Criminal Procedure

Application s. 5

All offences under

(a) The Penal Code
(b) Any other unless otherwise specially provided
Must be investigated / inquired into / tried / otherwise dealt with according to the
provision of the Criminal Procedure Code 15 / 79.

Vijay Prakash v. Hyderabhad Municipal Corp (IND) – When a law specifies an offence &
does not state the procedure to be followed, judge cannot resort to any other procedure
simply because the Act is silent. The Provision of the Crim PC must apply.

Cassus Omissus s. 7

Where special provisions have not been made by the CrimPC or any other law – court
must adopt such procedure as the justice of the case may require & as is not
inconsistent with the CrimPC.

Rahim Sheik v. King (IND) – In an instance where the procedure is not provided for in
any law the procedure that must be followed should be in line with the interests of justice.
(As long the procedure adopted is not illegal)

Powers of the High Court

s. 9 Judicature Act - HC has power to hear cases in respect of

 Any offence wholly / partly committed in SL
 Any offence committed on / over the territorial waters of SL
 Any offence committed in the airspace of SL
 Any offence committed on the high seas which is considered an act of piracy by
international law
 Any offence committed by a citizen of SL outside the territory of SL whether on
board / in relation to any ship / aircraft etc.

PHC established by 13 Amm. – powers extended to appellate & revisionary jurisd. Over
cases from MC & PC.

High Court of the Provinces (SP) Act 1990 – PHC given appellate & revisionary
jurisdiction over decisions of Agrarian Services Board & LT.
 Sanctions imposed by HC in a criminal trial
HC can impose any sentence / penalty prescribed by written law ; s. 13
s. 10 Judicature Act – HC can impose any sentence / penalty imposed by any written law.

s. 12 – HC can try an offence if D has been indicted by AG / Director General of

Bribery.

In respect of what offences can criminal

action be filed in HC
s. 10 – Any offence of the Penal Code may be tried
(except where it has been specially provided for in any other law)
(a) by the HC
(b) by the MC where the 1st Schedule (Column 8) provides that the offence can be
tried by the MC

s. 11 – An offence under any law (other than Penal Code) must be tried (unless
specifically provided for in any law)
(a) where the court is mentioned in that behalf in that law
(i) By the HC when the court mentioned is the HC OR
in relation to an offence punishable with
imprisonment for a term -exceeding 2 years or with a
fine exceeding 1500 - the court mentioned is the DC.

(ii) By a MC where the court mentioned is the MC or in relation to an

offence punishable with imprisonment for a term not exceeding 2
years or with a fine not exceeding 1500 – the court mentioned is
the DC.

(b) Where a court is not mentioned in that behalf

(i) By the HC OR
(ii) By the MC where the offence is punishable with imprisonment not
exceeding 2 years or with a fine not exceeding 1500.

 Only other instance where HC jurisdiction does not apply is where an Act other
than Penal Code states that
- A court other than the HC
- Fine is less than 1500 / sentence is less than 2 years.

 Where a statute specifies an offence to be tried by the DC, must see whether it is
triable by the MC by looking at the sentence imposed & the fine.
Actions before HC

s.161

s.195

Note- In the case of statutory rape the trail shall not be heard before a jury.

Dharmasena v. The State

The stance taken by the accused with regard to the manner in which he desires to be tried
could be changed anytime before the commencement of the trial.

Powers of the MC

1) MC has exclusive jurisdiction to hear and determine all action in which the debt /
damage / demand / value of property does not exceed 1500/- ; s. 30 Judicature Act

2) Power to conduct summary trails and non-summary

inquiries.

3) Assisting in Criminal Investigations.

4) Taking steps to prevent crime.

5) MC can impose imprisonment of either

description not exceeding 2 years and fine not
exceeding 1500/- and whipping ; s. 14
(Where a law gives any other special powers of
punishment the MC can impose those as well)

6) No court can imprison a person for a term less

than 7 days. But a person can be detained in
court until 8 p.m.

7) A person can be imprisoned for default of

payment of a fine. (MC less than 2 years)

8) When a person is sentenced to imprisonment for

more than one offence the terms of imprisonment
will run one after the other. (unless court
orders them to run concurrently) Even if the
total punishment for the several offences
exceeds the maximum punishment the court is
permitted to impose.
BUT
In the MC the total punishment for the several
offences must not exceed 4 years.
Of imprisonment to commence one after the expiration of the other, even where the
aggregate is in excess of the punishment which the court is competent to inflict.

However, in a MC the aggregate punishment shall not exceed twice the amount of the
punishment which the court is competent to inflict in the exercise in the course of its
ordinary jurisdiction.

PREVENTION OF CRIME BY A MAGISTRATE

Criminal law is not just about the detection of offenders and the convicting and
sentencing of them. It is also about the prevention of crime. Chapters 7,8,9 and 10, s.
80-94 have been dedicated to the prevention of crime. Ss. 80, 81 and 83 speak about
security for keeping peace and for good behaviour.

s. 80 states that whenever any person is convicted of an offence that involves either
 A breach of the peace, or
 Criminal intimidation or by threatening injury to person / prop
 Being a member of an unlawful assembly

The court before which that person is convicted can require him to enter into a bond,
when passing sentence on him, for a sum proportionate to his means with or without
sureties for keeping the peace.

This period will not exceed 2 years if the sentence or order was by a Magistrate’s Court,
and not exceeding 3 years if the sentence or order was by a High Court. If the conviction
is set aside in appeal or otherwise the bond so executed shall become void.

S. 81 When a Magistrate
 Receives information that any person is likely to commit a breach of the peace or
to do a wrongful act that probably occasion a breach of the peach within the
jurisdiction of the court of such Magistrate, or
 That there is within such limits a person who is likely to commit a breach of the
peace outside such area of jurisdiction.
The Magistrate may require such person to show cause why he should not be ordered to
execute a bond with or without sureties for keeping the peace for such period not
exceeding 2 years as the court thinks fit.

S. 82 Wherever a Magistrate receives information that

 Any person is taking precautions to conceal his presence within the local limits of
the jurisdiction of the court of such Magistrate and that there is reason to believe
that such person is taking such precautions with a view of commuting an offence,
or
 There is within such limits, a person to show cause why he should not be ordered
to execute a bond with or without sureties for his good behaviour for such period
not exceeding 2 years as the court thinks fit to fix.
S. 83 empowers a Magistrate to require a person who is within the local limits of that
jurisdiction and who habitually commits any of the offences mentioned in this s. to show
cause why he should not be ordered to execute a bond with sureties for his good
behaviour for such period not exceeding 2 years as the Magistrate thinks fit to fix.

When a Magistrate acting under the aforementioned sections, deems it necessary to

require any person to show cause under such section, he shall if such person it not present
in court, issue summons requiring him to appear in court as per s. 84. In an instance
where the person is in custody and not present in court, the magistrate may issue a
warrant directing the officer in whose custody he is to bring that person before court.

S. 85 requires every summons or warrant issued under s. 84 to contain a brief statement

of the substance of the information on which summons or warrant is issued.

Weerasinghe v Peter a man was required to enter into a bond for keeping the peace after a
situation that occurred on a plantation. This was done on the evidence presented by the
Superintendent of the estate. However, he did not witness the incident. Therefore, it was
Held that for such order to be effected that it should be based on direct evidence.

The definition of what is meant by ‘breach of peace’ discussed in Abeywardene v

Fernando A breach of peace would be an act where a person or poetry is subject to a
violent act that would result in destruction, loss or damage. It is sufficient to say that a
breach of peace is an act against morals. It has to be an act against the law.

Langram V Nilame , where an individual who bore ill-will towards the members if the
organizing committee of a perchara influence the ‘kapuwas to stay away from their
official duties for the event.
Held here that even though the act amounted to an act against morals, that it did not
extend to an act committed against the law. As such it did not amount to an offence under
the chapter. Therefore not an offence under s. 81.

Kanagaratnam v Tahmbiah went on to hold that the wrongful act should be a violation of
the criminal law of the violation of a person’s civil rights.

Before commencing an inquiry when a person is brought before a Magistrate in

compliance with or in execution of the warrant or summons issued under s. 84, s. 86(4)
empowers the magistrate to order such person to execute a bond for keeping the peace of
for maintaining good behaviour pending the termination of the inquiry.

At the end of the inquiry, if it is not proved that it is not necessary for such a person to
enter into a bond, then the Magistrate shall make an entry on record to that effect.
Thereafter, such person will be discharged. If that person is in custody only for the
purpose of the inquiry, he shall be released.

S. 87 states that if it is proved that it is necessary for a person to enter into such a bond
and that person is a minor, that the bond should be signed by his sureties.
Payment of Costs and Compensation

s. 17(1) If as court acquits a D because the complaint was frivolous and vexatious
court can order P to pay to the state and to pay D compensation as it thinks fit.

s. 17(2) If a person causes the Police to arrest another for no sufficient ground, court
can make the person causing the arrest to pay compensation to the arrested person.

s. 17(4) A person convicted / a person found guilty but not convicted, can be ordered
to pay compensation to the person affected by the offence.

s. 17(6) If costs or compensation is awarded and the person does not pay, court can
recover it as if it were a fine.

s. 17(7) In the MC compensation must not exceed 500/- for each aggrieved party.

s. 17(8) Court can order the whole / part of a fine to be applied to

a) defraying expenses incurred by D
b) compensating the injury caused by the offence.

PROCEDURE TO BE FOLLOWED WHERE THERE IS FAILURE TO GIVE

SECURITY OR THE BOND IS BRECHED

A court is empowered to allow a time period of one month for the furnishing of security
to a person who has been ordered to enter into a bond.

A bond could be entered with or without sureties with the discretion of court. See sec….
Allows the court to refuse to accept those sureties, for reasons to be recorded, whence the
court is of opinion that such person is an unfit surety.

S. 91 states that a breach of bond of good behaviour would be occasioned by

 The commission
 The Attempt to commit
 The abetment
Of any punishable with imprisonment wherever it may be committed

According to s. 94 surety can apply to court to cancel the bond he signed. In an instance
the court may______________________
security was bound, to appear or to be brought before court. Thereafter, such person
required to give fresh security for the unexpired term or the unfulfilled stipulations bond
of the same description of the original security upon the cancellation of the pre surety.
ss. 421 – 424 contain provisions as to bonds. Whenever such bond has been for the court
shall records grounds of such proof and may call upon any such person bound by the
bond, to pay the penalty thereof or to show good cause why it not be paid.

If sufficient reasons are not shown, the court may proceed to recover the penalty by its
warrant for the attachment and sale of the movable or immovable property belonging to a
person.

If such property is situated outside the local limits of jurisdiction of the court that issues
warrant, it may be executed with the endorsement of the judge within the local li whose
jurisdiction, the property is found.

If security is not furnished within the specified period, then such person is liable to be
imprisoned.

s. 93, if the court is of the opinion that the imprisoned person may be released without
hazard to the community to any other person the court may order such person to be
discharged.
s. 66 Primary Courts’ Procedure Act no.44 of 1979, a court is empowered to summon the
partied connected to a dispute affecting land and where a breach of the threatened or
likely, and require them to enter into a bond.
S. 80-94 Do not relate to land disputes. Here even though there may be a dispute
between two parties, they will b required to appear in court and enter a separately on
different charges. ; Valaithan v Soysa and Police v Dines Hami

Abeywardene v Fernando Although it has been an established principle to common

parties separately, it is not incorrect to jointly produce parties where the dispute is on the
same.
 UNLAWFUL ASSEMBLY

Dispersion of an Unlawful Assembly

s. 95 A Magistrate / Police Officer above the rank of IP can command an unlawful
assembly / an assembly of more than 5 persons who are likely to cause a
disturbance to the public peace to disperse.

If assembly is not dispersed Magistrate / Police officer can proceed to disperse

the assembly by using such force as is reasonably necessary.
* Can require the assistance of any person who is not in the military.
* Can also arrest / confine members of the assembly to be punished according
to law.

If assembly cannot be dispersed by any other means Mag / GA / SP can get

help of the Army / Navy / Air Force.

s. 96 A commissioned Military Officer can disperse an assembly by military force.

And can arrest and confine any member. If it is not practicable to contact a
Mag / GA / SP, the moment it becomes practicable must order their orders.

s. 97 A Mag / GA / SP / Military Officer / Other person cannot be prosecuted for

acts done under s. 95 & 96 except with the sanction of AG. And if acting in
good faith will not be liable to civil / criminal proceedings or any act
purported to be done under s. 95 & 96.
INVESTIGATION OF CRIMINAL OFFENCES

3 reasons for investigating offences

 To ascertain whether a crime has been committed
 To locate the person suspected of the crime
 To obtain necessary evidence to build up a case against suspect

- Sometimes rights of individuals may be restricted when investigating offences

First information

- First Information = info of a crime / attempt or intention to commit a crime / finding

of a body the cause of which is unknown
Investigation commences only on the receipt of first information

 There can be 2 First Informations

R v. Pabilis – Two women were abducted & taken in different directions. One
woman was raped. Both women managed to escape & made two separate
complaints to police. Held – Both statements are first information.
s. 21 – A person who is aware of (Applies to public at large)
(a) the commission of an offence / intention of a person to commit an offence
(b) a sudden / unnatural death or death by violence or death of a suspicious
nature or the body of a person being found unknown as to how he died
must give information to nearest OIC of police / Magistrate / Peace officer /
Grama sevaka (unless there is a reasonable excuse for not doing so)

s. 22 - A peace offer must communicate (Applies only to Peace officers)

(a) the commission of an offence / attempt to commit
(b) occurrence of a sudden / unnatural death / death by violence / death under
suspicious circumstances
(c) finding of a dead body without knowing how person died
to the nearest Mag / inquirer having jurisdiction / his own immediate superior
officer

o Peace officer included – Police officer / divisional assistance / GA / Grama

seva niladhari appointed by GA in writing to perform police duties ; s. 2

o Peace officer can be punished for failure to observe s. 22 .

Giving First Information regarding an offence

- Information relating to the commission of an offence can be given in oral / writing to

a police officer / inquirer (appointed by Minister by name / office for a specified
limited area) ; s. 109
Panditharathne v. ASP Kegalle – First information can be given even via telephone

- Police officer / inquirer must reduce into writing the info given in the language in
which the informant gave info. Statement must be read over to informant
 If not possible to reduce to writing – police can request informant to give info in
writing
 If informant cannot reduce statement to writing – police must record statement in
one of the official languages & record reasons for doing so. Statement must be
read over to informant in the language he understands

- Statement must be signed by informant & must be included in IB without

unnecessary delay.
 IB = a crime pad / a file maintained by CID or a bureau of investigation for the
purpose of recording statements ; s. 2

- If police officer must report info to OIC ; s. 109

- Where First Info is given to a police officer while being out of the station – must
write statement in pocket book & must later append the page to the IB stating the time
of annexure.

- First Information is a public document. So any person has the right to obtain a copy
of the statement ; AG v. Geetin Singho

Use of First Information

Police can produce First Information given by a witness to corroborate the evidence of
the witness if it relates to the same facts at / about the time when the fact took place
which as been made before an authority who is legally competent to investigate the fact ;
s. 157 Evidence Ord. (cannot be led as substantive evidence – only to corroborate).

R v. Karthigesu – s. 157 rule applies only if the First Information is not based on
hearsay. Witness must also be called as an informant (unless
evidence is tendered under s. 32 EO)
After First Information is received

- Police not obliged to open an investigation – only if they feel that the offence needs to
be investigated

- Police must see whether offence is a cognizable offence or not.

Cognizable offence = an offence for which a peace officer can arrest offender
without a warrant ; s. 2 (First Schedule lists out
cognizable offences in Penal Code. Other acts must
specifically state that offence is cognizable)

Statements recorded in the course of an investigation

- Police can orally examine a person acquainted with facts of case. Police must reduce
statement to writing ; s. 110
 The whole statement must be recorded
 Where police asks questions in clarification – the question & the answer must be
recorded in the form of question & answer
 Police cannot administer an oath / affirmation to person making statement

- The recorded statement must be shown to person & read to him in the language he
understands (person can expand / add to his statement)

- Statement must be signed by maker. Police must append a certificate declaring that
the statement has been accurately recorded below the statement

- A person is bound to answer all questions relating to the case under investigations
truthfully. (Except questions which may expose him to a criminal charge / penalty /
forfeiture)

- A person making an untrue statement commits an offence can be punished

; 177 Penal Code
It is an offence to give a public servant any info which the informant knows to be
false & knows would cause injury / annoyance to another person ; s. 180 Penal Code

- Police cannot make / cause to be made inducement, threat or promise to a person

charged with an offence to induce him to make a statement with reference to the
charge against him ; s. 111
BUT
But police must not prevent / discourage (by a caution etc.) a person charged from
making a statement which he wants to make of his own free will.
- A statement recorded in the course of investigation is not a public document. So all
persons do not have access to it.
* But D is entitled to a copy of statements made in the course of the investigation
by the victim ; s. 444
* In a trial in MC – Mag can make the statement of any witness whose evidence is
relied upon by P (made in the course of investigations) available for the perusal of
D in open court if it is in the interests of justice ; s. 110 (4) Proviso

- A person making a statement during the course of investigation need not necessarily
be a witness – Can even be a future accused ; R v. Haramanisa

Use of statements recorded in the course of investigations

- A statement made in the course of investigations cannot be used to corroborate

witness

- A statement made by D in the course of investigations can be lead in evidence

(a) where an item is recovered by police based on the info contained in statement
; s. 27 EO
(b) where D has said a different story in the statement to that stated in court – to
prove that D had made a different statement at a different time ; s. 145 EO

Assistance given by Magistrate for police investigations

(1) OIC can cause a person to undergo a medical examination by a Gov. medical officer
in the course of an investigation with his consent.
Where person does not consent – Mag can authorize a GMO to examine the person &
report on him (on an application by OIC) ; s. 122
(Medical officer must state in report the name / age of person & the time / place of examination &
the nature of wounds. Must also record the way by which the wound was caused as stated by the
victim)

(2) OIC can take a specimen of handwriting a person with his consent to compare.
Where the person does not consent – Mag can order that a handwriting specimen be
taken ; s. 123

(3) OIC can take a finger / palm / foot impression / specimen of saliva, urine, hair, finger
nail, scraping from a finger nail with persons consent.
Where person does not consent – Mag can order him to consent ; s. 123
(4) Mag. can forward a weapon / article / document / specimen / sample to the
Government analyst, GMO, EQD, Registrar of Fingerprints for analysis (on an
application by police)

(5) Mag. can hold an identification parade to ascertain the identity of the offender;s.124
- Identification parade is held where witness says he does not know
suspect but can identify suspect if he sees him.

- Rules relating to ID parades given in The Judicial Officers Manual

* D must be presented in the parade with other persons

* Ratio between Ds & other persons must be 1:6

Perera v. The Republic – In a investigation into the murder of
an inmate in the Magazine Prison an ID parade was held. The
ratio of suspects to outsiders was 1:2. ID parade was severely
criticized in SC.

* If there are many Ds – several ID parades can be held

Aloysius v. AG – Although there are no express provisions relating

to identification parades in SL – ID parades must be conducted in a
manner that would befit the interests of justice. That should be the
basis of the legality of ID parades.

- Suspect can be ordered to participate in parade.

- Witness can be ordered to make his identification (if necessary

from a concealed position)

- Mag. must make a record of the proceeding of an ID parade.

- Even though a Mag is empowered to conduct an identification

parade – Mag cannot issue a warrant of arrest under s. 124
Mahanama Tillakeratne v. Bandula Wickremasinghe – Mag. issued
a warrant to arrest suspect under s. 124.
Held – A suspect cannot be arrested / a warrant cannot be issued
under s. 124. Under s. 124 a suspect can only be asked to present
himself before court for investigation purposes in the section. If a
warrant needs to be issued – evidence must be given on oath before
Mag.

- A witness who identifies a D must be called in trial to give

evidence about his identification ; Abeysekera v. AG
Procedure to be followed by police in the course of an investigation

- In the course of an investigation police officer

(a) can decide there is sufficient evidence & produce suspect in MC ; s. 114
(b) can conclude investigation within 24 hrs & produce suspect before MC & present
charges
(c) If investigation cannot be concluded in 24 hrs – can
(i) produce suspect before MC (even in Mag.’s residence)
(ii) with a report of the investigations (B report)
(iii) a summary of the statements made by the witnesses
(iv) any weapon / document / sample recovered by police
(v) and move for time to continue investigations (suspect will be
remanded but suspect can be given bail – if it is a bailable offence)

- If Mag decides that suspect should remain in custody – must make an order stating
his reasons. Mag must determine period of remand. (Max. 15 days at a time) If
proceedings cannot be instituted – can release suspect on bail.
BUT
Mag. can’t grant grant bail to a suspect who is alleged of ; s. 115 (3)
(a) Waging war against the State (s. 114 Penal Code)
(b) Giving / fabricating false evidence to procure a conviction of a capital offence
(s. 191 Penal Code)
(c) Murder (s. 296)
In such a case Mag must remand person for a max. 15 days at a time ; s. 120 (2)

- Bail
Mag can release a suspect on bail if proceedings are not instituted within 3 months
from date of arrest.
BUT
A suspect alleged of an offence punishable with death / life imprisonment cannot be
released on bail. (Only HC can grant bail) ; s. 13 Bail Act

- Police can apply to Mag for access to a suspect who is in remand for purposes of an
investigation ; s. 115 (4)
MC can permit police to take a suspect in remand from place to place for the purposes
of s. 27 Evidence Ord.

- A suspect who has been arrested without warrant cannot be detained for more than
24 hrs.

- The investigation must be completed without unnecessary delay ; s. 120 (1)

Mag. must be informed about the progress of the investigation

- Mag can withdraw a case under police investigations & can inquire into case himself
& commit the case for trial ; s. 119
ARREST s. 23
- Personal Liberties guaranteed under Art.13 of the Constitution – it is not an
absolute right.
o Thus it can be limited – an arrest can be effected even though it limits an
individuals personal liberty. (Such measures should be adopted legally)

- S.23 Deals with arrest in general

s.23(1) In making an arrest the person making the arrest must
touch/confine the body of the person to be arrested unless there be a
submission to the custody by word or action

Person arrested must be informed of the nature of the charge/allegation

upon which he is arrested.

Explanation
It shall be deemed to be an arrest of a person when:
a) a person confined/restrained without formally arresting him OR
b) under the colourable pretension that an
arrest has not been made when to all intents
and purposes such person is in custody

Sirisena v. Perera
SC defined an arrest according to Art.13
The detaining of witnesses in order to obtain the name of the driver of
a vehicle, who caused an accident was considered an arrest.

Piyasiri v. Fernando
A group of officers being summoned to the office of the Commissioner
of Bribery and Corruption – Held as arrest.
Therefore when a person is limited from moving freely then it
would be considered an arrest.

s.23(2) When a person forcibly resists the endeavor to arrest

him/attempts to evade the arrest, the person making the arrest may use
such means as are reasonably necessary to effect the arrest.

s.23(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.

- There are 2 methods of arrest:

1. With warrant
2. Without warrant – Arrest can be effected in this
manner if such offence is
cognizable.
Arrest without warrant (s.32 & s.34 apply only to peace officers)
- Muthusamy v. Kannangara
s.32(1)b came up for consideration. A person was taken into custody on suspicion
of theft. No statement regarding his suspicion was received before his arrest. Held
: Arrest illegal since an arrest without warrant can only be effected if there were
reasonable grounds to believe that the person had been connected with a
cognizable offence.

- s.32(1) A peace officer may arrest any person without an order from a Magistrate
and a warrant;
(a) who in his presence commits any breach of the peace;
(b) who has been concerned in any cognizable offence/against whom a
reasonable complaint has been made/credible information has been
received/a reasonable suspicion exists of his having been so
concerned;
(c) having in his possession without lawful excuse (the burden of proving
which excuse shall be on such person) any implement of house-
breaking;
(d) who has been proclaimed as an offender;
(e) in whose possession anything is found which may 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;
(f) who obstructs a peace officer while in the execution of his duty or who
has escaped or attempts to escape from lawful custody;
(g) reasonably suspected of being a deserter from the Sri Lanka Army,
Navy or Air Force;
(h) found taking precautions to conceal his presence under circumstances
which afford reason to believe that he is taking such precautions with a
view to committing a cognizable offence;
(i) who has been concerned in or against whom a reasonable complaint
has been made or credible information has been received or a
reasonable suspicion exists of his having been concerned in any act
committed at any place out of Sri Lanka, which if committed in Sri
Lanka would have been punishable as an offence and for which he is
under any law for: the time being in force relating to extradition or to
fugitive persons or otherwise liable to be apprehended or detained in
custody in Sri Lanka.
Arrest without warrant by a PRIVATE PERSON

- s.35 A private person(PP) can arrest a suspect without warrant if:

 a cognizable offence is committed in the presence of such PP OR
 who has been proclaimed as an offender OR
 who is running away and whom he reasonably
suspects of having committed a cognizable offence
* s.32 does not apply in this instance.

* A PP who effects an arrest must without unnecessary delay hand over the
person so arrested to the nearest peace officer/police station.

* If there is reason to believe that such person comes under the provisions of
s.32 then the peace officer shall re-arrest him(under s.23).

* Gunasekera v. Fonseka
When a Police officer arrests a person without a warrant such person should
be informed of the reason for arrest.

Powers of arrest : NON-COGNIZABLE offence

- A peace officer is empowered to arrest a person without a warrant in respect of a non-
cognizable offence.

- Such an arrest can be done in accordance with s.33(1)

s.33(1)
 In the presence of a peace officer a person is accused of committing a non-
cognizable offence
 He should be arrested by such peace officer – if he either refuses to give his name
and address or which such officer has reason to believe to be false
 Arrest should be effected in order to ascertain his real name or address
 Once ascertained such person must be released immediately or else within
twenty-four hours from the arrest, exclusive of the time necessary for the journey
be taken before the nearest Magistrate's Court on executing a bond for his
appearance before a MC if so required.

s.33(2)
 When a person is accused of committing a non-cognizable offence and a peace
officer has reason to believe that such person has no permanent residence in Sri
Lanka and that he is about to leave Sri Lanka
 he may be arrested and must be taken before the nearest Magistrate
 who may either require him to execute a bond with or without a surety for his
appearance before a MC or may order him to be detained in custody until he can
be tried.
 - When a person is arrested by a PP and brought before a peace officer :
a) Such officer should first consider whether the offence committed would fall
under the category of
s.32.
b) If offence is non-cognizable then release person immediately.
c) s.33(1) may apply if he refuses to give information/gives false information.
d) s.35 states that if there is no reason to believe that he has committed any
offence – he shall be discharged.

Procedure to be adopted after arrest without a warrant

s.36 A peace officer making an arrest without warrant shall without unnecessary delay
and subject to the provisions contained as to bail take or send the person arrested,
before a Magistrate having jurisdiction in the case.

s.3(2) Bail Act : Where there is reference in any written law to a provision of the CCP
relating to Bail, such reference shall be deemed with effect from the date of
commencement of this Act, to be reference to the corresponding provisions of the BAIL
ACT.

s.37
 A person arrested without a warrant shall not be detained for a longer period than
under all the circumstances of the case is reasonable
 such period shall not exceed twenty-four hours exclusive of the time necessary for
the journey from the place of arrest to the Magistrate.

s.38 OICs of police stations shall report to MC of their respective districts the cases of
all persons arrested without warrant by any police officer attached to their stations
or brought before them and whether such persons have been admitted to bail or
otherwise.

When suspect is in hiding

s.24
 If any person acting under a warrant of arrest OR
 having authority to arrest (without warrant) has reason to believe that any person
to be arrested has entered into or is within any place
o the person residing in or in charge of such place shall on demand of such
person acting or having authority as aforesaid
o allow him free ingress therein and afford all reasonable facilities for a
search therein.

- Such measure can only be adopted if the officer acting under the warrant of arrest
or under the provisions laid down by s.32, s.33 & s.35
 - Anura Bandara v. Rajaguru and others- The person making the arrest must be
should be satisfied that such person is holding in the place.

- Refusal by the person (Owner) residing or in charge of the place to allow free
ingress to such officer is deemed to have committed an offence under the Penal
Code

s.25 If ingress to such place cannot be obtained under s.24 it shall be lawful 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 arrested 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 door/window
of any place whether that of the person to be arrested or of any other person
 if after notification of his authority and purpose and demand of admittance
duly made he cannot otherwise obtain admittance.

- Excise Inspector, Point Pedro v. Thangamma

It was held that it is a violation of this section to enter a house by removing the
tiles off the roof.
s.26
 Whenever a search for anything is to be lawfully made in any place in respect of
any offence
 all persons found therein may be lawfully detained in such place until the search
is completed
 AND subject to s.30 they may be searched by or in the presence of a Magistrate
or inquirer or police officer not under the rank of Inspector (if the thing sought is
in its nature capable of being concealed on the person)

Search of Persons Arrested

s.29 Whenever a person is arrested by a Peace officer:
 Under a warrant:
 which does NOT provide for the taking of bail OR
 which provides for the taking of bail but the person arrested cannot
furnish it.

 Without a warrant By a private person under a warrant and cannot legally be

admitted to bail or is unable to furnish bail:
 The peace officer making the arrest
OR
 When the arrest is made by a PP, the peace officer to whom he hand
the arrested person over(Note: Search is effected by Peace officer and
NOT PP)
 ... May subject to s.30 search such person and place in safe custody all articles
other than the necessary wearing apparels found upon him.

* Any such articles which there is reason to believe were the instruments or
the offence and the other evidence of a crime may also be detained until
his discharge or acquittal.

s.30 When a woman is searched, it should be by another woman with strict regard to
decency.

* A peace officer may pursue any person who has power to arrest.

s.42 If a person in lawful custody escapes or is rescued;

 the person from whose custody he escaped or was rescued may
immediately pursue and arrest him in any place
 either within or without the jurisdiction where he was so in custody
 and deal with such person as he might have done on the original
taking.

Summons

s. 44 - (1) Every summons issued by a court must be

* in writing
* in duplicate & signed by the Registrar
* in the prescribed form.

(2) If person summoned unable to read the language of the court a translation must be
annexed to duplicate.

(3) Attached to every summons should be

 a copy of the complaint / report
 other document upon which proceedings against him have been instituted
 a list specifying the names and addresses of P’s witnesses if any

Service of Summons - s. 45
(1) Summons must ordinarily be served by the Fiscal

Summons could also be served by a police officer if

 Case has been instituted by a peace officer
 Case is before HC
 Summons cannot otherwise be served
 Where the circumstances require it - the summons may be served by a grama seva niladhari or by
registered post.

* In the case of a company / corporation or incorporated association summons can be served

on managing director / secretary / other like officer / the person in charge of the principal
place of business.

* In the case of an unincorporated association of persons - summons can be served by

delivering it to the president / secretary / other like officer.

* Where the summons cannot be served as above on a company/ corporation or association of

persons - summons can be served by registered post at
- registered office
- if there is no registered office - at the principal place of business

Where person cannot be found s. 46

When the person to be summoned cannot be found by the exercise of due diligence - summons can be
served by leaving one of the duplicates him with some adult member of his family / his servant who
are residing with him.

s. 47 - If service prescribed in ss 45 & 46 cannot be effected by exercise of due

diligence fiscal must affix a duplicate to some conspicuous part of the house in which
person summoned ordinarily resides. The summons are then deemed to have been duly
served.

Serving summons on employees of state / local authorities / corporations - s. 48

If person summoned is an employee of the State / local authority / corporation the court
must ordinarily send 2 duplicates to the head of the department / office in which the
person is employed. Head must then cause one duplicate to be served personally on the
employee and must return the other duplicate to court with an endorsement of service.

Proof of Service - s. 49
When a summons is served the following would be proof of service & be admissible in
evidence & the statements made are deemed to be correct unless and until the contrary is
proved.
 an affidavit of such service must be made before an officer duly
authorized to administer an oath, or affirmation, OR
 a report of service made by a peace officer OR
 an advice of delivery issued by the Post Office OR
 in case of s. 48 the endorsement by head of dept.
Warrant of arrest

Mahanama Thilakeratne v. Bandula Wickremesinghe – In order to arrest a person a

warrant of arrest could only be issued in accordance with the provisions under Cap 5 B
CCP. Before a warrant is issued against a person, evidence must be recorded on oath (that
he is absconding etc. ???)

s. 50 - Every warrant of arrest issued by a court under CCP must be in writing &
signed by the Judge & must be in the prescribed form.
* A warrant must contain the reasons for the arrest.

A warrant remains in force until it is cancelled by the court which issued it or

until it is executed.

R v. Sinnady – Where a warrant is issued for the arrest of a person who surrendered to
court before the returnable date & where court made no order canceling the warrant the
warrant remains in force & resistance to the execution of the warrant is unlawful.

s. 51 - A MC must direct by endorsement on the warrant that if a person executes a

bond with sureties for his attendance before the court the officer to whom the warrant is
directed must take the security & release the person from custody.

The endorsement must state

(a) the number of sureties
(b) the amount in which they are to be respectively bound .
(c) the day and the hour at which he is to attend before the court.

Goonesekere v. Appuhamy – Where a public servant who was obstructed was not acting
with lawful authority – a person who resists him cannot be convicted under s. 183 Penal
Code of obstructing a public servant in the discharge of his functions or under s. 344 of
using force with intent to prevent him from discharging his duty as a public servant. A
person cannot be convicted under these sections unless the act of the public servant was
strictly legal.

To whom a warrant may be directed? - s. 52

Ordinarily directed to the Fiscal & may be executed by the Fiscal / peace officers within
the limits respective jurisdictions / in any part of SL by any police officer.

* If warrant is directed to a peace officer by name it must not be executed by another

peace officer unless endorsed to him by name.
s. 56 - When a warrant is to be executed outside jurisdiction of the court issuing it, the
court shall ordinarily forward it by post / otherwise to the MC within the local
limits of the jurisdiction of which it is to be executed.

Such Magistrate to which the warrant is so forwarded shall endorse his name
thereon and if practicable cause it to be executed within the local limits of his
jurisdiction.

Such warrant maybe directed specially to any peson and may lawfully be
executed by such person withouts such endorsement anywhere within SL, If
 The delay or publicity occassioned by obtaining the endorsement
of that Magistrate to prevent such execution.

Arrest with a warrant - s.23 & s.53

s. 23(1)
 A person making an arrest must 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
 must 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 / 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

s. 23(2) If such person forcibly resists the endeavour to arrest him / attempts to
evade the arrest, the person making the arrest may use such means as are
reasonably necessary to effect the arrest.

s. 23(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.

s. 53 A person executing a warrant of arrest must notify the substance thereof to

the person arrested, and if so required by the person arrested shall show him the
warrant or a copy signed by the person issuing the warrant

s. 59 If a police officer has reasonable grounds to believe that a person is one for whose
arrest a warrant has been issued, he can arrest that person in execution of the
warrant although the warrant is not in his possession at that time.
(notwithstanding anything to the contrary in this CCP)
Arrest with a warrant s. 54

s. 54 A person executing a warrant must bring the person arrested before the court
without unnecessary delay and he must endorse on the warrant the time and place
of arrest.
(This is different from the requirement to produce a person within 24hrs in the
case of arrest without warrant given in s. 33 (2) )

s. 58 When a warrant is executed outside the jurisdiction of the court issuing it, the
person arrested must be taken before the MC in the jurisdiction of which he was
arrested. Unless the issuing MC is closer / is within twenty miles of the place of
arrest.

 The MC must direct the removal of the arrested person in custody to the MC if the
arrested person appears to be the person in the warrant.
BUT
If the offence is bailable and the person arrested be ready and willing to give bail
the court must take the bail / security and release the person from custody &
forward the bond to the court issuing the warrant.

Proclamation and attachment

s. 60
- If court is opinion that a person against whom a warrant has been issued is
 Absconding / concealing himself so that warrant cannot be executed
 Court can require him to appear at a specified time & place within 30 days
before publication of proclamation.

- Proclamation is:
(a) drawn in Sinhala & Tamil and shall be publicly
read in some conspicuous place where the person
ordinarily resides;
(b) copies are affixed to some conspicuous part of his house
(c) copies of proclamation shall be affixed to a
conspicuous part of the court-house

s. 61
- After issuing proclamation court can order the attachment of any property,
belonging to the proclaimed person (whether movable or immovable)

- The attachment order, authorises the attachment of the property belonging to the
absconding person (within or outside the jurisdiction of court when endorsed by a
Magistrate within whose jurisdiction such property is situate)
 - If the property is a debt / other movable property, the attachment will be:
(a) by seizure ; OR
(b) by the appointment of a receiver ; OR
(c) by an order in writing prohibiting the delivery of property to the proclaimed
person / anyone on his behalf; OR
(d) by all or any 2 of such methods as the court thinks fit.

- If the property is immovable, the attachment is through the GA by

(a) taking possession ; OR
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent or delivery of
property to the proclaimed person or to anyone on his behalf; OR
(d) by all or any 2 of such methods as the court thinks fit.

- If the proclaimed person does not appear within the time specified in the
proclamation, the property under attachment shall be at the disposal of the
Minister but it shall not be sold until the expiration of 6 months from the date of
the attachment unless court thinks it’s fit to sell due to ;
a) speedy and natural decay
b) the sale would benefit of the owner

- Notice of order of attachment of immovable property shall be given by the court

to the Registrar of Lands for the district in which such property is situate,

s. 62 If person
a) appears voluntarily
b) is apprehended and brought before the court
within one year from the date of the attachment & proves to the satisfaction of
court that
i. he did not abscond or conceal himself for the purpose of
avoiding execution of warrant and
ii. he had not got notice of the proclamation as to enable him to
attend within the time specified
The property / if sold – the net proceeds / if part of sale & part of property must
be delivered to him after satisfying all expense incurred in consequence of the
attachment.
Issuing a warrant without summons / in addition to summon -
s.63 s.64 s.65

s. 63 When empowered to issue a summons court must, after recording its reasons in
writing, issue a warrant for his arrest (except in the case of a juror)
IF
(a) before / after issue of the summons but before the time fixed for his
appearance the court believes that he has absconded / will not obey the
summons OR
(b) He fails to appear and the summons is proved to have been duly served in time
and no reasonable excuse is offered for such failure.

s. 64 Officer who is empowered to issue a summons / warrant can require the person to
execute a bond (with / without sureties) for his appearance in court.

s. 65 All summonses to appear can be served in any part of SL

BUT
summons cannot not be served outside the local limits of the jurisdiction of
the issuing court unless it is endorsed by court with the words
" For service out of the jurisdiction "
This also can be done only if court is satisfied that there are grounds for allowing
service summons outside the jurisdiction.

Summons to produce

s. 66 – If a court needs a document / other thing – court can issue summons to the person
whose possession it is requiring him to attend & produce it.

De Mel v. Haniffa – s. 66 does not apply to a D in a case & court cannot compel D to
produce a document / thing. This is due to the English principles of the rule against self-
incrimination. The other reason is that at the instance of charging D the burden is on P to
produce sufficient evidence to prove the charge. Courts have accepted that after the
commencement of the trial, there is no room for admitting evidence in the possession
of D.

 A person need not personally attend to produce a thing / doc. Only need to
cause it to be produced.

s. 123 Evidence Ord. – A person cannot produce

(a) Unpublished official records relating to any affairs of state
(b) Any evidence from those unpublished official records

s. 130 Evidence Ord. – A witness who is not a party to a case cannot be compelled to
produce his title deeds to any property.
s. 67 Court can authorize Dep. of Posts to deliver to court any book / letter / post card /
telegram / other document in their custody which court thinks is needed for a case.

* AG / SP can require Postal Dep. to effect a search & deliver a document

for investigation & proceedings.

Search Warrants

s. 68 (1)
(a) If court has reason to believe that a person to whom a summons has been or
might be addressed will not produce the document / thing
OR
(b) if the document / thing is not known to the court to be in the possession of a
person
OR
(c) if court considers that the purposes of an investigation / proceeding will be
fulfilled by a general search / inspection
Court can issue a search warrant in the prescribed form & the person to whom the
warrant is directed can search / inspect what is mentioned in the warrant.

70. MC can issue search warrant when it receives information & after an inquiry if it
thinks necessary has reason to believe that —
(a) a place is used for the deposit / sale of stolen property
(b) a place is used for the deposit / sale / manufacture of forged documents / false
seals / counterfeit stamps or coin / instruments to do such things.
stolen property / property unlawfully obtained / forged documents / false seals are kept /
deposited in any place
MC can by warrant authorize the a person to —
(i) enter, (with such assistance as may be required), the place
(ii) search the place in manner specified in the warrant
(iii) take possession of any property / documents / seals / stamps / coins found which
he reasonably suspects to be stolen / unlawfully obtained / forged, false /
counterfeit & any instruments
(iv) convey such property / documents / seals / stamps etc. before MC / guard the
stuff on the spot until offender is taken before MC / dispose of them in some
place of safety
(v) take into custody & bring before MC a person found in the place who appears
to have been privy to the deposit / sale / manufacture / keeping of any such
property / documents / if there is reasonable cause to suspect that the property
have been stolen / / unlawfully obtained
  A search warrant remains in force for a reasonable number of days which
is specified on the warrant. ; s. 68 (2)

Croos v. SI Modera – A search warrant can remain in force from the date
of issue & it is lawful to extend the search warrant (based on the facts of
the case).

 A search warrant can be confined to any part of

the premises (if so no other area of the premises
can be searched)

 Police Ord – A police officer is empowered to enter any premises which

houses illegal property & take the property into custody. He can also
search the premises.

Procedure to follow when searching premises

s. 74 When a place liable for search / inspection & the premises are closed - a person
residing in the premises must allow person executing the warrant free ingress
into premises & afford all reasonable facilities for a search on demand & on
production of the warrant

 If ingress into the place cannot be obtained person executing the warrant
may proceed to search under s. 25

 The person executing the search warrant must make a list of all things
seized in the course of the search and of the places in which they were
found.
Excise Inspector Point Pedro v. Thangamma – It is mandatory for the
possessions found in a premises & the places they were found to be
entered into a list. It’s illegal to fail to make the list.

s. 76 Occupant of the place / some person on his behalf can be present at every
instance of the search & a copy of the list must be given to the occupant.

s. 71 - When in the execution of a search warrant at any place beyond the local limits of
the jurisdiction of the issuing court – anything found together with the list must be
immediately taken before the issuing court unless such place is nearer to the MC
having local jurisdiction. If so list and things must be taken before MC having
local jurisdiction.
Jurisdiction of Criminal Courts in inquiries & trials

s. 128
(1) An offence must ordinarily be inquired into and tried by a court within the
jurisdiction of which the offence was committed.

(2) Any MC has jurisdiction over all offences which have been committed on the
territorial waters of SL (12 nautical miles from shore) & which are triable in the
4MC.

(3) An offence committed on the territorial waters of Sri Lanka to which s. 128 (2) is
not applicable / an offence committed on the high seas, or on board any ship or
upon any aircraft may be tried or inquired into by the MC of Colombo (if it
otherwise has jurisdiction) or by HC.

Exceptions to s. 128
(1) Offences against Aircraft Act 1982 – If an offence (which would be an offence if
committed in SL) is committed in a SL Aircraft / on High Seas / on another
territory by a citizen of SL / a non-national – SL courts have jurisdiction.
If offence could be brought before MC – must be heard by MC of Colombo.
If offence could be brought before HC – must be heard by HC of Colombo.

(2) Torture Act 1994 -

When the Act done the ensuing consequences take
place at different locations

PLACE OF TRIAL OF OFFENCES COMMITTED IN VARIOUS PLACES

Where
(a) it is uncertain in which of several jurisdictions the offence was committed
(b) an offence is committed partly in one jurisdiction & partly in another
(c) offence is committed & continues to be committed in more than one
jurisdiction
(d) an offence consists of several acts done in different local areas
(e) in the course of the same transaction – different offences are committed in
different jurisdictions
the offence can be tried by a court having jurisdiction over any one of the local areas
; s. 132 (1)

 If an offence is committed whiles D is in the course of a journey / voyage – a

court through / into whose jurisdiction D or V passed in the course of the
journey can try case ; s. 132 (2)

BUT
 If D is found within the jurisdiction of a court all offences concerning laws
relating to railways / telecommunications / post office / arms & ammunition
can be tried by any court within whose jurisdiction the offence is alleged to
have been committed ; s. 132 (3)

s. 134 – A sentence of a criminal court cannot be set aside merely because the inquiry
was by a MC which is not empowered to try it.
(Applies to non-summary inquiries – not trials)

s. 133 – When a Mag. has a doubt as to jurisdiction of MC Mag. must embody the facts
in the form of a case & must transmit it to the AG for his opinion. AG must
decide in which court the inquiry should take place.

When offence is committed in jurisdiction of one court & the ensuing consequences
occur in the jurisdiction of another

s. 129 – When a person is accused of an offence by way of something done & the
consequences which may have ensued – offence can be tried by any court within the
jurisdiction of which any act was done or any consequences ensued.

Eg. If a person is inflicted a fatal wound within jurisdiction of one MC & V dies
in the jurisdiction of another – NS can be held in either one of the MCs.

Jurisdiction of a court in respect of an offence by reason

of it being related to another offence

s. 130 – When an offence is committed by reason of it being related to another act which
is also an offence / which would have been an offence if the doer was capable of
committing an offence – the offence can be tried in MC within the jurisdiction of
which either of the 2 acts were done.

Eg. A charge for abetment can be tried by

(a) The court within the jurisdiction of which the abetment was committed OR
(b) The court within the jurisdiction of which the offence abetted was committed

Trial for escaping from custody

s. 131 (1) – Can be tried in court within the jurisdiction of which D is found / recaptured
or where he escaped.
Criminal Misappropriation & Criminal Breach of Trust

s. 131 (2) – Can be tried by court within whose jurisdiction

(a) any part of the property was received by D
(b) the offence was committed

Stealing

s. 131 (3) – Can be tried by court within whose jurisdiction

(a) thing was stolen
(b) thing was possessed by the thief / a person who received
(c) thing was retained by the person knowing / having reason to believe it
to be stolen

Objection to jurisdiction

After D has pleaded to the charge against him – neither P nor D can object to the
jurisdiction of the court. But in the course of the trial if it appears that the matter has been
intentionally brought up in a court which has no jurisdiction to try the case – judge can
refuse to proceed further & can declare the proceedings null & void.

TRANSFER OF CASES

s. 46 Judicature Act
If CA feels that
(a) A fair & impartial trial cannot be conducted in a particular court / place
(b) A question of law of unusual difficulty is likely to arise
(c) A view of the place in which the offence is alleged to have been
committed may be required
(d) It is expedient on some other ground
CA can transfer a case to any other court as it thinks fit.

(Application for transfer must be supported by affidavit stating the grounds)

* CA has no power to transfer a preliminary inquiry

from one MC to another – can only transfer a trial

s. 47 Judicature Act
If AG feels that it is expedient to transfer a criminal trial / inquiry form one court to
another - AG can designate the other court to by his fiat in writing

(The fiat must be filed in the case record)

  A person aggrieved by a transfer made under the fiat of AG can apply to CA
(by motion supported by affidavit) to re-transfer case.
- CA must notice AG who can be heard to show cause against motion.
- If CA considers that appliant has shown good cause – can order re-transfer

CONDITIONS NECESASRY FOR INITIATING PROCEEDINGS

s. 135 – Offences under Penal Code that cannot be taken into cognizance by a court
without satisfying certain pre-conditions
- Previous sanction of AG necessary to commence proceedings in respect of
these offences

- Sometimes proceedings can be initiated by a complaint of court.

* Complaint must be in writing under the hand of the Registrar.
* Court complaining can cause D to be arrested & sent in custody before
MC having jurisdiction

- Sometimes complaints can be made by a public servant

COMMENCEMENT OF PROCEEDINGS BEFORE MC s. 136

1. s.136(1)(a)
An oral or written complaint could be made to a Mag that an
offence has been committed which such court has jurisdiction
to inquire into or try. Such complaint must be countersigned
by the pleader and signed by a complainant, if such
complaint is in writing.

2. s.136(1)(b) B Report
On a report being made to a Magistrate by an
 AN inquirer, or
 A peace officer, or
A public servant, or
 Servant of a Municipal Council, Urban Council or Town
Council

The report produced under this section is referred to as the

plaint and NOT the charge. A police officer produces a
plaint in accordance with the provisions of this section.
Thereafter, a Magistrate may initiate proceedings.

s. 115, A person shall be released on bail if proceedings

are not instituted against him in a Magistrate’ Court or
High Court before the expiration of 3 months from the date
of surrender or arrest.
 (s 13 Bail Act – a person suspected or accused of being
concerned in committing or having committed an offence with
death or with life imprisonment, shall not be released on
bail except by a judge of the High Court)

AG V Punchibanda Proceedings had not been instituted against

an accused in a murder case even after 3 months from the
date of arrest. The AG appealed against the decision to
grant bail to the accused.
Held by C of A that during an investigation, when there is a
report containing a clear charge forwarded to the magistrate
regarding an offence committed by s suspect under s. 116
that for the purpose of section 15, proceedings will
commence. Therefore, a report need not be made to the
Magistrate under s. 135 in this instance.

BUT Thunya alias Gunapala V Galawela Held by SC that the

report produced by the police in the course of an
investigation (s. 116) does not authorize the commencement
of proceedings.
For proceedings to commence, it would be necessary that a
report under s. 120(3) and the plaint under s. 136 be
forwarded.

3. s.136(1)(c)
Upon the knowledge or suspicion of the Mag. Accused may
however require another Mag to try the case instead of the
one instituting the action

4. s.136(1)(d)
By any person being brought before a Mag of such court in
custody without process being issued accused of having
committed an offence which such court has jurisdiction to
inquire or try.

5. s.136(1)(e)
When a warrant by the AG under s.393 requires a Mag to hold
an inquiry for an offence that the court has jurisdiction to
inquire into.

6. s.136(1)(f)
When a written complaint under s. 135 states that
the complaint shall be in writing under the hand of
the registrar in court

**** Unless under provisions of s. 136 a written complaint

shall not be entertained in any other circumstances.
PROVISIONS OF THE MEDIATION BOARDS ACT

- s.7 Mediations Board Act – An offence falling within the act

must be first heard by a MB for settlement. If no settlement –
Court has jurisdiction to hear case.

PROCEDURE AFTER INSTITUTING PROCEEDINGS

- Lanka Insurance v Perera – A suspect becomes n accused only

after proceedings have been instituted against him under s.
136.

- R v Muttiah – A plaint under s.136 can only be produced after

conclusion of all investigations.

1. Summons should be handed to D

 Perera v IP Kirulapone- Sc held evidence of witnesses

cannot be recorded before summons are served.

 It can be recorded before summons only under s.136(1)c

 s.139(1)ii A Mag shall examine on oath a complainant / a

material witness before issuing a warrant / summons.

 s.139(1)iii Mag should record a brief statement of facts

which constitute his means of knowledge or of the grounds
of suspicion before the issuing summons in a case brought
under s.136(1)c

COURSES OF ACTION REGARDING PROCEEDINGS

In the first instance the Mag has to resort to the provisions of

s.142 if the offence/s fall under:
1. The 2nd schedule to the Judicature Act.

2. Where the AG has directed the Mag to hold a preliminary

inquiry.

* If the Mag is of the opinion that the offence cannot be

sufficiently punished by a MC, he shall stop further
proceedings and forward the record of the case to the
AG and thereafter abide by the instructions of the AG.
 CHARGES

- Rational : Informing D of the charges against him.

- s.164 A Charge must state the following:

1) the offence with which D is charged.
2) If law gives offence a specific name, the charge
must describe the offence only by that name.
 If offence has no specific name, so much of the
definition of the offence must be given which is
capable of giving d notice of the matter with which
he is charged.
3) The law and the section under which the offence is
punishable.
4) Accurate and clear facts by which D can obtain a broad
picture of the allegations before him ; Perera v. Perera
s.165
 Time and place of alleged offence (to show that offence is not
prescribed)
s.174
When a D is accused of more than 1 offence of the
same kind committed within a space of 12 months D
can be charged with and tried at one trial for max
3 of the offences.
All charges can be in the same indictment

De Zoysa v. R – when the date of the charge exceeds even 1 day more than the
specified 12 months – charge is illegal.

 Person against whom it was committed

- The fact that the charge is framed = a statement that every

legal condition constituting the offence has been fulfilled.

- Charge must be drawn up in accordance with the provisions in

the CCP unless and other law specifically provides for some
other form.

Joinder of Charges

s. 173 – For every distinct offence a D is charged with – a

separate charge must be produced & each charge must be
tried separately.
s. 174 – When a D is accused of more than one offence of the
same kind which were all committed within 12 months – D
can be charged & tried for any 3 of them at the same
trial.
Offences of the same kind = offences punishable with the
same amount of
punishment under the same section
of the Penal
Code / other law.

R v. Senanayake – The offence of house breaking done for

a number of days would fall under s. 174.

s. 175 – If a series of acts are so connected together as to form

the same transaction in which several offences are
committed by D – D can be charged with & tried at one
trial for all the offence.
(All the charges can be included in the same indictment)

“Same transaction”
Wilbert v. IP Halawatha – When considering what is
meant by “during the course of the same transaction”
the facts of the case must be taken into account.
* Connection between the time of the offences
* Connection between the reasons for committing the
offences
* Whether the offences committed were part of one
continuous series of offences
etc. have to be considered.

BUT
Boteju v. Moorthi – Even though the offences were
committed in the course of the same transaction – it need
not necessarily be included in the same transaction &
tried together. It is still lawful to include different
offences in different charge sheets & try them
separately.

Other important matters to be considered when

framing a charge

In some instances even though the accused has commited one act he
may be liable for more than one offenece.
Eg- Under the bribery Act, if a public servant accepts a
bribe then he will be liable not only for accepting abribe to
perform his official duty, but also for accepting a bribe a a
public official.
These offences can be punished under 2 distinct definitions nad
thus be included as offences that form part of the same
transaction.

s.175(3) Several acts together can constitute an offence. The

same acts can constitute a different offence when the acts are
combined. Then be charged for both offences and tried in one
trial for both offences.

Illustration K:
A commits robbery on B & in doing so voluntarily causes hurt.
A maybe separately charged with & convicted of voluntarily
causing grievous hurt (s.314) and for robbery (s.380) and for
causing grievous hurt in robbery (s.382). All maybe tried in
one trial and included in one indictment.

R v. Weerasinghe D robbed a necklace. In the process Ps neck

was also injured. Held s.175 applicable.

* But cannot join aggravated versions of the same offence in the

same charge sheet. (causing grievous hurt & causing brievous hurt
with an offensive weapon)

s.176 If an act/series of acts is of gives rise to a doubt as to

which offences may have been committed – D can be charged with
all / any one of the offences. In this case any number of charges
can be tried in one trial.
All charges can be included in one indictment / D can be charged
with committing one of the offences without specifying which one.

Illustration
A is accused of an act which can amount to theft or
receiving stolen property or criminal breach of
trust or cheating. A can be charged with theft,
receiving stolen property, criminal breach of trust,
and cheating,
OR
A may be charged with having committed one of the following
offences - theft, receiving stolen property, criminal breach
of trust, and cheating.
Joinder of Persons

s.180 When several persons are accused of

 jointly committing the same offence
 of different offences in the same transaction
 when one of committing an offence and another of abetment
or attempting to commit it

they may be charged and tried together (or separately as the

court thinks fit)

Illustrations
(a) A and B are accused of the same murder. A and B may be
indicted and tried together for the murder.

(b) A and B are accused of a robbery in the course of which A

commits a murder with which B had nothing to do. A and B
may be tried together on an indictment charging both
of them with the robbery and A alone with the murder.

(c) A and B are both charged with a theft and B is charged

with two other thefts committed by him in the course
of the same transaction. A and B may be both tried
together on a charge charging both with one theft and B
alone with the other two thefts.

(d) A and B arc accused of being members of opposing factions

in a riot. They should be indicted and tried separately.

(e)A and B are accused of giving false evidence in the same

proceeding. They should be indicted and tried
separately.

AG v Munasinghe – It was held that no other provision exists for

the joinder of persons other than these provisions.

Queen v Ibrahim Lebbe – Held than when a group of persons have

committed distinct offences in one instance it does not per se
become part of the same transaction. And than they cannot be
charged and tried together.

 In a case that was decided long time ago, a group of

carters could not be charged and tried together, when
they committed the offence of riding there carts in a
line in the night without any lighting. This was due to
the fact that the offence did not form part of the same
transaction.
Joseph v Fernando – Person was accused of theft. Another was
charged for keeping in his possession those stolen items that
were found on a different date. And a different place. Held that
such an action did not constitute acts that fall part of the same
transaction and that they could not be tried together.

Exise Commissioner of Kandy v. Punchi Mahathaya A buss driver and

a conductor were charged jointly for possession of illegal
liquor. The inspector witnessed that while the driver of the bus
had hidden the liquor under the seat the conductor was trying to
conceal the liquor from the inspector.

 In the case of a Principle and an abettor even though

they may be tried jointly if the court is of the opinion
that such a trial would unfairly prejudice one party then
they would commence proceedings separately.

summary trial
- Charge must 1st be framed and read over to D when D is
produced before MC. Mag must ask D if D has any cause to
show why he should not be convicted.

- DIFFERECE BETWEEN PLAINT AND CHARGE

 A plaint is produced to a Mag by an officer making a B
Report[s.136(1)B]
 Mag frames the charge based on the plaint.
 A charge sheet is addressed specifically to D. A plaint
is not.

- Magistrate must frame the charge.

AG v. Baskeran Whole trial is illegal if charges were not
framed by Mag.

Godage v. OIC Kahawattte The responsibility of framing the

charges lies with the Mag. Since the B Report does not
contain a signed charge sheet by the Mag, It is illegal due
to non compliance with s.182(1). Thus conviction will be
quashed for illegality.

Difference between summary trials and non-summary inquiries

 At the end of a summary trial Mag convicts D / acquits or

discharges D.

 Purpose of non summary trial – to ascertain whether there is

sufficient evidence to be tried in the HC. So Mag either
discharges / commits D for trial in HC.
Trial in absentia (in MC)

s.192 If D is
(a) absconding / left SL or
(b) is unable to attend by reason of illness and has
consented to commencement of trial in his absence or
(c) is obstructing or impeding the progress of the trial by
reason of his conduct in court,
Mag can proceed with the trial in the absence of the
accused.

BUT

If during the trial / within a reasonable time after the

conclusion of the trial D appears satisfies court that his
absence was bona fide, then :
(a) If trial is still on, the evidence led against D
during his absence must be read to D and D must be given
an opportunity to cross-examine the witnesses

(b) If trial has been concluded, the court must set aside
the conviction and sentence, and order D to be tried
afresh (de novo).

 Even if absence was bona fide D cannot ask for relief if

he had been defended by a AAL in his absence.

* s.192 is an exception to s.272

All evidence under the CCP should be taken in the presence of
the D / if he’s absent in the presence of his AAL. Except
where it is otherwise especially provided.(eg :s.192)

Procedure after the charge is read

1. D must answer the charge after it is read to him. ( by

pleading guilty / non-guilty)

Punchiappuhamy v. Wijesekera It is D who has to

state the fact that he is guilty to the charge.
Ds plea of guilt must be an unconditional
statement. If it is not unconditional – Mag
must proceed with trial as if he pleaded not
guilty.

2. The guilt of D must be recorded in the words spoken by D.

3. After pleading guilty to a charge before sentence is

passed, D can change his position and plead not guilty.
 4. Mag should record the conviction where D is convicted on Ds
own plea of guilt.

5. Mag must impose a punishment suited to the charge. But

before sentence is passed Mag should examine for previous
offences committed by D in a report forwarded by the
Registrar of Fingerprints.

6. Mag must ask D / Ds lawyer whether D has anything to say

before sentence is passed.

When the accused pleads not guilty

(1) When a D pleads ‘not guilty’ – Mag must record plea

(2) Then P commences the leading of evidence
(3) Mag must note the evidence in his presence & must personally
hear the evidence.

How evidence should be taken

 In MC evidence must be taken down in form of narrative
(but judge has discretion to take down any question &
answer to it) ; s. 273
 In HC evidence must be taken in form of question & form
; s. 273
 D can subject any evidence forwarded by P to cross-
examination
 After cross-examination of a witness P can re-examine a
witness on a point brought up in cross-examination which
needs to be clarified.

 In a summary trial court inquires from D whether he wants

to make any admissions.
- D must make admissions though AAL. If D is not
represented by an AAL – admission cannot be made
; s. 420

- Then court must record the admissions & have regard to

the facts that D made the admission when passing
sentence.

- Admission can be made before trial but if so should be

in writing – signed by party & certified by AAL ; s.
420
 After P has closed his case – Mag must decide whether a
prima-facie case against D has been established or not.
If Mag thinks there is a prima-facie case – Mag must call
for a statement from D.
D has 3 options
(1) Silence
(2) Give evidence himself / lead evidence on his behalf
through witnesses
(3) Dock statement
R. v. Sittambaram – A D may if he prefers make an
unsworn statement from the dock instead of giving
evidence from the witness box. Where Judge refuses
to allow D to make a Dock statement, it is an
irregularity of such a nature which would
necessarily cause a failure of justice.

Kathubdeen v. Republic of SL - It is settled law

that an unsworn dock statement must be treated as
evidence. If the dock statement creates a
reasonable doubt in the P’s case, or if it is
believed – the accused should be given the benefit
of that doubt.

* Mag must inform D that D has the 3 options

available & that it is not mandatory for D to give
evidence.

 After the case of the D is heard – if Mag feels that D is

not guilty – Must acquit D.
If Mag decides D is guilty – decision & conviction must
be recorded & D must be sentenced.

 After P has concluded recording evidence & Mag is of

opinion that P has not established a prima facie case –
Mag must acquit D.
DISCHARGE & ACQUITTAL

s. 21 A discharge means the discontinuance of criminal proceedings against an accused, but does
not include an acquittal.

An acquittal - when as accused is freed from all charges.

To free an accused from all charges, the facts pertaining
to the case against him must be considered.
S. 185 - Once the evidence for the prosecution, defense and other such evidence is taken,
if the Magistrate finds him not guilty, he shall record a verdict of acquittal.
- An order of discharge cannot be ordered in this situation.
- The instance that an accused can be acquitted is after the witnesses for
the prosecution have been examined and cross-examined ;
; De Silva V Jayathillake and affirmed by the Privy Council in
Veerappan V AG

Abeysekera V Gunawardena and AG V Piyasena Held that if there is no

charge read to the defendant (if the legal procedure is not carried out) or
if a decision has been arrived at through an illegal charge, even though
the prosecution has concluded leading evidence, the magistrate can order
a discharge.

s. 186 Mag can discharge the accused at any previous stage of the case (I.e. before
verdict) without any restriction.
- He must state his reasons for doing so.
- Senaratne v Leno Hamy Held Mag could only discharge the accused in
the event that the Prosecution had not been present in court.
Adrian V Dias Held that in such a situation, the magistrate had the
power record a verdict of acquittal on the basis that the Prosecution was
not ready to commence with the proceeding and that the trail should not
be postponed.

BUT De Silva V Jayathillake and Veerappan V AG Held that in such a

situation the Magistrate could only record a verdict of discharge.

 s. 186 Empowers the Magistrate to acquit the accused if further proceedings

will not result in the conviction of the accused.
 He must state his reasons for this.

WITHDRAWAL OF A CHARGE OR COMPLAINT

- A complainant can, at any time before verdict is entered, withdraw his case.

- If Mag is satisfied that there are sufficient grounds for permitting him to withdraw the
case, the magistrate shall withdraw the case and acquit the accused. (Magistrate must
record his reasons for doing so).

- However, according to s 190, except in the case of a complaint made under s 136 (1)(a),
(c)&(d) the Magistrate may, with the sanction of the AG, stop the proceedings at any
 stage without pronouncing any judgment either or acquittal or conviction and may
thereupon discharge the accused.
The reasons for this have to be recorded.

** The benefit of such a scheme is that in the event of a situation where the accused is
accused of a charge whereby the sentence received or receivable is inadequate, the AG
could indict him in the high court after his discharge from Magistrate’s Court.

AG v Gunesekera Held that even though the prosecution rests its case, it does not mean
that all the leading of evidence has been concluded. After the Prosecution leads al the
important matters of evidence if the remaining evidence does not implicate the accused,
the court can consider such important evidence and order an acquittal.

Acquittal would generally be ordered after the

consideration of all relevant evidence & merits of the
case

s. 188

(1) If D is charged with committing an offence under s. 136 (1) (a)

& if complainant is not present on the day appointed for the appearance of t D Mag
must - acquit D
UNLESS for Maj thinks it is proper to adjourn the hearing of the case to some other day.

- Mag can also make an order for payment by the complainant of State costs.
BUT
if the complainant appears in reasonable time and satisfies the Mag that his 'absence was
due to sickness, accident or some other cause over which he had no control, then the Mag
must cancel the acquittal / order for costs.

(2) If a charge is brought against D under section 136 (1) (b) or 136 (1) (c)
& on the day of the trial the P is not ready – court can discharge D
UNLESS for some reason the court thinks proper to adjourn the hearing of the case to another
day.

(3) The order of discharge s. 188 (2) operates as an acquittal where

(a) it is not set aside & the case against D is not reopened within 1 year from the date of
order.
(b) the case has been reopened & and order of discharge has been made for the second time.

When D is charged for one offence & another is proved

If evidence shows that D had committed an offence apart from the offence with which D is
already charged –
(i) even without a charge D can be held accountable for it OR
(ii) a new charge can be drawn up & D can be asked to plead
Conviction without a new charge

s. 177 - D can be convicted when D is charged with one offence and it appears in evidence that D
has committed a different offence. Then D may be convicted of the offence which he is
shown to have committed although he was not charged with it.
Illustration
A is charged with theft. It appears that he committed the offence of criminal breach of
trust or that of receiving stolen goods. He may be convicted of criminal breach of trust or
of receiving stolen goods (as
the case may be) though he was not charged with such offence.

* s. 177 applies only to those situations mentioned in s. 176

s. 176 - If it is doubtful which of several offences the facts which can be proved
will constitute, D may be charged with all / any one of those offences & any
number of such charges may be tried at one trial and in a trial before the
High Court may be included in one and the same indictment; or may be
charged with having committed one of the said offences without specifying
which one.
Illustration
A is accused of an act which may amount to theft or receiving stolen
property or criminal breach of trust or cheating. He may be charged with
theft, receiving stolen property, criminal breach of trust, and cheating, or he
may be charged with having committed one of the following offences, to
wit, theft, receiving stolen property, criminal breach of trust, and cheating.

s. 178
(1) When D is charged with an offence which consists of several particulars & if those particulars
can when combine constitute another minor offence and if the minor offence is proved but the
remaining particulars are not proved D can be convicted of the minor offence though he was
not charged with it offence.

Illustrations .
(a) A is charged under section 390 of the Penal Code with criminal breach of trust in respect
of
property entrusted to him as a carrier. It appears that he commited criminal breach of
trust under section 389 in respect of the property, but that it was not entrusted to him
as a carrier. He may be convicted of criminal breach of trust under section 389.

(b) A is charged under section 316 of the Penal Code with causing grievous hurt. He proves
that he
acted on grave and sudden provocation. He may be convicted under section 326 of that
Code.

(2) When a D is charged with an offence & facts are proved which reduce it
to a minor offence D can be convicted of the minor offence although D was not
charged with it & although the court has not jurisdiction to try the minor offence.
s. 179 – If D is charged with an offence & if it is proved that he did not committed the
offence but did an act towards the commission of the offence – D may be charged of an
attempt to commit the offence although he was not charged with the attempt

BUT
s. 178 does not authorize the conviction of D for an attempt to commit an offence
unless an attempt to commit that offence is made punishable by law.

Where a new charge is required for conviction of a

different defence

s. 167 - Court can alter an indictment / charge at any time before judgment is pronounced OR
in the case of a trial in the HC before the verdict of the jury is returned.

* All changes made to the indictment / charge must be read and explained to D

- If the alteration of indictment / charge under s. 167 is not likely to prejudice D in his
defence / P in the conduct of the case - court has discretion to proceed with the trial as if
the altered indictment / charge had been the original indictment / charge ; s. 168

- If court thinks that the alteration is likely to prejudice D / P - court can ; s. 169
(a) direct a new trial OR
(b) adjourn the trial for such period as may be necessary.

- If the altered indictment / charge alleges an offence which cannot be prosecuted without
previous sanction - case cannot proceeded until the sanction is obtained ; s. 170

- When an indictment / charge is altered – P & D can recall & examine witnesses who may
have already been examined with reference to the alteration ; s. 171