Jayasinghe V. Attorney General

1949     Present: Dias J.

JAYASINGHE, Petitioner, and ATTORNEY-GENERAL, Respondent

S. C. 65-Application for revision in M. C. Colombo, 1.035A.

Criminal Procedure Code-Arrest of suspect without warrant-Subsequent production before Magistrate-No summary of statements of witnesses- Order of remand-Irregularity-Prejudice-Curable-Section 126A- Courts Ordinance-Section 86.

Where a person arrested without a warrant is produced before the Magistrate under section 126A of the Criminal Procedure Code and the report is not accompanied by a summary of the statements made by the witnesses examined in the course of the investigation, an order remanding the suspect is irregular. Such irregularity however does not vitiate the order of remand if it has caused no prejudice to the suspect and the Supreme Court can apply the provisions of section 36 of the Courts Ordinance.

APPLICATION to revise an order of the Magistrate, Colombo.

E, B, Wikramanayake, K.C., with K. C. Nadarajah and M. Markhani, for the petitioner.

Boyd Jayasuriya, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

February 24, 1949. DIAS J.-

This is an application to revise the order of remand made by the Magistrate, Colombo, on February 17, 1949, in regard to three suspects who had been arrested without a warrant in connection with an alleged daylight robbery in the city of Colombo of over three lakhs of rupees which were being conveyed from the Ceylon Turf Club by car for deposit in the bank. It is stated that in the same transaction there is an allegation of attempted murder, and that one person has been murdered. I have been informed that the police are engaged in Island-wide investiga­tions in order to bring the culprits to book. Hitherto eight suspects in all have been arrested. One was admitted to bail, while the other seven are on remand. The application for revision is in regard to three of them, namely, Simon de Silva Jayasinghe, P. Vincent Fernando and C. E. Sylvester Fonseka, the seventh, third and second suspects respectively.

The submission made on their behalf is that the orders remanding them to the custody of the Fiscal under section 126A of the Criminal Procedure Code must be quashed because the report furnished by the police under section 126A (1), when the suspects were produced before the Magistrate, does not contain " a summary of the statements of witnesses examined in the course of the investigation relating to the case in connection with which the suspects had been arrested ". Counsel argues that even though the police investigation began on January 31, and is still proceeding, nevertheless, it is a condition precedent laid down by statute, that the police report which accompanies a person who has been arrested without a warrant must contain a summary of the statements (if any) made by each of the witnesses examined in the course of such investigation relating to the case. It is contended that this not having been done, the proceedings are vitiated and that, consequently, the remand is bad. It is argued that, even though the statements taken in the course of the

police in