EVIDENCE AND CRIMINAL

PROCEDURE

K.KEMAPIRAHASH
2013/L/013
DEPARTMENT OF LAW
UOJ

Question:

At the last phase of the civil war in 2009, Robert an American journalist proceeded to Mullaitivu with his Sri Lankan
journalist Nishanka to cover the news for CNN. However, they were stopped and not allowed to proceed beyond
Anuradhapura Railway Station by group of civilians. The journalists claimed that they could not move anywhere for two
hours and members of the armed forces had instigated protest of the civilians. Robert and Nishanka decided to file two
fundamental rights application separately for illegal arrest and detention.
As these two journalists returned to Colombo in a hired van, the van driver lodged a complaint at the police station against
Robert, stating that Robert cheated him by failing to pay the sum of rupees 30,000 being the fees for the hire. According to
the first schedule of the Code of Criminal Procedure Act, offence of cheating is classified as a cognizable offence. The
driver tendered his mobile phone to police to show the discussion between Robert and him. Later the police broke the door,
entered the room in the hotel where Robert stated, and arrested him in spite of his objection.
Discuss the legality of the procedure followed in this scenario. You may refer appropriate statues, case laws and other
relevant documents to support your answer.

Personable liberty consists in the power of locomotion, of changing situation or

moving ones person to whatsoever place ones own inclination may direct, without
imprisonment or restraint unless by due process of law.1
In the given scenario manifest two circumstances, the first circumstance is Robert and Nishanka decided to file
fundamental rights application separately for illegal arrest and for illegal detention. Another issue is First
Information reported by the van driver for cheating. In making an arrest the person the same shall actually touch
or confine the body of the person to arrest unless there be a submission to the custody by word or action and shall
inform that person to be arrested of the nature of the charge or allegation upon which he arrested. 2 Generally
arrest can be categorized as arrest with a warrant3 and without a warrant. Arrest without warrant can be divided
into two, such as arrest without warrant by peace officer4 and by private person.5
Detention means short term obstruction of a person. Generally arrest and detention are used as synonymously.
For example certain statutes permit constructive detention.6 Nonetheless there are clear cut distinguished
between arrest and detention. Arrest is the legal process as a long term deterrence of the movement of a person,
however the detention is a short term period of obstruction either prior or subsequent to the arrest shall not
extended to unnecessary time period.
1 Commentaries on the laws of England,vol.1,134.
2 Section 23(1) of the criminal procedure code
3 Section 50(1) of the criminal procedure code- Every warrant of arrest issued by a court under
this code shall be in writing, signed by a judge of that court and shall be in the prescribed form.
4
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)

In section 32(1) any peace officer may without an order from a magistrate and without a warrant
arrest any person, Who in his presence commits any breach of the peace
Who has been concern in any cognizable offence or against whom a reasonable complaint has been
made or credible information has been received or a reasonable suspicion exists of his having been
so concerned.
Having in his possession without lawful excuse
Who has been proclaimed as an offender
In whose possession anything is found which may be reasonably be suspected to be property stolen
or fraudulently obtained and who may reasonably be suspected of having committed an offence with
reference to such thing
Who obstruct a peace officer while in the execution of his duty or who has escaped or attempts to
escape from lawful custody
Reasonably suspected of being a deserter from the Sri Lanka army, Navy or Air force
Found taking precautions to conceal his presence under circumstance which afford reason to believe
that he is taking such precaution with a view to committing a cognizable offence
Who has been concerned in or against whom a reasonable

Section35 of the criminal procedure code, private person can arrest under the following
circumstancesWhere any cognizable offence committed in the presence of the such private person
(b) Who has been proclaimed as an offender
(c) Whom he reasonably suspects of having committed a cognizable offence.

6 Section 8 of the Road Traffic Act 1977 of United KingdomSection 151 of the Motor Traffic Act of Sri Lanka

Personal liberty demands freedom from arbitrary arrest or illegal detention or punishment. This right protected by
constitution under fundamental rights chapter 7 and by human rights conventions.8 However personal liberty shall
be restricted either by arrest or detention. Even though it should follow Due process of law.9
Therefore upon the arrest and detention the executive/ administrative body or any person is expected to observe
Due process of law otherwise it will lead to the destruction of the rights of the individuals.
Further on the matter of decided to file the fundamental rights application by both journalists, it can be analyzed
as follow, they have obstructed from proceeding for two hours is not covered under the arrest with warrant in
accordance with section 50(1) of the criminal procedure code. Because the fact shows that there were no warrant
issued by the competent court to arrest them.
In the given context the main issues to be answered are Whether the two hours of obstacle of journalists is
amounted as an arrest or illegal detention? Or If it is arrest or illegal detention, can it be executed by the civilians
or by the armed forces? Or If so, it can be a fundamental right violation?
Private person can carry out the arrest against any person who are fallen under the limited circumstances such as,
where any cognizable offence committed in the presence of such private person or who has been proclaimed as
an offender or whom he reasonable suspect. if any one of the circumstances or either any circumstances exist then
only private person can arrest.10
In the given fact it shows that no any aforesaid incident happened there by it indispensable to noted that the both
journalist not arrest by the civilians by arrest without warrant under section 35 of the criminal procedure code.
Hence the activity of the civilians as not to proceed beyond the limit of the Anurathapura to both journalist can be
deem to as an illegal detention and wrongful confinement in accordance with section331 of the penal code of Sri
Lanka11
Two hours stopped on the limit of Anudharapura railway station and not to proceed Mullaitivu can be treated as a
put the circumscribing limits to the proceeding as per section 331 of the Ceylon penal code. Further in this
7 Article 13(1) of the 1978 constitution- No person shall be arrested except according to procedure
established by law. Any person arrested shall be informed of the reason for his arrest.
8 Article 09 of the Universal Declaration of Human Rights- No one shall be subject to arbitrary
arrest or detention or exile
9 In Magna Carta No man shall be taken or imprisoned or dis- seized or outlawed or exiled or in any way
destroyed; nor shall be go upon him nor send upon him but by the lawful judgment of his peace by the law
of land In Dartmouth College case- (1819) 4 Wh 418- the 5 th and 14th amendment of the US constitution
prohibit the federal and state government from depriving the person of his life, liberty or property without
due process of law

10 Section 35 of the criminal procedure code

11 Section 331 of the penal code of Sri Lanka Whoever wrongfully restraints any person in such manner as to prevent that
person from proceeding beyond the certain circumscribing limit is said as wrongfully confines that person.

manner next will be considered as whether the instigation of the armed forces resulted arrest or detention. Arrest
without warrant by a peace officer can be made out one or either of prescribed circumstances.12
Nevertheless it wants to highlight that section 3 of the criminal procedure code within the meaning of the peace
officer exclude the armed force.13 Therefore in this given fact the activity of the armed forces not resulted as
arrest without warrant by a peace officer. However there was an instigation made by the armed forces.
On the given fact reveals that incident occurred in the last phase of civil war 2009. Therefore emergency
regulation and prevention of terrorism act were in force and armed forces can detain and arrest the persons. 14
However here armed force not arrest. But the instigations made out. When such instigations of the armed force
delivered to the civilians in order to show there was no direct connection upon the two hours stopped of them
such instigation can be deem as an illegal detention and offence of abetment 15 to the offence of wrongful
confinement made by the civilian. In decided case of Vinayagamoorthi v Army Commander 16 in this case
petitioner arrested under Regulation 18(1) by army .Then instead of hand over the person to police in charge ,the
petitioner detain in many camp by army .Finally court held as illegal detention.
Therefore next will be observed upon the matter of fundamental rights. Both journalists have freedom from
arbitrary arrest17, detention and produce before the competent court 18, and Nishanka has the freedom of
12 Section 32(1) of the criminal procedure code
13 Section 2 of the criminal procedure code peace officer includes a police officer, and a
divisional assistant government agent and a Grama seva Niladhari appointed by a government
agent in writing to perform police duties
14 Regulation 20(1) of Emergency (miscellaneous provision and powers) Regulation no 01 of 2005- any
public officer or any member of Sri Lankan Army or Sri Lanka Navy or Sri Lanka air force or any other person
authorized by the president to act under the regulation may search, detain for purposes of such search or
arrest without warrant, any person or is committing or has committed or whom he has reasonable ground
for suspecting to be concern in, or to be committing, or to have committed, and offence under emergency
regulation and may search seize remove and detain any vehicle, vessel, article, substance or thing what so
ever used in or in connection with the commission of the office

15 Section 100 of the penal code of Sri Lanka a person doing of a thing who instigate any person
to do that thing or engages in any conspiracy for the doing of that thing or intentionally aids, by
an act or illegal omission, the doing of that thing
16 (1997) 1 Sri LR 113.
17 Article 13(1) of 1978 constitution- No person shall be arrest except according to procedure
established by law. Any person arrested shall be informed of the reason for his arrest.
18 Article 13(2) of the 1978 constitution- Every person held in custody, detained or otherwise
deprived personal liberty shall be brought before the judge of the nearest competent court
according to the procedure established by law, and shall not be further held in custody detained or
deprived of personal liberty except upon and in terms of the order of such judge made in
accordance with the procedure established by law.

movement,19, freedom of expression,20 as a fundamental rights, they have freedom of express and media as a
human rights too21.
In Sri Lanka all fundamental rights are not absolute rights, it can be restricted. 22 Even though here both
journalists rights infringed by the illegal detention of the armed force thereby they can file fundamental rights
application and get the remedy in according to Article 17 23, Article 126 of 1978 constitution.24 At a same time
they can file the criminal case against wrongful confinement and illegal detention for civilians and abetment for
armed force.

19 Article 14(1)(h) of 1978 constitution- Every citizen is entitle to the freedom of movement and of
choosing his residence within Sri Lanka.
20 Article 14(1)(a) of the 1978 constitution- freedom speech and expression including publication
21 Article 19 of the Universal Declaration of Human Rights as the right to freedom of opinion
expression this rights includes freedom to hold opinion without interference and impart
information and ideas through any media regardless of frontiers.
22 Article 15(7) of the 1978 constitution the exercise and operation of all fundamental rights declared and
by recognized by article 12, 13(1), 13(2), and 14 shall be subject to such restrictions as may be prescribed
by law in the interest of national security public order and the protection of public health or morality, or for
the purpose of securing due recognition and respect for the rights and freedom of others or of meeting the
just requirement of general welfare of a democratic society for the purpose of this paragraph law includes
regulations made under the law for the time being relating to the public security.

23 Article 17 of the 1978 constitution-Every person shall be entitle to apply to the Supreme Court,
as provided by Article 126, in respect of the infringement or imminent infringement, by executive
administrative action, of a fundamental right to which such person is entitled under the provisions
of this chapter
24 Article 126(1) of the 1978 constitution the Supreme court shall have sole and exclusive
jurisdiction to here and determine any question relating to the infringement or imminent
infringement by executive of administrative action of any fundamental or language rights declared
and recognized by the chapter 03 or chapter 04.

In the given scenario of the second circumstances relevant of the complaint given by the van driver as he cheated
by Robert. Therefore cheating is the offence under section 398 of Sri Lanka penal code 25as the same cheating is
the cognizable offence26 under first schedule of the criminal procedure code.
Here the van driver made a complaint at the police station. Therefore it can be taken as the first information under
section 109 (1) of the criminal procedure code read as first information can be given either orally or writer to the
police officer or inquirer27. However the statement must be true untrue statement will lead to offence under the
section 177 Ceylon penal code28.
Upon the information of the van driver the following can be considered that such statement shall be reduced to in
writing or recorded or request to give in writing to the first informant by police officer 29. Here the van driver
statement either of one pattern admitted. The similar matter happen in the case of Muttaih v The Queen30.
The next procedure is first informant want to sign , here van driver sign on that such information that matter shall
be entered in the information book in accordance with section 109 (3) of criminal procedure code 31. Nevertheless
who receives that information as not officer in charge-such police inform to his superior32.
25Section 398 of Sri Lanka penal code - Whoever, by deceiving any person , fraudulently or
dishonestly induces the person so deceived to deliver any property to any person , or to consent
that any person shall retain any property , intentionally induces the to person so deceived to do or
omit to do anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind, reputation or
property, or damage or loss to the government, is said to cheat.
26 Section 2 of the criminal procedure code cognizable offence means an offence which an
cognizable case means a case in which a peace officer may in accordance with first schedule
arrest without warrant ;
27 Section 109(1) of the criminal procedure code Every information relating to the commission of
an offence may be given orally or in writing to a police officer or inquirer.
28 Section 177 of Sri Lanka penal code whoever, being legally bound state the truth on any
subject to any public servant, refuses to answer any question demanded of him touching that
subject by such public servant in the exercise of legal power of such public servant , shall be
punished with simple imprisonment for a term which may extent to three months, or with fine
which may extent to one hundred rupees, with both.
29 Section 109(2) of criminal procedure code if such information given orally to police officer or to an
inquirer, it shall be reduced to writing by him in the language in which it is given and be read over to the
informant :Provided that if it is not possible for the officer inquirer to record the information in the language
in which it is given the officer or inquirer shall request that information be given in writing .if the informant
is unable to give writing, the officer or inquirer or shall record the information in one of the national
languages after the recording the reason for doing so and shall read over the record to the informant or
interpret it in the language he understands

30 74 NLR 313

Upon the first information of van driver the police officer shall make the investigation in accordance of section
109 (5) (a) of criminal procedure code33.
Further that the van driver gave his mobile phone to the police officer. In order to show the discussion- this matter
can be taken as the evidence according to the section 3 34 and 21(2) 35of the Electronic transaction Act No .19 of
2006.
In this manner next will be addressed of arrest of Robert. The complaint made out against Robert is offence of
cheating. Therefore offender of the cognizable offender can be arrest without warrant. In this given context
Robert arrested by the police officer. Therefore this arrest could be done in accordance with section 32 (1) (b) of
the criminal procedure code36.

31 Section 109(3) of the criminal procedure code every such information, whether given writing or reduced
or writing as aforesaid, shall be sign by the person giving it and such information or a copy thereof as is
feasible shall be entered without delay by such police officer or inquirer in a book herein after referred to as
the Information book to be kept by the officer in charge of the police station at his police station or by the
inquirer as the case may be. Such information book shall be such form as the minister may provide by
regulation made in that behalf Provided that until the minister by regulation provide the information book,
the form or form in use on the day immediately preceding the appoint date shall continue to be valid for
use.

32 Section 109(4) of the criminal procedure code if the police officer who receive the information
is not himself the officer forthwith report the facts of such information to the officer in charge of
the police station.
33 Section 109(5)(a) of the criminal procedure code if from information received or otherwise, an
officer in charge of the police station or inquirer has reason to suspect the commission of any
offence he shall him self make an investigation or authorize the making of an investigation under
this chapter in the manner hereinafter set out
34 Section 3 of the Electronic Transaction Act No.19 of 2006 No data message ,electronic document,
electronic record, or the communication shall be derived legal recognition, effect ,validity or enforceability
on the ground that is in electronic form.

35 Section21(2) of the Electronic Transaction Act No.19 of 2006 Any information contained in a data
message ,or any electronic document, electronic record or other communication(a)touching any fact in
issue or relevant fact: and
(b)complied ,received or obtained during the course of any business ,trade or profession or other regularly
conducted activity.
Shall be admissible in any proceeding

36 Section 32 (1) (b) of the criminal procedure code any peace officer may without an order from
a Magistrate and without person who has been consent in any cognizable offence or against
whom a reasonable complaint has been made or credible information has been received or a
reasonable suspicion exists of his have been so concerned.

The similar matter happened in the decided case of Mahanama Thilakeratne v Bandula Wickramasinge SSP and
others.37
However arrest under the section 32(1) (b) there should be a reasonable suspicion existed that want to prove
beyond the reasonable doubt and the arresting officer should be able to justify the arrest on one or more of these
several ground38.
Nevertheless in this given scenario the question arise as weather the police has the power to brock door or
anything in case of Arrest? because arrest of the Robert made out by brock the door of hotel. whether It can be
legal or not in question .
According section 24 of criminal procedure code refers that in case of search for arrest person who in charge of
that place shall facilitate39. Thereby hotel administrative want to allow the police. This same application held in
Bandaranayake v W.B Rajaguru IGP and others.40
Besides when any acceptance not made by word or act for allow the police to search police can be break any
outer or inner window in accordance with section 25 criminal procedure code41.
Nonetheless where it is not reasonable to do that if it is break any outer or window it can be illegal. The similar
matter decided in excise Inspector point petro v thankama 42 it was violation of this section to enter a house by
removing the tiles off the roof. If the arrest of Robert broke the door could have done in unreasonable manner
such arrest can be illegal.

37 1999 (1) SLLR 372

38 Kandasamy v Rosairo (1946) 47 N.L.R at p.473 per Dias J
39Section 24 of criminal procedure act- If any person acting under warrant of arrest or having
authority to arrest has reason to believe that any person to be arrested has entered to or in within
any place , the person residing in or in charge of such place shall on demand of such person acting
or having authority aforesaid allow him free ingress therein and afford all reasonable facilities for
search therein.
40(1991) 1 SLLR 104
41 Section 25 of criminal procedure if ingress to such place cannot be obtained under section 24
it shall be lawful in any case for a person acting under a warrant , or in any case in which a
warrant may issue but cannot be obtained without affording the person to be arrest an opportunity
of escape, for a peace officer to enter such place and search therein , and in order to effect an
entrance into such place to break open any outer or inner door or window of any place weather
that of the person to be arrested or of any other person, if after notification of his authority and
purpose and demand of admittance made he cannot otherwise obtain admittance.
42 26 NLR 307

Person has the right to know the reason for arrest according to the 13(1) of the 1978 constitution and Article 9 (2)
of the International Covenant On Civil and political Rights 43. if the objection of Robert could have done for
knowing the reason for arrest and that reason not delivered by the police, such arrest can be illegal. In Anaslin
Fernando v sarath perera officer in charge police station in chilaw and others 44 same decision made out. There by
here arrest of Robert can be legal. Nevertheless if the procedure upon the search broke the door is un reasonable
and if the reason for arrest not delivered such arrest can be illegal arrest.
Next will be to consider about the application of Bail. According to the first schedule of the criminal procedure
code cheating is the Non Bailable offence 45Therefore Robert will not obtain the Bail.
Eventually it can be stated arrest and detention can be admissible in the justice when it is follows the procedure of
law. How ever arrest and detention can be illegal when it not follow the law. Well known scholar recommended
that time bar period of file the application should be extended in reasonable manner, need to abolished the
prevention of terrorism act which is provided of arbitrary arrest and introduced the obtain the assisting of lawyer
upon the arrest instead of trail period.

43 Article 9(2) of the International Covenant on Civil and Political Rights Any one who is arrested
shall be informed at the time of arrest, of the reason , for his arrest and shall be promptly
informed of any charges against him.
44 (1992)1 SLLR 411
45First schedule of Criminal procedure code

REFERENCE
1. FUNDAMENTAL RIGHTS IN SRILANKA (SECOND EDITION) - JAYAMPATHY
WICKRAMARETNA
2. A DIGEST OF SELECTED CASES ON CRIMINAL PROCEDRE IN SRI LANKA (VOLUME-1)
UPALI SENARATNE ATTORNEY- AT- LAW
3. CRIMINAL PROCEDURE IN SRI LANKA( THIRD EDITION) G.L PEIRIS
4. NEETHAM ARTICLE REGARDING ARREST AND DETENTION UNDER THE NATIONAL
LAWS OF SRI LANKA A CRITICAL ANALYSIS JUDGE MANIKKAVASAKAR KANESHA
RAJA (DISTICT JUDGE), page (69-89)
5. THE CONSITITUTION OF THE DEMOCRATIC SOCIALLIST REPUBLIC OF SRI LANKA