By Saliya Pieris –

Saliya Pieris

The plight of those wrongly arrested

The plight of the 17 year old boy and the 31 year old man arrested and remanded over the brutal murder of Seya and then suddenly released, brings to focus the plight of those who are wrongly arrested by the police, and then sent to remand prison by judges who are at times oblivious to the importance of human liberty and the suffering and ignominy of being remanded.

The boy who was arrested by the police and then remanded, was vilified and humiliated. There are allegations that he was tortured and subject to inhuman and degrading treatment by the police. In addition both suspects have been tried by media- especially social media. Until their release the public at large would not have had second thoughts about their guilt. The media carried stories of how the boy’s lap top was full of pornographic material, as if he was the first teenager found to be in possession of porn.

Untold damage has been done to the boy and there must be an inquiry into the circumstances of his arrest and detention. However sensational and tragic the case, was it really necessary to remand the two suspects? Could not the DNA tests be done without remanding?

Arresting people- the need for reasonable cause

The bottom line for arresting a person is laid down in the Criminal Procedure Code. For certain types of offences, known as ‘non-cognizable offences’, people cannot be arrested unless there is a warrant from a magistrate. For most offences which are termed as ‘cognizable’ offences, the police can arrest a person without a warrant.

However there is a threshold requirement which is that such a person must be one “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.”

In plain words this means that there must be some justifiable or reasonable material connecting a person with the offence before arresting him. Without such material the police cannot cause an arrest and any such arrest will be illegal.

Arrests in practice

However what happens in practice is a different story. Police arrest people with or without reasonable cause. Sometimes people are subject to arrest on the mere complaint of a party, irrespective of the truth of the complaint. Often the police do not bother to verify the truthfulness of the complaint or check out the accused’s version. After weeks in remand and sometimes after years of litigation, the complaint is found to be false. Rarely are people charged for making false complaints.

There are instances when unscrupulous police officers can be influenced into launching a criminal investigation, even where no criminal case is disclosed. This is especially so when sometimes civil or commercial transactions turn sour, and people use the police to bring pressure to bear on their opponents to settle the case. Corrupt police officers are sometimes ‘retained’ for this purpose.

In one such instance a businessman, resident in the UK who had invested money in an apartment building fell out with his business partner. A criminal complaint was made with the CID, the suspect arrested and bailed out and a travel ban imposed on him. Finally after nearly two years he was discharged, when the Attorney General decided there was no case against him.

Remanding suspects by Magistrates – The need to apply one’s judicial mind

What of remanding a suspect? In most instances, a suspect once arrested has to be produced before a Magistrate within twenty four hours. In some instances the period in police custody can be extended.

When the suspect is produced before a Magistrate, the police have to submit a report to the court setting out particulars of the investigation and the material available against the suspect. Based on this report the Magistrate has to decide on whether to remand the suspect, or whether to release him on bail. Where no material is disclosed in the police report he may even release the suspect.

Prior to making a remand order the Magistrate must apply his judicial mind and consider whether remanding is necessary and whether in fact there is sufficient material against the suspect.

Even where there is material implicating a suspect in an offence, except in cases where he has no power to grant bail, the Magistrate must apply his judicial mind on whether or not to detain the suspect in remand. The guidelines for granting bail are found in the bail act- that granting bail is the rule and refusal the exception.

Bail can be refused if there is a likelihood of interference with the investigation or witnesses, public disquiet or the likelihood of the suspect absconding. However none of these exceptions excuse a Magistrate from his sacred duty of considering whether in fact there is sufficient material implicating the suspect before him.

In cases where the offence is one carrying a sentence of life imprisonment or death, or under certain special laws such as the Offensive Weapons Act or the Poisons, Opium’s and Dangerous Drugs Ordinance, the Magistrate has no power to grant bail, which must be done by the High Court. However here too the Magistrate before remanding a suspect must be satisfied that there is material against a suspect to justify remanding him.

In every instance, if sufficient material is not disclosed a Magistrate should refuse to remand the suspect.

The manner in which judges in the lower courts before whom suspects are produced act vary widely. Some judges are conscious of the need to avoid unnecessarily remanding people. They carefully consider the available material before taking a decision. However, others tend to believe whatever the police say and remand orders are made for the asking by the police. Yet others use the powers of remand or bail to force suspects to settle cases on the pain of being sent inside if they don’t. Some judges use the weapon of remand in order to punish suspects even before they are found guilty, quite contrary to the presumption of innocence. For them remand is a way of teaching a suspect a lesson. Some suspects are thrown into remand for relatively trivial offences.

There are people in the system of administrating justice who are plainly oblivious to the suffering in prison and the effect remanding innocent people have on themselves and their families.

A onetime President of the Court of Appeal, Justice P. Wijeyeratne once told me that he thinks that all Magistrates should be made to spend a few days in remand prison, to make them understand how it is to have one’s freedom curtailed.

The depraved conditions in prisons

Outside the Welikada prison, there is inscribed on the wall “Prisoners are also Human Beings.”. However humanity stops at those walls.

The unfortunate conditions in our overcrowded prison and the squalor of the prison added to the suffering of people being unfairly deprived of liberty, albeit temporarily.

An interesting anecdote was told to me by a senior officer in the government. He told me how he accompanied a UN Rapporteur to a prison in Colombo. While inspecting the prison a few big, well- fed rats ran across. When they dropped into the kitchen yet another rat or two ran across, highlighting the squalor of the prison. The UN official was highly disturbed and observed that getting rid of the rats cannot be so difficult. Thoroughly embarrassed at what happened my friend trotted out the excuse that there were so many rats in the prison because the officials didn’t want to kill them as taking any form of life was contrary to their religious beliefs. The UN official seemed to accept that explanation.

Apart from the overcrowding and the squalor there is also the threat of violence and sexual abuse, of inhuman treatment, of nefarious activities within the prison will frighten any normal human being. One remand prisoner told me everything is available within the prison – but at a price.

Maximus Danny and the sardonic pleasures of opinionated investigators

The conduct of magistrates in pointlessly throwing people into remand was highlighted in the unfortunate plight of Maximus Danny, a widower who checked into a guesthouse at Dankotuwa with his lady partner. This is how the Supreme Court describes Danny’s story:

“The Petitioner had a relationship of sexual intimacy with one Leela, a lonely widow. They met on 22. 07. 1998 and decided to spend a quiet night at the Sirisevana Guest House, Dankotuwa. About 10.30 p.m., their hopes for tranquillity were dashed to the ground, when a group of persons rudely knocked at their bedroom door. The door opened on six intruding police officers, two of whom were in uniform, and among them were the first to fifth respondents. On inquiry by the petitioner they informed him that they were from the Chilaw Police Station. They arrested both of them and took them by a van, first to the Dankotuwa Police Station and thereafter to the Chilaw Police Station. Five women and four men, also taken into custody at the said Guest House, were taken in that van along with the petitioner and his companion. From 2.30 a.m. on the 23rd July they were kept in custody and were produced before the Magistrate, Marawila around 12 noon. An application made for bail was refused and the petitioner was remanded until 29. 07. 1998 when he was discharged.”

Maximus Danny was charged by the Police under the Brothels Ordinance, despite there not being an iota of evidence that he was managing or assisting in the operation of a brothel. The Magistrate without batting an eyelid remanded him into custody, because the police requested him to do so. Danny’s version was not heard until six days later he was released.

Danny was represented by Mr. J.C. Weliamuna before a three judge bench of the Supreme Court which held that his Fundamental Rights were violated by the police.

The Court in its judgment written by Justice Dr. Shirani Bandaranayake, made an important observation about the conduct of Magistrates who blindly make orders remanding suspects:

“I must express my concern over Magistrates issuing orders of remand, mechanically, simply because the police want such orders made. I cannot do better than to quote the words of my brother, Dheeraratne, J., said in connection with Magistrates issuing warrants of arrest (in the case of Mahanama Tillakaratne v. Bandula Wickramasinghe) . Magistrates should not issue remand orders “to satisfy the sardonic pleasure of an opinionated investigator or a prosecutor”. Remanding a person is a judicial act and as such a Magistrate should bring his judicial mind to bear on that matter before depriving a person of his liberty.”

Unfortunately, fifteen years on, some are yet to learn from the wisdom of that judgment.