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by Neil Dias

There does not appear to be any public reaction from any quarter either for or against the possibility of removing from the statute book the right of a citizen to freely invoke the jurisdiction of the criminal Courts in appropriate and aggrieved circumstances.

However this is a right, which has been exercised from the inception of criminal procedure in the country. F. R. Dias in his Commentary on the Ceylon Criminal Procedure Code state, "Subject to the rules regarding sanction to prosecute any person has the right to initiate criminal proceedings, and provided the police Court has the necessary jurisdiction it can entertain the complaint and issue process on the accused." The earliest decisions of criminal Courts in this country have consistently and without reservations upheld this right. Those decisions contain a fine distinction between complaints made to court by private parties and complaints made by police and other public officers.

The people's right of free access to any Magistrate is a right which enables the public to freely seek redress in regard to a large variety of situations. Magistrates have no power to refuse to entertain complaints from members of the public in regard to the commission of offences and happily no Magistrate has ever refused such applications.

In India similar provisions appear to have been used at instances to refer the complaint to some other authority like the police for further investigation. This practice has happily not been followed in our country. Magistrates come nearest to the lives of the poorest and the oppressed. Since the people have no direct access to any other branch of the judiciary this constitutes the only means through which the people have such access. Some people tend to imagine that the judiciary does not govern.

If properly regulated this also constitutes a very inexpensive and extremely useful means of access to this very important branch of government. To approach the judicial branch of government through the police or other government department is both an expensive and a very time-consuming process. A huge amount of public money and also time are expended for this process.

The filing of information before a Magistrate by the police or other government official in regard to the commission of an offence and seeking relief or redress on behalf of a citizen is a culmination of a long and often an arduous process.

In certain instances it is tied to the political process in which case the outcome of the filing of the information and possibly the subsequent proceedings will be influenced mostly by such considerations. This indeed is not a very healthy situation. Considering these aspects of the matter it would appear that there is a strong case not for abolishing but for enlarging, liberalizing and strengthening the people's right of free access to the judicial process through the Magistrates.

Complaints to police

Complaints made to the police as well as to Magistrates must relate to the commission of an offence. Courts have held that once a complaint is made to the police or any other government department the responsibility of inquiring into the complaint and determining its truthfulness or otherwise becomes the responsibility of the police or the department concerned. They will also have to inquire and determine whether the complaint relates to the commission of an offence. An offence is an act or omission declared to be so by the law presently in operation. Anything else does not fall into the category of offences.

If after inquiry the complaint is found to be either frivolous or vexatious or false or one that does not relate to the commission of an offence the police could deal with the person making such a complaint. No information is filed in Court in respect of such complaints and no process is issued on anyone referred to in such complaints. People are aware of the difficulties that they undergo in attempting to make complaints at police stations. During the days of colonial rule people encountered difficulties in making complaints at police stations in their mother tongue.

This prompted the left parties to agitate for this right at the political level. Even today more than fifty years after independence, with one of the highest literacy levels and Human Rights being entrenched and declared by the Supreme Court as a basic and a constitutional right the making of a complaint at a police station does not in reality appear to be such an easy task.

The problem has developed to some extent as a result of the common though mistaken belief that a complaint at a police station has to be made personally with the person making the complaint being in personal attendance at the police station. But the legal position appears to be quite the contrary. In regard to the making of a complaint at a police station the only requirement appears to be that every information relating to the commission of an offence has to be given orally or in writing. An oral complaint can legally be made even by telephone.

Every police station should be equipped with procedures to receive such complaints. Any person is free to reduce his complaint into writing in any one of three languages in our country and deliver it at any police station. This could be done personally, by messenger or by post or fax or any other mode of communication that are presently available. The only requirement is that the complaint if in writing has to be signed by the person making it.

Under the law as it has developed from time immemorial the police do not enjoy a monopoly in regard to the entertainment of complaints relating to the commission of offences. There are inherent dangers in attempting to change this situation and assign them this monopoly. If the police or any other government department are given the monopoly of entertaining complaints and making applications to courts to institute criminal actions a situation may develop where the people's inherent right to make complaints against any individual or institution however high or powerful will be drastically restricted or made very selective. So far people have utilized the provisions that enable them to approach courts freely and make complaints direct in order to set the criminal law in motion against almost any individual at any level.

Information laid before criminal courts by private citizens fall into different category. From the inception the law permitted citizens to make statements and complaints to Magistrates in regard to the commission of offences and other matters within any jurisdiction. The provision with regard to any jurisdiction is of utmost importance. This provision has been utilized in a series of situations including the surrender of suspects and accused persons before any Magistrate in the island. Complaints could either be made orally or in writing provided that if the complaint is in writing there is the added requirement that the complaint has to be drawn and countersigned by a pleader and signed by the complainant.

broad unrestricted right

No regulations appear to have been framed governing the manner in which these private complaints to Magistrates are to be made. The resulting position appears to permit any citizen to make an oral complaint to any Magistrate at any time and at any place. Now this is a very broad an unrestricted right, which does not appear to have been adequately utilized by the public. One reason for this may be the overwhelming presence of the legal profession, which appears to give the public the impression that without them the criminal courts in the country are inaccessible to the public.

This may be so during the hours that Courts conduct public sitting. But there does not appear to be any legal impediment against any citizen approaching any Magistrate at any reasonable hour of the day or even night in order to make a complaint in regard to the commission of an offence. Reasonableness will not depend on the time of day and night but on the circumstances of the particular complaint. It is really for this purpose that a Magistrate is always available within her jurisdiction right through the day and the night right throughout the year without any interruption.

This is also related to the provision in law that no person could be detained in custody or otherwise confined at a police station for more than twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate.

Like in the complaints made to the police the complaints made to Magistrates must relate to the commission of an offence. The other requirement is that for the Magistrate to entertain the complaint it must be shown that the complaint is not one that requires prior sanction either by the Attorney General or other officer as laid down in the provisions of the Criminal Procedure Code.

If these threshold requirements are satisfied a complaint to a Magistrate can be made against any person of whatever rank or station in society at any time. Before such a complaint is acted upon and process is issued Courts go into the matter judicially to determine whether it relates to the commission of an offence. This is no easy task, as some, including lawyers, will discovert when faced with a situation. No doubt the Courts exercise their discretion.

But higher Courts have laid down that that discretion is exercised judicially and not arbitrarily. The manner of using that discretion is always subject to review in more ways that one by higher Courts in appropriate applications. Careful consideration is given to ascertain questions of jurisdiction. The questions whether the complaint is barred by limitations as to time or any other provision of law are also gone into by Courts with great care.

More than anything else the question whether the complaint relates to the commission of an offence is also very carefully inquired into. Once a private complaint is laid before Court the Court examines forthwith the complainant or informant and any other person likely to be acquainted with the facts and circumstances of the complaint to ascertain among other things as to how she gained her knowledge or reasons for her suspicion.

The issue of process on a private plaint is not an automatic or rubber stamp process. If the requirements referred to above are not satisfied the Magistrate might refuse to issue process. The matter does not end there. Where a Magistrate has exercised jurisdiction and ruled that she is not going to issue process the decision could be appealed against with the sanction of the Attorney General. If the Magistrate refuses to exercise jurisdiction and to issue process a writ of mandamus could be sought.

These applications now go before the Provincial High Courts. These processes have under the Constitution been decentralized and brought closes to the people. Further decentralization of judicial power is being considered although the process has slowed down due to interference by interested sections mainly of the legal profession. Courts have in their discretion refused to entertain complaints where it appeared that the complainant has no interest in the prosecution and attempts to act as a busybody, particularly where the alleged offence is against a law passed for the benefit or protection of a certain class of persons.

adequate safeguards

On the other hand Courts have ruled that any person having knowledge of the commission of an offence may set the criminal law in motion by making a complaint even though he is not personally affected by the offence. If the offence charged is one against public policy Courts will not hesitate to act. If the matter is shown to be a private dispute the Court may refuse to be drawn into it.

But when the offence is against the public interest the truth of the complaint and the amount of evidence of crime it discloses are alone considered. It will be thus seen that adequate safeguards have been built into the system of private complaints before criminal courts to ensure that the process is not misused or abused. The plight of the citizen in the event of private plaints before criminal courts being disallowed must receive the serious consideration of the authorities concerned. But these are rights that cannot be easily tampered with or taken away.

The Supreme Court has very recently on more than one occasion spoken in regard to these and similar matters and the voice is loud enough to be clear. Public institutions and mechanisms put in place for the protection and benefit of the people, specially the poor, the oppressed, and the underprivileged, are held in trust by those who administer them. They cannot be easily tampered with merely because some of the rich and the powerful at times tend to abuse these privileges.

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