Obey summons if not 'Mr. Warrant' will catch you

by Justice P.H.K. Kulatilaka

Part 2

In view of the increasing numbers in road accidents certain amendments were introduced to the Motor Traffic Act. Under the provisions of section 151 the policeman has powers of arrest without a warrant if he was of the opinion that the driver was unfit to drive because he was drunk. Recently a daily paper carried a news item titled 'Drunk don in the cooler' which stated that the police had arrested a lecturer who was found drunk while driving. This is a case in point.

It is also a mandatory requirement of the law that the police officer 'shall inform' the person the nature of the charge.

Article 13 of the Constitution also prescribes that such person 'shall be informed of the reason for his arrest'. In caring for the personal liberty of the subject so arrested the Constitution saw to it that the police will produce him before the judge of the nearest competent court without undue delay according to the procedure found in the Code of Criminal Procedure Act as amended .

Human Rights

The law enforcement officer has to be very careful in exercising the powers of arrest for in the event of abusing his powers he may have to face the allegation of violating Human Rights. There can be instances which enable the so arrested person invoking the delictual remedy for false imprisonment in a civil court. These provisions are there with a view to balancing of social security on the one hand and the personal liberty of the subject on the other.

Breach of the peace

Though a police officer could arrest any person who commits a breach of the peace in his presence, at a time when there are frequent demonstrations in the country to save their skin policemen rush to court to arm themselves with a warrant of arrest. The Magistrates are slow to accede or act with restraint to such requests for two reasons, firstly the demonstrators may be acting in the exercise of their fundamental rights afforded to them by the Article 14 of the Constitution. Secondly section 32 of the Code of Criminal Procedure Act gives the police the power to arrest without a court warrant in the event of a breach of the peace. In a decided case Supreme Court Judge Justice Dheeraratne gave the following warning to the Magistrates in issuing a warrant. The law enforcement officers should well know about it.

'Issuing a warrant is a judicial act involving the liberty of an individual and no warrant of arrest should be lightly issued by a Magistrate simply because a prosecutor or an investigator thinks it is necessary. It should be issued as the law requires when a Magistrate is satisfied that he should do so, on the evidence taken before him on oath'.

The police complaint will disclose the name or names of the people suspected or accused of, being concerned in committing or having committed a non-bailable or bailable offence.

The law requires the presence of these persons in court to proceed to inquiry or trial. Issuance of summons or warrants as the case may be is the mechanism a court makes use of to get them to court.

Summons

The first schedule to the Code of Criminal Procedure Act specifies offences where summons should go in the first instance. Summons will indicate the particulars of the offence charged, time and place he should appear. Magistrate may if he thinks fit issue summons in the first instance even if it is a case where a warrant should be issued. When a person obeyed the summons and appeared before the court in terms of the provisions of the Bail Act 'he shall be enlarged on his own recognizance or his giving an undertaking to appear when required. It is a concession granted for obeying summons.

Warrant

You cannot run away from court. The law is no respecter of people. All the people are equal before the law. If you disobey summons court issues a warrant. When issuing a warrant since it is a judicial act involving the liberty of a subject the Magistrate should do so as the law requires when he is satisfied that a warrant should go.

If the designated police officer has reasons to believe that the person to be arrested has entered into or within any place the statute gives him power to enter such place and arrest such person.

If such person resists or attempts to evade arrest the police may use such means as are necessary to effect the arrest. When such people are produced in court to ensure his presence in the future he would be either remanded or enlarged on heavy bail.

Nevertheless the Magistrate's Court has no power to grant bail to an accused or suspect in an offence punishable with death or with life sentence in which case it is the provincial High Court which has the power to grant bail.

The law will not allow a person to run away or abscond. There is provision for the court to proceed with the inquiry or trial as the case may be in the absence of the accused. He forfeits the opportunity given to him by the law to be present in court and defend his case.

The writer is a retired judg of the Court of Appeal and former Director, Sri Lanka Judges' Institute.

Concluded