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KUMARESU ET AL. v. THE DIVISIONAL REVENUE OFFICER
NLR51V31
1949 Present . Wijeyewardene
C.J.
KUMARESU et al., Appellants, and THE DIVISIONAL REVENUE OFFICER, VAVUNIYA,
Respondent
S. C. 1,390-1,392-M. C. Vavuniya, 21,374
Criminal procedure-Procedure when investigation of offence cannot be
completed in twenty-four hours-Unlawful detention for a period exceeding fifteen
days in all-Escape from custody-Power to pursue and ' re-arrest- Penal Code, s.
320A-Criminal Procedure Code, ss. 35 and 126A (2).
An accused who has been irregularly ordered under section 126A (l2) of the
Criminal Procedure Code to be detained for a term exceeding fifteen days in the
whole may yet be guilty of escaping from lawful custody, if, at the time he
escapes, the period of fifteen days contemplated by the section has not expired.
The right given by section 42 of the Criminal Procedure Code to pursue and
re-take a person escaping from lawful custody should be exercised immediately.
An arrest made after an interval of time after an immediate but unsuccessful
pursuit would therefore be unlawful.
Section 35 of the Criminal Procedure Code contemplates an arrest at the time of
the commission of a cognizable offence or immediately afterwards and not some
time afterwards.
APPEAL
from a judgment of the Magistrate, Vavuniya.
K. C. Nadarajah, with M. Markhani, for the first accused
appellant.
N. Kumarasingham, with V. Ratnasabapathy, for the second and third
accused appellants.
T. S. Fernando, Crown Counsel, with L B. T. Premaratne, Crown Counsel,
for the Attorney-General.
Cur. adv. vult.
February 15, 1949,.
WIJEYEWARDENE C.J.-
There are three counts in this case. On the first count the first accused was
charged under section 220A of the Penal Code with '' intentionally offering
resistance to the lawful apprehension of himself by S. Manickam, Fiscal's
Officer, upon a warrant of detention issued by the Magistrate's Court of
Chavakachcheri in Case No. 25,604 ". On the second count the second and third
accused are charged under section 220A with " rescuing the first accused from
the custody of S. Manickam, Fiscal's Officer " in whose custody the first
accused was lawfully detained. On: the third count all the three accused are
charged under section 323 with voluntarily causing hurt to S. Manickam and S.
Thambyah, Fiscal's. Officers, " with intent to prevent the said public servants
from discharging their duties as public servants, to wit, in re-arresting " the
first accused. On September 15, 1947, a Police Officer made a report to Court
informing the Magistrate that the first accused and another obstructed two
Police Constables who went to arrest an accused in M. C, Chavakachcheri 25,041
and caused hurt to the two constables. The first accused was brought to Court by
the Police Officer and the Magistrate acting under section 126A (2) of the
Criminal Procedure Code remanded the first accused to Fiscal's custody till
September 19. The first accused was produced in Court on September 19 and
remanded again to Fiscal's custody till October 3, 1947. The Magistrate signed
the warrant of detention between noon and 1 p.m., and the Chief Clerk of the
Court who is also the Fiscal's Marshal and had the first accused in custody
entrusted him to S. Manickam. At about 3 p.m., the first accused told Manickam
that he wanted to go out for a call of nature. Manickam removed him from the
cell and was taking him out when he escaped. Manickam pursued him immediately
and searched for him in a jungle towards which he ran Failing to find him
Manickam reported the matter to the Fiscal's Marshal about 5 p.m., when the
latter handed him the warrant of detention and asked him to search for and
arrest the first accused. Manickam accompanied by Thambiayah, another Fiscal's
Guard, and Panchadcharam, a labourer employed in the Courts, continued the
search and ultimately found the first accused on September, 23 at Omanthai, in a
railway wa
