By Basil Fernando –

Basil Fernando

Gazette notification has been published on 05th March 2021, announcing proposed amendments to the Criminal Procedure Code. It creates the obligation for all Magistrates in the country to visit Police Stations, situated within the appointed judicial division, once a month. The Magistrates have been assigned the task of visiting those who are in Police custody. It is to ensure that they are protected to the extent provided for in the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment Act No. 22 of 1994.

The Magistrates also have the duty to personally see the suspect while looking into his well-being, welfare and conditions under which he is kept at the Police Station. Observations and any complaints that suspects may make are to be recorded.

It further states, that if the Magistrate is of the opinion that a suspect was supposed to have be tortured, the Magistrate may take the following action. Direct the suspect to be produced before the Judicial Medical Officer or a Government Medical Officer for a medical examination. The report is to be submitted by such Medical Officer to the Magistrate.

It further goes on to say (when the report of such a Medical Officer reveals that the suspect has been subjected to torture), that the Magistrate shall issue an appropriate order. This order includes the direction to provide necessary medical treatment for the suspect and to change the place of custody of the suspect.

The Magistrate should also direct the Inspector General of Police to commence an investigation into the alleged torture. This will enable the Attorney General to institute criminal proceedings against the person who is alleged to have committed torture.

This amendment to the Criminal Procedure Code Act No. 15 of 1979 is of great significance. It is hoped that the proposed Bill will be passed as soon as possible.

This amendment will provide many opportunities for lawyers, litigants, concerned persons and organizations to intervene on behalf of suspects who have been subjected to torture, cruelty and other inhuman treatment.

Although the Magistrate is mandated to visit only once a month, the Bill by implication provides opportunities to complain about torture and ill-treatment to a Magistrate not only when he visits the Courts but at any time. The lawyers could make use of this provision to inform the Magistrate, by letter or petition, that a suspect is being tortured at a Police Station. By virtue of the obligations created under this proposed amendment to the criminal procedure, it would be the duty of the Magistrate to inquire into such complaints either by visiting the Police Station or speaking to the suspect directly.

The duty, of a Magistrate to visit a Police Station once a month, does not limit the power of the Magistrate to visit a Police Station only once a month. If, it is brought to his notice that torture is taking place, it is possible for him to visit a Police Station at any time. He/she may then engage in the duties that are prescribed in this proposed amendment.

It is not only the lawyers who could do this. Family members of the suspect or any other concerned person, including civil society organizations, could bring such matters to the notice of the Magistrate. It activates the Magistrate to take a direct interest in the issue of torture, thereby providing suspects the protection and legal redress entitled to, under the Law. The proposed amendment goes beyond the strict limits imposed in the past. They were attempts to get the attention of the Magistrates to the acts of torture taking place within Police Stations. There were no direct provisions, within the Criminal Procedure Code or any other Law, creating an obligation for the Magistrate to act on the basis of such complaints. As a result, it was an uphill task to make applications at the Magistrate Courts and  have them looked into. Often, the legal process itself can take days or weeks, before a decision is arrived at, as to whether a person is being tortured at a Police Station.

The usual practice has been for the Magistrate to ask the Police for a report. Naturally, given the circumstances of the Police Officers themselves being involved in these acts, it is very unlikely that the Police will report on the matter in the manner required by Law.

Therefore, a direct visit by a Magistrate is a much more effective method of looking into the conditions in which persons under custody are remanded.

If this provision is put into effect efficiently, it would be possible to prevent the extrajudicial killings which take place quite often at Police Stations. Judging by the cases which have been decided, even by the Supreme Court, it is generally the pattern of such killings that a person is kept under Police custody for several days. He/she is tortured repeatedly. In the end either the suspect dies or may be disposed of in another way.

By making interventions early, a Magistrate would be able to have details of such torture and take precautions by issuing orders to counteract such torture. The provision for changing the place of custody from one Police Station to another could also be a very positive move. When an assaulted person is kept for a longer period of time, the same Officers have more opportunities for repeating their acts of torture. This could lead to more serious injuries and even to death.

If Magistrates intervene as required by this amendment to the Law, to make orders to immediately change the place of custody of a person from one Police Station to another–it is more likely that the person would have more protection.

In Sri Lanka, it has taken many long years to get proper Judicial supervision over persons held in custody. Had such provisions for immediate interventions been created, as a Matter of Duty for the Magistrate, a large number of enforced disappearances in past decades may have been avoided. Many of these enforced disappearances were attacks on people. They were arrested first, assaulted in Police custody and thereafter disposed of.

Mere visits by the Magistrates themselves will lead to taking account of a person’s presence at the Police Station, So, at a later stage, the Police cannot deny that such a person was arrested or was in their custody. This has happened repeatedly in the past. 

It is to be hoped that this bill will become a Law in the near future. At that point, the Lawyers’ Civil Society Movements as well as the litigants themselves can make use of this provision in order to ensure the protection of suspects.

The Bill should be publicized and made a part of the general knowledge of every citizen in the country. If people learn about this Law, that in itself will have a beneficial effect. It could lead to preventing one of the most entrenched practices in Police Stations—vz torturing people and denying such torture.