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In Re The Detention of S. Sivarasa & ORS [1997] 1 CLJ 471, 10.0…
In Re The Detention of S. Sivarasa & ORS [1997] 1 CLJ 471
FACTS
:star: On November 9, 1996, the police detained 60 persons involved. The suspects were remanded in custody under Section 117 of the Criminal Procedure Code from November 10 1996 to November 13, 1996.
:star: The police were unable to conclude their investigation during this time period for a number of reasons, including the arrest of a large number of people. Seven more people were arrested by police, bringing the total to 67. The police were unable to continue their investigation due to the huge number of arrests and the short duration of detention.
:star: The police had made every effort to conclude this inquiry, and as of today, 57 witnesses had been freed on police bail after cooperating with the investigation. The police believe that the following suspects' cooperation is critical in identifying the ones responsible as the puppet-master and those behind those responsible for the outbreak of this event.
:star: The magistrate applied the detention of all ten of above suspects be extended for another ten days from 13 November 1996 to 22 November 1996 under Section 117 of the Criminal Procedure Code.
LEGAL ISSUE(S)
:question: Whether the Magistrate must satisfy himself as to the need for an order under Sections 117 and 119 of the Criminal Procedure Code, as well as Section 167 of the Indian Criminal Procedure Code.
:question: Whether the remand order's legality and the failure to produce the Investigation Diary before the Magistrate were fatal.
:question: Whether Section 117 and 119 of the Criminal Procedure Code required strict adherence.
:question: Whether the remand order for additional detention of suspects, the court's duty, and the reasons given for detention were subject to judicial review.
GROUNDS OF JUDGMENT
:pencil2: Section 117 needs "grounds for believing that the accusation or information" is well-founded before a police officer can apply for custody. These justifications are, of course, open to judicial review. The issue here is whether the suspects were arrested for participating in the "demonstration" by the Barisan Bertindak Rakyat Malaysia or for attending the NGO meeting as a member at Hotel Asia.
:pencil2: It should be emphasised that a Magistrate should not issue a remand order in police custody unless he is satisfied that it is necessary, and that the term of remand should also be limited to the needs of the case.
:pencil2: The high court judged remarked that there is no basis for the arrest and detention of each of the ten persons be it even on a "reasonable suspicion.” even if one assumes that a copy of the diary entries was presented to the Magistrate, to indicate a justification for the arrest and imprisonment of each of the 10 people. There was no first information report and no summary of the circumstances uncovered by the officer's inquiry.
:pencil2: It is disappointing that the Magistrate did not make any mention of what was expected of her under Section 117. Her grounds for issuing the order did not meet the stringent criteria of Section 117. To be sure, the phrasing of Act 117 is terse and brief, but there is much law on it, and the learned Magistrate may not have understood the entire meaning of the section. Her order was erroneous, and the high court judge consequently set aside her omnibus order.
SENTENCING BY LOWER COURT
:checkered_flag: The Magistrate was satisfied with the reasons as appear in the application and also in the investigation diary that was given. As a result, the magistrate allows all ten suspects to be detained for three days under Section 117 Criminal Procedure starting from 13th November 1996 until 22nd November 1996.
STANDARDS OF PROCEDURE (SOP) IN CPC
:pen: If an investigation cannot be completed within 24 hours of the suspect's arrest, the police officer must bring the suspect before a Magistrate to obtain an order that the suspect be detained further to allow the police to finish their investigation. A Magistrate's order is invariably referred to as a "remand order." Section 117 CPC grants the authority to issue such an order.
:pen: A Remand Order Must Be Recorded
Section 117(3) CPC requires the Magistrate to record his or her reason for authorising then detention of the suspect under this section.
:pen: Remand Application Must Be Made in Open Court
All remand applications must be heard in open court, with the public having the right of access. This is in accordance with Section 7 of the CPC. Section 7 of the Criminal Procedure Code states that the location of any criminal Court held for the purpose of inquiring into or trying any offence shall be deemed an open and public Court to which the general public may have access.
:pen: Effect of A Failure to Produce Investigation Diary
Every police officer conducting a police investigation must record his progress in the investigation diary on a daily basis according to Section 119(1) of Criminal Procedure Code. The investigation diary must include the time when the investigation order, if any, was received by him, the time when he began and ended the investigation, the location or locations visited by him, and a statement of the circumstances ascertained through his investigation.
:pen: The Police Cannot Use Section 117 CPC To Detain Witnesses for The Purpose Of Conducting Investigations.
It was also held in Pendakwa Raya v. Audrey Keong Mei Cheng that it would be an abuse of process of law for police officers to use the machinery of section 117 of the CPC to compel witnesses or potential witnesses to come forward to assist them in their investigations. Other provisions in the Criminal Procedure Code are available for this purpose.
:pen: Duty Of Court
A remand order cannot be granted automatically by a Magistrate. Although section 117 of the Criminal Procedure Code gives the Magistrates absolute discretion to order the detention of a suspect, they must use that discretion wisely.
:pen: Rights of A Suspect at Remand Proceedings
Although it is undisputed that an accused person has the right to be represented by an Advocate during remand proceedings, it is respectfully submitted that an Advocate has a limited role at this stage. An advocate can only make representations to the Magistrate to ensure that the police met the requirements of Section 117 of the Criminal Procedure Code and to argue that his client should not be detained for any longer than is absolutely necessary.
LEGAL PROVISIONS IN THE CASE LAW
:check: Section 117 (1) of CPC
:check: Section 119 of Criminal Procedure Code
:check: Section 323 of Criminal Procedure Code
:check: Section 159 and160 of Evidence Act 1950
:check: Section 167 of the Indian Criminal Procedure Code
:check: Article 5(4) of the Federal Constitution
Section 27 of the Police Act 1967
COMMENTARY
:fountain_pen: The magistrate's role in remand applications is to adjudicate and ensure that the demand of law enforcement to detain a person does not trump personal liberty rights, but that a fair balance is achieved taking into account the seriousness of the offence, the diligence and results of investigation, the need to complete investigation, and the necessity to remand the suspect. In order to deal with the large number of applications, it is important to remember that the cornerstone of justice and its administration is fairness.
:fountain_pen: A remand order is an exercise in balancing personal liberty rights against the police's and the public's duty to bring offenders to justice. To be fair, each application and individual must be evaluated on their own merits.
10.0 Diagram to explain the case summary