ASSIGNMENT 01

EVIDENCE AND CRIMINAL

PROCEDURE

M.PRAGASH
2013/L/015
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.

Simply speaking, Arrest means apprehension of a person by legal authority resulting in deprivation
of his liberty. Every confinement is not arrest, for arrest legal authority is essential. For instance, when a
police officer apprehends a thief he is arresting the thief; but when a dacoit apprehends a person with a
view to extract ransom, the dacoit is not arresting that person but wrongfully confining him. Further,
every compulsion or physical restraint is not arrest but when the restraint is total and deprivation of
liberty is complete, that would amount to arrest. An arrest implies the actual seizure or touching of the
person with a view to keep him in detention. Arrest of a person is made with a view to ensure his presence
at trial in connection with any offences in which he is directly or indirectly involved. In case of serious
offences, arrests are often made. But in ordinary cases, which are not of serious nature the accused person
is normally called to the police station through, summon to answer certain questions and thereafter there
presence is ensured at the trial of the case too.
The code of criminal procedure Act, No 15 of 1979 (as amended, hereafter the code of criminal procedure
Act) incorporates detailed procedures in relation to arrest. Section 23 (1) of code of criminal procedure
Act states that in making an arrest, the person making the arrest shall not touch or confine the body of
the person to be arrested, unless there be submission to custody by word of action and shall inform the
person to be arrested, unless there be submission to custody by word of action and shall inform the person
to be arrested of the nature of the change or allegation upon which he is arrested.1

There two modes of arrest; firstly with a warrant in terms sections 53 and 54 of the code of criminal
procedure Act. An arrested person should be told the reason for his arrest. If the arrest is by warrant he
should be shown the warrant as soon as possible. A warrant must be in writing signed by judge.Secondly,
an arrest may be made by any peace officer2 in terms of sections 32 of the code of criminal procedure

1 For seminal decision on this point Mutusamy V Kannagara (1985)52 NLR,324, where Gratin j
followed the English legal precedent principle laid down in Chriistie vs Leachinsky (1947)AC 573. The
person arrested must be the person concerned in a cognizable offence of against whom a complaint
has been made or credible information has been received. A person cannot be arrested on a vague
and general suspicion without knowledge of the precise crime suspected of having been committed,
but with the hope of obtaining evidence of the commission of a crime by searching the suspect after
arresting him.

2 "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;

This questions covers a variety of topics and mainly focus two different issues. If we enter in to the first
scenario of this question, Whether it is an arrest or illegal detention?
Differences between arrest and detention. Arrest generally means you are not free to leave and you are
being held to answer for a charge after it has been determined that probable cause exists to arrest you.
Detention generally means you are not free to leave, but you are not being charged with a crime at that
time. To detain someone, you need reasonable suspicion, not probable cause. Detentions are perhaps most
commonly used for traffic stops or officer safety reasons.
A person is detained during a traffic stop. There must be reasonable suspicion or probable cause to make a
traffic stop. Examples can include violation of traffic laws3 or being parked in the middle of the road
without lights in front of a known drug house at 3am. One of those involves an investigation, the other a
minor crime. When a private person arrest another private person review the requirements for such an
arrest. Mere suspicion is not enough and private persons have no right to detain.
Arrest can only made by peace officer4. Armed force has no authority to arrest any person. According to
this scenario this is not an arrest which is an illegal detention. Namely group of civilians wrongfully
confined5 the journalists and we have to analyse the instigation of the Armed force. If the Armed force
intentionally instigate the civilians to illegally detain the journalists which is related with abetment6 and
illegal detention.
Whether fundamental rights of these journalists violate or not?
Section 9 (1) and (2) of the International Covenant on Civil and Political Rights manifest the right of any
person regarding arrest and illegal detention.7
Constitutional safeguards in Srilanka relating to arrest and detention include Article 13 of the constitution
which foresees a number of fundamental safeguards, such as freedom from arbitrary arrest (Article 13(1)
and the right to be informed of reasons of arrest. Article 13(2) stipulates that Every person held in
custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the
nearest competent court according to 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 procedure established by law.

3 Section 151 of the Motor Traffic Act of Sri Lanka

4 Section 3 of code of criminal procedure "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;

5Sec 331 of penal code of Sri Lanka Whoever wrongfully restrains any person in such a manner as to prevent that person
from proceeding beyond certain circumscribing limits is said " wrongfully to confine " that person.

6 Section 100 of penal code of Sri Lanka A person abets the doing of a thing who- Firstly- Instigates any person to
do that thing; or Secondly- Engages in any conspiracy for the doing of that thing; or Thirdly- Intentionally aids, by any act or
illegal omission, the doing of that thing.

7 ICCPR Article 9 (1) Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with
such procedure as are es.tablished by law.
(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him

The 1978 constitution of the Democratic Socialist Republic of Sri Lanka, Article 14 (1) states that
Every citizen is entitled to (a) the freedom of speech and expression including/publication, (h) the
freedom of movement.
Robert who is not a citizen of Sri Lanka therefore he is not subjected to Article 14(only for Srilankan
citizens). Regarding Nishanka who can enjoy all fundamental rights.
Here we can observe that during the war period emergency regulations and prevention of terrorism act
were promulgated so this issue is related with emergency regulations.
Article 155 of the constitution provides that formal basis for the declaration of a state of emergency in Sri
Lanka. It empowers the president to make emergency regulations under the public security ordinance.8
Since Article 80(3) of the Constitution precludes any challenge of the validity of an enactment of
Parliament, the Public Security Ordinance cannot be challenged for validity and compatibility with the
Constitution. However, Article 155(2) of the Constitution unequivocally states that the power of the
President to make emergency regulations under the Public Security Ordinance does not override the
provisions of the Constitution, ostensibly inclusive of the chapter on Fundamental Rights.
The Constitution also recognizes that emergency regulations promulgated under the Public Security
Ordinance may validly restrict the operation of certain fundamental rights. Article 15(7) declares that the
exercise and operation of the fundamental rights recognized by Articles 12, 13(1), 13(2) and 14 shall be
subject to such restrictions as may be prescribed by law in the interests of inter alia national security,
public order and the protection of public health or morality. It then goes on to say that law within the
meaning of that paragraph includes regulations made under the law for the time being relating to public
security.9
Emergency law has consistently undermined the constitutional safeguards. Article 15(7) of the
constitution privileges regulations made under the public security ordinance over and above the
safeguards provided in article 13(1).
In 1979, the Prevention of Terrorism Act was introduced along with the Constitution in order to protect
the government. These laws have been used by governments to suppress the freedom of expression.
The Prevention of Terrorism Act and the emergency regulations under the public security ordinance have
been indiscriminately used to impose censorship of the media, seize printing presses and jail journalists.
The Prevention of Terrorism Act, in addition, specifically prohibits the printing, publishing and
distribution of a particular publication without the prior approval in writing of a Competent Authority, and
prohibits publication of any matter, which may perceivably lead to the incitement to violence.10

8 Section 5 of the public security ordinance (No 25 of 1947) states that The president may make
such regulations in the interests of public security and the preservation of public order.

9 Section 15(7) of Srilankan constitution The exercise and operation of all the fundamental rights declared and
recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests
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 freedoms of others, or of meeting the just requirements of the general welfare of a democratic
society. For the purposes of this paragraph law includes regulations made under the law for the time being relating to public
security.

10 Leader Publications (Pvt.) Ltd. v. Ariya Rubasinghe, Director of Information and Competent Authority and Others [2000]
1 Sri. L. R. 265.

Hence even emergency regulations can be reviewed in a fundamental rights application. Example
Karunathilake vs Dayantha Dissanayake, Commmisioner of Elections (1999) 1 Sri L.R, 157.11 Even
where an Emergency Regulation may be justifiable in principle, abuse of powers under such regulation
will constitute an infringement of fundamental rights. Thus a regulation providing for an enhanced period
of detention of suspects was held to have been infringed where the police failed to satisfy court that the
petitioners detention was for the purpose of further investigation, and it was clear that the Ministry
Secretary who had the authority to sign the detention order had done so mechanically, without actually
forming an opinion that the detention was necessary.12
According to article 17 any persons fundamental rights are infringed by executive or administrative he
has the right to petition the Supreme court Although the infringement should relate to executive or
administrative action the respondents need not be confined to agents of the state. A private person who
makes use of state machinery or state officials to infringe the petitioners fundamental rights also be
joined as a party to the action and may be held liable. An example was the case of Mohammed Faiz vs
Attorney general.13
So finally even though emergency regulation is in operation, the fundamental rights of the journalists
were infringed by illegal detention which was instigated by armed force (come under executive body)
there for they can sort the Supreme Court through the article 17 of the 1978 constitution of the
Democratic Socialist Republic of Sri Lanka.

11 An attempt to post pone provincial council elections in five provisions under Emergency
regulations was quashed by court in a fundamental rights application filed by two journalist in their
capacity as voters, because the respondents were unable to establish that there was any known
threat to national security or public order that wold have justified the postponement.

12 Soawardena vs Police Sergeant Sergeant Jayasinghe, S.C, Application 494/3, NC FRD 2 at 89.

13In Mohammed Faiz vs Attorney general (1994)1 SAELR62, where the officers of the polannaruwa police allowed the
petitioner to be assaulted by some politicians in the police station there for police officers and the politicians were held liable.

Now we move to the second issue of this question. Regarding this scenario two journalists returned to
Colombo in a hired van. The van driver made a complaint against Robert concerning failed to pay the
hired fees 30,000 (Cheating). Here first information was given by the victim (driver).
According to section 109(1) every such information relating to the commission of an offence may be
given orally or in writing to a police officer or inquirer. First information report is a written document
prepared by the police when they receive information about the commission.
It is generally a complaint lodged with the police by the victim or by someone his/her behalf. Anyone can
report the commission of an offence either orally or in writing to the police. Even a telephone message
also.14 According to section 157 of the evidence ordinance. The first information could be produced
before a court by a police office.
After the first information received, the police must consider whether it is an offence need to be
investigated or not. Next issue that needs to be looked whether that is a cognizable offence or not.
According to section 2 of criminal procedure code cognizable offence is interpreted.15
According to 1st schedule of the code of criminal procedure Cheating is classified as a cognizable
offence.The definition of cheating is described in sec 398 of penal code.16
In this scenario mobile phone recording is given by driver as an evidence, so firstly we analyse, is this a
admissible evidence? and if it is admissible what kind of evidence?. Voice recorded in a tape recorder or
phone is admissible in evidence, subject to certain conditions.
Law relating to electronic evidence in Sri Lanka
Prior to introduction of the Evidence Special Provisions Act in Sri Lanka, there was no provision under
the Law of Evidence to admit computer evidence. Computer Evidence is in a category of its own.17 It is
neither original evidence nor derivative evidence. Under the law of Sri Lanka, computer evidence is not
admissible under section 34 of the Evidence Ordinance or under any other section of the Evidence
Ordinance.
Evidence Special Provisions Act No. 14 of 1995, Information Technology Act No.27 of 2003 and
Electronic Transactions Act in 2006 have introduced extending support to admit IT related evidence in Sri
Lanka.Recently, Electronic Transactions Act No.19 of 2006 introduced to recognise and facilitate the
formation of contracts, the creation and exchange of data message, electronic documents, electronic
records and other communication in electronic form in Sri Lanka.18
14 Panditharathna vs ASP kegalle 72 NLR 273
15 "cognizable offence means an offence for which and"cognizable-case means a case in which a peace officer may in
accordance with the First Schedule arrest without warrant,

16 Cheating 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, or intentionally induces
the 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".
17 In Benwell vs. Republic of Sri Lanka, (1978-79) Sri Lanka Law Reports Vol.2, it was held that.
18 Sections 21 and 22 are the governing sections Rules Governing Evidence under the Act. Section
21 of the Act states: "Notwithstanding anything to the contrary in the Evidence Ordinance or any
other written law, the provisions of the section shall be applicable for the purpose of the same Act."

Arrest without warrant

Sometimes, there might be circumstances where prompt and immediate arrest is necessary and there is no
time to approach a magistrate and obtain a warrant from him. For instance, in a case where a person has
perpetrated a serious crime and there is chance of the person absconding unless immediately arrested, it
would be certainly unwise to insist on the arrest being made only after obtaining a warrant from a
magistrate. There may be occasions where preventive action may be necessary in order to avert the
danger of sudden outbreak of crime. In those cases, often the arrest decision will have to be made by a
person other than a judicial magistrate. In such cases it is the investigating agency that has discretion to
effect arrests.
Section 32(1) of criminal procedure code contains nine circumstances19 in those any peace officer may
without an order from a Magistrate and without a warrant arrest any person. The complaint must be
reasonable, or the information credible which was stated in Muttusamy vs Kannnangara(1951) 52 NLR.20
So in this scenario according to section 32(1)(b), Robert can be arrested by police because, cheating is a
cognizable offence and there is a mobile recording evidence regarding this offence, so police can
reasonably suspect him and rely on that evidence.

19 (a) who in his presence commits any breach of the peace;(b) who has been concerned in any cognizable offence or against
whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists 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.

20 Where a police officer purported to make an arrest on charge of theft but nowhere in the course of his evidence
referred to any complaint or information or suspicion, the reasonableness of which could have been tested by the
magistrate whose function it was to inquire into the officers state of mind at the time he made the arrest, it was
held that the police officer was acting outside the scope of his lawful powers.

Procedures regarding in order to arrest enter in to the place of accused are manifested in section 24 and 25
of the criminal procedure code.21The person making the arrest should be under a reasonable belief that
such person is hiding in a certain place. It was held in Anra Bandaranaike vs Rajaguru and others, that the
person making the arrest should be satisfied that such person is hiding in that place.
In Excise Inspector, Point pedro vs Thankamma police officers entered into the accused place through
roof which was held that violation of procedure and break open any outer or inner door is accepatable.
So here police broke the door and arrest Robert which is a lawful arrest according to section 25 if there is
any need police has authority to break the door in order to arrest him.
Procedures subsequent to the arrest without warrant of Robert which was stated in section 36,37,38 and
39 of the criminal procedure code.22
This case come under magistrate courts jurisdiction because according to sec 400 of penal code delivers
the punishment for cheating.23
The offences in respect of which a Magistrate can grant bail are set out in the first schedule to the code of
criminal procedure. In respect of non-bailable offences the sanction of the attorney general is necessary
before bail can be granted. According to the first schedule cheating is a non bailable offence so Robert
cannot claim bail from the magistrate during the trial.
21 section 24 If any person acting under a warrant of arrest or having authority to arrest has reason to believe that any person
to be arrested has entered into or is within any place, the person residing in or in charge of such place shall on demand of such
person acting or having authority as aforesaid allow him free ingress therein and afford all reasonable facilities for a search
therein. section 25 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
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 outer or inner door or window of any place whether that of the 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.

22 Sec 36 -A peace officer making an arrest without warrant shall without unnecessary delay and subject to the provisions
herein contained as to bail take or send the person arrested before a Magistrate having jurisdiction in the case.
Sec 37-Any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer
period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive
of
the
time
necessary
for
the
journey
from
the
place
of
arrest
to
the
Magistrate.
Sec 38-Officers in charge of police stations shall report to the Magistrates' Courts 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.
Sec 39- Any person who has been arrested without a warrant by a peace officer shall not be discharged except on his own bond
or on bail or under the special order in writing of a Magistrate.

23 Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or
with fine, or with both..

Bibliography
CRIMINAL PROCEDURE IN SRI LANKA( THIRD EDITION) G.L PEIRIS
Electronic Transactions Act No.19 of 2006
THE CONSITITUTION OF THE DEMOCRATIC SOCIALLIST REPUBLIC OF
SRI LANKA
FUNDAMENTAL RIGHTS IN SRILANKA (SECOND EDITION) - JAYAMPATHY
WICKRAMARETNA
Article For the National Law Week of Sri Lanka
Law of Evidence relating to IT and forensic issues
by Sunil D. B. Abeyaratne
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)
http://tilakmarg.com/answers/is-voice-recording-of-conversation-or-call-recordingadmissible-in-evidence/.
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.