INFORM THE REASON TO BE ARRESTED.

INFORM THE REASON TO BE ARRESTED

Duncan Abeynayaka – LLB, Attorney At Law

 

ARTICLE 13(1) OF THE CONSTITUTION

No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reasons for his arrest.

 

CODE OF CRIMINAL PROCEDURE ACT

23.

(1) In making an arrest the person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action and shall inform the person to be arrested of the nature of the charge or allegation upon which he is arrested.

Explanation. -

Keeping a person in confinement or restraint without formally arresting him or under the colourable pretension that an arrest has not been made when to all intents and purposes such person is in custody shall be deemed to be an arrest of such person;

(2) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, the person matting the arrest may use such means as are reasonably necessary to effect the arrest.

(3) Anything in this section shall not give a right to cause the death of a person who is not accused of an offence punishable with death.

DECIDED JUDGEMENTS

01. COREA V. THE QUEEN 55 NLR 457

A police officer acts illegally in Ceylon (as in England) if he arrests a man without a warrant on a mere ‘unexpressed suspicion’ that a particular cognizable offence has been committed unless ‘the circumstances are such that the man must know the general nature of the offence for which he is detained’ or unless the man ‘himself produces the situation which makes it practically impossible to inform him. In such a case the police officer is liable to be convicted under the Penal Code for assault and wrongful confinement.

 

02. MARIYADAS RAJ V. ATTORNEY-GENERAL AND ANOTHER (1983) 2 SRI L R 461

Article 13(1) embodies a rule which has always been regarded as vital and fundamental for safeguarding the personal liberty in all legal systems where the Rule of Law prevails. Anyone who is arrested shall be informed at the time of arrest of the reasons for his arrest. The purpose of this rule is to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the mind of the arresting official and disabuse his mind of the suspicion which actuated the arrest.

Criminal Procedure Act chose specifically to make express provision that the person to be arrested should be informed of the nature of the charge or allegation upon which he is arrested. The concern of the framers of Constitution for this elementary principle was manifested when they caused it to be incorporated in the Constitution and made a justiciable fundamental right; section 13(1) of the Constitution, unequivocally and in no uncertain terms provides that the person arrested shall be informed of the reasons for his arrest. The law is solicitous for the freedom of individual and has therefore enacted that the person who is arrested, is entitled to know the reasons for his arrest and has elevated this right into a fundamental right with the attendant sanctions for its breach.

The corresponding provision of the Criminal Procedure Code, which was repealed by the Code of Criminal Procedure Act of 1979, namely, Section 23(1) of the Code does not specifically provide for the person arrested to be informed of the nature of the charge or allegation upon which he is arrested. Even though there was no such express provision in the Criminal Procedure Code, Gratien J, in Muthusamy v. Kannangara 52 NLR 524, held that "whenever a Police Officer arrests a person on suspicion without a warrant "common justice and common sense" require that he should inform the suspect of the nature of the charge upon which he is arrested." He relied on the judgment of the House of Lords in Christie v. Leachinsky 1947 AC 573, as authority for the principle and expressly desired that the following general propositions enunciated by Lord Chanceller Simon should be borne in mind by all Police Officers in this country :—

1. If a Police Officer arrests without a warrant, upon reasonable suspicion, he must, in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

2. If a citizen is not, so informed, but is nevertheless seized, the Policeman, apart from certain exceptions, is liable for false imprisonment.

 

03. ANSALIN FERNANDO V. SARATH PERERA, OFFICER-IN-CHARGE, POLICE STATION, CHILAW [1992] 1 SRI L.R.411

Regulation 18 of the Emergency Regulations only empowers an arrest on account of an offence under Emergency Regulations. Murder as such is not such an offence. If (murder) Is an offence in respect of which an arrest can only be made under Section 23 of the Code of Criminal Procedure Act, in which event the suspect has to be produced before a Magistrate in terms of Section 36 and within the period prescribed by section 37 of the Code. Where such arrest is claimed to have been made under Regulation 18(1) on a suspicion of the arrestee being concerned in committing an offence under Emergency Regulations, it would not be possible to defend the arrest even on the ground that it is referable to section 23 of the Code of Criminal Procedure Act. The arrest and the detention on that basis are violative of Article 13(1) of the Constitution.

Even if the arrest for murder was lawfully made in terms of Section 23 of the Code of Criminal Procedure Act and it became necessary on the basis of material disclosed during the investigation to detain the arrestee under Emergency Regulation 19(2), he was entitled to be informed of the reason for the deprivation of his personal liberty. Failure to do so would make the detention illegal.

 

04. THE KING VS WANNAKU TISSAHAMY 51 NLR 402

An accused person is not entitled to plead the right of private defence against an act of a public servant which caused him reasonable apprehension of death or grievous hurt if the act of the public servant did not constitute any offence and was justified in law. In such a case there is no necessity for the presiding judge to make any reference to section 92(1) of the penal code in his summing up.