POLICE CUSTODY - 24 HOURS.

PROCEDURE WHEN INVESTIGATION CANNOT BE COMPLETED IN TWENTY FOUR HOURS.

Duncan Abeynayaka – LLB, Attorney At Law

 

CODE OF CRIMINAL PROCEDURE ACT

115. (1) Whenever an investigation under this Chapter cannot be completed within the period of twenty-four hours fixed by section 37, and there are grounds for believing that further investigation is necessary the officer in charge of the police station or the inquirer shall forthwith forward the suspect to the Magistrate having jurisdiction in the case and shall at the same time transmit to such Magistrate a report of the case, together with a summary of the statements, if any, made by each of the witnesses examined in the course of such investigation relating to the case.

(2) The Magistrate before whom a suspect is forwarded under this section, if he is satisfied that it is expedient to detain the suspect in custody pending further investigation, may after recoiling his reasons, by warrant addressed to the superintendent of any prison authorize the detention of the suspect for a total period of fifteen days and no more. The provisions of section 264 shall apply to every such warrant. If at the end of the said period of fifteen days proceedings are not instituted the Magistrate may subject to subsection (3) either discharge the suspect or require him to execute a bond to appear if and when so required.

(3) Subject to talk provisions of the Criminal Procedure (Special Provisions) Law, No. 15 of 1978, a Magistrate shall not release on bail or otherwise any person who has -

(a) surrendered himself to court, or

(b) been arrested,

consequent on an allegation that he has committed or has been concerned in committing or is suspected its have committed or to have been concerned in committing an offence punishable under sections 114, 191 and 296 of the Penal Code:

Provided however that such person shall, subject to the provisions of the Criminal Procedure (Special Provisions) Law, No. 15 of 1978, be released on bail if proceedings are not instituted against him in a Magistrate's Court or the High Court before the expiration of a period of three months from the date he surrendered to court or is arrested unless the High Court on application made by the Attorney-General directs otherwise:

Provided further that the High Court may, subject to the provisions of the Criminal Procedure (Special Provisions) Law, No. 15 of 1978, in special circumstances release such person on bail before or after the expiration of the period of three months referred to in the preceding provisions of this subsection.

(4) During the period that a suspect is in the lawful custody of a superintendent of prison, a court may upon an application in that behalf made by the police officer in charge of a police station authorize such or any other police officer to have access during reasonable hours to such suspect for the purpose of the investigation. The court may on an application in that behalf being made by an officer in charge of a police' station authorize him or any other named police officer to take the suspect in the company of an officer of the Prisons Department from place to place (other than to a police station) if in the opinion of such court such action is considered necessary for the purpose of the investigation:

Provided that during the period a police officer has access to a suspect or takes him from place to place under the provisions of this subsection, the suspect shall be deemed to be an accused person in the custody of such police officer for the purpose of the application of subsection (1) of section 27 of the Evidence Ordinance.

 

01. ATTORNEY-GENERAL V. PUNCHI BANDA AND OTHERS (1986) 1 SRIL.R. 40  

This section provides that when the investigation cannot be completed within the period of twenty-four hours fixed by section 37 of the Code of Criminal Procedure Act, and there are grounds for believing that further investigation is necessary, the Officer-in-Charge shall forward the suspect to the Magistrate's Court with a report of the case together with a summary of statements recorded up to that time.

In terms of section 115 (2), if the Magistrate is of the view that it is expedient to detain a suspect in custody pending further investigation, he may after recording the reasons, authorize the detention of the accused for a total period of 15 days and no more. If, at the end of the 15 days, proceedings are not instituted the Magistrate may discharge the suspect or require him to execute a Bond to appear if and when so required.

At this stage, we have to consider what is meant by the words "proceedings are not instituted" in section 115 (2). Section 136 of the Code of Criminal Procedure provides that proceedings shall be instituted by a complaint (136 (1) (a)) or a report (136 (1) (b)) which alleges 'that an offence has been committed' So, under the provisions of the Code proceedings are instituted when there is a complaint or a report containing a definite allegation that an offence has been committed. Therefore, when section 115 (2) provides that if proceedings are not instituted" within the stipulated 15 days, the suspect shall be discharged or released on a Bond, it envisages a situation where a person has been detained for 15 days without the institution of proceedings. It is clear, therefore, that a suspect could be remanded for 1 5 days without a definite allegation that he committed an offence. This envisages a situation where there is not sufficient material to make a definite allegation against the suspect, but the information merits further investigation and the investigation cannot be completed within the period of twenty-four hours fixed by section 37 of the Criminal Procedure Code Act. At this stage, the situation is brought to the notice of the Magistrate and judicial scrutiny commences.

Section 115 (3) provides further that if the suspected offence falls within sections 296, 191 or 114 of the Penal Code, then the Magistrate shall not enlarge the suspect on bail for a further period of 3 months, because the above three sections create the most serious offences known to our law. If, during this period of 3 months, the police fail to find evidence sufficient to make a definite allegation against the suspect, the suspect may be released on bail. The proviso to this sub-section however, authorizes the High Court to direct the detention of a suspect for a further period on an application made by the Attorney-General. Section 120(1) and (2) also support this contention. These sections enable judicial scrutiny and control over the police investigation. This is a power given to the judiciary to supervise the progress of the police investigation with a view to ensuring that once a suspect is remanded, the suspect would not continue to remain in custody in the absence of sufficient evidence.

 

02. TUNNAYA ALIAS GUNAPALA V. OFFICER IN CHARGE, POLICE STATION, GALEWELA (1993) I SRILR. 61

It is to be noted that Section 115 (3) does not permit a Magistrate to release on bail in the first instance a person arrested for the offence of murder.

This means he must make a consequential order of detention when a suspect is produced in custody in connection with an alleged murder under Section 116 (1). The point is that one is still at the investigative stage when a suspect is forwarded under custody to the Court in terms of Section 116 (1). It is wrong to treat it as an automatic institution of proceedings.

Where no proceedings are in fact instituted upon the report under Section 116 (1) the Magistrate had jurisdiction to release the suspect on bail subject to the terms of the proviso to Section 115 (1) of the Code if a period of three month's since the suspect's arrest has expired. The provisions of Section 115 (3) speak of a suspect being entitled to bail if proceedings are not instituted within 3 months of the date of his arrest.

 

03. REGINA V. PERERA ALIAS MADAWATTE 57 NLR 35

The commencement of non-summary proceedings is not a bar to the continuation of investigations by the Police