By Lal Wijenayake –

Lal Wijenayaka

Several incidents in the recent past where criminal acts were committed by persons in the presence of law enforcement authorities with impunity, has posed the question whether the criminal law and procedure in our country is selective and of course whether administration of justice is selective.  The incidents which comes to mind are the tie up of a public officer to a tree by a minister in the presence of several police officers, government officials, and the public, the attack on a Brigadier at a club with a firearm in the presence of police officers, the attack on a business establishment at Pepiliyana watched by senior police officers, the attack on the referee at a rugger match at Colombo in the presence of police officers and in view of the public, the attack on the demonstration of lawyers against the impeachment of the CJ, and where the police officers were on lookers and were mingling with the attackers who were armed with clubs and bottles, the attack on the UNP meeting at Jaffna where tight security measures were in operation, the attack on the TNA meeting held in a house in a high security zone, the killings of the inmates of the welikada prison.

Our Criminal Procedure Code and the Police Ordinance lays down the powers of police officers in dealing with criminal acts of persons in the presence of the police officers.  Under section 22(a) of the Criminal Procedure Code (CPC) a police officer is bound to forthwith report to the nearest Magistrate or to his immediate Superior any information he has respecting the commission of or the attempt to commit my offence in the area where he is empowered to act.

Under Section 32(5) of the CPC any police officer may, without an order from a magistrate and without a warrant arrest any person who in his presence commits any breach of the peace or who has been concerned in the commission of any cognizable offence (that is, an offence where the person can be arrested without a warrant under the CPC) or any person who obstruct a police officer while in the execution of his duties.  Section 34 of the CPC, lays down when a police officer can arrest a person who commits in his presence a non cognizable offence (that is an offence in respect of which a police officer cannot arrest a person without a warrant under the CPC).   Under Section 35 of the CPC even any private person can arrest any person who in his presence commits a cognizable offence and produce the arrested person before a police officer at the nearest police station.

Under Section 107(1) of the CPC, police officers are also empowered and are expected to take preventive action to prevent the commission of any cognizable offence.  Under Section 107(2) a police officer has a legal duty to inform his superiors of any attempt to commit a cognizable offence and the other provisions of the section gives wide powers to a police officer to take preventive action with the help of their superiors.

An important section is section 109(5) where a OIC of a police station has to report to the Magistrate of any incident where breach of the peace is apprehended or the commission of a cognizable offence and the action taken.

Therefore it is seen that under our law a police officer cannot be a passive spectator when criminal acts are committed by persons and in fact the law mandates police officers to take appropriate steps to prevent such incidents and more importantly to bring those offenders before the law.

What we witness in widely publicized incidents in recent times which were fully covered by the media and extensively shown on television channels was that police officers of all ranks were mere on lookers of these incidents and in most of these incidents gave the impression that they were in fact protectors of the perpetrators of these crimes.  This is a serious violation of the provisions of the CPC and the Police Ordinance.  It is strange but true that the ICP or others who are expected to prevent crime and apprehend perpetrators of crimes and uphold the rule of law and breaches of the peace has not taken any disciplinary action against a single police officer regarding these incidents, though their identities are well established, for dereliction of duty.  These incidents are so serious that it calls for an explanation from authorities concerned and specially because these incidents involve high profile personalities.

It is still more intriguing to see the police making pronouncement that the parties have settled matters or that the victims does not want to proceed with legal action.

Under the law it is not all offences that can be compounded. Section 266 of the CPC deals with compounding offences and specifically mentions the offences which can be compounded and persons by whom the offences may be compounded.  Section 266(5) lays down that any offence not described in this section shall not be compounded.  Some such offences would be the offence of being a member of an unlawful assembly punishable under section 140 of the Penal Code, the offence of joining an unlawful assembly armed with deadly weapons, punishable under section 141 of the Penal Code, the offence of rioting punishable under section 144 of the Penal Code, rioting armed with deadly weapons punishable under section 145 of the penal Code, being hired to take part in an unlawful assembly or riot punishable under section 155 of the Penal Code, causing grievous hurt punishable under section 317 of the Penal Code, the offence of using criminal force to deter police officers from discharging their duty punishable under section 344 of the Penal Code, the offence of robbery punishable under section 380 of the Penal Code, the offence of mischief by fire punishable under section 418 and 419 of the Penal Code, offence of house tress pass with preparation to commit hurt or assault punishable under section 438 of the Penal Code and many more such offences.  In addition there are many offences under several statutes such as the Fire Arms Ordinance and the Offensive Weapons Act, where the offences under these statutes cannot be compounded and even the magistrate has no jurisdiction to release a person suspected of an offence on bail.

It is surprising as to how some of these perpetrators of serious crimes for example, those who took part in the unlawful assembly to commit numerous offences under the Penal Code and other statutes in the Pepiliyana incident were set free.  It is a matter of grave concern when these incidents are seen in the context where a girl was prosecuted in a Magistrate Court for picking eight coconuts and thousands of such similar trivial cases are brought before Magistrate Courts daily.  It is seen that normal law of the land does not apply to high profile personalities with political patronage in blatant violation of the Rule of Law.

*Lal Wijenayake – Chairman – Standing Committee of Bar Association of Sri Lanka on Rule of Law