Code of Criminal Procedure Act:

Move to check crime

By Manjula Fernando

The Code of Criminal Procedure (Special Provisions) Bill presented in Parliament by Justice Minister Rauff Hakeem on October 11, 2012 was passed with one amendment on Tuesday January 22, 2013.

The new Act has introduced amendments to the existing law to extend the period of detention of suspects arrested without a warrant up to 48 hours to facilitate the conduct of investigations among other things. It will apply to 15 crimes listed as grievous offences.

Presenting the Bill in parliament Justice Minister Hakeem said that the new provision is expected to prevent abuse taking place within police stations when dealing with suspects and increase conviction rate of persons accused of serious offences and crimes.

He refuted that the new provision in reality will facilitate and encourage abuse of detainees in police custody, adding that according to observations the limited time available to question suspects of grievous crimes, have led certain police officers to resort to various unlawful methods of extracting statements.

“Sri Lanka, being a signatory to the Convention Against Torture, is duty bound to see that there should be zero tolerance for torture.”

He said that this has been reiterated by the human Rights Special Envoy Minister Mahinda Samarasinghe in Geneva as well as many other forums.

The Minister cited the policy decision of the Attorney General’s Department not to defend any police officer who is accused of torture in fundamental rights cases before the Supreme Court.

The special provision that was passed last week has been extensively discussed at the level of the Parliamentary Consultative Committee, and also among several opposition MPs including Sujeewa Semasinghe, Ajith P. Perera and the Bar Association President Wijayadasa Rajapakshe.

The Minister said although the extension of the period of police detention has been blindly criticized by the Opposition, they have failed to take note of the fact that the detainees have been given the right to be represented by an attorney of his choice during the additional 24 hours in custody. The person will have the right to speak to a relative or a friend during this period.

“I would like to correct the misconception spread by opposition elements that the detainees will be kept in police custody for 48 hours without any judicial intervention. This is incorrect.” he said.

If the police seek to keep a detainee for further 24 hours, the detainee has to be physically produced before a magistrate before exceeding the first 24 hours. An officer not below the rank of an ASP should certify the need for the extension of his detention. The suspect will be handed back to the police for further 24 hours of interrogation, if the magistrate is satisfied, that it is necessary to do so.

It is also vital to stress that the law applies only to suspects of selected grievous crimes. The existing law already provides for detaining a suspect of child abuse in police custody up to 72 hours and those under the Poisons, Opium and Dangerous Drugs (Amendment) Act, No 13 of 1984 can be detained for questioning up to seven days.

He also added that, in keeping with the Lessons Learnt and Reconciliation Commission recommendations, a proposal to introduce ‘duty attorneys’ in police stations have been included in the National Human Rights Action Plan of the Government.

The action plan is now in the process of implementation. This was also raised by MP Ajith P. Perera in Parliament.

The Ministry has already prepared the necessary amendments to the Criminal Procedure Code and the Minister said the proposal can be discussed at the next meeting of the Ministry Consultative Committee to ensure that this will be brought into operation ‘as early as possible’.

Minister Hakeem said that the introduction of the new provision will ensure increase in conviction rate of the serious crimes.

We must bear in mind that the hardcore criminals commit their acts premeditatedly. They will resort to extreme measures to cover up their tracks. The above facts had been given serious thought in introducing the new provision while it has also been considered that:

The suspects directly or indirectly influence witnesses to stop vital information from reaching the police.

The increase in the crime rate calls for legal backing for the police to overcome time constraints and facilitate arrest of accomplices from distant places.

A reasonable time should be allocated for JMO reports, Government Analyst reports, DNA tests, telephone and bank related data which are imperative to conduct the interrogation in an efficient and professional manner.

The other provisions in the new act refer to the conduct of the non-summery inquiry (preliminary inquiry) by a Magistrate in serious criminal cases. It says when there are aggravating circumstances or circumstances that cause public disquiet, in connection with the commission of an offence specified in the second schedule to the Judicature Act, No. 2 of 1978, the Attorney General will be legally permitted to forward indictment directly to the High Court without a Magisterial inquiry.

The Minister said this provision has been broadly welcomed by the legal fraternity of the country considering the ‘laws delays’ currently experienced. New provisions have also been introduced to taking depositions (statements) of witnesses for the prosecution, their cross examination and record of clarifications as well.

The Justice Ministry Secretary Kamalini de Silva said the Code of Criminal Procedure (Special Provisions) Act was first enacted in 2005 to make the justice system more efficient.

Scheduled offences

1. Abetment of an offence set out Section 102-Penal Code in the schedule, if the act abetted is committed

2. Conspiracy for the abetment or Section 113B-Penal Code commission of any offence set out in the schedule

3. Murder Section 296-Penal Code

4. Culpable Homicide not amounting Section 297-Penal Code to murder

5. Attempt to commit murder Section 300-Penal Code

6. Kidnapping or abduction to commit Section 355-Penal Code murder

7. Kidnapping or abduction with Section 356-Penal Code intent to wrongfully confine a person

8. Kidnapping or abduction with Section 358-Penal Code intent to wrongfully subject person to grievous hurt

9. Concealing or keeping in Section 359-Penal Code confinement a kidnapped person

10. Rape Section 364-Penal Code

11. Theft, preparation having being Section 371-Penal Code made to cause death

12. Robbery with attempt to cause Section 383-Penal Code death or grievous hurt

13. Attempt to commit robbery when Section 384-Penal Code armed with deadly weapon

14. Attempt to commit any of the Section 490-Penal Code above offences

15. An offence committed with the Explosive as defined in the use of explosives, an offensive Explosives Act (Chapter 183); weapon or a gun offensive weapon as defined in the Offensive Weapons Act, No. 18 of 1966 and a gun as defined in the Firearms Ordinance (Chapter 182)