PREVENTION OF CRIME BY A MAGISTRATE

Criminal law is not just about the detection of offenders and the convicting and
sentencing of them. It is also about the prevention of crime. Part IV of the Criminal
Procedure Code deals with this issue. Chapters 7,8,9 and 10, i.e. section 80–94, have
been dedicated to the prevention of crime. Sections 80, 81, 82, and 83 speak about
security for keeping peace and for good behavior.

Section 80 states that whenever any person is convicted of an offence that involves either
 A breach of the peace, or
 Criminal intimidation, or
 Being a member of an unlawful assembly,

The court before which that person is convicted can require him to enter into a bond,
when passing sentence on him, for a sum proportionate to his means with or without
sureties for keeping the peace.

This period will not exceed 2 years if the sentence or order was by a Magistrate’s Court,
and not exceeding 3 years if the sentence or order was by a High Court. If the conviction
is set-aside in appeal or otherwise, the bond so executed shall become void.

Sections 81, 82 and 83 speak of a different situation.

Section 81 speaks of a situation when a Magistrate

 Receives information that any person is likely to commit a breach of the peace or
to do a wrongful act that may probably occasion a breach of the peace within the
jurisdiction of the court of such Magistrate, or
 That there is within such limits a person who is likely to commit a breach of the peace
outside such area of jurisdiction,
The Magistrate may require such person to show cause why he should not be ordered to
execute a bond with or without sureties for keeping the peace for such period not
exceeding 2 years as the court thinks fit.

Section 82 states that wherever a Magistrate receives information that

 Any person is taking precautions to conceal his presence within the local limits of
the jurisdiction of the court of such Magistrate and that there is reason to believe that
such person is taking such precautions with a view of committing an offence, or
 There is within such limits, a person who has no ostensible means of subsistence or
who cannot give a satisfactory account of himself,

The Magistrate may require such person to show cause why he should not be ordered to
execute a bond with or without sureties for his good behaviour for such period not
exceeding 2 years as the court thinks fit to fix.
Section 83 empowers a Magistrate to require a person who is within the local limits of
that jurisdiction and who habitually commits any of the offences mentioned in this
section, to show cause why he should not be ordered to execute a bond with sureties for
his good behaviour for such period not exceeding 2 years as the Magistrate thinks fit to
fix.

When a Magistrate acting under the aforementioned sections, deems it necessary to

require any person to show cause under such section, he shall if such person is not
present in court, issue a summons requiring him to appear in court as per section 84. In
an instance where the person is in custody and not present in court, the Magistrate may
issue a warrant directing the officer in whose custody he is to bring that person before
court.

Sections 85 requires every summons or warrant issued under section 84 to contain a

brief statement of the substance of the information on which such summons or warrant is
issued.

In Weerasinghe v. Peter 39 NLR 426, a man was required to enter in to a bond for
keeping the peace after a situation that occurred on a plantation. This was done on the
evidence presented by the Superintendent of the estate. However, he did not witness the
incident. Therefore, it was Held that the information on which a person is bound over to
keep peace under section 81of the (then) procedure code must be direct and not hearsay.
The breach of peace must be shown to be imminent or in contemplation at the time the
information is given or the order asked for.

The definition of what is meant by ‘breach of peace’ was discussed in Abeywardena v.

Fernando 27 NLR 98. As such, it was decided that a breach of peace would be an act
where a person or property is subject to a violent act that would result in destruction, loss
or damage. It is insufficient to say that a breach of peace is an act against morals. It has to
be an act against the law.

In Langram v. Nilame 22 NLR 445, where an individual who bore ill-will towards the
members of the organizing committee of a perehara, influenced the ‘kapuwas’ to stay
away from their official duties for the event. It was Held here that even though the act
amounted to an act against morals, that it did not extend to an act committed against the
law.The word “wrongful” means “wrongful in law” and not “Open to criticism” or
“deserving of reprehension”. As such it did not amount to an offence under this chapter.

Kanagaratnam v. Thambiah 24 NLR 474 went on to hold that the wrongful act should
be a violation of the criminal law or the violation of a person’s civil rights.

Before commencing an inquiry when a person is brought before a Magistrate in

compliance with or in execution of the warrant or summons issued under section 84,
section 86(4) empowers the Magistrate to order such person to execute a bond for
keeping the peace of for maintaining good behavior pending the termination of the
inquiry.
At the end of the inquiry, if it is not proved that it is necessary for such a person to enter
into a bond, then the Magistrate shall make an entry on record to that effect. Thereafter,
such person will be discharged. If that person is in custody only for the purpose of the
inquiry, he shall be released.

Section 87 states that if it is proved that it is necessary for a person to enter into such a
bond and that person is a minor, that the bond should be signed by his sureties.

Procedure To Be Followed Where There Is Failure To Give Security Or The Bond

Is Breached

A court is empowered to allow a time period of one month for the furnishing of security
to a person who has been ordered to enter into a bond.

However, if such person is in default of giving the security, an order can be made for his
imprisonment for a term not exceeding 2 years if it is a High Court, and not more than 1
year if it is by the Magistrate’s court. (Section 89)

A bond could be entered with or without sureties, with the discretion of court. Section 91
allows the court to refuse to accept those sureties, for reasons to be recorded, whenever
the court is of opinion that such person is an unfit surety.

Section 91 states that a breach of a bond of good behavior would be occasioned by

 The commission
 The Attempt to commit
 The abetment of any offence punishable with imprisonment wherever it may be
committed.

According to section 94 a surety can apply to court to cancel the bond he signed. In such
an instance, the court may either summon or issue a warrant requiring the person for
whom such security was bound, to appear or to be brought before court. Thereafter, such
person will be required to give fresh security for the un-expired term or the unfulfilled
stipulations of such bond of the same description of the original security upon the
cancellation of the previous surety.

Sections 421 - 424 contain provisions as to bonds. Whenever such bond has been
forfeited, the court shall record grounds of such proof and may call upon any person
bound by such bond, to pay the penalty thereof or to show good cause why it should not
be paid.

If sufficient reasons are not shown, the court may proceed to recover the penalty by
issuing a warrant for the attachment and sale of the movable or immovable property
belonging to such person.
If such property is situated outside the local limits of jurisdiction of the court that issued
such warrant, it may be executed with the endorsement of the judge within the local
limits of whose jurisdiction, the property is found.

If security is not furnished within the specified period, then such person is liable to be
imprisoned. However, according to section 93, if the court is of the opinion that such
imprisoned person may be released without hazard to the community or to any other
person, the court may order such person to be discharged.

Dispersion Of An Unlawful Assembly

Sections 95 - 97 deal with this issue.

As such, any Magistrate or police officer not below the rank of Inspector of Police may
command any unlawful assembly or any assembly of 5 or more persons likely to
cause a disturbance of the public peace, to disperse. It shall thereafter be their duty to
disperse accordingly.

The Code of Criminal Procedure Act does not define an “Unlawful Assembly”.
Therefore, the Penal code definition of Unlawful assembly as described under section
138 would apply.

In Bernard Soyza Vs. AG 1991 2 SLLR 56 a satyagraha held at the Maha maluwa of
the Dalada Maligawa was considered an Unlawful assembly as the meeting itself was not
peaceful. The police was entitled in terms of the duty cast on them to take steps to
disperse such assembly. It was held that the Police action was justified and there was no
violation of Fundamental rights of peaceful assembly and expression.

Upon such command, if they do not disperse or without being so commanded, it conducts
itself in a manner as to show the determination not to disperse, the following action could
be taken according to section 95(2).

The Magistrate or police officer may proceed to disperse such assembly by the use of
such force as is reasonably necessary to disperse the assembly. They may also require
the assistance of any person (not being a member of the armed forces) for arresting and
confining the persons who form part of such assembly in order to disperse the assembly
or that they may be punished according to law.

In Bandara and others Vs. Jagodarachchi 2000 1SLLR 225 Chief Justice Sarath Silva
J held that the Police had acted in terms of the powers vested on them under sections
95(1) and 95(2) of the CCP Act to prevent a breach of the peace. There was no
infringement of the rights of the Petitioners guaranteed by Articles 14(1)(a) and (b) of the
constitution namely the freedom of expression and peaceful assembly. “Those rights are
 not absolute but subject inter alia to such restrictions as may be prescribed by law in the
Section 95(3)

interest of Public order as provided by Article 15(7) of the constitution”

If such assembly cannot be dispersed in that manner and it is necessary for the public
security that it should be dispersed, then a Magistrate or the GA of the district or any
police officer not below the rank Superintendent of Police may;
 Cause it to be dispersed by requiring any commissioned or non-commissioned officer
in command of any personnel of the Sri Lanka Army, Navy or Air Force, to disperse
Section 96

it by military force. Also to arrest and confine such persons as form part of it may be
necessary in order to disperse the assembly or to have them punished according to
law.
 When the public security is manifestly endangered by such assembly, and when a
Magistrate or the GA of the district or any police officer not below the rank
Superintendent of Police cannot be communicated with,
 Any commissioned officer in command of the Sri Lanka Army, Navy or Air Force,
may disperse it by military force. Also he may arrest and confine any persons forming
part of it in order to disperse the assembly, or that they may be punished according to
law.

But while he is acting under this section, it becomes practicable for him to communicate
with such a Magistrate or the GA of the district or any police officer not below the rank
Superintendent of Police, he shall do so and thereafter obey the instructions of those
officers as to whether or not he shall continue such action.

Section 97 further states that prosecution shall not be instituted against any Magistrate,
GA, police officer or personnel of the Sri Lanka Army, Navy or Air Force or any person
Section 97

assisting a police officer in the dispersal of an assembly, for any act purporting to be done
under this chapter in any court, except with the sanction of the AG.

A Magistrate, GA, police officer or personnel of the Sri Lanka Army, Navy or Air Force
or any person acting under this chapter in good faith; and
A member of the Sri Lanka Army, Navy or Air Force doing an act in obedience to any
order which under military law he was bound to obey,
Shall not be liable in civil or criminal proceedings for any act purported to be done under
this chapter.

ASSITANCE GIVEN BY MAGISTRATES FOR POLICE INVESTIGATIONS

This is discussed under sections 122,123 and 124.

Under section 122, an OIC of a police station can cause a person to undergo a medical
examination by a Government medical officer, for the conduct of an investigation, with
such person’s consent. However, if such person does not so consent, then the OIC may
apply to the Magistrate within whose jurisdiction the investigation is being conducted, for
 an order authorising a Government medical officer named therein to examine such person
and report thereon. Such person shall submit to such examination and the GMO shall
report to the Magistrate setting out the result of the examination.

Section 123 (3) & (4) deal with a situation where a specimen of the handwriting of any
person can be taken with the consent of that person by an OIC for comparison purposes.
However, in the event that such person refuses to do comply, then a Magistrate may
make the necessary order on application, requiring him to do so.

Section 123 (1) & (2) speak about a situation where

 A finger, palm or foot impression or the impression of any other part of the body of
any person suspected of the offence under investigation, or
 Any specimen of saliva, urine, hair or finger nail or scraping from a finger nail of
such person may be taken
By an OIC with such suspect’s consent. However, in the event that such person refuses to
do comply, then a Magistrate may make the necessary order on application, requiring him
to do so.

When a person is sent for a medical examination by a police officer, the medical
practitioner will normally submit a medical report. It would be presented in the required
format where it would include the name, age, the time and place of examination and the
nature of the wounds. The medical practitioner will also record the way by which such
wound occurred as stated by the victim of those wounds.

Section 116 (3) states that the Magistrate may on application made by the police or
inquirer, forward any such weapon or other article or document or specimen or sample to
the Government Analyst, Government Examiner of Questioned Documents (GQD),
Registrar of Finger Prints or a GMO, for analysis and return of a report to the court.
11 of 1988

A magistrate may also assist the conduct of an investigation be either holding or

authorizing to hold an identification parade, according to section 124 to ascertain the
identity of the offender.
For such purpose, he may require a suspect or any other person to participate in such
parade. Thereafter he may allow a witness to make his identification from a concealed
position and make or cause to be to be made a record of the proceedings of such parade.
(Italics added by the amendment)

The procedure to be adopted in conducting an identification parade is not specifically

stated under our law. The law relating to identification parades has been imported into
our law from English Law. Under that law, an identification parade is conducted within
the premises of a police station. Normally, an identification parade is conducted by a
Magistrate where he records the event. These records are known as Identification Parade
Reports.

The rationale behind an identification parade is for the witnesses to identify the suspects
of an offence. Therefore, it is necessary to present the accused with other civilians. The
rules relating to an identification parade are embedded in The Judicial Officers Manual.
Accordingly, the ratio would be 1:5. Where there are many accused more than one
identification parade may be held.

Perera vs. The State 77 NLR 224 concerned a murder that took place within the
Magazine Prison. Here 11 prison guards were suspected for the causing of death of a
prisoner. At the identification parade, 53 prison guards and 23 outsiders were lined up.
The ratio of guards to outsiders was 1:2. This was heavily criticized by Walgampaya J.

It was further held that the proper procedure that should have been adopted was (a) to
hold several parades to identify separate suspects
(b) to have asked the particular witnesses to Identify any suspect if he was in the
parade
© if a witness identified a suspect, then only should the witness be questioned as to
what he did

In Joseph Aloysius vs. AG 1992 2 SLLR 254, the law relating to identification parades
was considered. Even though there are no express provisions regarding identification
parades in our country, it should be conducted in a manner that would befit the interests
of justice. That should be the basis of its legality.

The Rules Contained in the local Manual for Judicial officers (1939), the Home officer
office circular and code D now operative in England are designed to ensure that an
Identification done by a parade or otherwise, is done in a fair manner to the suspect and
that the witness has no aid or assistance other than his recollection of the appearance and
physical characteristics of the person, whose act or presence, is at issue to identify the
suspect.

Admissibility of evidence of identification at a Identification parade

Queen Vs. Julis 65 NLR 505 –it was held that Under section 157 of the Evidence
Ordinance a Former statement made by a witness identifying an accused at an
Identification Parade is relevant as corroboration of any evidence to the like effect given
by the witness at the trial of the accused, provided that the statement was made before an
“An authority legally competent to investigate the fact” within the meaning of section
157 of the Evidence ordinance. An acting Magistrate appointed to conduct an ID parade
would not fall within the said definition.
 No inducements or Discouragement to be offered with regard to statements Made
by suspects

Section 126 of the CCP act states that no peace officer or person in authority shall not
induce or discourage a person to make a statement of his own will.

In King Vs.Hawadiya 21 NLR 499 It was held that Sub –Inspector who arrested the
suspect told him “Tell the truth without fear. One need not fear to tell the truth”. The
statement made by the suspect was held not to be a statement made Voluntarily.

RECORDING OF STATEMENTS BY A MAGISTRATE

Section 127 of the Criminal Procedure Code states that a Magistrate may record a
statement before the commencement of any inquiry or trial. This could either be a non-
summary trial or a preliminary inquiry conducted before a Magistrate.

It was Held in King v. Weerasamy 43 NLR 207, that a non-summary inquiry

commences with the Magistrate reading out the charge to the accused.

Thunya alias Gunapala v. Galawela OIC (1993) 1 SLR 61 Held that a summary trial
in a Magistrate’s court commences in any one of the ways set out in section 136 (E.g. –
filing of a plaint). Therefore, a statement may be recorded by a Magistrate before the
commencement of the inquiry or the trial, having regard to the above.

Section 127 also provides for the recording of confessions. However, a Magistrate may
not record a confession if he, upon questioning the person, is of the opinion that such
person was not making it voluntarily. Such a statement that is not made voluntarily will
not be admitted as evidence. This was Held in Queen v. Wilbert Perera 61 NLR 124
and Queen v. Gnanaseela 73 NLR 154.

If the Magistrate believes that the confession was made voluntarily, then when he records
the statement, he shall make a memorandum to that effect at the foot of such record. (See
section 127(3))

Normally, after the recording of such confession, the accused is not handed back to the
police. Further, before the recording of such statement, the Magistrate must certify this
fact to the accused.