LAW WITH REGARD TO ARRESTS

ARREST s. 23

- Personal Liberties guaranteed under Article 13 of the Constitution – it is

not an absolute right.
o Thus it can be limited – an arrest can be effected even though it
limits an individual’s personal liberty. (Such measures should be
adopted legally)

- S.23 Deals with arrest in general

-
s.23(1) In making an arrest the person making the arrest
must touch/confine the body of the person to be arrested
unless there be a submission to the custody by word or
action

Person arrested must be informed of the nature of the

charge/allegation upon which he is arrested.

COREA Vs. QUEEN 55 NLR457 – Duty to inform the

charge against the person arrested.

Explanation

It shall be deemed to be an arrest of a person when:

a) a person confined/restrained without formally arresting
him OR
b) under the colourable pretension that an
arrest has not been made when to all intents
and purposes such person is in custody

PIYASIRI AND OTHERS Vs. NIMALFERNANDO

ASP 1988 1SLLR 173
A group of customs officers being summoned to the office
of the Commissioner of Bribery and Corruption in their own
cars was held to be an arrest.
Therefore, when a person is limited from moving freely
then it would be considered an arrest.
 s.23(2) When a person forcibly resists the endeavor to arrest
him/attempts to evade the arrest, the person making the
arrest may use such means as are reasonably necessary to
effect the arrest.

s.23(3) Anything in this section shall not give a right to

cause the death of a person who is not accused of an offence
punishable with death.

- There are 2 methods of arrest:

1. With warrant
2. Without warrant – Arrest can be effected in this manner if such
offence is cognizable.

Arrest without warrant (s.32 & s.34 apply only to peace

officers)

- MUTHUSAMY Vs. KANNANGARA 52 NLR 324

-
s.32(1)b came up for consideration. A person was taken into custody
on suspicion of theft. No statement regarding his suspicion was
received before his arrest. Held: Arrest is illegal since an arrest
without warrant can only be effected if there were reasonable grounds
to believe that the person had been connected with a cognizable
offence.
- GERARD MERVIN PERERA Vs. SURAWEERA OIC
WATTALA 2003 1 SLLR 317- “ Credible information”
- s.32(1) A peace officer may arrest any person without an order from a
Magistrate and a warrant;
(a) who in his presence commits any breach of the peace;
(b) who has been concerned in any cognizable offence/against
whom a reasonable complaint has been made/credible
information has been received/a reasonable suspicion exists
of his having been so concerned;
(c) having in his possession without lawful excuse (the burden
of proving which excuse shall be on such person) any
implement of house-breaking;
 (d) who has been proclaimed as an offender;
(e) in whose possession anything is found which may
reasonably be suspected to be property stolen or fraudulently
obtained and who may reasonably be suspected of having
committed an offence with reference to such thing;
(f) who obstructs a peace officer while in the execution of his
duty or who has escaped or attempts to escape from lawful
custody;
(g) reasonably suspected of being a deserter from the Sri Lanka
Army, Navy or Air Force;
(h) found taking precautions to conceal his presence under
circumstances which afford reason to believe that he is
taking such precautions with a view to committing a
cognizable offence;
(i) who has been concerned in or against whom a reasonable
complaint has been made or credible information has been
received or a reasonable suspicion exists of his having been
concerned in any act committed at any place out of Sri
Lanka, which if committed in Sri Lanka would have been
punishable as an offence and for which he is under any law
for: the time being in force relating to extradition or to
fugitive persons or otherwise liable to be apprehended or
detained in custody in Sri Lanka.

Arrest without warrant by a PRIVATE PERSON

- s.35 A private person (PP) can arrest a suspect without warrant if:
 a cognizable offence is committed in the presence of such PP
OR
 who has been proclaimed as an offender OR
 who is running away and whom he reasonably
suspects of having committed a cognizable offence
* s.32 does not apply in this instance.

* A PP who effects an arrest must without unnecessary delay hand

over the person so arrested to the nearest peace officer/police
station.
* If there is reason to believe that such person comes under the
provisions of s.32 then the peace officer shall re-arrest him (under
s.23).
 KUMARESU Vs. DISTRICT REVENUE OFFICER VAVUNIYA
51 NLR 31

Powers of arrest : NON-COGNIZABLE offence

- A peace officer is empowered to arrest a person without a warrant in

respect of a non-cognizable offence.

- Such an arrest can be done in accordance with s.33(1)

s.33(1)
 In the presence of a peace officer a person is accused of committing a
non-cognizable offence
 He should be arrested by such peace officer – if he either refuses to
give his name and address or which such officer has reason to believe
to be false
 Arrest should be effected in order to ascertain his real name or address
 Once ascertained such person must be released immediately or else
within twenty-four hours from the arrest, exclusive of the time
necessary for the journey be taken before the nearest Magistrate's
Court on executing a bond for his appearance before a MC if so
required.

s.33(2)
 When a person is accused of committing a non-cognizable offence
and a peace officer has reason to believe that such person has no
permanent residence in Sri Lanka and that he is about to leave Sri
Lanka
 he may be arrested and must be taken before the nearest Magistrate
 who may either require him to execute a bond with or without a surety
for his appearance before a MC or may order him to be detained in
custody until he can be tried.

- When a person is arrested by a PP and brought before a peace officer:

a) Such officer should first consider whether the offence committed
would fall under the category of
s.32.
b) If offence is non-cognizable then release person immediately.
 c) s.33(1) may apply if he refuses to give information/gives false
information.
d) s.35 states that if there is no reason to believe that he has
committed any offence – he shall be discharged.

Procedure to be adopted after arrest without a warrant

s.36 A peace officer making an arrest without warrant shall without

unnecessary delay and subject to the provisions contained as to bail
take or send the person arrested, before a Magistrate having
jurisdiction in the case.

s.3(2) Bail Act : Where there is reference in any written law to a provision
of the CCP relating to Bail, such reference shall be deemed with effect from
the date of commencement of this Act, to be reference to the corresponding
provisions of the BAIL ACT.

s.37
 A person arrested without a warrant shall not be detained for a longer
period than under all the circumstances of the case is reasonable
 such period shall not exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate.

s.38 OICs of police stations shall report to MC of their respective districts

the cases of all persons arrested without warrant by any police officer
attached to their stations or brought before them and whether such
persons have been admitted to bail or otherwise.

When suspect is in hiding

s.24
 If any person acting under a warrant of arrest OR
 having authority to arrest (without warrant) has reason to believe that
any person to be arrested has entered into or is within any place
o the person residing in or in charge of such place shall on
demand of such person acting or having authority as aforesaid
o allow him free ingress therein and afford all reasonable
facilities for a search therein.
- Such measure can only be adopted if the officer acting under the warrant
of arrest or under the provisions laid down by s.32, s.33 & s.35

- ANURA BANDARANAYAKE Vs. RAJAGURU AND OTHERS

1999 1SLLR 104 - The person making the arrest must be satisfied that
such a person to be arrested is hiding in the place.

- Refusal by the person (Owner) residing or in charge of the place to allow

free ingress to such officer is deemed to have committed an offence
under the Penal Code

s.25 If ingress to such place cannot be obtained under s.24 it shall be

lawful for a person
 acting under a warrant OR
 in any case in which a warrant may issue but cannot be obtained
without affording the person to be arrested an opportunity of
escape for a peace officer to enter such place and search therein
AND
 in order to effect an entrance into such place to break open any
door/window of any place whether that of the person to be arrested
or of any other person
 if after notification of his authority and purpose and demand of
admittance duly made he cannot otherwise obtain admittance.

- EXCISE INSPECTOR POINT PEDRO Vs. THANGAMMA 26 NLR

307
-
It was held that it is a violation of this section to enter a house by
removing the tiles off the roof.
s.26

 Whenever a search for anything is to be lawfully made in any place in

respect of any offence
 all persons found therein may be lawfully detained in such place until
the search is completed
 AND subject to s.30 they may be searched by or in the presence of a
Magistrate or inquirer or police officer not under the rank of Inspector
 (if the thing sought is in its nature capable of being concealed on the
person)

Search of Persons Arrested

s.29 Whenever a person is arrested by a Peace officer:

 Under a warrant:
 which does NOT provide for the taking of bail OR
 which provides for the taking of bail but the person arrested
cannot furnish it.

 Without a warrant by a private person under a warrant and cannot

legally be admitted to bail or is unable to furnish bail:
 The peace officer making the arrest
OR
 When the arrest is made by a PP, the peace officer to whom
he handed the arrested person over (Note: Search is effected
by Peace officer and NOT PP)

. May subject to s.30 search such person and place in safe custody all
articles other than the necessary wearing apparel found upon him.

* Any such articles which there is reason to believe were the

instruments or the offence and the other evidence of a crime
may also be detained until his discharge or acquittal.

s.30 When a woman is searched, it should be by another woman with strict

regard to decency.

* A peace officer may pursue any person who has power to arrest.

s.42 If a person in lawful custody escapes or is rescued;

 the person from whose custody he escaped or was rescued
may immediately pursue and arrest him in any place
 either within or without the jurisdiction where he was so in
custody
 and deal with such person as he might have done on the
original taking.
Summons
s. 44 - (1) Every summons issued by a court must be
* in writing
* in duplicate & signed by the Registrar
* in the prescribed form.

(2) If person summoned unable to read the language of the court a

translation must be annexed to duplicate.

(3) Attached to every summons should be

 a copy of the complaint / report
 other document upon which proceedings against him have
been instituted
 a list specifying the names and addresses of P’s witnesses if
any

Service of Summons - s. 45

(1) Summons must ordinarily be served by the Fiscal

Summons could also be served by a police officer if
 Case has been instituted by a peace officer
 Case is before HC
 Summons cannot otherwise be served

Where the circumstances require it - the summons may be served by a

grama seva niladhari or by registered post.

* In the case of a company / corporation or incorporated association

summons can be served
on managing director / secretary / other like officer / the person in
charge of the principal
place of business.
 * In the case of an unincorporated association of persons - summons
can be served by
delivering it to the president / secretary / other like officer.

* Where the summons cannot be served as above on a company/

corporation or association of
persons - summons can be served by registered post at
- registered office
- if there is no registered office - at the principal place of business

Where person cannot be found s. 46

When the person to be summoned cannot be found by the exercise of due

diligence - summons can be served by leaving one of the duplicates him
with some adult member of his family / his servant who are residing with
him.

s. 47 - If service prescribed in sections 45 & 46 cannot be effected by

exercise of due diligence fiscal must affix a duplicate to some conspicuous
part of the house in which person summoned ordinarily resides. The
summons are then deemed to have been duly served.

Serving summons on employees of state / local authorities / corporations

- s. 48

If person summoned is an employee of the State / local authority /

corporation the court must ordinarily send 2 duplicates to the head of the
department / office in which the person is employed. Head must then cause
one duplicate to be served personally on the employee and must return the
other duplicate to court with an endorsement of service.

Proof of Service - s. 49
When a summons is served the following would be proof of service & be
admissible in evidence & the statements made are deemed to be correct
unless and until the contrary is proved.
 an affidavit of such service must be made before an officer
duly authorized to administer an oath, or affirmation, OR
 a report of service made by a peace officer OR
  an advice of delivery issued by the Post Office OR
 in case of s.48 the endorsement by head of dept.

Warrant of arrest
Mahanama Thilakeratne v. Bandula Wickremesinghe 1999 1SLLR 372–
In order to arrest a person a warrant of arrest could only be issued in
accordance with the provisions under CPC. Before a warrant is issued
against a person, evidence must be recorded on oath (that he is absconding
etc. ???)

Section 50 - Every warrant of arrest issued by a court under CCP must be

in writing & signed by the Judge & must be in the prescribed form.
* A warrant must contain the reasons for the arrest.

A warrant remains in force until it is cancelled by the court which

issued it or until it is executed.

R v. Sinnady 32 NLR 330– Where a warrant is issued for the arrest of a

person who surrendered to court before the returnable date & where court
made no order canceling the warrant the warrant remains in force &
resistance to the execution of the warrant is unlawful.

s. 51 - A MC must direct by endorsement on the warrant that if a person

executes a bond with sureties for his attendance before the court the officer
to whom the warrant is directed must take the security & release the person
from custody.
The endorsement must state
(a) the number of sureties
(b) the amount in which they are to be respectively bound.
(c) the day and the hour at which he is to attend before the court.

Goonesekere v. Appuhamy 37 NLR 11 – Where a public servant who was

obstructed was not acting with lawful authority – a person who resists him
cannot be convicted under s. 183 Penal Code of obstructing a public servant
in the discharge of his functions or under s. 344 of using force with intent to
prevent him from discharging his duty as a public servant. A person cannot
be convicted under these sections unless the act of the public servant was
strictly legal.
To whom a warrant may be directed? - s. 52

Ordinarily directed to the Fiscal & may be executed by the Fiscal / peace
officers within the limits respective jurisdictions / in any part of SL by any
police officer.

* If warrant is directed to a peace officer by name it must not be executed

by another peace officer unless endorsed to him by name.

s. 56 - When a warrant is to be executed outside jurisdiction of the court

issuing it, the court shall ordinarily forward it by post / otherwise to the MC
within the local limits of the jurisdiction of which it is to be executed.

Such Magistrate to which the warrant is so forwarded shall endorse

his name thereon and if practicable cause it to be executed within the
local limits of his jurisdiction.

Such warrant maybe directed specially to any person and may

lawfully be executed by such person without such endorsement
anywhere within SL, If
 The delay or publicity occasioned by obtaining the
endorsement of that Magistrate to prevent such execution.

s. 53 A person executing a warrant of arrest must notify the substance

thereof to the person arrested, and if so required by the person arrested shall
show him the warrant or a copy signed by the person issuing the warrant

s. 59 If a police officer has reasonable grounds to believe that a person is

one for whose arrest a warrant has been issued, he can arrest that
person in execution of the warrant although the warrant is not in his
possession at that time. (notwithstanding anything to the contrary in
this CCP)
Arrest with a warrant s. 54

s. 54 A person executing a warrant must bring the person arrested before

the court without unnecessary delay and he must endorse on the
warrant the time and place of arrest.
(This is different from the requirement to produce a person within
24hrs in the case of arrest without warrant given in s. 33 (2) )

s. 58 When a warrant is executed outside the jurisdiction of the court

issuing it, the person arrested must be taken before the MC in the
jurisdiction of which he was arrested. Unless the issuing MC is
closer / is within twenty miles of the place of arrest.

 The MC must direct the removal of the arrested person in custody to

the MC if the arrested person appears to be the person in the warrant.
BUT
If the offence is bailable and the person arrested be ready and willing
to give bail the court must take the bail / security and release the
person from custody & forward the bond to the court issuing the
warrant.

Issuing a warrant without summons / in addition to

summon - s.63 s.64 s.65

s. 63 When empowered to issue a summons court must, after recording its

reasons in writing, issue a warrant for his arrest (except in the case of a
juror)
IF
(a) before / after issue of the summons but before the time fixed for
his appearance the court believes that he has absconded / will not
obey the summons OR
(b) He fails to appear and the summons is proved to have been duly
served in time and no reasonable excuse is offered for such failure.

s. 64 Officer who is empowered to issue a summons / warrant can require

the person to execute a bond (with / without sureties) for his appearance in
court.
s. 65 All summonses to appear can be served in any part of SL
BUTsummons cannot not be served outside the local limits of the
jurisdiction of the issuing court unless it is endorsed by court with the words
" For service out of the jurisdiction "
This also can be done only if court is satisfied that there are grounds
for allowing service summons outside the jurisdiction.

Summons to produce

s. 66 – If a court needs a document / other thing – court can issue

summons to the person in whose possession it is requiring him to attend &
produce it.

De Mel v. Haniffa 53 NLR 433– s. 66 does not apply to a D in a case &

court cannot compel D to produce a document / thing. This is due to the
English principles of the rule against self-incrimination. The other reason is
that at the instance of charging D the burden is on P to produce sufficient
evidence to prove the charge. Courts have accepted that after the
commencement of the trial, there is no room for admitting evidence in the
possession
of D.
 A person need not personally attend to produce a thing / doc.
Only need to cause it to be produced.

s. 123 Evidence Ord. – A person cannot produce

(a) Unpublished official records relating to any affairs
of state
(b) Any evidence from those unpublished official
records

s. 130 Evidence Ord. – A witness who is not a party to a case cannot be

compelled to produce his title deeds to any property.

s. 67 Court can authorize Dep. of Posts to deliver to court any book / letter /
post card / telegram / other document in their custody which court thinks is
needed for a case.

* AG / SP can require Postal Dep. to effect a search & deliver a

document for investigation & proceedings.
Search Warrants

s. 68 (1)
(a) If court has reason to believe that a person to whom a summons
has been or might be addressed will not produce the document / thing
OR
(b) if the document / thing is not known to the court to be in the
possession of a person
OR
(c) if court considers that the purposes of an investigation /
proceeding will be fulfilled by a general search / inspection
Court can issue a search warrant in the prescribed form & the person to
whom the warrant is directed can search / inspect what is mentioned in the
warrant.

70. MC can issue search warrant when it receives information & after an
inquiry if it thinks necessary has reason to believe that —
(a) a place is used for the deposit / sale of stolen property
(b) a place is used for the deposit / sale / manufacture of forged
documents / false seals / counterfeit stamps or coin / instruments to do
such things.
stolen property / property unlawfully obtained / forged documents / false
seals are kept / deposited in any place
MC can by warrant authorize the/ a person to —
(i) enter, (with such assistance as may be required), the place
(ii) search the place in manner specified in the warrant
(iii) take possession of any property / documents / seals / stamps / coins
found which he reasonably suspects to be stolen / unlawfully obtained
/ forged, false / counterfeit & any instruments
(iv) convey such property / documents / seals / stamps etc. before MC /
guard the stuff on the spot until offender is taken before MC /
dispose of them in some place of safety
(v) take into custody & bring before MC a person found in the place
who appears to have been privy to the deposit / sale / manufacture /
keeping of any such property / documents / if there is reasonable
cause to suspect that the property has been stolen / / unlawfully
obtained

 A search warrant remains in force for a reasonable number of

days which is specified on the warrant.; s. 68 (2)
 Croos v. SI Modera 52 NLR 329 – A search warrant can
remain in force from the date of issue & it is lawful to extend
the search warrant (based on the facts of the case).

 A search warrant can be confined to any part of

the premises (if so no other area of the premises
can be searched)

 Police Ordinance – A police officer is empowered to enter any

premises which houses illegal property & take the property into
custody. He can also search the premises.

Procedure to follow when searching premises

s. 74 When a place liable for search / inspection & the premises are closed -
a person
residing in the premises must allow person executing the warrant free
ingress into premises & afford all reasonable facilities for a search on
demand & on production of the warrant
 If ingress into the place cannot be obtained person executing
the warrant may proceed to search under s. 25

 The person executing the search warrant must make a list of all
things seized in the course of the search and of the places in
which they were found.

Excise Inspector Point Pedro v. Thangamma 26 NLR 307 –

It is mandatory for the possessions found in a premises & the
places they were found to be entered into a list. It’s illegal to
fail to make the list.

s. 76 Occupant of the place / some person on his behalf can be present at

every instance of the search & a copy of the list must be given to the
occupant.

s. 71 - When in the execution of a search warrant at any place beyond the

local limits of the jurisdiction of the issuing court – anything found together
with the list must be immediately taken before the issuing court unless such
place is nearer to the MC having local jurisdiction. If so list and things must
be taken before MC having local jurisdiction.