PRODUCE THE SUSPECT BEFORE COURT.

 

FORWARD THE SUSPECT AND CASE BEFORE THE MAGISTRATE'S COURT.

Duncan Abeynayaka – LLB, Attorney At Law

 

CODE OF CRIMINAL PROCEDURE ACT

116.

(1) If upon an investigation under this Chapter it appears to the officer in charge of the police station or the inquirer that the information is well founded such officer or inquirer shall forward the suspect under custody before the Magistrate's Court having jurisdiction in the case, or if the offence is bailable and the suspect is able to give security, shall take security from him for his appearance before such court.

(2) When the officer in charge of a police station or an inquirer forwards a suspect before, a Magistrate's Court or takes security for his appearance, he shall send to such court any weapon or other article or document or specimen or sample which it may be necessary to produce before such court, and shall require the complainant (if any) and so many of the persons who appear to such an officer or inquirer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Magistrate's Court therein named and give evidence in the matter of the charge against the suspect.

(3) The Magistrate may on application made by a police officer or inquirer forward any weapon or other article or document or specimen or sample to the Government Analyst, Government Examiner of Questioned Documents, Registrar of Finger Prints or Government medical officer, as the case may be, for analysis and report to the court.

(4) The officer or inquirer in whose presence the bond referred to in subsection (1) or subsection (2) is executed shall send such bond to the Magistrate's Court.

(5) If any complainant or witness refuses to execute such bond, such officer or inquirer shall report the same to the Magistrate's Court having jurisdiction which may thereupon in its discretion issue a warrant or summons to secure the attendance of such complainant or witness before itself to give evidence in the matter of the charge against the suspect.

 

DECIDED CASES

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

Section 116 is a section contained in that part of the Code dealing with the investigation of offences and the powers of Police Officers and inquirers to investigate. It is a step in the process of investigation.

It is the counterpart of s. 114 which permits the release of an accused if evidence is deficient. Section 116 (1) requires that a suspect be sent in custody to a Magistrate's Court with jurisdiction when the information is well founded in the case of a non-bailable offence. That is to say that the suspect should be so forwarded when the Police Officer or inquirer comes to a conclusion that there is sufficient evidence in the sense that a substantial case is made out at an early stage of an investigation which can properly be sent before a Magistrate. Thereafter it is necessary for the Magistrate to make an order for the detention of the suspect. On the other hand, if the offence is bailable the section even permits the Police Officer or inquirer to take security from the suspect for his appearance before Court. The section also provides for productions to be sent to the Court immediately without being kept at the Police Station for further investigations if necessary, and for witnesses to be bound over to appear and testify at a trial. The fact that the Police can take bail and release the suspect if the offence is bailable under sub-section (1) and the fact that investigations can continue under sub-section (3) and the use of the word “suspect" and not “accused" in the language of sub-section (1) used to refer to this person clearly point to the fact that no proceeding has yet been instituted against that person as an accused. Producing a suspect before a Magistrate's Court in custody in terms of s. 116 (1) has nothing to do with the institution of proceedings under s. 136 (1)(d) of Chapter XIV or any other clause of that section. The purpose of producing a suspect before a Court for a non-bailable offence under s. 116(1) is both for the purpose of detaining such a person as well as enabling the Court to take cognisance of the matter enabling it to make further orders under the section as a Court order is necessary for expert witnesses to examine productions and express opinions. The provisions of s. 116 (1) usually denote the completion of a Policeman's investigative endeavours. The Magistrate once seized of the matter may then require further probing by forensic experts of evidence already gathered; the findings and opinions of such specially skilled persons may tend to confirm the State’s case against the prisoner.

When a suspect is produced before a Magistrate under s. 116 (1) of the Code in respect of a non-bailable offence it is necessary for the Magistrate to make an order for the detention of the suspect until the final report under s. 120 of the Code is filed. This he can do under the provisions of s. 120 (1) and the investigation can continue.

For instance, the Police may have been making inquiries over a period of time upon a complaint. Having gathered evidence which justifies an arrest a suspect is taken into custody and incriminating evidence such as a weapon of offence or a document connecting the suspect to the crime is found and it is necessary to take blood or saliva samples or specimens of nails or hair for comparison. In such a case it may be said that the Police have sufficient grounds to believe the information is well founded and before the expiry of 24 hours in compliance with the provisions of s. 37 transmit the suspect in custody to the Magistrate. Further investigations regarding the productions will continue under s. 116.

A final report made under s. 120 will be filed upon conclusion of the investigation. It is to be noted that S. 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 s. 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 s. 116 (1). It is wrong to treat it as an automatic institution of proceedings.

Suspect being taken before a Magistrate in custody during an investigation in terms of s. 116 (1) when the investigating authority is of the opinion that the information in his possession that the suspect has committed a non-bailable offence is well founded. In such a situation that suspect is detained pending further investigation and the Magistrate is obliged to assist the further investigation by making appropriate judicial orders. That is all s. 116 (1) contemplates. It is a step prior to the institution of criminal proceedings.

Equating a report under s. 116 (1) to an institution of proceedings is wrong.

 

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

This section enacts that if upon an investigation it appears to the police that the information is well founded, he shall forward the suspect to a magistrate or take security for his appearance before such magistrate.

The words "the information is well founded" has to be examined in the light of the provisions contained in section 109 which refers to

"Information relating to the commission of a crime". Therefore, if after the investigation the Officer-in-Charge of a police station finds that a definite allegation could be made against the suspect, then the police would produce the suspect before the Magistrate with the allegation that he has committed an offence and proceedings are automatically instituted under the provisions of section 136 (1) (d).

A striking feature of section 116 is the absence of any stipulations as to what the Magistrate should do when a person is produced before him in terms of this section. The reason for this is obvious that, when a suspect is produced before a Magistrate with a definite allegation that he has committed an offence, proceedings are automatically instituted and what a Magistrate should do after proceedings are instituted is clearly spelt out in section s 145 and 182 (1).

The absence of a detailed provision in section 116 as to what the Magistrate should do is an indication that there is, indeed, a difference between the situations provided for in section 115 and 116 of the Code of Criminal Procedure Act. Section 115 caters to a special situation and, therefore, the legislature has set out in detail the steps to be taken in such a situation. When the situation contemplated by section 116 has arisen, no such stipulations are necessary in view of the fact that the normal procedure could be resorted to. It is, therefore, indeed clear that sections 115 and 116 cater to two different situations. Once a suspect is taken before the Magistrate by the police on the basis that information is well founded, then by virtue of section 136(1)(d) proceedings are instituted and the Magistrate is directed to start a preliminary inquiry under the provisions of section 145. Once this stage is reached if for some reason the inquiry has to be postponed, the Magistrate is empowered to act under section 263 of the Code. The Magistrate can then remand or enlarge the suspect on bail. However, his power to grant bail under this section is subject to the provisions of section 403 which is a special section relating to bail. Therefore, the suspect in respect of whom proceedings have been thus instituted would not be entitled to be enlarged on bail under the provisions of section 1 15 of the Code of Criminal Procedure. At this stage, the only provisions under which he could seek to be released on bail would be section 403.

 

03. THAVARASA AND TWO OTHERS V. GUNASEKERA AND OTHERS (1996J2 SRI L.R. 357

Section 116(1) (of the Code of Criminal Procedure Act.) is directory and not imperative or mandatory. Despite its language there lies a discretion with the Police to produce a suspect before a Magistrate instead of releasing him on bail to appear in court although the offences of obstruction and intimidation are bailable.

 

SEE: THE CEYLON INSURANCE COMPANY LTD., and E. V. PERERA and others, 74 NLR 553