Admission of liability to pay the amount mentioned in the B report- section 420 Criminal Procedure Code.......
IN THE
COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.
C.A.
(P.H.C) APN 28/2014
H.C.
Colombo HCR 17/2014
MC KADUWELA
B55620/ (55056)
One Malkanthi complained against
Senanada stating that the latter cheated her to the tune of Rs.4 million. Then
the police filed a B report. In the meantime Malkanthi by way of an affidavit
alleged that Senanada was absconding to avoid court with connivance of the
police. The Magistrate promptly issued a warrant to arrest Senanada who surrendered
to Court . He was thereafter remanded by Court . An application was made by
Senanada afterwards for bail and it was refused in terms of Section 14 (1) of
the Bail Act and he was further remanded.
While being on remand, Senanada
filed a motion, on 19.12.2013 and moved for bail through his Lawyer. This
application was refused. Then the Counsel admitted liability on behalf of his
client in his absence and undertook to pay Makanthi a sum of Rs.200, 000/- on
that day and the balance by 13 instalments and then moved for bail. Thereupon
the Magistrate released Senanada on bail despite the allegations that he
absconded himself and interfered with the witnesses. At the same time he
ordered the petitioner to file an affidavit, incorporating the undertaking (විත්ති එකඟගත්වය)
purportedly acting under Section 420 of the Code of Criminal Procedure.
Later not as he did not file the
affidavit Senanada was remanded. As he was unable secure his release from the
remand prison he then tendered the affidavit and was released on bail. The
order directing him file an affidavit was challenged in the Provincial High
Court resulting in its dismissal.
Against the judgment of the High
Court, Senanada invoked the revisionary jurisdiction of the Court of Appeal and
Court refused notice, as the Senanada had no basis to fear that he would be
remanded, in the event of his failing to pay the instalments. The Court of
Appeal in that instance handed down a comprehensive guideline as to what the
Magistrate should not do in the circumstances and terminated proceedings in the
revision application, as the Court Appeal observed that it had the fullest
confidence in the Magistrate that he would not resort to extra judicial methods
to enforce the purported order. The Court categorically observed that the
Magistrate would not make such an illegal order remanding the petitioner for
nonpayment of the instalment , as there is no settlement acceptable in Law and
no valid affidavit is given under Section 420 of the Code of Criminal Procedure
and specifically mentioned that the only course open to the prosecution, in the
event of non-payment of the instalment, is to file an appropriate charge sheet
and establish the guilt of the Senanada.
Although comprehensive guidelines
were given, the Magistrate having read the guidelines, yet remanded Senanada
until he makes the payment of Rs 5 ½ Lacks. Sendanada then filed a second
application in the Court of Appeal inviting the Court to invoke Article 145 as
against the extra judicial method adopted by the Magistrate to recover the
money.
Held
that there being no admission of liability to pay the amount mentioned in the B
report, the Magistrate had no power to order the petitioner to tender an
affidavit under Section 420 and hence the order commanding the Sendananda to
pay the money to
Cases referred to
3.
Jayawickrama Subasinghe Arachchilage Ariyapala, CA (PHC) APN No: 134/12
Colombo CA. (PHC) APN. No.
101/2011 Law referred to
In the
matter of an application for exercise of the jurisdiction vested in the court
of appeal under article 145 the
constitution read together with
138.
W.H.THULYANANDA
SENANANDA,
NO
181, Station Road, Udahamulla, Nugegoda.
SUSPECT-PETITIONER-
PETITIONER
OIC,
Special
Crimes Investigation Bureau, Police Station
COMLAINANT-RESPONDENTRESPONDENT
THE HON ATTORNEY
GENERAL,
Colombo.
RESPONDENT
BEFORE : A.W.A. Salam, J (P/CA)
& Sunil Rajapaksha, J.
COUSNEL : Amila Palliyage for the suspect-petitioner-
DECIDED ON: 07.07.2014
JUDGMENT OF COURT
This is an application for the exercise of the
supervisory jurisdiction of this Court vested under Article 145 of the
Constitution of the Democratic Socialist Republic of Sri Lanka. In terms of the
said Article, the Court of Appeal is empowered to call for, inspect and examine
any record of any Court of First Instance and in the exercise of its
revisionary powers make any order thereon as the interests of justice may
require.
The application has been made by the
suspect-petitionerpetitioner[1]
and upon such application we called for the record from the relevant
Magistrate's Court and heard the petitioner and the Hon. Attorney General on
the impugned orders with a view to ascertain the degree of intervention
required to mete out justice. We wish to place on record our gratitude to both
counsel for the assistance rendered to arrive at a decision, particularly the
learned State Counsel who did not oppose the application of the petitioner.
The facts that necessitated the application is
required to be set out in some detail to assess the extent of the intervention
required to make an order in the interests of justice under Article 145 of the
Constitution.
It begins with one M/S Malkanthi making a complaint
against the petitioner to the complainant-respondentrespondent alleging the
commission of an offence of cheating (involving a sum of Rs.4 million) said to be punishable under
Section 403 of the Penal Code. Facts regarding the complaint was reported by
the police to the Magistrate seeking an order on the bank to issue certain
account details of the suspect. In the meantime the virtual complainant filed
an affidavit alleging that the suspect was acting in collusion with the police
and absconding to avoid court. The learned Magistrate without any inquiry
promptly issued a warrant of arrest of the suspect.
Then the petitioner surrendered himself to the
Magistrate’s Court on 05.12.2013 and was remanded until 12.12.13 on unproven
allegations that he had interfered with witnesses and absconded and evaded
arrest with the connivance of the police. Implicit in the order to remand the
suspect is that he was remanded because of the conduct alleged in the
affidavit.
On 12.12.13 the learned Magistrate refused the
application for bail acting under Section 14 (1) of the Bail Act and further
remanded the suspect until 24.12.2013.
The petitioner while being on remand, caused a
motion to be filed to have his case mentioned in his absence, on 19.12.2013 and
moved for bail through his Lawyer. The Counsel who appeared for the petitioner
acknowledged liability on behalf of his client and undertook to pay the
virtual-complainant Rs.200, 000/- on that day and the balance by 13 instalments
consisting of Rs.300,000/- each and then moved for bail. Thereupon, the learned
Magistrate disregarding the circumstances he referred to under Section 14 of
the Bail Act, readily released the petitioner on bail carrying lenient
conditions despite the allegation of having absconded and interfered with the
prosecution witnesses. At the same time he ordered the petitioner to file an affidavit, incorporating the undertaking (විත්ති එකඟගත්වය) purportedly acting under Section 420 of the
Code of Criminal Procedure. (Emphasis is to signify the crux of the issue)
The petitioner was in a quandary about how to
respond to the said order, as he anticipated that noncompliance of it would end
up in him being remanded once again, a habitual method adopted in certain
courts in blatant disregard of the Law towards the indirect achievement of what
cannot directly be achieved. As expected the petitioner ended up in remand
custody for noncompliance of the directions. He states that he was unable
secure his release from the remand prison and therefore compelled to tender the
affidavit. The question that arises for consideration here is the legality of
the order compelling to produce an affidavit and to what extent the alleged
settlement or the admission as the Magistrate calls it, is enforceable in law
particularly when no charge sheet has been filed.
The direction made by the learned Magistrate
requiring the petitioner to tender an affidavit was challenged in the
Provincial High Court and quite unfortunately, the learned High Court Judge
failed to appreciate the obvious error committed by the Magistrate in directing
the petitioner to tender an affidavit.
Against the judgment of the High Court, the
petitioner invoked the revisionary jurisdiction of this Court in these
proceedings and we refrained from issuing notice, as the petitioner had no
basis to fear that he would be remanded, in the event of his failing to pay the
instalments. We made this observation in our judgment and further made a detail
guideline as to what the Magistrate should not do than what he is expected to
do. We thus terminated proceedings in the revision application, as we had the
fullest confidence in the learned Magistrate that he would not resort to extra
judicial methods to enforce the purported settlement or give effect to the purported
admission. In our judgment, we categorically observed that the Magistrate would
not make such an illegal order remanding the petitioner for non-payment of the
instalment, as there is no settlement acceptable in Law and no valid affidavit
is given under Section 420 of the Code of Criminal Procedure. We specifically
mentioned in our judgment that the only course open to the prosecution, in the
event of non-payment of the instalment, is to file an appropriate charge sheet
and establish the guilt of the petitioner beyond reasonable doubt, to bring the
culprit to the books.
However, when the case was mentioned for payment of
the instalment, the learned Magistrate remanded the petitioner, although
comprehensive guidelines were given by us, expecting reasonable adherence on
his part. The petitioner states that he produced our judgment to learned
Magistrate and to his utmost surprise, the learned Magistrate having read the
guidelines, yet remanded him for non-payment of the instalment.
Quite surprisingly, the remanding order made by
Court was not for a particular period but until the happening of an event, i.e.
until the petitioner makes payment. In Sinhala the order is written as
follows
“ 3/4/2014 දින මුදල් ගගවීමට
දින ලබා ඇති බැවින්
රුපියල් ලක්ෂ 5 1/2 මුදල තැන්පත්කළ
පසු මුදාහරින්න”.
The order when translated means “Since time has been
taken to make payment on 3/4/2014 release upon deposit of 5 ½ lacks”
Later on the same day the learned Magistrate has
made another order directing that the 5 ½ Lacks be paid in cash to Mrs Sandya
Thalduwa, Attorney-at-Law and the petitioner to be released upon making the
payment. Despite the learned Magistrate’s direction to hand over the
cash to the attorneyat-law of the virtual complainant, the petitioner states that he had no alternative but to obey
the first order of the learned Magistrate to get himself freed from custody. In
the circumstances, he now complains of extra judicial method adopted by Court
to recover the money and invites us to invoke Article 145.
We have anxiously perused the several orders made by
the learned Magistrate. In our opinion, a charge of contempt against the
authority of this court cannot be maintained against the learned Magistrate, as
we have not given him any specific directions to follow, except that we made
certain guidelines to be adhered to. However, we are of the opinion that the
orders directing the petitioner to tender an affidavit and the detention of the
petitioner until such time the instalment is paid warrant the intervention of
this Court to put the record right and to undo the injustice meted out the
petitioner.
The distinction between the expressions “Suspect”
and “Accused” plays a vital role in the application of the Provisions of the
Law to the present controversy.
The point to
remember is that a person is still at the investigation stage when forwarded
under custody to Court in terms of Section 116 (1). Forwarding the suspect to
Court is incorrect to be deemed as an automatic institution of proceedings.
Criminal proceedings are instituted under Chapter XIV, when the Magistrate
takes cognisance of the accusation contained in the Police report or in a
written complaint or upon the taking of evidence as the case may be in terms of
Section 136 (1). It is to be noted that
the language used in Section 136 (1) envisages a person accused of an offence
and not a mere suspect.
A fundamental question that has to be discussed at
this stage is the extent to which a Magistrate is permitted to record a
statement of the suspect prior to the institution of criminal proceedings under
Chapter XIV.
Under Section 127, prior to the commencement of a
trial or inquiry, a Magistrate may record any statement. However, a Magistrate
shall not record any such statement being a confession unless upon questioning
the person making it that he has reason to believe that it was made
voluntarily. Further, when he records any such statement he shall make a
memorandum at the foot of such record to the effect that it was made
voluntarily and taken in his presence and hearing and was read over by him to
the person making it and admitted by maker of the statement to be correct, and
it contains accurately the whole of the statement made by such person.
The statement said to have been made by the learned
counsel of the suspect, undoubtedly suggests the inference that the suspect
committed the offence. A statement made by a Lawyer on behalf of his client
which is of a confessional natu re
suggesting the inference that the suspect committed the offence is
excluded, for such a statemen t clearly is not the act and deed of the
suspect. T herefore, the statement made
by the counsel admitting liability being a form of a confession cannot be acted
upon by the Magistrate.
It was contended on behalf of the petitioner that
there was a practice in the relevant Court to grant bail, in this type of prosecutions,
if the liability is admitted. We are unable to ascertain the truth of this
statement. Be that as it may, generally, if a suspect believes that he can find
his way out of the remand prison, with an admission of guilt, a suspect will
always be tempted to admit the wrong to end his agony even for a short while.
This temptation negates voluntariness. As Ulpian, a Roman Jurist of A D 200,
described it in reference to torture “The stro ng
will resist and the weak will say anything to end the pain."
Quite apart from the confessional statement having
not directly originated from the suspect, there is no certificate to the effect
either as to voluntariness of it or that it was taken in the presence of the
Magistrate etc. Further as the susp ect was then absent the Magistrate did not
have the opportunity to question h im as to the voluntariness. There was no
certificate appended as contemplated under Section 127.Therefore, the s tatement
said to have been made by the Counsel needs to be completely shut out.
The Magistrate appears to have recorded the
statement of the Counsel, on the mistaken belief that it is an admission under
Section 420. In such a situation whether it can be recorded under Section 420
and whether the suspect can be directed to tende r an affidavit are vital
questions to be answered to resolve the issue regarding the admissibility of
the affidavit.
A Magistrate has the power to record an admission,
and to receive an affidavit under the proviso to section 420 only after the
framing of the charges. The affidavit has not been tendered in this instance
before the trial nor has it been forwarded in the course of the trial. As such,
if the purported admission is to be given effect to, it must satisfy the
requirement set out in the Proviso to Section 420. The Proviso reads as
follows….
Provided further that where such admissions have
been made before the trial, they shall be in writing, signed by the accused and
attested as to their accuracy and the identity and signature of the accused by an attorney-at-law. (Emphasis added)
The question as to the point of time an admission be
recorded under Section 420 of the Code of Criminal Procedure Act was considered
in the case of Perera Vs A.G. (Court of Appeal) (1998) 1 SLR
378. Taking into consideration
the purpose of an admission the bench took the view that an admission is
recordable at any stage of the trial before the prosecution closes the
case.
Further, it must be noted that an admission under
Section 420 is referable only to an accused and not to a suspect. Section 420
mandates that the affidavit should be certified as to the identity and
signature of the accused but not the
suspect and it must be certified by an attorney-at-law. Quite interestingly,
the petitioner was not an accused but only a suspect when he had
been directed to file the affidavit, as no charge sheet ha d been filed at that
time.
Taking into consideration, the legal position
discussed above, it is quite clear that there had been no admission made in
this case by the petitioner. If the petitioner is desirous of making an
admission, he can still do so, provided it is made at the right stage, namely
before the commencement of the trial or in the course of t he trial.
In terms of Section 420 of the Code of Criminal
Procedure, admissions are limited to facts in issue and relevant facts.
However, the Section specifically allows admissions to b e made as to the
identity of any person, matter or thing, the fact that an identification parade
was held and that a particular witness identified a particular person at that
parade, the fact that a particular matter or tiling was sealed in the presence
of a particular person and forwarded to the Government Analyst for examination
and analysis, the fact that a particular matter or thing sent to the Government
Analyst for analysis and it was returned by him to Court, after such
examination and analysis, the fact that a particular survey or sketch was made
by a particular person.
It is important to note that the commission of the
offence is not proved with the making of this purported admission. Once an
admission is recor ded according to law, the prosecution has to prove the other
ingredients of the offence.
Can the Magistrate, direct to a suspect to tender an
affidavit, incorporating cert ain purported admissions made before him
orally? My considered view is that the
Magistrate is not empowered to do so for three reasons. Primarily, in such an
event, the making of the admission is devoid of the elementary characteristic
of it being voluntary. Secondly, the Law does not empower the Magistra te to
order a suspect to te nder an
affidavit. Thirdly, an examination of Section 420 of the Code of Criminal
Procedure reveals that an affidavit has to be affirmed by an accused and not by a suspect.
The other question remains to be addressed is the
procedure to be followed when a person who has acknowledged liability to make
certain payments later falls into arrears. In this case, there was no legally
admissible admission, to call upon the petitioner to pay the money. However
much the learned Magistrate may have been keen in recovering the money from the
suspect, h e had no power to remand the suspect as a punitive measure to compel
the suspect to part with the money. When he does that he steps out of the permissible
province of law and espouses a cause outside the Law.
Remanding a suspect for noncompliance of the
purported settlement or going back on the admission, as the Magistrate calls
it, would tantamount to cancellation of the bail. The bail act specifically
provides the circumstances under which an order for cancelation of bail may be
made.
Quite strikingly, the petitioner has not committed
any acts warranting the cancellation of bail. Hence, undoubtedly the Magistrate
had acted in excess of his power when he ordered the suspect to be detained
until the payment is made. It is to be observed that the order to remand the
suspect indefinitely, as was done by the learned Magistrate, until the payment
is made, would have had the effect of a remand order which is perpetual in
nature. If the suspect did not pay the money, in terms of the illogical order
to detain him until payment is made, the prison authorities may have had to
keep him on remand until the payment is made irrespective of the time factor. If no payment was made, the petitioner would
have to languish in remand for life. The absurdity of the learned Magistrate’s
order is evident from its illogicalness. When the orders made to remand the
suspect by Magistr ate from time to time are closely scrutinized, it is crystal
clear that they been made as punitive measure and not to achieve the actual
object of a remand order.
In the e
vent of a fine impos ed by court or any other
payment recoverable as if it is a fine impose d, the methods in which it can be
recovered are laid down in the law. The recognized method by which any payment
legally due from an offender can be recovered includes issuing a warrant for
the levy of the amount by distress and sale of any movable property belonging
to the offender or the offender may be sentenced to undergo imprisonment in
default of payment. In this context, it is noteworthy to place it on record
that the law does not permit a person to be detained in remand in default of a
payment which is due. In passing, we should state that an offender who is
visited with a fine only, strictly speaking, cannot be detained even for a
moment within the preci ncts of court, particularly inside a cell guarded by
prison authorities, until he makes the payment . He must have the fr eedom to walk
into the registry to pay the fine. His detention even for moment would be
deprivation of his freedom of movement otherwise than in accordance with a
p rocedure established by law. It is indeed a matter for grave concern that the
petitioner has been deprived of his liberty in an unusual manner.
This clearly shows that the Court was without
authority to enforce the admission, in the manner it was sought to be enforced
by the learned Magistrate in his endeavour to recover the money from the
suspect. Needless to say that such a method to compel p ayment is unknown to our
law.
It is appropriate at this stage to cite a passage
from the decision in C.A (PHC) Application No. 58/2011, which deals with the
purposes of cancellation of bail . In that case Sunil Rajapaksha, J dealing with
the purposes of cancellation of bail stated as follows…
The purpose of refusing bail or cancelling a
subsisting bail order inter alia is
to protect the community, reduce the likelihood of further offending and to
ensure that the suspect attends Court throughout the trial and makes himself
available to be sentenced.
In Jayawickrama Subasinghe Arachchilage Ariyapala,
CA (PHC) APN No: 134/12 on the importance of bail, A. W. A. Salam, J held as
follows….
“The concept of bail is the recognition of the
liberty of a person between the time of his arrest and verdict subject to the
condition that he re-appears in Court for his trial until its conclusion or
un til he is sentenced. The Court is entitled to cancel a bail bond (after
hearing the accused) for violating the bail conditions which include specific grounds such as having threatened or influenced or tampered with evidence or interfered with the investigation or obstructed the judicial process
or otherwise misused or abused the grant of
bail”. (Emphasis added)
The provisions relating to the remanding of the
suspects concerned in the commission of an offence, being a restriction imposed
on the liberty of the subject as guaranteed under the Co nstitution should be
interpreted strictly in accordance with the letter of the Law and not in a
slapdash manner.
There is another aspect to this issue. Even if the
suspect completes the payment of 4 million, yet he has to be charged on the
facts reported either for cheating or criminal misappropriation, as the
purported admission per-se is no
proof that he committed the offence, unlike an unconditional plea of guilt.
Giv en the highest degree of benefit to the pr osecution, the purported admission
would mean nothing more than an acknowledgment of having received Rs 4 million
from the virtual complainant.
The issue will be worse, if the petitioner after
making payment of the money or part thereof, is acquitted on the charges at the
end of the trial. In such an event the payment made by him will ha ve to be
returned to him.
The case of S M Nirmalene De Soyza Vs
Officer-in-Charge, (Unit 2), Colombo CA. (PHC) APN. No. 101/201 1, concerns a
similar issue. Without the accused being charged a settlement was entered to
the effect that the entire amount of Rs. 2 million would be paid by the accused
by way of instalments within 01 year. For not honouring the undertaking he was
sentenced to 02 years R I and the High Cour t did not set aside the sentence,
but re-scheduled the scheme of p ayment with a default sentence re-introduced.
Since, the learned Magistrate convicted the accused without him being found
guilty or without a plea of guilt being tendered the Court of appeal set aside
the proceedings and sent the case back for re-trial.
In this matter, quite reg rettably the
attorneys-at-Law and the learned Magistrate have failed to appreciate the real
importance of the Constitutional Provisions, Code of Criminal Procedure and the
Evidence Ordinance to decide the simple question of the petitioner’s criminal
liability. Instead of deciding the issue based on the legal provisions,
motivated by the enthusiasm to grant relief summarily to the aggrieved party,
the Magistrate appears to have had recourse to an extra-legal method to recover
the money.
Assuming the learned Magistrate’s attempt to
compound the offence is permissible, yet there is no Provision for an offence
to be compounded before the charge sheet is framed. Basically to compound an
offence, the accused should be informed formally, the exact charge preferred
against him. It is based on the charge one has to decide on the permissibility
to compound a charge. Even to record an admission , one needs to know the charge
to ascertain what the fact in issues are and what facts are relevant, to invoke
Section 420.
On the other hand if the learne d Magistrate was
correct in compounding the offence, then in terms of Secti on 266 (4) (b) of the
Code of Criminal Procedure, it shall hav e the effect of an acquittal of the
accused. In such an event, the learned Magistrate would have had no power to
remand the petitioner for non-payment of the instalment.
The right to a fair trial which is of fundamental
importance in a democratic society, occupies a central place under our
Constitution. Judges must act strictly according to law and not deviate from
the rules of evidence and the procedure laid down to find an accused guilty of
the charge levelled against him.
The power conferred on a Judge to remand an accused
is not meant to be exercised to put a suspect into unnecessary inconvenience,
as and when the judge feels like remanding him. Judges must always act with
reasonableness and according to law.
Even the judicial discretion should be exercised not to accomplish a
personal goal of a Judge but in harmony with the laws of the land upon
reasonable grounds to achieve justice to both parties. The Judges must exercise
the discretion vested in them as a trust entrusted and always conscious of the
norm that a discretion does not empower them to do what they like merely
because they are minded to do so. On the contrary they must in the exercise of
the discretion do not what they like but what they ought. The impugned
proceedings dated 19.12.2014 do not conform to such a standard.
In the course of the argument, it came to light that
several Magistrate’s Courts of different jurisdictions adopt the identical
method to deliver hurried justice. To my mind, this is a cause for unpleasant
surprise and under no circumstances can it be condoned. Such procedure which is
unknown to the Law, if encouraged would destroy the entire fabric of justice
and a perpetual challenge to the implementation of the concept of presumption
of innocence enshrined in the Constitution, evidentiary rule relating to burden
proof enacted in the Evidence Ordinance, procedural mode of recording
admissions authorized under the Code of Criminal Procedure and recording of
confessions and statements pending investigation under Section 127 of the Code
of Criminal Procedure and the scheme relating to compounding of offences under
Section 266 of the Code of Criminal Procedure.
In construing the relevant legal provisions relating
to conduct of prosecutions, we cannot throw into jeopardy the entire fabric of
administration of law and justice and directly or indirectly encourage or
condone extra judicial approaches to take precedence over the time tested Law and
established procedures. Such innovative practices, if disregarded would lead to
a disruption of the Rule of Law and the Administration of Justice which this
Court and all other Courts including the Magistrate’s Courts are committed to
pr eserve
.
In the
circumstances, there being no admission of
liability to pay the amount mentioned in the B report, i n the eyes of the law,
the order dated 19 December 2013 cannot be allowed to stand. As the learned
Magistrate had no power or authority to order the petitioner to tender an
affidavit under Section 420, the purported admission is expunged from the
record and the order dated 19.12.2014 is set aside. In the result, the learned
Magistrate shall now commence the summary trial against the accused and enter
his findings and judgment in due course.
Whatever the deposits made by the petitioner under
the purported admission shall be paid back to him.
The registrar is directed to dispatch the record in
case No 55056 together with this judgment to the respective Magistrate’s Court
forthw ith.
President
Sunil Rajapaksha, J
Court of Appeal Judges of the Court of
Appeal
NR/-
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