LAW WITH REGARD TO ARRESTS
VITAL DEFINITIONS WITH REGARDS TO A LAWFUL ARREST
The understanding of the following statutory definitions is vital to answer
any question regarding the above topic.
Section 2 of the Code of Criminal Procedure Act no 15 of 1979 defines
“ Peace officer” – includes Police Officers and Assistant Divisional
Secretaries and Grama Seva Niladharis appointed by a Divisional
Secretary in writing to perform Police duties.
(as amended by Act no 58 of 1992)
“Cognizable Offence”- means an offence for which a peace officer may in
accordance with the First schedule arrest without a warrant.
“Non-cognizable Offence”- means an offence for which a peace officer
may not arrest without a warrant.
Column 3 of the First Schedule to the Code of Criminal Procedure Act
specifies whether Peace officer may arrest without warrant or not, with
regard to all Penal Code offences.
ARREST
- Article 13(1) of our Constitution states that
“No person shall be arrested except according to procedure established by
law. Any person arrested shall be informed of the reason for his arrest.”
- “Arrest” is not defined in any law and remains undefined in case law.
However as interpreted by Courts arrest amounts to a deprivation of a
persons liberty specially the persons right to free movement guaranteed
under Article 14 (1) (h) of the Constitution.
- Black’s Law Dictionary, 5th edition (1979) defines the word “arrest” as
“to deprive a person of his liberty by legal authority. Taking under
real or assumed authority custody of another for the purpose of
holding or detaining him to answer a Criminal charge.”
- 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 Fundamental right to Freedom of movement
(Article 14) or any other personal liberty. (Such measures should
be adopted legally. Vide Article 15(7) of the Constitution)
- S.23 Deals with a lawful arrest
-
s.23 e(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 NLR 457 – Duty to inform the
charge against the person arrested.
A Police party went to M’s house to inquire in to a
cognizable offence and “asked” or “invited” M to
accompany them to the Police station. M refused and the
Police ordered m’s arrest to “teach him a lesson” and
attempted to remove M forcibly. The police officers were
charged inter alia with using Criminal force on M.
Gratien J held that “a Police officer acts illegally in Ceylon
(as in England) if he arrests a man without a warrant on a
mere ‘Unexpressed suspicion’ that a particular cognizable
offence has been committed unless the circumstances are
such that the man must know the general nature of the
offence for which he is arrested or unless the man himself
produces the situation which makes it particularly
impossible to inform him. In such a case the Police officer is
liable to be convicted under the Penal Code for assault and
wrongful confinement.
At page 462 Court observed that, it is sufficient to refer only
to Section 23(1). “in making an arrest the person making the
same shall actually touch or confine the body of the Person
to be arrested unless there be a submission to the custody by
word or action”. The law does not require a man to consent
or submit to his detention or arrest unless he knows “the
reason why”.
As Lord Simon observed in Christie Vs.Leachinsky “ the
matter is one of substance and turns on the elementary
proposition that in this country a person is prima facie
entitled to his freedom and is only required to submit to
restraints of his freedom if he knows in substance the reason
why it is claimed that this restraint should be imposed”. It
follows as necessary corollary that in normal circumstances
an arrest without warrant by a Policeman or by a Private
citizen can only be justified if it is an arrest on a charge
made known to the person arrested.
Explanation to section 23
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 colorable pretension that an
arrest has not been made when to all intents
and purposes such person is in custody
PIYASIRI AND OTHERS Vs. NIMAL FERNANDO
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.
Section 28 - Necessary Force
.
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.
Arresting a suspect who 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 hiding 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)
s.27
The power given to Peace officers to break out of a premises by
breaking a door or window after arrest.
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)
▪ All articles found on a person ( be it proceeds of crime or
not) excluding wearing apparel can be placed in Police
custody.
s.30 When a woman is searched, it should be by another woman with strict
regard to decency.
s.34 A peace officer may pursue any person whom he has power to arrest
in to any part of Sri Lanka.
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.
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.
Gratien J held that Section 69 of the Police ordinance does not
authorize a Police officer without a warrant to enter and search
premises for alleged stolen property except on reasonable suspicion. A
suspicion is proved to be reasonable only if the facts disclose that it
was founded on matters within the Police officer’s own knowledge or
on a statement by other persons in a way which justified him in giving
them credit.
Further it has been held that a Peace officer is not entitled to arrest a
person on suspicion under section 32(1)(b) of the Code of Criminal
Procedure Act except on grounds which justify the entertainment of a
reasonable suspicion. When a Police officer arrests a person on
suspicion without a warrant he should inform the suspect of the true
ground of arrest. A citizen is entitled to know on what charge or on
suspicion of what crime he is seized.
SANJEEWA AAL (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 (citizen’s 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 for the purpose stated in Section 33.
- 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.37 - 24 Hour rule
▪ 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.
▪ There are a few exceptions to the rule found under special laws.
▪ Ex :- Prevention of terrorism Act- 72 hours detention by the Police.
▪ Poisons opium and Dangerous Drugs Ordinance- for 7 days after
producing before magistrate at present. (However amendments to
extend this period is been discussed at present)
▪ Section 2 of the Criminal Procedure(special provisions) Act no 2
of 2013- 24 hours further detention with the police is possible after
producing before Magistrate on ASP’s application on scheduled
offences.
▪ Under section 43A of the Procedure code with regard to Child abuse
offences a suspect produced before a Magistrate within 24 hours can
be kept in police custody for a further period of 48 hours on the
application of a SP.
WRONGFUL ARREST
An arrest done without following the procedure laid down by
law would amount to a wrongful arrest. In Sri Lanka an arrest
done in violation of Article 13(1) and Section 23 would be
unlawful.
The arrestee would have a Civil damages claim in the DC or
damages by way of a Fundamental rights application under
Article 126 of the constitution.
In the US a suspect at the point of arrest has to be told his rights
( what is now referred to as “Miranda warning” ) by law
enforcement authorities. (following the US Supreme Court
decision in Miranda vs Alabama 384 US 436(1966))
The suspect being arrested must be told why he is arrested and
that he can remain silent about it. However, if he waives his
right to silence whatever he says can be used against him in a
court of law. He must also be told that he has a right to an
attorney.
Our law requires much less for a legal arrest but protects the
arrestee from self-implication (section 25 of Evidence
ordinance). However, the reason for arrest must be stated.
In Sri Lanka there are numerous cases in violation of legal
arrests. Case of Gerard Mervin discussed above is one such
case where the SC awarded compensation against Respondent
police officers for Torture as well as wrongful arrest.
In USA the George Floyd incident which occurred in
Minnesota on 25th May 2020 (“Black lives matter” campaign)
resulted in Country wide violence due to excessive force used
by the police at the point of arresting Floyd and causing his
death.
Previously in March 1991 Police brutality by the Los Angeles
police Department with regard to the arrest of Rodney king
resulted in 1992 Los Angeles riots in which 55 people were
killed.
In Sri Lanka excessive force by the Police is frequently seen.
The most recent display was when the SC held that the present
acting IGP was personally liable for torturing a detainee when
he was SP Nugegoda ( vide RANJITH SUMANGALA Vs. SP
NUGEGODA SC FR 107/11 Decided on 14.12.2023).
Further a police officer in civilian clothing shot at and killed a
van driver in Narammala in January 2024.
The arrest of Trade union leader Joseph Stalin by physically
carrying him to a bus and taking him away when he was
engaged in a teachers protest in 2022 all show instances when
excessive force was used by police rather than necessary force.
There are hundreds of excessive force cases where
compensation has been granted by the Supreme Court on the
complaint of the victims. Sometimes Respondents are ordered
to pay Compensation personally when they have been declared
to have tortured the arrestee. Disciplinary action is also ordered
by the SC against such Respondents such as recommending to
AG to file action under The Convention against Torture Act.
See SUDATH SILVA Vs.KODITUWAKKU 1987 2 SLLR 119,
CHANNA PIERIS AND OTHERS Vs. AG AND OTHERS
1994 1SLLR 1, SANJEEWA AAL Vs.SURAWEERA OIC
WATTALA.
.
