must see the person he is remanding before making a remand order.

55

Production of suspects before the Magistrate


Upon the receipt of an intimation that an offence has been committed the Police would commence their investigations in terms of Chapter XI of the Code of Criminal Procedure Act No. 15 of 1979. In the course of these investigations if the following situations arise provisions of Section 115 of the Act as amended by Act No. 52 of 1980 would come into operation, namely. (i) (ii) the investigation cannot be concluded within 24 hours. There are grounds for believing that further investigation is necessary.

Steps to be taken by the Police/Inquirer (i) (ii) (iii) forthwith produce the suspect before the Magistrate having jurisdiction in the case. Transmit a report of the case, with A summary of statements made by witnesses.

If the Magistrate is satisfied that it is expedient to detain the suspect pending further investigations he may remand him. Total period of remand provided for is fifteen days and no more. No distinction is made whether the suspect is suspected of committing a bailable offence or non-bailable offence. Vide

The

Attorney General vs. Sepala Ekanayake and another M.C. Fort 48631
C.A. Application No. 929/92 Minutes of 13.08.1982. In making a remand order the Magistrate has to give reasons. If proceedings are not instituted before the expiry of that period Magistrate may

56

either discharge the suspect or bail him out on a bond to appear if and when required. Prior to the introduction of the Bail Act the power given to the Magistrate to discharge or bail out a suspect under 115 (2) was subject to section 115 (3) of the Act. Now in terms of section 13 of the Bail Act the Magistrate has no power to release a suspect of being concerned in committing or having committed an offence punishable with death or life imprisonment. For the purpose of further investigation, when an application is made on that ground, the Magistrate may permit the Police (OIC or officer named by him) to have access to such suspect and may give permission to take the suspect accompanied by a Prison Officer from place to place (other than to a Police Station) if such a step is necessary for the purpose of the investigation. Production of a suspect under the provisions of Section 116 of the Code of Criminal Procedure Act. This section caters to a different situation. It refers to two different stages. (i) The information is well founded and the investigation is complete. The Police should then file a plaint or a written report alleging that the suspect had committed or been concerned in the committing of an offence, which would amount to an institution of proceedings under section 136 (1) (b) of the Act. Then the question of bail would arise and the provisions of the Bail Act will apply.

57

(ii)

In this instance if the Magistrate decides to remand the suspect in terms of section 120 he can do so only for a period of 15 days at t a time. At the end of 15 days a report of the facts and the progress of the investigation have to be placed before the Magistrate. It is an imperative requirement that the suspect be produced in Court because the Judge must see the person he is remanding and be satisfied with the identity of the suspect. If the person to be remanded is warded in the hospital, having satisfied of this must apart from the remand order make a further order that a Fiscals guard should be provided at the hospital. At every stage, question of bail should be considered.

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Identification Parade
In a Criminal Case if the witness did not know the accused earlier an identification parade is almost a sine qua non. If this was not carried out identification in Court becomes a first time identification in Court or dock identification. Such identification is undesirable and unsafe. The Magistrate derives the power to hold an identification parade from section 124 of the Code of Criminal Procedure Act. It is to the following effect. Section 124 Every Magistrate to whom application is made on that behalf shall assist the conduct of an investigation by making and issuing appropriate orders and processes of Court and may, in particular hold, or authorize the holding of, an identification parade for the purpose of ascertaining the identity of the offender and may for such purposes require a suspect or other person to participate in such parade, allow a witness to make his identification from a concealed position and make or cause to be made a record of such parade.

In

Queen vs. Julis

65 NLR 505

at p.525 Weerasuriya S.P.J.

observed that identification of an accused at an identification parade by a witness who is subsequently called as a witness and gives evidence implicating the accused would be relevant under section 9 of the Evidence Ordinance as a fact establishing the identity of the person whose identity is relevant.

S.N. Silva, J. (as he was then) in the case of

Attorney-General vs.

Weerahennedige Joseph Aloysius (1992) 2 Sri L.R. 264 states the purpose of holding an identification parade in the following terms
:-

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An identification parade is held for the purpose of ascertaining whether any suspect arrested by the Police in the course of an investigation, is the person seen by the witness as doing a particular act or being present, at or about the time the offence was committed. It is a step in the process of investigation and does not form part of the trial. Please see C.M.

Perera vs. The state 77 NLR 224 R. vs. Daryer

It is pertinent to state an observation of Lord Hewart C.J. in

& Furguson (1925) 2 K.B. 799 what is done before or during an


identification for the purpose of the parade, should be done with exemplary fairness, remembering always that the Crown has no interest in securing a conviction, but has an interest only in securing the conviction of the right person. AN IDENTIFICATION PARADE NOTES Inspector Camillus Mendis of Ella Police files an application and moves that the Court be pleased to hold an identification parade to ascertain whether the 2 witnesses, namely, Girigoris Perera and Martin Silva can identify the two suspects who have been arrested. They are Arthur Gomes and Willie Aponso. The former is said to have cut the deceased Pedige Marthelis with a sword and the latter is said to have held the deceased when he was being cut on the evening of 10th October 1994 at Doowa. I allow the application. I place Court Sergeant Banda in charge of the parade. Headquarters Inspector Camillus Mendis states that the witnesses Girigoris Perera and Martin Silva have

60

been brought in a closed Police Jeep which is halted near the Mara Tree outside the Court premises and about 100 yards away out of sight of the Court and are in the custody of Sub-Inspector Amerasena. The two suspects Arthur Gomes and Willie Aponso have been brought in a Prisons Department closed Van and are now in the Court witness shed and in the custody of Jailor Rodney Amerasinghe. This place is not visible to the place where the witnesses are kept. Court Sergeant Banda arranges a parade of 14 persons drawn from the members of the public in the well of the Court. I direct the people who are present in Court except the lawyers to leave the Court Hall, and they do so. The only persons now present in the Court are Mr. S. Hassan, Attorney at Law, who appears for the suspects, Court Sergeant Banda, the 14 persons in the parade, the Court Aratchchi and the Interpreter Mudliyar. I direct the Court Aratchchi to go to the witness shed and bring the two suspects. The Court Aratchchi brings the suspects into the well of the Court. They are Arthur Gomes first suspect and Willie Aponso 2nd suspect. I direct them to take any place they choose in the parade. The 1st suspect Arthur Gomes occupies the 3rd place in the parade from the Bench-end while the other suspect Willie Aponso occupies the 8th place from the bench-end in the parade. Arthur Gomes is clad in a yellow coloured shirt and a batik sarong, his hair is cut short and he has a moustache. The other suspect Willie Aponso is clad in a black pair of trousers and a gray bush shirt and wears long hair and a beard and moustache. There are 6 persons in the parade similar in height, build, hair style and dress to the suspect Arthur Gomes and five persons similar in height, build, hair style and dress to the suspect Willie Aponso. I direct the Court Aratchchi to go and get the 1st witness Girigoris Perera, but not to bring him inside the Court until the Court Sergeant gives a signal. The Aratchchi leaves the Court.

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I now inform the suspects that they are free to change their positions in the parade and to change their clothes. The suspect Arthur Gomes changes from the 3rd position into the 10th position of the parade from the Bench end and he now changes his shirt into a multi-coloured gray-hued shirt, and he changes his sarong into a striped bluish pyjama sarong. The other suspect Willie Aponso changes from the 8th position in the parade to the 5th position from the Benchend. He removes his trousers and gets into a whitish Palayakat Sarong. He changes his Bush Shirt into a whitish short-sleeved shirt. There are now six persons in the parade dressed like him. I direct the Court Sergeant to signal to the Aratchchi to bring the witness in. The witness is brought in. I direct him to go up to the parade and point out if he can the man who cut the deceased Marthelis with a sword on the evening of 10 th October 1994 at Dowa and the man who held the deceased Marthelis when he was being cut. The witness walks up and down the parade twice and then points out to the 10th man in the parade. I ask him : what did he do ? He says : He cut the deceased with a sword. He walks up and down the parade again and after some hesitation points out to the 5th man in the parade. I ask him : what did he do ? He states : He is the man who held the deceased when he was being cut. I ask this witness his name and he says he is Girigoris Perera. The man in the 10th position in the parade is Arthur Gomes the first suspect and the 5th man in the parade is Willie Aponso.

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I send the witness out to the second witness shed which is not visible from the first shed or the place where the other witness is or the Court house. I direct the Aratchchi to go and fetch the 2nd witness Martin Silva but not to bring him in until the Court Sergeant gives a signal. The Aratchchi leaves the Court. I now inform the suspects that they can change their clothes and their positions in the parade. The 1st suspect Arthur Gomes changes into a white sarong and moves to the 2nd position in the parade from the Bench-end. The 2nd suspect Willie Aponso does not change his clothes or his position. I direct the Court Sergeant Banda to signal to the Aratchchi to being in the next witness. The Aratchchi brings in the witness. I direct him to go up to the parade and point out if he can the man who cut the Deceased Marthelis with a sword on the evening of 10th October 1994 at Dowa and the man who held the deceased Marthelis when he was being cut. The witness walks up and down the parade three times and then points the man in the 2nd position in the parade. I ask him what did he do? He says : He cut the deceased Marthelis with a sword. The man in the 2nd position in the parade is Arthur Gomes 1st suspect. He walks up and down the parade and points out the 14th man in the parade. I ask the witness : what did he do ? He says : He held the deceased when he was being cut. He is not a suspect. I ask the witness his name and he says he is Martin Silva. I discharge the parade with the thanks of the Court.

63

I ask Mr. Hassan whether he wishes to submit anything about the parade. He says he has no submissions but he states the suspects had earlier been shown to the witnesses in the Police Station. Magistrate, Bandarawela.

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Recording of a confession by the Magistrate


Definition : Confession is an admission, that is a statement oral or documentary made by a person accused of an offence which suggest the inference that he committed the offence section 17(2) of the Evidence Ordinance. In

Anandagoda vs.
Namely,

The queen 53 NLR 251

it was held that the test applied to decide

whether a statement is a confession or not is the objective test.

whether to the mind of the reasonable man reading the statement at the time and in the circumstance in which it was made, it amounts to a statement that the accused committed the offence or which suggested the inference that he committed the offence. It must be considered on its own merits. Procedural Law The procedural law relating to judicial confessions is embodied in sections 127, and section 277 of the Code of Criminal Procedure Act No. 15 of 1979 read with section 17 of the Evidence Ordinance. Section 127 (3) of the Code of Criminal Procedure Act lays down a condition precedent. The Magistrate is precluded from recording a confession unless upon questioning the person in making a confession he has reason to believe that it was made voluntarily. In other words the Magistrate should be satisfied that the confession was made without the use of any inducement, threat or promise. The inducement, threat or promise must have reference to the charge against the accused. Such confession becomes relevant and admissible.

65

The Magistrate should make a memorandum at the foot of the confessionary statement. He must not only vouch the fact that the statement was voluntarily made but also the following matters.:(i) (ii) (iii) (iv) (v) (vi) that it was taken in his presence and hearing, it was read over by the Magistrate to the maker, and admitted by the maker that it was correct, it contains accurately the whole of the statement made by him, the maker should sign or attest by his mark. If he refuses to sign the Magistrate must record such refusal. the maker of the statement is at liberty to explain or add to his statement. These precautionary steps are laid down because of the adverse effects it will have on the accused. A confession is even sufficient for conviction if it can be safely acted upon. Burden is on the prosecution to show that it was made voluntarily and thereby establish its relevancy.

King vs. Weerasamy 43 NLR 152 Perera vs. I.P. Galagedera 57 NLR 132 R.V. Gnanaseeha Thera 73 NLR 154 at 177
In Gnanaseeha Thero the Supreme Court observed that the preliminary questioning by the Magistrate is not sufficient. He should have given his attention to the circumstances of the detention, the time taken for interrogation by the Police, the existence of the signed statements then in the hands of the Police, the nature of the custody and other un-natural features that proceeded the production of the accused before the Magistrate.

66

It is necessary to warn the accused that he was not bound to make such confession and that evidence of it might be given against him vide section 29 of the Evidence Ordinance. The point of time the Magistrate may record such confession is any time before the commencement of any inquiry or trial. The very act of bringing the suspect in custody accused of an offence can constitute institution of proceedings giving jurisdiction to the Magistrate to record the statement, in terms of section 127 of the Code of Criminal Procedure Act. If proceedings are pending in a Magistrate Court any time before the commencement of the inquiry or trial the Magistrate is possessed of this power. Prior to the recording of the confession assurance must be given to the accused that he would be handed only to the judicial custody and not to Police custody. Judges residence or his Chambers is a good venue to record such statements.

No oath or affirmation should be administered.

Vide

King vs.

Mudiyanse 21 NLR 48
Opportunity for reflection has a bearing on voluntariness. It must be in a place not accessible to Police Officers whose presence itself can exert influence on the accused thereby affecting the validity of such confession. The Court house is a good venue for recording a statement; so also is the Magistrates residence.

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A form recommended by Mr. J.F.A. Soza, Director of the Sri Lanka Judges Institute for use in recording a confession is attached below. RECORDING A CONFESSION SECTION 127 OF THE CODE OF CRIMINAL PROCEDURE ACT NO. 15 OF 1979. Magistrates Bungalow Balapitiya.
Saturday. November 28, 1987 at 1.00 p.m.

P.C. 8798, Rupasinghe of Ambalangoda Police produces K.A. Siripala and moves that his confession be recorded. This is an connection with investigation into a case of robbery/murder regarding which a Police Report has already been filed in court/is filled now. Plaint has not yet been filed/non-summary proceedings have not yet started. (N.B.) : A statement under section 127 can only be recorded if proceedings

are pending in court but no plaint has been filed or non-summary proceedings begun by reading the charge to the accused Non-Summary Form 1 (NSF. 1) see the case of The

Queen vs. Gnanaseeha Thero (1968) 73 N.L.R.


Yet the very act of bringing the accused person in

154 esp. at 197.

custody before the Magistrate accused of having committed an offence is sufficient. (para 74 of Gnanseehas case) The time now is 1.10 p.m.

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I inform the Prisons Department to send an officer to take charge of the suspect and direct P.C. 8798, Rupasinghe and the others who came with him to leave. They do so. Two prison guards arrive at 1.45 p.m. Magistrate A Magistrate A Magistrate : : : : : What is your full name ? Kahaduwa Aratchige Siripala I am the Magistrate of Balapitiya I understand you wish to make a statement to me ? Yes. Whether you make a statement or not, I will not hand you back to the Police. You will be handed over to the Prisons Department. A Magistrate A : : : If you make a statement, I shall record it and it may be used in evidence against you. Why do you wish to make a statement ? I do not want others to be falsely implicated for what I did. (N.B. : if he answers : I think it will be advantageous to me, ask him : A Magistrate Magistrate : : : what is the advantage you expect ?) I expect a pardon/I will be made a crown witness. I can give you no assurance of any such advantage see Gnanseehas case above p.178) Did any Police officer or person in authority offer any inducement or make any promise or threat to you to make a statement ? A Magistrate A Magistrate : : : : No Are you making this statement of your own free will ? Yes. When were you taken into custody by the Police and where

69

and at what time ? A Magistrate A Magistrate A : : : : : At Ambalangoda bus stand on Friday 27th November at 2.00 p.m. Have you been in Police custody from then until now ? Yes What did the Police do with you from the time you were taken into custody ? I was taken to the Police Station. Later in the night at 1.00 a.m. my statement was recorded. Thereafter, I was taken in Police custody to my house at Polwatte and it was searched. Thereafter I was brought back to the Police Station and kept in the Police cell. There were others there and some of them were assaulted. I was not assaulted. On the following day I was given my meals and lunch and after that I was brought here. Magistrate A : : For how long and by how many Police Officers were you questioned and at what time was your statement recorded. I was questioned for about three hours by 3 Police Officers in turns and my statement was recorded in the night about 1.00 a.m. (N.B. : Questioning till late at night in relays can have an adverse effect on the person questioned). Magistrate A Magistrate A Magistrate : : : : : Did you get frightened when you saw others assaulted ? Yes Did you feel tired when you were questioned in relays till late at night ? Yes Is that why you offered to make this statement ?

70

A Magistrate A Magistrate

: : : :

No. The Police were trying to implicate others falsely. When your house was searched were you threatened in any way ? No. Whatever you told the Police, you are not bound to repeat it here. You are free to say what you wish.

It is 2.00 p.m. now, I shall give you two hours time to reflect whether you will make the statement. (N.B. : Adequate time for reflection must be given see Gnanaseehas case above p. 178) At 4.15 p.m. Magistrate : I shall not hand you back to the Police whether you make a statement or not. Whatever you say will be recorded by me and may be put in evidence at your trial against you. Magistrate A Magistrate A Magistrate A Magistrate A Magistrate A Magistrate : : : : : : : : : : : Do you still wish to make a statement ? Yes Why do you wish to make this statement ? I do not want others falsely implicated for what I did. Did any Police Officer or person in authority offer any inducement to you to make a statement ? No Did any Police Officer or person in authority make any promise or threat to you to make a statement ? No Are you making this statement of your own free will ? Yes I shall now record your statement.

71

(N.B.

The statement should not be on oath or affirmation.

A confession

recorded on oath or affirmation will be rejected on that ground alone.

See King v. Mudianse (1918) 21 N.L.R. 48 The Queen vs. Gnanaseeha Thero and others (1968) 73 N.L.R. 154 at p. 200.
Kahaduwa Aratchige Siripala, 30 Years, Labourer, Polwatte, Ambalangoda. Here record his statement in continuous narrative not question and answer. . Suspects signature Interpreted by me and admitted to be correct .. Interpreter I believe that this statement was voluntarily made. It was taken in my presence and hearing and was read over by me to the person making it and admitted by him to be correct, and it contains accurately the whole of the statement made by him. Signed : Magistrate, Balapitiya. Date : 28.11.1987 at 5.00 p.m. Suspect is removed by Prisons Guards . and . Magistrate, Balapitiya Where necessary only

72

**********************************************************

73

Inquests of Death
Our law and procedure relating to inquest of death are found in section 9 and Chapter XXX (Sections 369, 370, 371, 372 and 373) of the Code of Criminal Procedure Act No. 15 of 1979. In England the person who holds an inquest of death is called the Coroner. He has to be a barrister or solicitor or legally qualified medical practitioner of not less than 5 years of practice. This institution has been there in England since the 12th Century. In the issuance of a Death Certificate under Births and Death Registration Act No. 17 of 1951 the Registrar has to enter the cause of death in the relevant cage. To ascertain whether the death was caused by suicide, accident or murder it is necessary to hold an inquest. In terms of section 21 (b) duty is cast on every person who is aware of any sudden or unnatural death or death by violence or of any death under suspicious circumstances, or of the body of any person being found dead without it being known how such person came by death forthwith to give information to the nearest Magistrates Court or to the officer in charge of the nearest Police Station or to a Peace Officer or to the Grama Seva Niladhari. Failure to give such information may make him liable under section 289 of the Penal Code vide the observations of

Sampayo Jiu Bucher vs.

Pusumba 3 CWR 118.


Appointment of inquirers to hold inquest of death in terms of Section 371 of the Code of Criminal Procedure Act No 15 of 1979 is done by the Ministry of Justice acting under Section 108 of the Act.

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Section 370 (1) specifies when an inquirer should hold an inquest of death namely that a person. (a) (b) (c) has committed suicide has been killed by an animal or by machinery or by an accident. Has died suddenly or from a cause which is not known

Report in respect of the inquest has to be signed by the Inquirer and forthwith forwarded to the nearest Magistrate. Magistrate himself can forthwith hold an inquiry under the powers vested in him by section 9 of the Act, whenever any of the events referred to in (a) (b) and (c) have been brought to his notice. Sections 9(b) (iii) and 371 of the Act confer jurisdiction to a Magistrate in respect of certain events to hold an inquest of death. Section 9 (b) (iii) reads thus :Every Magistrates Court shall have jurisdiction to inquire into all cases in which any person shall die in any prison or mental or leprosy hospital or shall come to his death by violence or accident or when death shall have occurred suddenly or when the body of any person shall be found dead without its being known how such person came by his death. Section 371(1) reads as follows : When any person dies while in custody of the Police or in a mental or leprosy hospital or prison the person who had the custody of such person or was in charge of such hospital, as the case may be, shall forthwith give information of such death to a Magistrate of the Magistrates Court within the local limits of whose jurisdiction the body is found and such Magistrate shall view the body and hold an inquiry into the cause of death.

75

Section 373 (i) empowers the Magistrate or any inquirer to call upon the Government Medical Officer of his district or any other medical practitioner to hold a post mortem examination of the dead body and report the cause of death. Section 370 (5) (6) enables the inquirer or Magistrate to record the evidence of any witness or cause them to produce any document at the inquiry. such evidence or fails to produce such document. Under section 373 (2) Magistrate can order an exhumation. When such Penal provisions are found in the sub section (7) to punish the persons who fails to give

exhumation is ordered care shall be taken to identify the coffin and the body by its appearance and grave clothes and that nothing was added or taken away from the coffin or body. If the need arises body parts may be sent to the These items should be Receipt Government Analysts for examination and report.

parceled, sealed, and sent by hand to the Government Analyst. open to the public.

obtained should be filed of record. Inquiry should be held in a place of inquiry Primary function of the Magistrate or the Inquiry in holding an inquest of death is to find the cause of death.

In

Seneviratne vs. Attorney General 71 NLR 429


after analyzing the relevant provisions of the Criminal

Tennekoon J.

Procedure Code held that the function of an inquirer is to hold an inquiry into the cause of death. That case emphasized the fact that the function of an inquirer or Magistrate is not to investigate an alleged crime or offence. Hence the functions of the Magistrate or inquirer is to hold an inquiry into the cause of death and to

76

state as a finding what in his opinion was the cause of death. The recording of the finding as to the cause of death concludes the inquest of death. In drawing up the report as to the apparent cause of death it is necessary to describe such wounds, fractures, bruises and other marks of injury as may be found on the body and such marks objects and circumstances as in his opinion may relate to the cause of death and stating in what manner such marks appear to have been inflicted. Under section 370 (3) when the report or other material before him or where the Magistrate himself has held the inquiry the evidence and material before him, discloses a reasonable suspicious that a crime has been committed, then the Magistrate acting under section 136 (1) (c) commence non-summary proceedings or sometimes, if the circumstances warrant it summary trial eg. Fatal accident. It is pertinent to mention of the observations made by Tennakoon J in

Seneviratne Vs. The Attorney General (Supra)


of the inquiry is something which no inquirer should permit.

The

appearance of lawyers pedaling a case for some client and directing the course

77

Non Summary Inquiry


Chapter XV of The Code of Criminal Procedure Act
The provisions of this chapter set out the procedure to be followed in conducting a non-summary inquiry by the magistrate. In terms of section 145 of the Act in respect of the offences referred to therein, after the institution of proceedings in terms of section 136 of the Act, the magistrate should proceed to hold a preliminary inquiry, namely; 1. Where the offence or any one of them where there

is more than one, falls within the list of offences set out in the second schedule to the Judicature Act, No. 2 of 1978. In terms of section 163 of the Code of Criminal Procedure Act the inquiry should be concluded within one month of the commencement of the proceedings. Where the Attorney General is of the opinion that it is necessary to have a preliminary inquiry as a prelude to the preparing an indictment in respect of any offence specified by him within three months of the commission of the offence. Section 393 (7) of the Act (Amendment Act No. 52 of 1980) confers such powers to the Attorney General.) In terms of section 400 of the Act, a State Counsel or a pleader generally or specially authorized by the Attorney General shall conduct the prosecution. Otherwise the magistrate has to conduct the prosecution, but the Magistrate can avail himself if he considers it desirable to get the assistance of any pleader or a

78

public officer. the proceedings.

Under this section if he considers it desirable can ask for

assistance of a State Counsel. The duty of the Magistrate is to guide and direct

The inquiry commences with the reading over of the charge or charges to the accused in respect of which the inquiry is held. (Section 146) In a Summary Trial section 182 of the Act requires the magistrate to frame a charge, but in the case of a Non-summary Inquiry section 146 does not state of such a requirement. Nevertheless, the decisions in

Attorney General vs. Baskaran Sameem vs. The Bribery

62

NLR

64,

Abdul

Commission (1991) 1 Sri L R 76, David Perera vs. The Attorney General and another (1997) 1 Sri L R 390, held that it is not proper for the magistrate to read over the charges from
the police plaint, for the reason that the statutory obligation of framing the correct charge or charges rests with the Court. It is important to note that the accused shall not be required to make any reply to the charges. Even if makes a reply, that will not be recorded and will not be admissible as evidence against the accused. At the commencement of the Inquiry, the Officer-in-charge of the relevant police station has to furnish to the magistrate two (2) certified copies of the Information Book entries, so that the Court can make use of it to aid it in such an inquiry in terms of section 110(4) of the Act. Once the charge or charges are read over to the accused who is present in court, the magistrate will proceed to record the statements on oath or affirmation of the persons who know the facts and circumstances of the case. These statements

79

made at the non-summary proceedings are referred to as Depositions. These provisions are laid down in section 148(1) of the Act. In terms of subsection 2 of that section, the accused or his pleader may question the witnesses produced against him by the prosecution. In the process of cross-examination the defence is able to mark contradictions or omissions for the reason that in terms of section 153 (1) of the Act, if the magistrate considers that the evidence is not sufficient to put him on his trail, he shall forthwith order the accused to be discharged. It is imperative that the magistrate should give reasons for such decisions. Vide

Subramaniam vs. Inspector of Police, Kankasanturai 71 NLR 204.


It is pertinent to mention here that since the magistrate is inquiring into the matter, prosecution should be permitted to lead police evidence relating to the Crime Scene, Weapon or Weapons used in the commission of the crime, evidence relating to the arrest of the accused, or evidence to the effect that accused has run away from the crime scene and steps taken by the police to take him into their custody. If an identification Parade was held, the magistrate can use it in considering whether the identity of the assailant or assailants has been established by the prosecution. In the same way the magistrate can use the confessionary statement, if any, made by an accused in considering whether the evidence is sufficient to commit the accused for trial in terms of section 155 of the Act. According to the proviso to section 148 (1) of the Act, evidence of experts need not be led at the inquiry unless otherwise the Attorney-General directs such witness or witnesses to be called to give evidence. If is sufficient that such reports be produced in court and filed or record, This reference is to any document purporting to be a report under the hand of the Government Analyst, the Government Examiner of Questioned Documents, the Registrar of Finger

80

Prints, Examiner of Motor Vehicles, Government Medical Officer, reports of a GMO based upon any skiagraph purporting to have been made by a Government Radiologist and such skiagraph itself. In terms of section 414 (1) of the Act as amended by Act No. 11 of 1988 these documents can be used as evidence although such officer is not called as a witness. Once the evidence for the prosecution has been concluded, if the Magistrate considers that the evidence against the accused is not sufficient to put him on his trial, the magistrate has power to discharge the accused in terms of Section 153 (2) of the Act. Even though there is no evidence to proceed with the investigation into the alleged charge, in the interest of Justice the Magistrate may proceed to investigate into any other charge upon which the accused would have been summoned. If the Magistrate does not consider the accused to be dealt with as stated above, the Magistrate should read the charge to the accused and explain the nature and inform of his right to call witnesses on his behalf or for him to give evidence on his own behalf. This is in compliance with section 150 of the Act. In terms of section 151, there is a duty cast on the Magistrate to caution the accused regarding the matters referred to therein. Thereafter the magistrate should proceed to record evidence of the accused called on his behalf. If the accused has made a confessionary statement in terms of section 127 of the Act and wishes to make a refractory statement, he should be permitted to do so at this stage -

Gnanaseeha Thero vs. The Attorney General 69


The statement an accused would make under section 151 of the

NLR 565.

Act is referred to as a Statutory Statement. The Magistrate should adhere to the mandatory requirement stated therein, because what the accused says will be given in evidence at his trial. Once the Statutory Statement is recorded the

81

Magistrate should proceed to record the evidence for the accused, if he wishes to lead evidence on his behalf. At the conclusion of the evidence for the accused, his attorney at law on his behalf is entitled to address the Magistrate. At the conclusion of the inquiry if the evidence is not sufficient to put him on his trail, the Magistrate should forthwith discharge the accused. He should give reasons for his decision; vide section 153 of the Act. If the Magistrate considers that there is sufficient evidence to put the accused on his trial, he should commit the accused for trial before the High Court. Code of Criminal Procedure (Amendment) Act No. 11 of 1988 introduces a new subsection, after repealing subsection (1) of section 419 of the Code of Criminal Procedure Act. Under the new subsection it is incumbent upon the Magistrate to inquire from the accused whether he agrees to make any admission of the facts referred to therein. The Magistrate should prepare a memorandum of the matters agreed upon. It should be read over and explained and thereafter the accused has to sign it. Section 148 (4) lays down the procedure how to proceed or continue with the inquiry in the absence of the accused. Under this section there is a provision for an attorney at law to appear for an absent accused. After the conclusion of the inquiry, if the accused is committed for trial, the Magistrate should record whether the accused is on bail or in custody and certify under his hand the record of the inquiry, Vide section 157 of the Act. Thereafter the record of inquiry together with all documents and productions shall be forwarded to the High Court and a certified copy of the record to the AttorneyGeneral in terms of section 159 of the Act.

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Powers of the Attorney-General in Non Summary Inquiries 1) Power to direct the magistrate to hold a non summary inquiry in respect of any offence specified by him when he is of the opinion that such recording of evidence is necessary for preparing an Indictment, In terms of section 145 read with section 393 (7) (b) of the Act. (Amended by Act No. 52 of 1980) 2) Power to quash the commitment for trial made by the Magistrate if the Attorney-General is of the opinion that there is not sufficient evidence to warrant a commitment for trial. The Attorney-General will issue instructions in that regard. Vide section 396 of the Act. 3) Power to order to take further evidence because the evidence already recorded was not sufficient to afford a foundation for a full and proper trial. Vide section 397 of the Act. 4) Power to order a committal or to re-open the inquiry in a case where the Magistrate has discharged the accused under section 153 of the Act, if the Attorney-General is of the opinion that such accused should not have been discharged. Vide section 399 of the Act. 5) Power of pardoning an accomplice Vide section 256 of the Act.

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The Charge
Chapter XVI of the Code of Criminal Procedure Act No. 15 of 1979 deals with the charge, reading over of which in effect is the commencement of the trial. Charge is defined as a precise formulation of the specific accusation made against an accused person who is entitled to know its nature at the very earliest stage. Vide Reily

V. Emperor 1 LR 28 Cal 434

The Charge separates the investigation stage from the trial Sohonis Code of Criminal Procedure 19th Ed p 2460. Once the proceedings are instituted in terms of section 136 of the Code of Criminal Procedure Act, if there is sufficient ground for proceeding against the accused the magistrate will frame a charge against the accused in terms of section 182 (1) of the Act.

It was held in

Bartleet Commodity Exchange Ltd., Vs. N.


C.A. Revision Application 57/90 reported in BASL

Susilani & others

News, August 1994 that in the circumstances of that case in was incumbent upon the magistrate to have considered the affidavits that have been filed and ascertained whether there was sufficient grounds to frame charge against the accused under section 182 (1) of the Act. The law requires that the accused should know with certainty the offence alleged to have been committed by him, for which the liability is sought to be imposed on him. The accused should not be taken up by surprise. Section 164 requires that every charge should state the offence with which the accused is charged. If the law which creates the offence gives it any specific

84

name, it may be described by that name only. In

Meera Natchiya Vs.

Marikkar 41 NLR 319

Howard C.J. stated I think a reference in the

charge to the name of the offence as specified in the Penal Code was sufficient to give the accused notice of the matter with which was charged. In the case of offences created by a statutory rule, regulation or by law which is legally required to be published in the Government Gazette, two views have been expressed as to whether the prosecution should produce the relevant Government Gazette. In

Marambe Vs. Kiriappu 5 CLW 38,


8 Ceylon Law

Inspector of Police Vs. Punchirala (1927)

Records 116, held that the charge is defective, in that there is a failure to specify the Gazatte containing the offence and that the Gazette ought to have been produced. Contrary view is that although the production of the Gazatte is not essential, the reference in the charge to the Gazatte is an essential requirement .

Appuhamy Vs. Ekanayake 48 NLR 71.


Nagalingam J. in Ekanayake seems to be the better view.

The view expressed by

If the law does not give a specific name, so much of the definition must be stated in the charge so as to give the accused notice of the matters with which he is charged. Because of the hallowed principle of the Presumption of Innocence, the law provides the accused with all opportunities to safeguard his innocence. Hence the prosecution is required to include in the charge sufficient particulars in terms of section 165 of the Code of Criminal Procedure Act to enable him to have notice of the matters relating to which a conviction is sought against him. These particulars are as follows :-

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1)

The time and the place of the commission of the alleged offence. In the following case the accused was charged for selling rice above the controlled price, thereby contravening the provisions of the Defence of Colony Regulations.

Duraya Vs. Appuhamy

21 NLR

413.

The charge failed for the reason that it did not specify the

particular time and place at which the alleged offence was committed. Further, it failed to state the controlled price. Also see

Miskin Vs.

Babu Appu 21 NLR 492.


2) Particulars as to the person against whom and as to the thing in respect of which the offence was committed. In

Abeyasuriya

Vs. Jayasekera 22 NLR 380, the charge failed because it


did not give particulars as to the quantity of rice sold or the person to whom it was sold. In certain offences the law requires that the accused should have notice as to the manner in which the alleged offence was committed. Vide section 165 (3) of the Act. In

Tillekeratne Vs. Officer in charge, Pugoda Police David Appuhamy Vs. The Queen 64 NLR 481 (PC)

Station (1997) 1 Sri LR 7, the Supreme Court observed, following the


case of that where it is not suggested that the whole of a witnesss evidence is false, it is essential that the witness be left in no doubt as to which parts are alleged to be false. * For the reason that the charge sheet contained no particulars of the alleged offence and the appellant was not given an opportunity to defend himself,

86

and as such the accused had been deprived of a fair trail. The Supreme Court held that the proceedings taken against the accused were invalid. Section 165 (2) lays down special provisions relating to the offences of Criminal Breach of Trust and Dishonest Misappropriation of Movable Property. It is sufficient to specify the gross sum or the gross quantity in respect of which the offence is alleged to have been committed. Nevertheless, the law requires that the period between the first and the last act attributed to the accused should not exceed one year.

In

de Zylva 66 NLR 92

where the accused was charged with

committing Criminal Breach of Trust, the time specified in the charge was between the seventh day of January 1959 and the eighth day of January 1960. T.S. Fernando J. held that the period in respect of which the misappropriation of movable property may be so lumped together can not exceed one year. Hence the charge was held to be defective. The underlying principle being that no valid trial could have taken place on an illegal charge.

Jayawardena

J.

in

the

case

of

Sub-inspector of Police,
correctly sets out the

Dehiowita vs. Perera

27 NLR 511

approach which should be adopted by the prosecution in the following words. The prosecution should, after a consideration of evidence available, decide which of the offences under the section or the by-law the accused appears to have committed and frame only such charges as appear to be appropriate to the facts which it can prove. As regards the duplicity of charges the general principle is that duplicity of charges constitutes a grave irregularity except in case where the joinder is

87

permitted by the law.

Nesadurai Vs. Mohideen 42 NLR 188,

Samuel Vs. Rodrigo 38 CLW 77.


The general rule relating to a charge against an accused person as stated in section 173 of the Act is that for every distinct offence of which any person is accused of, there shall be a separate charge. The situations in which joinder of charges is permissible are to be found in the sections 174, 175, 176 and 180 of the Act. These are the exceptions to the general rule. Section 174 permits joinder of charges for offences of the same kind committed within a period of one year. The requirements are as follows : a) The offences must be of the same kind. Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Penal Code or any other statute. b) c) Offences must have been committed within a period of one year. Number of offences cannot exceed three.

When these requirements are fulfilled such accused can be tried at one trial. In the case of

Senanyake 20 NLR 83

the accused was charged with

committing housebreaking on 4th day of June, 1915 by entering into the boutiques of three persons with the intention of committing theft. Since in the relevant section the requirement was that the offences should be of the same kind and not that they should necessarily be committed against the same person, it was held that the joinder of the charges was not bad. The offences joined must be of the same kind falling within the identical section of the Penal Code or any other statute. In

Gray Vs. Perera (1911) 1 A.C. 29 the accused

was charged with committing Criminal Breach of Trust and the offence of Insult

88

alleged to have committed in the same month. It was held that these offences can not be tried together because they are not of the same kind. Section 175 of the Act provides for the inclusion in the charge or the indictment more offences than one if the series of acts on which the respective offences are based connect together to form the same transaction. Please see illustrations (a) to (f). Read section 67 of the Penal Code. If the acts alleged constitutes an offence falling within two or more definitions may be charged with each of such offences falling within such definitions and tried at one trial. See illustrations (g) to (j). Subsection (3) provides for acts constituting one offence but would constitute a different offence when combined. See illustration (k). On the facts available if a doubt arises as to which of several offences allegation should be leveled against the accused, he may be charged with all or any one or more of such offences in terms of section 176 of the Act. In this regard the Appellate Courts have cautioned the prosecutors that the application of this principle embodied in the section should be confined to its proper limits.

Vellasamy 63 NLR 265 at 271.


The condition precedent for its operation is the existence of a genuine doubt arising from the nature of the facts of the case.

Piyasena 44 NLR 58 (1948) 35 C.L.W.

at 60.
Also see

Ratnayake Vs. Devendra

83.

89

The section shows that the different offences contemplated are cognate offences. In applying section 176 of the Act, the following factors have to be taken into consideration. 1. The facts, which are to be proved, should not be in doubt. 2. The facts must be such as would equally support any one or more of such offences.

Bandara Vs. Inspector of Police, Padukka

62 NLR 73 at 76
3. The doubt, which justifies the framing of alternative charges, cannot be a doubt in regard to the intention of the accused either individually or collectively.

Arnolis 23 NLR 225.

What happens if at the trial evidence shows that he committed a different offence for which he might have been charged and not the offence with which he was charged. Section 177 of the Act provides that in such circumstance the accused may be convicted of the offence for which there is evidence. Eg : a) The accused was charged with theft. The evidence proved that he was in possession of stolen property. Conviction for being in possession of stolen property was upheld.

Marley Vs.

Appuhamy (1912) 6 Weerakoon 88 (Referred


to in G.L. Pieriss Criminal Procedure in Sri Lanka) b) A person charged with robbery may be convicted of theft, even though he was not charged with the lesser offence.

Podi

Sinno 11 NLR 235

90

If the evidence proved though did not establish the offence with which the accused was charged but established that he attempted to commit that offence, if the Penal Code or any other written law make an attempt to commit such offence punishable, section 179 of the Act gives power to the trial court to convict him for such offence. Only provision we have in our law for the joinder of accused persons is embodied in the section 180 of the Code of Criminal Procedure Act No. 15 of 1979. That section permits joinder in the following instances. i) ii) iii) iv) More persons than one jointly committed the same offence More persons than one committed different offences in the same transaction Where one accused committed the offence while the other abetted. One accused committed the offence whereas the other accused attempted to commit the offence. Although the Code of Criminal Procedure Act lays down the procedural law relating to the joinder of accused persons to be charged and tried together at one trial the principles relating to the basis of liability is found in the Penal Code, namely ; 1) 2) Common Intention - Section 32 of the Penal Code. Unlawful Assembly Section 139 of the Penal Code creates the offence and Section 140 is the punitive section relating to the offence of Unlawful Assembly. 3) Abetment Section 100 of the Penal Code creates the offence. Amendment of Charoes

91

Provisions to alter any charge preferred against an accused in the Magistrates Court is embodied in section 167 of the Code of Criminal Procedure Act No. 15 of 1979. The point of time such an alteration could be made is any time before the pronouncement of the judgment. i) ii) The following acts are deemed to be alterations in terms of sub-section (3) of this section substitution of one charge for another. addition of a new charge. Under this section the Court can act either ex mero motu or on an application made by counsel. Vide

Surabiel Perera

61

NLR 46

at

48.

The phrase any court may means that a discretion is given to Court in this regard. Addition of a witness to the list of witnesses or a production to the list of productions falls within the ambit of this section. Dias, J in Aron that as a rule, an amendment should be allowed if it could have the effect of convicting the guilty or securing the acquittal of the innocent, but an application to amend should not be allowed if it would cause substantial injustice or prejudice to the accused. This power to amend a charge is described in an emphatic term by Flemming, ACJ in Singho Appu (1885) 7 section 51 when he stated that this principle requires the court to allow the amendment asked for unless prejudice to the

Appuhamy 51 NLR 358 at 349

observed

92

accused is likely. Also see

Attorney-General vs. Baskaran 62

NLR 64.
When a charge is altered during the course of the trail the accused should be asked to plead to the amended charge. The section does not permit Court to alter the charge after the trial is over. Vide

Susey Pulle vs. Peter

Perera (1927) 5 Times of Ceylon L.R. 9.

Objections to a Charge Objection to a charge and propriety of the joinder of charges should be raised at the point of accusation and not on the evidence as found at the conclusion of the trial. Please see :

i) ii) iii)

Choughani vs. King Emperor (1938) 107 Law Journal Privy Council 35.

Weerakuty vs. Pullenayagam 47 NLR 14 Wimalasena vs. Inspector of Police, Hambantota 74 NLR 176
Objections to Jurisdiction

93

The point of time at which an objection to jurisdiction should be taken up is set out in the Judicature Act. Such objection must be raised at the earliest opportunity. Failure to do so will be considered as a waiver.

Navaratnasingham vs. Arumugam (1980) 2 Sri LR 1.

94

Legal objections available to an accused against his prosecution


Section 314 of the Code of Criminal Procedure Act recognizes certain specified pleas available to an accused which if accepted would make the prosecutor to withdraw the charges against him. Firstly, that the accused has once been tried for the same offence and acquitted. The effect of such a verdict of acquittal is that the accused cannot be tried again for the same offence. Such a plea is referred to as autrefois acquit. Secondly, the accused has once been tried for the same offence and convicted. Such person cannot be tried again for the same offence. This plea is referred as autrefois convict. The basis of these pleas is that a person should not be placed in jeopardy a second time in respect of the same offence or a different offence of which he could properly have been convicted on the first occasion. Please see illustration (a) in section 314 of the Act. There are certain fundamental requirements necessary for these pleas to succeed, namely, (i) (ii) (iii) the accused should have been tried by a Court of competent jurisdiction, that trial should have been concluded either with a conviction or acquittal of the accused, the conviction or acquittal should remain in force.

95

Professor G.L. Peiris in his book Criminal Procedure in Sri Lanka points out that the essential difference between an acquittal and a mere discharge is that the former represents a definite verdict, whereas the letter is no more than an inconclusive order. In

Dias vs. Iyasamy 42 NLR 260

where the plaint was withdrawn

for the reason that there was some defect in the charge was held to be a discharge.

In the case of

Silva vs. Raleeman 26 NLR 463 an order abruptly


a discharge. Also, see

terminating a trial without allowing the complainant to lead any evidence was held to be

Attorney General vs.

Gunasekera 60 NLR 334.


In

Wanigasekera vs. Simon 57 NLR 378

the Supreme Court

observed that though a verdict of acquittal could be entered even before the prosecution case is closed, yet in order to render the order an acquittal, the Magistrate should have been satisfied that any further evidence with the prosecution proposes to lead would not suffice to establish a prima facie case against the accused. In this regard the current judicial authority expresses the view that a decision on the merits is essential for a valid plea of autrefois acquit.

1. 2.

Fernando vs. Rajasooriya 47 NLR 399 Wanigasekera vs. Simona 57 NLR 377

96

In Attorney

General vs. Piyasena 61 NLR 227 held the view De

that an acquittal, must be made on the merits and on no other grounds.

Silve vs. Jayatillake 67 NLR 169.


In Wanigasekera (supra) Gratian, J observed that an order discontinuing the proceedings against an accused person on the ground that the charge is defective, operates as a discharge. The proviso to section 186 enables the Magistrate, if he is satisfied that further proceedings in the case will not result in the conviction of the accused, to acquit the accused. He must give reasons for it. Such an acquittal can be the basis of a plea of autrefois acquit.

In

Senaratna vs. Lenohamy

20 NLR 44

the Magistrate

discharged the accused without trial on the basis that they had already been charged with the same offence and had been discharged. In appeal Wood Renton C.J. remarked the term discharge imports a final discontinuance of the proceedings from which the accused is discharged, but does not include an acquittal . The section 188 (3) of the Code of Criminal Procedure Act No. 15 of 1979 as amended by Act No. 15 of 1989 brought about a change relating to the definition of an acquittal. It sets forth that a discharge under sub-section (2) of that section to wit : on the basis that the prosecution is not ready, will operate as an acquittal if it is not set aside and case against the accused is not reopened within a period of one year from the date of such order. In the event where the case has been duly reopened and the accused is discharged for the second time such discharge will operate as an acquittal. Such acquittal will be the basis for a plea of autrefois acquit.

97

It is interesting to note that the Act provides for other forms of discontinuance of proceedings in a case which amounts to an acquittal. They are as follows : (i) An acquittal referred to in section 188 (1) of the Act. This refers to a case where the proceeding have been instituted in terms of section 136 (1) (a) of the Act. Here the Magistrate enters a verdict of acquittal for the failure of the Complainant to be present at the hearing. (ii) An acquittal referred to in the section 189 (1) of the Act. Under this section where the Magistrate permits a Complainant to withdraw the case against the accused if there are sufficient ground for it. Such applications for withdrawal can be made any time before the judgment. (iii) The compounding of any offence referred to in the section 266 of the Act as amended by the Act No. 11 of 1988 while the proceeding are pending in a Magistrates Court, it has the effect of an acquittal of the accused. It must be observed that in terms of section 314 sub-section (2) an accused person acquitted or convicted of any offence can be tried afterwards for any distinct offence for which a separate charge might have been made at the former trial under section 165 of the Act. Please see illustration (b). See

Premadasa vs. Cooke 53 NLR 379


Sub section 3 of that section provides for a person convicted for any offence constituted by any act causing consequences which together with such act constituted a different offence from that of which he was convicted to be tried afterwards for such last mentioned offence. The consequence should not have happened or was not known to the Court to have happened at the time he was convicted. Please see illustration (c).

98

The general rule is that when an accused has been acquitted or convicted of an offence he cannot be charged again on the same facts. Romel Appu (1894) C.L.R. 52 In this case the accused was convicted of voluntarily causing hurt under section 314 of the Penal Code and was acquitted. He was again charged with an tried for under section 315 of the Penal Code on the same facts causing hurt with a cutting instrument and was held that the previous conviction operated as a bar to a trial on the second charge. The conviction or acquittal referred to in these sub-sections will not permit an accused person in the second case to take up the pleas of autrfoid acquit or autrfoid convict. Plea of autrefois acquit or autrefois convict may be taken up orally or in writing. When such plea is taken up the Court should dispose of that issue first. Vide 315 of the Act.

99

Summary trial in the Magistrates Court


(a) INSTITUTION OF PROCEEDINGS

The manner of institution of proceedings in the Magistrates Court is set out in Section 136 of the Code of Criminal Procedure Act No. 15 of 1979 as follows : (1) On an oral or written complaint which should be (i) (ii) drawn and countersigned by a pleader signed by the complainant

This is referred to as Private Plaint. At the trial the complainant himself can conduct his own case but is entitled to have his own counsel. Here the institution of proceedings is by the aggrieved party, victim himself. -

Abdul Majeed

vs. Cassim 15 CLW 150


Magistrates should not be influenced by the distinction between Private Plaint and Police Plaint. -

Piyaseeli vs. Peiris 65 CLW 51

(2)

On a written report made to the Magistrate having jurisdiction by the following persons. (a) (b) (c) A police officer. Inquirer appointed under chapter xi of the act. An officer of a local authority or a state officer.

(3)

Upon the knowledge or suspicion of a Magistrate eg. Section 388 of the

100

Code of Criminal Procedure Act. (4) When a Police officer has arrested a person accused of having committed an offence in terms of section 32 (cognizable offence) or Section 33 (noncognizable offence and produced before the Magistrate. (5) (6) Upon a warrant under the hand of the Attorney-General. On a written complaint made by a Court under section 135 of the Act.

(b)

THE TRIAL

The trial commences with the reading over the charge to the accused and the Magistrate should ask him if he has any cause to show why he should not be convicted. It is the duty of the Magistrate to frame a charge. Please see

Abdul Sameem vs. Bribery Commissioner (1991) (1 SLR 76) Gadage & others vs. OIC Police Station, Kahawatta (1992) (1 SLR 54)
In the above cases it has been held that the failure to frame a charge as required under section 182 (1) of the Act is a violation of a fundamental principle of criminal procedure and is fatal to the conviction. Under our law an accused enjoys the right to be defended by an attorney-at-law.

Jayasinghe vs.

101

Munasinghe 62 NLR 527.

An aggrieved party also has the right to

be defended by an attorney-at-law. (Supra)

In

Premaratne vs. Gunaratne 71 NLR 113

the Supreme

Court held that the refusal of an application for postponement of the trial made by the accused in order to obtain the services of an attorney-at-law, amounted to a denial of the accuseds statutory right to be defended by a pleader. At the commencement of the trial when the Magistrate reads the charge to the accused if he pleads guilty to the charge or charges preferred against him, his plea of guilty should be recorded as nearly as possible in his own words. This plea should be an unqualified admission of guilt.

Ratnaike vs Banda 23

NLR 256.
In this case when the accused was asked whether he has any cause to show he said I plead guilty if X says I took part, I can only plead guilty. Held that this was not an unqualified admission of guilt. The fact that the accused has pleaded guilty to the charge is a factor to be considered in sentencing because a guilty plea is an element of remorse, it saves time of Court, shortens trials and helps to reduce the backlog of cases. But a statement by the Judge that on a plea of guilty he would impose one sentence but that on a conviction after trial following a plea of not guilty he would impose a severe sentence should never be made. -

Attorney General vs. Fernando 47 NLR 43 of Maxwell vs. the Queen (1996) 184

In the Australian case

CIR 501

at 511 Justices Dawson and Mc Hugh observed the plea of guilty

must however be unequivocal and not made in circumstances suggesting that it

102

is not a true admission of guilt. These circumstances include ignorance, fear, duress mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial Judge for whatever reason that a plea of guilty is not genuine he must obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. Proviso to section 183 (1) enables an accused to withdraw his plea of guilt. Two things are necessary for such an act, Firstly, the sentence against him is not yet passed. Secondly, the leave of the Magistrate

Then the case against the accused will proceed as if the admission of guilt had never been made. Vide

Rosemalecocq vs. Sally

37

NLR

1399, Siriwardena vs. James 41 NLR 560


If the accused pleads not guilty the Magistrate must in terms of Section 183 (2) inquire from the accused whether he is ready for trial. The law requires that the accused would be given a reasonable opportunity of preparing for trial. If the accused states that he is not ready for trial the court should postpone the trial. In the case of a Private Plaint (Section 136) (1) (a) where summons has been issued on the complainant and if he fails to appear as required the magistrate should, unless for some reason he thinks proper to adjourn the hearing for some other day, acquit the accused. Vide Section 188 (1) of the Act. Nevertheless, if (i) he appears within a reasonable time and

103

(ii)

satisfies court that his absence was due to any of the reasons specified in the proviso to section 188 (1), of the Act.

The Magistrate shall cancel his previous order. The reasons specified are as follows : (i) (ii) (iii) Sickness Accident Some cause over which he has no control.

Thus in the case of a private plaint in terms of section 188 (1) subject to the proviso, the requirement to acquit the accused is mandatory. On the other hand in the case of a Police Plaint or a plaint filed by a Public Officer under the authority given by a statute, under section 188 (2) a discretion is given to the Magistrate in the event the prosecution is not ready either to discharge the accused or to adjourn the hearing for another date for some reason the court thinks proper to adjourn. In terms of section 188 (3) of the Act as amended by Act No. 15 of 1989 a discharge under subsection (2) will operate as an acquittal if it is not set aside and case against the accused is not reopened with in the period of one year from the date of the discharge. If the case is reopened but the accused is discharged for the second time, the order referred to in subsection (2) operates as an acquittal. The above is subject to the proviso therein.

104

When a prosecution is pending in the Magistrates Court, and if the alleged offence is compoundable in terms of section 266 of the Act, in the event of an application by persons by whom the offence may be compounded under the third column of the table contained in this section, the Magistrate may consent to such application. Such a compounding will have the effect of an acquittal of the accused. Section 420 of the Code of Criminal Procedure Act casts an imperative duty on the Magistrate at the commencement of the trial to inquire from the accused whether he is agreeing to make any admission of the facts in issue or facts relevant to the facts in issue and if the answer is in the affirmative, to record such admissions. Such a procedure will shorten trials and saves time of the Court. Hence, when passing the sentence the Court will have regard to the fact that the accused had made such admissions. The prosecution will open its case and thereafter call witnesses in support of the prosecution case in terms of section 184 of the Act. Each of these witnesses will be cross examined by the counsel for the accused or if he is not represented by a counsel, accused himself will do so. Apart from the procedural law, the right to impeach the credit of a witness is embodied in the section 155 of the Evidence Ordinance. Even when a witness is recalled by the Magistrate to clarify certain matters the defence should be allowed to cross-examine the witness. Vide

Sheriff Deen vs. Thomas 46 NLR 119.


In order to arrive at the just decision in the case section 439 of the Act empowers the Magistrate to summon and examine any person or summon and re-examine any person already examined. An opportunity should be given to the accused to cross-examine such witness as well. Since as stated above an accused is entitled to the right to cross-examination, such powers given to a Magistrate to

105

call witnesses of his own motion must be exercised with fairness. Vide

De

Silva vs. Romanis 3 NLR 301.

The evidence of a witness will be taken down in the form of a narrative. But the Judge may in his discretion take down any particular question and answer. The Judge may note down any observation he made of the demeanour of a witness. Once the evidence of a witness is concluded it should be read over to the witness by the Magistrate. All documents shall be initialed and dated by the Magistrate. Once the

prosecution case is concluded, if the evidence for the prosecution has not made out a prima facie case against the accused or if the Magistrate is satisfied that further proceedings in the case will not result in the conviction of the accused, the Magistrate shall acquit the accused. It is essential that he should give reasons for his decision. On the other hand if the prosecution has established a prima facie case against the Magistrate shall call upon the accused for his defence. Even though the accused is entitled to the privilege of silence or to make a dock statement if the prosecution has established incriminating circumstances against the accused there is an evidential burden cast upon him to explain away such incriminating circumstances.

Chuin Pong Sheik vs.

Attorney General,

(1999) 2 Sri L R 277.

106

Once the evidence in the case is concluded in terms of section 184 (3) read with section 271 (2) of the Act the Accused has the right to reply whether the evidence is called by the accused or not. Thereafter on a consideration of the evidence in the case if the Magistrate finds the accused not guilty shall forthwith enter a verdict of acquittal. If he finds the accused guilty shall forthwith enter a verdict of guilty, and pass sentence upon him according to law. The phrase shall forthwith has been interpreted to mean within a reasonable time. It is an imperative requirement that in his judgment the Judge should give reasons for his decision. Failure to give reasons would suffice for an Appellate Court to set aside the conviction and sentence. Section 279 of the Act requires the judgment to be pronounced in Open Court. The absence of the accused will not deter a Magistrate from proceeding to trial. The circumstance that would enable the Magistrate to proceed to trial in the absence of the accused is set out in section 192 of the Act. Evidence should be led before the Magistrate and he should be satisfied of the facts to enable him to make an order to proceed to trial in the absence of the accused. Even in a case where the accused is tried in his absence he can be represented by an Attorneyat-Law.

107

JUDGMENTS
The provisions relating to judgments in a Criminal case is specified in Section 283 of the Code of Criminal Procedure Act. The requirements are as follows : 1. The judgment should be written by the Judge who heard the case. It should be dated and signed by him in Open Court. 2. It should specify the offence and the section of the law under which the accused is convicted and sentenced. 3. If the accused is acquitted the Judge should state the offence of which he was acquitted. 4. It should contain point or points for determination and the decision on each such point. 5. The reasons for such decision has to be stated. It is necessary that the judgment must state fairly the evidence in the case. A Court is entitled to select such evidence as it considers important and sufficient to prove the points for consideration. In examining and evaluating the evidence in a Criminal Case the Court has to be mindful of certain general principles.

108

The general rule is that the burden is always on the prosecution to prove the guilt of the accused of the offence with which the accused is charged. The presumption is that the accused is innocent until the contrary is proved. Benefit of the doubt must necessarily go to him. The burden resting on the prosecution never shifts. The law recognizes four exceptions to the General rule. (i) Section 105 of the Evidence Ordinance where the burden of proving the existence of circumstances bringing his case within any of the general exceptions in the Penal Code or within any special exceptions or provision contained in the same code, would be on the accused. Please see illustrations which explain the section. It is sufficient if he proves his defence on a balance of probabilities and the burden once again is shifted to the prosecution. Vide

Wijesinghe vs. The State (1984) 1 Sri

L.R. 155 King vs. Johanis 46 NLR 145


(ii) Section 106 of the Evidence Ordinance where any fact is especially within the knowledge of the accused, the burden of proving that fact is upon him. Illustration (b) refers to a case in point. A, is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him. (iii) Cases of absolute criminal liability where no mental element comes into operation and all that the prosecution need prove is that certain acts were done. Public nuisance under Section 261 of the Penal Code

109

where a person does an act or guilty of an illegal omission which causes any common injury, danger, or annoyance to the public or to the people in general who occupy property in the vicinity, here, all that the prosecution has to prove is that certain acts were done.

(iv)

Cases where the prosecution has to prove certain facts and the burden is on the accused to prove that he had no criminal intention vide section 114 of the Evidence Ordinance illustration (a), that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. It is pertinent to mention that Article 116 (1) of the constitution ensures to every Judge to exercise his powers and functions without being subject to any direction or other interference proceeding from any other person except a Superior Court. Article 102 makes every attempt at such interference an offence punishable with imprisonment and a fine. Hence judicial independence in safeguard in the Supreme Law of the Land. When decisions are known especially if they are coupled with lessons continuity and consistency in decisions are almost certain to develop. Explaining the process by which law is applied the giving of reasons provides guidance for the future (Harold J. Barmans Talks on American Law).

110

Claim inquiries in respect of productions in a Criminal case


The Law relating to the procedure to be followed in this regard is found in section 431 of the Code of Criminal Procedure Act No. 15 of 1979. It is to the following effect. The seizure by any Police Officer of property taken under section 29 or alleged or suspected to have been stolen or found under circumstances which create suspicion of the Commission of any offence shall be immediately reported to a Magistrate who shall forthwith made such order as he thinks fit respecting the delivery of such property to the person entitled to the possession thereof or if such person cannot be ascertained to make an order respecting the custody and production of such property. Sub section (2) provides that if such person is unknown the Magistrate may detain such property and publish a notification in Court Notice Board and two other public places specifying the Articles of which such property consists and requiring any person who may have a claim thereto to come before him and establish his claim within six months from the date of such public notification. The Magistrate may publish such certificates at least once in newspapers published in Sinhala, Tamil and English, if the value of the property amounts to two thousand five hundred rupees or more. In interpreting section 431 (1) two views have been expressed.

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Skanda Raja J interpreting section 419(1) of the old Criminal Procedure Code which is identical (except that under this section 431 Magistrate is required to make the order forthwith) to 431 (1) of Code of Criminal Procedure Act No. 15 of 1979 in

Sugathpala vs. Thambirajah 67 NLR 91 at page 95

expressed the following view : But the legislation has by section 419 conferred jurisdiction on the Magistrate to order as he thinks fit .. the delivery of such property (ie. alleged or suspected to have been stolen), to the person entitled to the possession thereof . In the exercise of this jurisdiction he is given the power to decide as to who is entitled to the possession of such property. In order to decide he must first make investigation. In exercising that power given to him by section 419, he is not deciding a civil dispute, but only the right to possession in respect of property referred to therein The facts of the above case are as follows : The appellant Sugathapalas car bearing no. 1 Sri 4307 was stolen on 31.3.1963. on 3.5.1963 police recovered the car from Thambirajah who claimed he had bought it in April 1953 from A.J.R. Fernando and K.A. Martin. At the time of seizure the car had a false number plate 1 Sri 1693 but the chassis number and engine number were those of Car No. 1 Sri 4307 which was the number referred to in complainant Sugathapalas complaint. The false number plate had been fixed over the genuine number so as to conceal it. Skandarajah J ordered the Car to be restored to Sugathapala who was the registered owner. Thus it is clear that when the Magistrate decides who is entitled to possession he is only exercising a jurisdiction granted to him by the section.

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The other view was expressed by H.N.G. Fernando J (as he was then) in

Jayasuriya vs. Warnakulasuriya 61 NLR 189


two other cases decided on the same day,

and then in

Punchinona vs.

Hinniappuhamy 60 NLR 518 Banda 62 NLR 307.

and

Piyadasa vs. Punchi

In analyzing the provisions of the same section he

expressed the view that the property must be restored to the possession of the person who had possession of it at the time of seizure by the Police. Better view appears to be that of Skanda Rajah J which was followed by Sirimanne J in

Balagalle vs. Somaratne 10 NLR 382.

His

Lordship declined to follow the view expressed by H.N.G. Fernando J. in

Punchinono vs. Hinniappuhamy (supra) and Jayasuriya vs. Warnakulasuriya. (Supra) Inspector of Police Jaffna Samarawickrama J
In

Thirunayagam vs. 74 NLR 161

too declined to follow the view expressed by H.N.G.

Fernando J and opted to follow the view expressed by Skanda Rajah J in

Sugathapala vs. Thambirajah. vs. Magaret Rose 77 NLR 164

Thambiah J in

Mariathasan

ordered the car to be restored to

the person from whose possession it was taken. The facts revealed that the case concerned the seizure of a car by the Police on a complaint of theft of a Car made by a brother against his sister. The car was registered in the name of the sisters husband and was seized from his possession. Apart from the facts of the case this case it can be distinguished from

Sugathapala vs. Thambirajah


proceed with the case.

because the Police did not want to

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Section 431 (1) specifies that the Magistrate may order the property to be delivered on such condition as the Magistrate may think fit. Section 425 of the Act prescribes the manner in which an order for the disposal of property regarding which any offence appears to have been committed, after the conclusion of the case. The Court is given discretion to make any order as it think fit.

(1 )

Possession of vehicles let under hire purchase or leasing agreement

Section 433 A of the Code of Criminal Procedure Act No. 15 of 1979 (Section 2 of the Criminal Procedure (Amendment) Act No. 12 of 1990) sets out the procedure to be followed in respect of the above mentioned category of vehicles. It reads thus 433 A (1) In the case of a vehicle let under a hire purchase or leasing agreement the person registered as the absolute owner of such vehicle under the Motor Traffic Act (chapter 203) shall be deemed to be the person entitled to possession of such vehicle for the purposes of this chapter. (2) In the event of more than one person being registered as the absolute

owner of any vehicle referred to in sub-section (1), the person who has been so registered first in point of time in respect of such vehicle shall be deemed to be the person entitled to possession of such vehicle for the purposes of this Chapter.

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Effect of Clause for Parate Execution The hire purchase agreement may contain a clause for Parate Execution or a clause authorizing the retaking of possession on default of payment of installments. The law relating to the applicability and validity of this clause was considered by a bench of three Judges (Wijesundera J Vythialingam J and Gunasekera J) in

Fernando vs. Jaward 77 NLR 559

. They

unanimously held that a clause authorizing the retake of possession on default of payment of installment is valid and not repugnant to public policy or the principles of the Roman Dutch Law or the English Law. Aftermath of this decision is the introduction of section 20 of the Consumer Credit Act No. 29 of 1982. The Finance Company can exercise its right to retake possession only if the following conditions have been satisfied. 1. 2. The hire purchase agreement should have been terminated (vide section 18 of the Consumer Credit Act) If the hirer has paid 75% of the hire purchase price, the owner loses his right of parate execution but can sue him in court in terms of section 21 of the Act. 3. Parate execution is not permitted at the premises where the hirer resides. (section 29 (a) of the Act) In retaining possession no more force should be used than is necessary.

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Inquiries into the Claims relating to Productions in offences under The Forest Ordinance The penal provisions relating to productions are found in Section 40 of the Forest Ordinance as amended. 40 (1) Upon the conviction of any person for a forest offence (a) (b) All timber or forest produce which is not the property of the state in respect of which such offence has been committed; and All tools, boats, carts, cattle, motor vehicles, trailers, rafts tugs or any other mode of transport motorized or otherwise and all implements and machines used in committing such offence whether such tools, boats, carts, cattle, motor vehicles, trailers, rafts, tugs or other modes of transport motorized or otherwise are owned by such person or not. Shall by reason of such conviction be forfeited to the state. This section was analyzed in detail in

Manawwadu vs. The


by the Supreme Court. It

Attorney General (1987) 2 SLR 30

was strenuously argued by the learned state counsel that on conviction of the accused, the vehicles vests automatically in the state. The supreme court declined to hold that the amended sub-section 40 excludes by necessary implication the rule of audi alteram partem and held that the owner is entitled to be heard on the question of forfeiture and if he satisfies court that he had no role to play in the commission of the offence or is innocent or the offence has been committed without his knowledge or participation, the vehicle will not be liable to forfeiture. It was further held that if the offender happens to be the owner of the vehicle used for the commission of the offence the forfeiture of the vehicle is a legitimate penalty. So also, if the owner participated in the commission of the

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offence by allowing it to be used with knowledge that it was going to be used for that purpose forfeiture of the vehicle is a justifiable penalty. Same principles would apply to the provisions of the Animals Act as well. In

Faris vs. The officer in charge Galenbindunuwewa and


another (1992) 1 Sri LR 167 S.N. de Silva J (as he was then) held that an order for confiscation could be made only if the owner was present at the time of the detection or there was some evidence that the owner was privy to the offence.

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Appeals from the Magistrates Court to the High Court


In terms of section 320 of the Code of Criminal Procedure Act No. 15 of 1979 any person who is dissatisfied with any judgment or final order pronounced by any Magistrates Court in a Criminal Case or matter to which he is a party can prefer an appeal to the Provincial High Court for error in law or in fact. The petition of appeal should be lodged with such High Court within fourteen days from the time of such judgment or order. In a case where the Attorney General appeals or where he sanctions the appeal should be lodged with in twenty eight days. In computing the time within which an appeal must be lodged, the day on which the judgment or order complained of was pronounced shall be included but all public holidays shall be excluded. No appeal lies from an acquitted except at the instance or written sanction of the Attorney General see section 318 of the Act. Section 317 of the Act provides that an appeal does not lie in the following situations : (a) where the case of a male offender under sixteen years of age the sentence is one of whipping only, (b) where an accused has made an unqualified admission of his guilt and been convicted in terms of section 183 of the Code of Criminal Procedure Act. Releasing an accused who has preferred an appeal on bail on giving security is dealt with in section 323 of the Act.

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Section 19 (2) of the Bail Act No. 30 of 1997 empowers a Magistrate to refuse bail having taken into consideration the gravity of the offence and the antecedents of the accused. In terms of section 322 of the Code of Criminal Procedure Act the petition of appeal should state shortly the grounds of appeal and be signed by the appellant or his attorney at law. If the appeal relates to a matter of law petition should contain a statement of the matter of law to be argued and bear certificate by an attorney at law that such matter of law is a fit question for adjudication by the High Court. On a petition being lodged the Magistrate should transmit the record of the case to the High Court together with the Petition of appeal with notice to the appellant.

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Sentencing Policy in Our Criminal Justice System


The many factors that influence judicial thought in sentencing are retribution, justice, deterrence, reformation and protection. Modern sentencing policy reflects a combination of several or all of these aims. Penal provisions in the statute would fix a maximum penalty and leave a wide discretion to the trial Judge to determine the exact sentence that is imposed. This exercise of discretion is a matter of prudence and not of law. The Judge has to come to a just decision regarding the proper sentence that should be imposed. Criticisms leveled by some against the exercising of such judicial discretion have focused on the observation that sentencing powers are oftentimes exercised in too extreme a manner, either in the direction of severity or leniency. In recent years, the legislature in its wisdom, has cut down judicial discretion by introducing penal provisions setting out mandatory minimum sentences. This change of policy reflects the public perception that very strict punishment is necessary to curb certain categories of offences. The introduction of mandatory sentencing laws seems however in apparent conflict with the emphasis in recent years on measures designed to keep offenders out of prison or other penal institutions. As examples of these latter measures, one can point to the imposition of suspended terms of imprisonment (vide section 303 of the Code of Criminal Procedure Act No. 15 of 1979 as amended) and community based correction orders under the Community Based Corrections Act No. 46 of 1999. The modern trend in sentencing is to craft sentencing laws that are fair, respectful of Human Rights and protective of public safety.

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Interests at Stake Our sentencing policy has been to try case by case and impose sentences that vindicate the victims interest, acknowledge offenders circumstances and take account of public safety concerns. The interests that are at stake in this process are manifold. These are firstly, the interest of the state in enforcing its laws ; secondly, the defendants interest in having a fair trial that preserves his liberty and finally the responsibility of the Judge to reconcile these interests. In performing that duty, the Judge takes into consideration particular factors such as behavioral norms that were violated or the gravity of the offence committed and aggravating or mitigating circumstances that make the offender more or less culpable. Accordingly, applicable penal provisions have been crafted to allow Judges latitude to fashion sentences tailored to individual cases, thereby according Judges a wide discretion. This has resulted in instances of unwarranted sentencing disparities, leading in turn to an unfortunate backlash from certain interest groups which particularly challenges the competence of the Judges in sentencing. Consequent to promises held out by politicians in this country that they would enact legislation to make the imposition of tough sentences compulsory and thereby reduce the crime rate in the country, led to the introduction of certain mandatory sentencing provisions in the Sri Lankan Penal Code. Judicial Discretion in Sentencing Whilst criticizing mandatory sentencing laws introduced to the Criminal Code in Western Australia, former High Court Chief Justice Sir General Brennan remarked thus, Sentencing is the most exacting of judicial duties because the

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interest of the community, of the victim of the offence and of the offender have all to be taken into account in imposing a judicial penalty. In Sri Lanka, there is a dearth of case law providing guidelines for the Judges of the criminal courts to follow in sentencing an accused person. Some of the earlier decisions of our Appellate Courts appear to be attracted by the retributive theory of punishment. Therefore, these decisions appear to have been more concerned about the need for deterrence and protection of society.

In the

Attorney General vs. H.N. De Silva

(57

NLR

121)

Basnayake A.C.J. observed a Judge should in determining the proper

sentence first consider the gravity as it appears from the nature of the act itself and should have regard to the punishment provided in the Penal Code or other statutes under which the offender is charged. The Judge should also have regard to the effect of punishment as a deterrent and consider to what extent it will be effective. The other factors that the learned Judge referred to in this regard are the incidence of crimes of the nature of which the offender has been found to be guilty and the difficulty of detection. It was further observed that the reformation of the criminal, though no doubt an important consideration, is subordinate to the other considerations already mentioned, where the public interest or the welfare of the State outweighs the previous good character. Antecedents and age of the offender, public interest must prevail.

This decision was followed with approval by Sri Skandarajah J. in

Gomes

vs. Leelaratne (66 NLR 234) .

In this case, the Appellate Court,

exercising its powers of revision, set aside the order of the Magistrate made under section 325 (1) of the Criminal Procedure Code (similar to section 306 (1) of the present Code of Criminal Procedure Act No. 15 of 1979 and convicted the

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accused under section 367 of the Penal Code, imposing a term of two years rigorous imprisonment. Sri Skanda Raja J, added some more factors to be taken into consideration when punishing an offender who was convicted of theft; namely, nature of the loss to the victim, profit that may accrue to the culprit in the event of non detection and the use of which a stolen article could be put. It appears that in these cases, the Appellate Court was anxious to follow a deterrent sentencing policy. In Bradley (1970) Crim LR 171 the English Court of Appeal remarked thus when a Court finds that its duty is to pass a deterrent sentence, consideration of that particular prisoners past good record are of much less moment that normally would be the case. However, in an important recent judgment, the Court of Appeal went on further to declare that imprisonment should be used sparingly and in the case of non violent petty offenders, a term of imprisonment, if considered necessary. Should be used sparingly. (vide Queen (1981) 3 Cr App 245) As far as Sri Lankan law is concerned, a liberal, flexible and more detached approach was adopted by Rajaratnam J. and Ratwatte J. in

Karunaratne

vs. The State (78 NLR 413).

In this case, the accused was

charged with criminal breach of trust, after the trial he was sentenced to two years rigorous imprisonment and a fine of Rs. 1,000/-. The conviction was more than seven years after the proven offence. When this matter came up in appeal, a period of ten years had lapsed from the date of the offence.

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The learned justices took into consideration two factors. Firstly, that the inquiry and trial must have caused hardship and unhappiness in the house of the accused and secondly, the serious consequences and disorganization it would have caused in the family of the accused. Rajaratnam J. went on to say if there was a trial in due course the accused by now would have served his sentence and come out of prison to look after his family. Vythialingam J. (dissenting), did not think however, that the strain the accused would have undergone during those ten years when the charge was hanging over his head would outweigh the demand of public policy that a deterrent sentence of immediate imprisonment should be imposed. In Tierney (1982) Grim LR 53 where the accused was convicted of burglary, the appellate court reduced the sentence of nine months imprisonment to six months imprisonment suspended for two years and expressed the view that the offender should be sentenced on the basis of his situation at the time of sentencing and not at the time of offence. However, the argument for mitigation on these points will be much less stronger where the offence was a very serious one and/or where the offender has taken active steps to avoid detection. In such cases, the serious nature of the offences themselves results in any discount for the delay being minimal. In Hook (1990) 12 Crim App R S 5 (54) the accused pleaded guilty to a range of sexual offences committed on his stepdaughter over a period of ten years. Nearly fourteen years had lapsed before the offender came to be sentenced. He was sentenced to a period of five years and nine months. The Court refused to give any discount with reference to mitigating factors. This sentence was affirmed in appeal.

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One of the most frequent matters urged before Court in mitigation is that the offender has a good character and a clean record. In fact, our procedural law has thought it fit to give a suspended sentence of imprisonment to an offender sentenced for a term of imprisonment and exceeding six months if he had no previous experience of imprisonment. Vide section 303 of the Code of Criminal Procedure Act No. 15 of 1979 and also provisions relating to conditional release of offenders under section 306 of the same Act. On the other hand, the fact that the antecedents of the offender up to the time of convictions for offences, does not justify the imposition of a sentence disproportionate of the facts of the case. Andrews L.C.J., in Ray Moore (1938) 73 ILTR 143 observed from the bench of the Court of Criminal Appeal for Northern Ireland that it is clearly established that when one is dealing with a relatively minor case, a previous bad record does not warrant the imposition of any unduly severe sentence. A Court must not impose a sentence that is more severe than that which is necessary to achieve the purpose of purposes for which the sentence is imposed. However, the previous crime record of the accused may justify the Court in ignoring mitigating factors and the possibility of an individualized sentence in favour of a sentence of imprisonment. (Vide Queen (1982) Crim LR 56.) The circumstances, under which the offence was committed, is also a relevant factor in deciding upon the sentence. These circumstances may have come to light at the trial itself. If it is a case where the accused pleaded guilty at the commencement of the trial, the background information could be supplied to Court by the prosecuting counsel, defense counsel medical experts and notes of investigation prepared by the Police.

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There may be cases where the offender has rendered substantial assistance in the detection of the crime (vide Lowe (1977) 66 Crim App 122 where the offender had shown remorse and repentance or suffers from a serious illness. These are also factors that a Judge could take into consideration when sentencing a convicted person. The fact that the accused has pleaded guilty to the charge or indictment is an additional factor to be considered in sentencing. A guilty plea by an accused is an element of remorse. Such plea saves time of Court, shortens trials, helps to reduce backlog of cases and saves cost of legal aid. In the High Court, it is a common practice that prior to the commencement of a trial, the counsel for the accused and the prosecuting counsel may confer about a plea and if agreed they would indicate about it to the trial Judge. It may be a case where the accused is willing to plead guilty to a lesser offence. As in the United Kingdom, Judges in Sri Lanka are not a party to these negotiations. A leading case on this point is Turner (1970) 2 QB 321 which laid down principles to be followed in the following terms. Counsel must be completely free to do what is his duty. The duty of counsel is to give the accused the best advice that he can. If need be, such advice could often include pointing out that a guilty plea, showing an element of remorse, is a mitigating factor which might enable the Court to five a lesser sentence than would otherwise be the case. Vide Keuneman J. in the

Attorney General vs. Fernando (47 NLR 431)


A statement by the Judge that on a plea of guilty, he would impose one sentence but that on a conviction following a plea of not guilty, he would impose a more severe sentence should however never be made.

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Non-Custodial Measures Legislation has found alternative methods in dealing with offenders without sending the offender to detention in a penal institution in cases for which a 0custodial term of imprisonment is not warranted. (i) Total Discharge There is provision for a magistrate to order a total discharge in appropriate cases in terms of section 306 (1) of the Code of Criminal Procedure Act No. 15 of 1979. The factors that the magistrate should take into consideration in this regard are enumerated in that section; namely, the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed. According to this section, two conditions have to be satisfied. Firstly, the Court has to form the opinion that the charge is proved. Secondly, having regard to the factors referred to above, the Court must decide that it is inexpedient to inflict any punishment or any other than a nominal punishment. In such cases, the magistrate may order such offender to be discharged after such admonition as to the Court shall seem fit, as was the case for example, in OToole (1971) 55 CR App R 206 where the accused was morally blameless

and

Smedleys Ltd vs. Breed (1974) 10 AC 839

where

considerable time had lapsed between the commission of the offence and prosecution. (ii) Conditional Discharge

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Having regard to the factors referred to above, the court may discharge the offender conditionally on his entering into a recognizance with or without sureties, to be on good behaviour and to appear for conviction and sentence when called for at any time during such period, not exceeding three years, as may be specified in the order of the Court. The difference between an absolute discharge and conditional discharge referred to in the above section 306 (1) is that in a conditional discharge a condition is imposed that the offender commits no offence for a specified period in the future. In

Gomez vs. Leelaratne

(Supra) the Appellate Court

has reprimanded the Magistrates for discharging offenders of grave crimes on conditional discharge orders. When the High Court has powers to effect conditional discharge of offenders Section 306 (2) deals with this power to make an order discharging the offender conditionally in lieu of imposing a sentence of imprisonment. The factors to be taken into consideration in effecting such an order are similar to those enumerated in section 306 (1). Before making such an order the accused has to be convicted on indictment. Suspended Sentence Section 303 of the Code of Criminal Procedure Act as amended by the Act No. 47 of 1999 provides for the imposition of a suspended term of imprisonment where the accused is sentenced to a term not exceeding two years. In this regard, discretion is given to Court. The operative period is not less than five years. In terms of section 303 (2), a suspended term is mandatory in reference

128

to a first time offender who has been sentenced for a term not exceeding six months, subject to the exceptions referred to therein. An order suspending a term of imprisonment cannot be made when the statute prescribes a mandatory sentence of imprisonment. The primary objective of the suspended sentence is to keep the offender out of prison and is intended as a deterrent measure. It differs from a conditional discharge for the reason that with the latter, there is no specified sentence hanging over the head of an individual which will became operative on the commission of a further sentence. The thinking was that non-custodial measures may possess both penal and corrective characteristics and may also serve other purposes such as public protection. When a Judge imposes two suspended sentences, he should state whether as between themselves they are to be concurrent or consecutive. It is wrong in principle, either to pass a suspended term for one offence and impose a custodial sentence with immediate effect for another offence at the same time and to activate one suspended sentence while imposing another, the reason being that the main objective of the suspended sentence is to avoid sentencing an offender to prison at all. In Mary Sapiano (1968) 55 Cr App R 674, it was held that it is not proper to pass suspended sentence to be consecutive to an effective sentence, as the main object of a suspended sentence is to avoid sending the offender to prison and in any event, the procedure would not be workable in practice. (1971) 55 Cr. App R 515. Change of Emphasis

129

The growth of crimes in recent years itself has created an increasing prison population and an increased tariff of penalties. Hence, emphasis is no longer on providing measures which increase the opportunities for prisoners to be detained longer in order to achieve reform. The problem has been to find measures restricting the use of imprisonment thus involving a search for non-custodial measures, which would have the effect of reforming petty offenders. One of the main reasons for this change of emphasis is that a large percentage of the prisoners were languishing in jail for the defaulting of payment of fines. Therefore, the need arose to bring in legislation enabling the Magistrate Court to impose Community Based Correction orders in lieu of sentences or imprisonment. It is in that background that the Community Based Correction Act No. 46 of 1999 saw the light of day. Section 6 of the Act gives power to the Magistrate to make a Community Based Correction Order in lieu of imposing a sentence of imprisonment of a suspended term of imprisonment or fine, except in cases where the offender has to serve a mandatory minimum sentence or the offence for which the penalty prescribed for includes terms of imprisonment exceeding two years. In exercising discretion in this regard, the court has to take into consideration the nature and gravity of the offence and the other circumstances relating to the commission of such offence. The court will be provided with a pre sentence report as well. The execute the said order, the Act creates a Commissioner of Community Based Corrections. Sexual Offences In recent years in Sri Lanka, certain changes have come in respect of Sexual Offences. Penal Code (Amendment) Act, No. 22 of 1995 introduced new Punishment for Sexual offences such as Procuration (360A), Sexual Exploitation of Children (360B), Trafficking; (360C), Marital Rape and Gang Rape.

130

Offences has been enhanced and a Mandatory Sentencing Policy has been introduced. A new sentencing scheme was thereby brought into the Statute Book due to the recognition that an inadequate sentence frequently adds to the anguish of the victim who feels that society has not recognized her suffering, particularly when she is compelled to speak in public of the grave wrongs committed against her. In these offences, even though a mandatory minimum sentence has been introduced, we do not have any guideline as to how the limited discretion should be exercised. Lord Justice Mantell in the recently decided Attorney Generals reference nos. 91, 119 and 120 of 2002 (2003 2 Grim App. R-55 lays down certain guidelines which could be well be adopted by our Courts. guidelines are as follows : 1. The degree of harm to the victim. These

2. The level of culpability of the offender. 3. The level of risk posed by the offender to society. 4. The need to deter others from acting in a similar fashion. Mandatory Sentencing Laws With a view to curb and prevent terrorism and drug offences, recent legislation introduced offences for which the imposition of mandatory minimum sentence of imprisonment has been prescribed. Eg : The Prevention of Terrorism (Temporary Provisions) Act, Poisons, Opium and Dangerous Drugs Ordinance. Similar penal provisions were brought into the Penal Code. Eg. Penal Code (Amendment) Act No. 22 of 1995. The idea of mandatory sentencing is, in fact, based on the principle of deterrence. These laws reflect the public perception that very strict punishment is necessary to deal with persistent criminal offenders.

131

We do not yet have readily available statistics or assessment of recidivism regarding mandatory sentencing. One difficulty in assessing the impact of mandatory sentencing is that imprisonment statistics are based on the offence and do not record whether the incarceration is the result of a mandatory sentence. The main criticism against the introduction of mandatory sentencing laws to our penal system is that mandatory sentencing excludes the exercise of judicial discretion. Mandatory sentencing also has a particularly unjust impact on those with mental illness or intellectual disability. Commenting on the mandatory sentencing laws in Australia, it is interesting that The Sydney Morning Herald remarked thus, Popular feelings and emotions are not a sound basis for deciding how justice should be done without dealing with variety of offences. The following criticisms have been leveled against the introduction of mandatory sentencing laws into penal systems. I. discretion is removed from Courts II. these laws are harmful to vulnerable and disadvantaged persons in society. III. statistics do not indicate that these laws deter criminal activity. IV. these laws are an affront to the notion that punishment should fit the crime. It would cause disparity in sentences for offences, which are or are not subject to mandatory sentencing. Further, it has also been contended that these laws will have the effect of increasing the prison population. There will be an increase in the number of

132

prisoners sentenced to full time imprisonment and the length of time they spend in prisons. Conclusion Dr. A.R.B. Amerasinghe in a report prepared on Community Service Orders has remarked that sentencing is a matter that is within the discretion of the Judge, and this should be the case. He lamented that there are no guidelines with regard to the exercise of this power. We have only a few guideline judgments. Guideline judgments reinforce public confidence in the integrity of the process of sentencing. An appropriate balance must exist between the broad discretion given to Courts to ensure that justice is done in each individual case and the need for consistency in sentencing and the preservation of public confidence in sentences actually imposed. The problem of sentencing disparity between Courts is not so much one of different sentences, but inconsistency in basic principles and sentencing assumptions. If, for instance, one court generally views an offence, whatever the circumstances of commission and of the offender, quite differently from another Court, there is an evident disparity of sentencing policy in relation to that offence. There must be a number of guiding principles and commonly held assumptions to provide coherence to the whole system. The maximum sentence available for a particular offence must be reserved for the worst form of that offence. (Vide Byrne (1975) 62 Crim. Aop.R. 159) Aggravating factors may be taken into consideration in the in the imposition of a higher sentence and mitigating factors may lead to the imposition of a lesser sentence. The Court has to be mindful of the gravity of the offence and the punishment prescribed by the statute. Sentence imposed must be proportionate to the facts of the case. Deterrent punishment to an offender convicted of a

133

grave crime will be a warning to others not to engage in similar criminal activity. (vide Bradley Supra) For petty offenders and cases where compelling mitigating factors are present the sentencer may choose an individualized measure e.g. total or conditional discharge suspended sentence or community based (correction order). Where the statute provides a mandatory sentence, it is imperative that it should be complied with. The following factors may be taken into consideration in determining the character of an offender. (i) (ii) (iii) The number, seriousness, date, relevance and nature of any previous convictions. His general expectations. Any significant contribution made by him to the community.

Article 12(1) of the Constitution lays down that all persons are equal before the law and are entitled to the equal protection of the law.. It requires that in the administration of Criminal Justice, no one shall be subjected for the same offence any greater or different punishment that to which other persons of the same class are subjected. Equality of sentencing does not require uniform sentences for all accused committing the same offence, but only similar sentences for accused whose characteristics and crimes they committed are more or less alike.

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135

Bail
Issues relating to granting bail arise in respect of the following persons :(i) (a) A person suspected of being concerned in committing an offence. (b) A person suspected of having committed an offence. (c) A person accused of having concerned in committing an offence. (d) A person accused of having committed an offence.

(ii) A person having reason to believe that he may be arrested in respect of a non-bailable offence. Granting of bail flows from the much hallowed legal principle referred to as the presumption of innocence. By giving bail such suspect/accused is given a conditional freedom. Whereby he is permitted to be free subject to conditions imposed in the bail order ensuring his future attendance. Until the Bail Act No. 30 of 1997 came into operation granting of bail was governed by the Code of Criminal Procedure Act No. 15 of 1979. Sections 3(2) and section 27 of the Bail Act, has the effect of repealing the provisions relating to bail in the Code of Criminal Procedure Act No. 15 of 1979.

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Code of Criminal Procedure Act classifies the offences into two categories : namely : (a) bailable offences (b) non-bailable offences. Bailable offence means an offence so described in Column 5 of the First Schedule to the Code of Criminal Procedure Act. Non bailable offence is an offence so described in the said Schedule : Application of the Bail Act Section 3(1) expressly takes away its operation in respect of certain offences committed under certain laws : ie. (1) Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979. (2) Regulations made under the Public Security Ordinance. (3) Any other written law which makes express provisions regarding bail. Eg. Offensive Weapons Act. Vide

Attorney General vs.

Hendurage Pubudu Wasantha de Soysa CA (PHC) APN No. 06/2001 decided on 15.03.2001.
Classification of offences into two categories, namely, bailable and non-bailable entails a distinction as to whether an accused or a suspect is entitled to bail as of right or depends on the discretion of Court. In respect of a bailable offence such a person is entitled to be released on bail vide section 4 of the Bail Act. He may be a person produced by the law enforcing authority, or has surrendered or appeared on summons.

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Manner of release - Vide Section 7 Nevertheless even in the case of a bailable offence Court may refuse bail or cancel a subsisting bail order when there is an application made in that behalf by a police officer but such order has to be made after hearing the person or his Attorney-at-Law. Reasons for making such order If the Court has reason to believe that (i) (ii) (iii) (iv) such person would not appear to stand his inquiry/trial interfere with witnesses, or the evidence against him, obstructs Course of Justice or would commit an offence while on bail, or gravity of the particular offence and public reaction which may give rise to public disquiet. Subsequently Court may release him on bail if Court is satisfied that there is a change in the circumstances. Vide Section 14 of the Act. Because of this limitation a suspect or an accused in a bailable offence is not entitled to be released on bail as of right. Thus the Bail Act imposes a limitation which was not there in the Code of Criminal Procedure Act (vide section 402). Interpreting this section in

Pathirana vs. O.I.C. Nittambuwa


It was held that in a bailable offence, bail is

Police (1988) 1 SLR 84.


granted as of right.

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Under section 6 the Officer in Charge of a Police Station has power to release a person suspected of committing a bailable offence on bail upon a written undertaking to appear before the Magistrate on a given date. Penal consequences would follow if he fails to appear. Under section 6 (2) after a summary trial may impose, (i) (ii) (iii) 6 months RI, or a fine of Rs. 1,000/or both

Such powers are given to the Police Officers in the Code of Criminal Procedure Act Section 116 (1) Non bailable offences Granting of bail lies on the discretion of Court. This direction has to be exercised judiciously. Section 14 of the Act enumerates the factors to be taken into account in refusing/cancellation of bail. By doing so the Act imposes a fetter on the judicial discretion. Bail may be refused or subsisting bail may be cancelled if the Judge has reasons to believe that ; (a) the suspect/accused would not appear to attend the inquiry/trail. (b) would interfere with witnesses or evidence or obstructs the course of justice or (c) would commit an offence while on bail or (d) gravity of the offence and public reaction to it.

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It is to be noted that Sansoni, J in

Queen vs. Liyanage 65 NLR refer

to three main factors to be taken into account in granting bail. (i) (ii) (iii) nature of the offence severity of punishment probability of conviction,

This provision contained in section 14 appears to conflict with section 2 which sets a guiding principle namely that the grant of bail shall be regarded as the rule and the refusal to grant bail as the exception. In terms of section 15 of the Act, if the Magistrate by his order refuses bail, cancels a subsisting order releasing a person on bail, rescinds or varies an order he must give reasons. Vide

Anuruddha Ratwatta and 14 others vs. Hon. Attorney General S.C. Appeal Nos. 02/2003 to 16/2003 (TAB),
decided on 11th July 2003. Magistrates will have to be mindful of the fact that the Magistrates Court has no jurisdiction to grant bail to an accused or suspect in an offence punishable with death or with life imprisonment. Section 13 specifically states that in such cases only a Judge of the High Court can grant Bail. In terms of section 16 if the period in custody exceeded 12 months from the date of arrest the Magistrate or the High Court Judge as the case may be has power to release such person on bail.

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Section 16 provides for extension of the period on an application by AttorneyGeneral to the High Court.

Exceptional Circumstances Under certain laws the applicant for bail has to show exceptional circumstances and the Court has to satisfy itself that there are exceptional circumstances. Eg. Section 8 of the Public Property Act No. 12 of 1982, Section 30 A (2) of the Bribery Act. Bail to an appellant In an application for bail pending appeal the Court has the discretion to commit him to prison pending the determination of the appeal or release him on bail. Court may then take into consideration the following matters. (vide section 19(2) of the Act). (i) (ii) gravity of the offence the antecedents of the accused.

This section appears to limit the discretion of Court taking into account factors other than those specified in the section. In the case of an appeal against a conviction by a High Court the relevant section does not enumerate the factors to be taken into account in the case of an application for bail. Hence the principles laid down in

Banu

Thamotherampillai vs. The Attorney-General in SC 871/75, namely the availability of exceptional circumstances would apply.

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Concept of anticipatory bail is a novel feature to the Law relating to Bail in Sri Lanka. Hitherto; in a non-bailable offence point of time the question of granting bail was considered was when the offender. (a) was brought before Court or (b) surrendered to Court or (c) appeared before Court on Summons. But the point of time at which an application for anticipatory bail is made in respect of any person is when that person has reason to believe that he may be arrested on account of his being suspected of having committed or being concerned in committing a non-bailable offence. Prior notice has to be given to the Officer-in-charge of the Police Station of the area where the offence is alleged to have been committed. Order made would be a direction to the Police that in the event of his arrest he should be released. The direction would be made only after an inquiry. Discretion lies in the

Magistrate either to grant or refuse the application for an anticipatory bail. In terms of section 21(4) of the Bail Act, the Magistrate must record the reasons for his order. In the order conditions of bail also should be attached ie. (i) (ii) the manner in which bail should be imposed. the offence in respect of which order is made. Vide section 24 of the Bail Act.

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The effect of the order is that in the event of his arrest the applicant shall be entitled to be released forthwith on bail. Nevertheless in terms of section 26 of the Bail Act, the Magistrate has power either to cancel or vary the original order and make appropriate order to detain him. The Judges have to be mindful of the provisions of Release of Remand Prisoners Act, No. 8 of 1991.

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Sri Lankas Code of Criminal Procedure (Special Provisions) Act, No 15 of 2005; Analysis
P.H.K. Kulatilaka Introduction The aforesaid Act (hereinafter referred to as the New Act) has been drawn up with a view to introduce changes to the existing procedure relating to the conduct of non-summary inquiries in the Magistrates Courts. However, it must be kept in mind that when introducing such important legislation, the draftsmen must be mindful of the fact that hitherto, our criminal courts have not only acted in terms of the provisions ensconced in the statues but also have interpreted the provisions and in the process, brought in judge made laws. It is a pre-requisite that when crafting enactments of a legal nature, the draughtsmen should have expertise, know-how and the experience in the discipline that they are dealing with. Otherwise it will opened the fundamental principle that a statute should be so expressed and to be readily understood by those who are affected by them. An amateurish approach would result in confusion and uncertainty. The General purpose of the Act The main purpose in introducing the New Act is to introduce provisions to dispense with the conduct of non-summary inquiry into the offences specified in the Second Schedule to the Judicature Act No.2 of 1978.

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Directions have been given in a number of sections in the New Act in wide general terms to disregard provisions of the Code of Criminal Procedure Act No.15 of 1979 using the following phrase: Notwithstanding anything contained in the Code of Criminal Procedure Act No.15 of 1979.. (see sections 2,3,4, and 6 of the New Act). At the same time, the New Act uses the following phrase: The provisions of chapter 15 of the Code of Criminal Procedure Act No.15 of 1979 shall mutatis mutandis apply to any preliminary inquiry held under the provisions of this Act. This sort of approach, without specifying the particular section or provision in the Code of Criminal Procedure Act which is to be disregarded or applied, puts the Magistrate into a confused state of mind. A significant feature in the New Act is the pivotal role played by the Attorney General. He is the supreme authority in deciding whether to forward a direct indictment or not in respect of offences specified in the Second Schedule to the Judicature Act No. 20 of 1978. Even in cases where the Magistrate decides to proceed under the provisions of Chapter 15 of the Code of Criminal Procedure Act No.15 of 1979, the Attorney General has power to call for the record of proceedings to consider whether to forward indictment directly to the High Court. When such an order comes from the Attorney General, the Magistrate should forthwith suspend proceeding and forward the record of the proceeding to the Attorney General (vide Section 4(3) of

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the New Act). The Magistrate merely plays a passive role in these proceedings. In terms of Section 3(1) of the New Act, without any recourse whatsoever to the Magistrate, the Attorney General has power to forward indictment directly to the High Court where there are aggravating circumstances or circumstances that give rise to public disquiet in connection with the commission of an offence specified in the Second Schedule to the Judicature Act, There is no mention of the source from which the Attorney General obtains information relating to the offence. It may be that the Attorney General takes this decision after perusing the investigation report forwarded to him by the Police. In doing so the Attorney General acts ex mero mottu. In terms of section 4(1) the New Act, where there are aggravating circumstances or circumstances that give rise to public disquiet, the Magistrate should, without holding a preliminary inquiry in terms of Chapter XV of the Code of Criminal Procedure Act forthwith forward the record of the proceeding to the Attorney General. One has to assume that the phrase record of the proceedings means the two certified copies of the notes of investigations and all the statement recorded in the course of the investigations which were furnished to the Magistrate by the officer-in-charge of the Police Station where the information book kept. It is interesting to note that irrespective of the opinion of the Magistrate to the effect that there are aggravating circumstances of circumstances that give rise to public disquiet, the Attorney General

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superimposes his own opinion or view regarding that are aggravating circumstances or circumstances that give rise to public disquiet when he returns the record to the Magistrate directing him to hold a preliminary inquiry (in terms of section 4(2)(b) of the New Act). This shows the state of confusion that arises by not having a definition clause in the Act as to what are the aggravating circumstances or circumstances that give rise to public disquiet. It is a lacuna or a gap in the Statute. In terms of section 4(3) of the New Act, where the Magistrate decides to proceed to hold an inquiry under Chapter XV of the Code Criminal Procedure Act, the Attorney General has power to call for the record of the proceeding for the purpose of considering forwarding indictment directly. This section does not refer to the requirement of aggravating circumstances of circumstances that give rise to public disquiet. The stage at which the direction to forward the record would necessarily be after the commencement of the preliminary inquiry with reading over to the accused the charge or the charges in terms of Section 145 of the Code of Criminal Procedure Act. Under the New Act, in respect of offences specified in the Second Schedule to the Judicature Act, the Magistrate has power to hold a preliminary or non summary inquiry into only those offences which do not fall into the category of offence where there are there are aggravating circumstances or circumstances that give rise to public disquiet. Therefore, the Magistrate holds the preliminary inquiry into the following categories cases: 1. Where under section 4(3) of the New Act, the Magistrate proceeds to holds a preliminary inquiry in terms of Chapter 15

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of the Criminal Procedure Act No.15 of 1979 and the Attorney General does not call for the record to forward direct indictment to the High Court. 2. Where under section 4(2)(b) of the New Act, the Attorney General is of the opinion that the circumstances do not warrant to forwarding of direct indictment to High Court. 3. Apart form these two instances, there is a further category where the Attorney General is of the opinion that it is necessary to have preliminary inquiry as a prelude to the preparing of indictment in respect of any offence specified by him within 3 months of the commission of the offence in terms of section 145B read with section 393 (7) of the Code of Criminal Procedure Act No.15 of 1979 as amended by (Amendment) Act No.52 of 1989. The New Act lays down that the proceedings have to be concluded within ninety days from the date of commencement of proceeding in terms of Chapter XV of the Code of the Code Criminal Procedure Act. Commencement of Proceedings Section 6 of the New Act deals with the provisions relating to the taking of statements of persons who know the facts and circumstances of the case where a Magistrate proceeds to hold preliminary inquiry in terms of Chapter XV of the Code of Criminal Procedure Act No.15 of 1979. There is no provision specified in the New Act relating to the reading over to the accused, the charge or charges in respect of which the inquiry is being held. The non inclusion of the provision creates some confusion because section 6(14) of the New Act refers to reading of the charge or charges to the accused after the conclusion of the recording of statements of witnesses produced by the prosecution

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(which provision is contained in Section 150 of the Code of Criminal Procedure Act, No.15 of 1979). Depositions Section 6 of the New Act deals with the provisions applying to the taking of statements of persons who know the facts circumstances of the case. These are based on statements recorded in terms of Chapter XI Code of Criminal Procedure Act, No.15 of 1979. This is a departure from the procedure spelt out in the latter. Before a witness is produced by the prosecution against the accused, he or his pleader is permitted to peruse in open court, the statements made by the witness to the police (vide section 6(6) of the New Act). The case for the prosecution commences with the Magistrate reading out or causing to be read out to every witness produced by the prosecution, in the presence and hearing of the accused the statements made by the witness in the course of investigations conducted under the Chapter XI of the Code of Criminal Procedure Act. Thereafter the Magistrate should ask the witness whether such statement is an accurate record of what he stated to the Police. The Witness may take any of the following options: 1. To state to the Magistrate that the statement made to the Police is an accurate record of that he stated to the Police in Which event, the Magistrate shall record that fact. 2. To state that he desires to make additions or alteration to his original statement in which event, the Magistrate will permit him to do so and once additions or alterations are done the Magistrate should record such additions and alterations.

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3. To state the original statement in its entirety or in part is not an accurate record of what he stated to the Police. Then the Magistrate has to permit him to give an account of the circumstances relating to the offence or make such alterations or additions in the original statement.

Right to Cross-examination Prosecutors Role Any cross-examination of the witness by the accused or his pleaser is not permitted. (vide section 6 (3)(b) and (5)(b) of the New Act). Nevertheless, having considered the nature of the material contained in the statement made to the police, the prosecutor may tender the witness for cross-examination by the accused or his pleader (vide proviso to Schedule 6(3)(b) and 6(5)(b). Apart from this, the prosecutor has role to play in these proceedings. Clarification The accused or his pleader is permitted to seek any clarification of any matter arising from the statement made to the police any additions or alterations (vide section 6(3)(b) of the New Act) or any matter arising from the account of circumstances relating to the offences of additions or alterations made under section 6(5)(b) of the New Act. It is only through the Magistrate that the aforesaid matters for clarification are to the witness. Likewise, if the Magistrate himself needs clarification in respect of any of the above matters, he can put such matters to the witness (vide section 6(3)(b) and 6(5)(b) of the

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New Act). The Magistrate has to record the additions, alteration or the account give by the witness. Affirmation by the Witness Once the above procedure is followed, the Magistrate must require the witness to swear or affirm to the truth of the matter so recorded. Thereafter the Magistrate has to sing a certified copy of the statement made by the witness to the police and also cause the witness to sing the same. This document will be filed of record as part of the record of the inquiry. Report of the Expert witnesses and affidavits of Police Officers The procedure relating to aforesaid matters are found in section 6(8), 6(9) of the Act. The Magistrate need not summon any expert witness or Police officer. But if he decides to summon them, he has to give reasons for his decision and to obtain prior sanction of the Attorney General. When such expert witness or Police officers appear in Court, no crossexamination will be permitted but if any clarification is sought by the accused or his pleader relating to any matter arising from such report or affidavit, such clarifications will be put to the expert witness or the Police officer by the Magistrate. Apart from this, the Magistrate himself may seek clarifications from the witness or Police officer in necessary. Such clarifications have to be recorded. Depositions admissible under Section 33 of the Evidence Ordinance The deposition of witnesses who are tendered for cross-examination by the prosecution and statements made by the expert witness or Police

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officer will be admitted in evidence in terms of Section 33 of the Evidence Ordinance (vide Section 6(10) of the New Act). But under depositions made by the prosecution witnesses will not be admissible evidence in terms of section 33 of the Evidence Ordinance. The Rule of Evidence is that the adverse party in the first proceedings should have had the right and opportunity to cross-examine vide Subramaniam V.I.P. K.K.S. King1 V. Appuhamy 2 . Right of representation A new feature that has been introduced in the New Act is that, in terms of section 6(13), every witness produced against the accused is entitled to be represented by an attorney-at-law. An accused, as of right, is entitled to be represented by a pleader. Procedure when accused is absent In the case of an absent accused, the procedure found in section 11(a) will apply. But an absent accused is entitled to be represented by an Attorney-at-law (vide Section 11(b) of the New Act). Discharge of the accused After conclusion of the recording of the deposition of the witnesses produced by the prosecution against the accused, if such evidence is not sufficient to call for a defence, in terms of section 153 of the code of Criminal Procedure Act No.15 of 1979 the Magistrate should forthwith discharge the accused. But in such a case, he has give evidence on his to give reasons for his order. Calling for Defence

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If the accused is not dealt with in accordance with the provisions of section 153 of the Code of Criminal Procedure Act, the Magistrate shall read the charge and inform him of his right to call the witnesses and if he so desires to give evidence on his own behalf3 Having specified the provisions relating to calling for the defence, the New Act is silent as to how the defence witnesses are to be dealt with. This results in a perplexing situation as immediately after section 6(14), section 6(15) brings in the provisions of Chapter XV of the Code of Criminal Procedure Act No.15 of 1979 shall mutatis mutandis apply to any preliminary inquiry held under the provisions of this Act. Since the new Act does not set out any special procedure where the Magistrate decides to call for the accusers defence, the provisions of the Code of Criminal Procedure Act, No.15 of 1979 as prescribed in section 150, 151, 152, and 153 will apply. The normal rule of evidence relating to examination-in-chief, crossexamination and re-examination will also apply if the accused opts to give evidence on his own behalf and/or call witnesses. However, this appears to result in an anomalous situation when compared with the procedure set out in section 6 of the New Act relating to the taking of statements of witnesses produced against the accused. At the end of the defence case, if the Magistrate considers that the evidence against the accused is not sufficient to put him on trial, the Magistrate will forthwith discharge the accused. He should give reasons. But if he considers that the evidence is sufficient to put the accused on trial, the Magistrate will commit the accused for trial before the High Court.

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Extension of detention period Provisions relating to extension of the detention period in police in custody of persons arrested in connection with offences specified in the schedule to the New Act are found in Section 2 of the New Act. On production of a person arrested in respect of any aforesaid offences prior to expiration of 24 hours as provided for in the Code of Criminal Procedure Act No.15 of the 1979, if a certificate by a Police officer not below the rank of Assistant Superintendent of Police in submitted stating that it is necessary to detain such person for the purpose of further investigation, the Magistrate has power to extent the period of detention for a further period of 24 hours. The aggregate period of detention cannot exceed 48 hours. The duration of the Act is for a period of two years from 31st may 2005.

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