Imprisoning The Innocent

by Saliya Pieris-Sunday, October 04, 2015

The plight of the 17-yearold boy, and the 31-yearold man arrested and
remanded over the
brutal murder of Seya
and then suddenly
released, brings to focus
the plight of those who
are wrongly arrested by
the police, and then sent
to remand prison by
judges who are at times
oblivious to the
importance of human
liberty and the suffering
and ignominy of being remanded.
The boy, who was arrested by the police and then remanded, was vilified and humiliated. There are
allegations that he was tortured and subject to inhuman and degrading treatment by the police. In addition,
both suspects have been tried by media- especially social media. Until their release, the public at large
would not have had second thoughts about their guilt. The media carried stories of how the boys lap top
was full of pornographic material, as if he was the first teenager found to be in possession of porn.
Untold damage has been done to the boy, and there must be an inquiry into the circumstances of his arrest
and detention. However sensational and tragic the case, was it really necessary to remand the two suspects?
Could not the DNA tests be done without remanding?
Arresting people
The bottom line for arresting a person is laid down in the Criminal Procedure Code. For certain types of
offences, known as non-cognizable offences, people cannot be arrested unless there is a warrant from a
magistrate. For most offences which are termed as cognizable offences, the police can arrest a person
without a warrant.
However, there is a threshold requirement. It is that such a person must be one who has been concerned in
any cognizable offence or against whom a reasonable complaint has been made or credible information has
been received or a reasonable suspicion exists.
In plain words, this means that there must be some justifiable or reasonable material connecting a person

with the offence before arresting him. Without such material, the police cannot cause an arrest and any
such arrest will be illegal.
Arrests in practice
However what happens in practice is a different story. Police arrest people with or without reasonable
cause. Sometimes people are subject to arrest on the mere complaint of a party, irrespective of the truth of
the complaint. Often the police do not bother to verify the truthfulness of the complaint or check out the
accuseds version. After weeks in remand and sometimes after years of litigation, the complaint is found to
be false. Rarely are people charged for making false complaints.
There are instances when unscrupulous police officers can be influenced into launching a criminal
investigation, even where no criminal case is disclosed. This is especially so when sometimes civil or
commercial transactions turn sour, and people use the police to bring pressure to bear on their opponents
to settle the case. Corrupt police officers are sometimes retained for this purpose.
In one such instance, a businessman, resident in the UK who had invested money in an apartment building,
fell out with his business partner. A criminal complaint was made with the CID, the suspect arrested and
bailed out and a travel ban imposed on him. Finally after nearly two years, he was discharged when the
Attorney General decided there was no case against him.
Remanding suspects
What of remanding a suspect? In most instances, a suspect once arrested has to be produced before a
magistrate within twenty four hours. In some instances, the period in police custody can be extended.
When the suspect is produced before a magistrate, the police have to submit a report to the court setting
out particulars of the investigation and the material available against the suspect. Based on this report, the
magistrate has to decide on whether to remand the suspect, or whether to release him on bail. Where no
material is disclosed in the police reporthe may even release the suspect.
Prior to making a remand order, the magistrate must apply his judicial mind and consider whether
remanding is necessary and whether in fact there is sufficient material against the suspect.
Even where there is material implicating a suspect in an offence, except in cases where he has no power to
grant bail, the magistrate must apply his judicial mind on whether or not to detain the suspect in remand.
The guidelines for granting bail are found in the Bail Act that granting bail is the rule and refusal the
exception.
Bail can be refused if there is a likelihood of interference with the investigation or witnesses, public disquiet
or the likelihood of the suspect absconding. However, none of these exceptions excuse a Magistrate from
his sacred duty of considering whether in fact there is sufficient material implicating the suspect before
him.
In cases where the offence is one carrying a sentence of life imprisonment or death, or under certain special
laws such as the Offensive Weapons Act or the Poisons, Opiums and Dangerous Drugs Ordinance, the
magistrate has no power to grant bail, which must be done by the High Court. However, here too the
magistrate before remanding a suspect must be satisfied that there is material against a suspect to justify

remanding him.
In every instance, if sufficient material is not disclosed a magistrate should refuse to remand the suspect.
The manner judges in the lower courts before whom suspects are produced act vary widely. Some judges
are conscious of the need to avoid unnecessarily remanding people. They carefully consider the available
material before taking a decision. However, others tend to believe whatever the police say and remand
orders are made for the asking by the police. Yet others use the powers of remand or bail to force suspects
to settle cases on the pain of being sent inside if they dont. Some judges use the weapon of remand in order
to punish suspects even before they are found guilty, quite contrary to the presumption of innocence. For
them, remand is a way of teaching a suspect a lesson. Some suspects are thrown into remand for relatively
trivial offences.
There are people in the system of administrating justice who are plainly oblivious to the suffering in prison
and the effect remanding innocent people have on themselves and their families.
A onetime president of the Court of Appeal, Justice P. Wijeyeratne, once told me that he thinks that all
magistrates should be made to spend a few days in remand prison, to make them understand how it is to
have ones freedom curtailed.
Prisons depraved conditions
Outside the Welikada prison, there is inscribed on the wall Prisoners are also Human Beings.. However
humanity stops at those walls.
The unfortunate conditions in our overcrowded prison and the squalor of the prison added to the suffering
of people being unfairly deprived of liberty, albeit temporarily.
An interesting anecdote was told to me by a senior officer in the government. He told me how he
accompanied a UN Rapporteur to a prison in Colombo. While inspecting the prison a few big, well-fed rats
ran across. When they dropped into the kitchen, yet another rat or two ran across, highlighting the squalor
of the prison. The UN official was highly disturbed and observed that getting rid of the rats cannot be so
difficult. Thoroughly embarrassed at what happened, my friend trotted out the excuse that there were so
many rats in the prison because the officials didnt want to kill them as taking any form of life was contrary
to their religious beliefs. The UN official seemed to accept that explanation.
Apart from the overcrowding and the squalor, there is also the threat of violence and sexual abuse,
inhuman treatment, nefarious activities within the prison will frighten any normal human being. One
remand prisoner told me everything is available within the prison but at a price.
Maximus Danny
The conduct of magistrates in pointlessly throwing people into remand was highlighted in the unfortunate
plight of Maximus Danny, a widower who checked into a guesthouse at Dankotuwa with his lady partner.
This is how the Supreme Court describes Dannys story:

The petitioner had a relationship of sexual intimacy with one Leela, a lonely widow. They met on July 22,
1998 and decided to spend a quiet night at the Sirisevana Guest House, Dankotuwa. About 10.30 p.m., their

hopes for tranquillity were dashed to the ground, when a group of persons rudely knocked at their bedroom
door.
The door opened on six intruding police officers, two of whom were in uniform, and among them were the
first to fifth respondents. On inquiry by the petitioner, they informed him that they were from the Chilaw
Police Station. They arrested both of them and took them by a van, first to the Dankotuwa Police Station
and thereafter to the Chilaw Police Station. Five women and four men, also taken into custody at the said
Guest House, were taken in that van along with the petitioner and his companion. From 2.30 a.m. on July
23, they were kept in custody and were produced before the magistrate, Marawila around 12 noon. An
application made for bail was refused and the petitioner was remanded until July 29, 1998 when he was
discharged.
Maximus Danny was charged by the Police under the Brothels Ordinance, despite there not being an iota of
evidence that he was managing or assisting in the operation of a brothel. The magistrate without batting an
eyelid remanded him into custody, because the police requested him to do so. Dannys version was not
heard until six days later he was released.
Danny was represented by J.C. Weliamuna before a three judge bench of the Supreme Court which held
that his fundamental rights were violated by the police.
TheCourt in its judgment written by Justice Dr. Shirani Bandaranayake made an important observation
about the conduct of magistrates who blindly make orders remanding suspects:

I must express my concern over magistrates issuing orders of remand, mechanically, simply because the
police want such orders made. I cannot do better than to quote the words of my brother, Dheeraratne, J.,
said in connection with magistrates issuing warrants of arrest (in the case of Mahanama Tillakaratne v.
Bandula Wickramasinghe) . Magistrates should not issue remand orders to satisfy the sardonic pleasure of
an opinionated investigator or a prosecutor. Remanding a person is a judicial act and as such a magistrate
should bring his judicial mind to bear on that matter before depriving a person of his liberty.
Unfortunately, 15 years on, some are yet to learn from the wisdom of that judgment.
(The writer is a senior lawyer and a board member of the Lakshman Kadirgamar Institute)
Posted by Thavam