Principles

·  Criminal Procedure—Police supervision proceedings—Arrest—Must be on warrant signed by magistrate

·  Criminal Procedure—Police supervision proceedings—Evidence—Judicial rules except On repute

·  Criminal Procedure-Police supervision proceedings—Town-—Chosen by accused if supervision there possible

·  Criminal Procedure-Police supervision proceedings—Reasons for finding must be recorded by magistrate

To comply with law police supervision proceedings under Code of Criminal Procedure, Chapter VII, must comply with the following:
the accused must be arrested by a warrant signed by a magistrate.

there must be an inquiry before the order at which ‘ ordinary rules of evidence must be observed except as to admission of repute,”

. the magistrate must ascertain from the person against whom the order is to be passed the town in which he wishes to be so supervised if, in the opinion of the court, supervision can be there adequately effected

the magistrate must record the reasons for his findings in compliance with Code of Criminal Procedure 1925, S. 82.

Judgment  

            M. E. Mobarak P.J. March 28, 1962 : —In police supervision proceedings registered in the Resident Magistrate’s Court, El Obeid as NS-2o- held by El Tayeb El Abbisi, Adam Hammad Kuku a Nuba of 35 years was on January 30, 1962, placed under police supervision for a period of two years as from January 29, 1962, to be spent at El Obeid.

             The proceedings were submitted to me only a few days ago for confirmation or otherwise under Criminal Procedure Code, s. 86A.

             Having perused the proceedings I refuse confirmation of the police supervision order and direct that fresh proceedings be taken against Adam Hammad Kuku in the manner stated hereinafter. The reasons for this appear below.

The Code of Criminal Procedure (Ordinance 1925 No. 17) did not contain any provisions as to police supervision when it was passed in 1925. These provisions were enacted by the Code of Criminal Procedure (Amendment) Ordinance 1932 (No. 13 of 1932) which amended sections 25, 80, 81, 82, 84 and 86 of the Code and added new sections 86A, 9 2A, 92B and 92C to provide for the introducing of police supervision. The 1932 Ordinance also amended Forms 13, 14 and 15 of Schedule III to the Criminal Procedure Code for the same purpose.

Under Chapter VII of the Criminal Procedure Code, an Order for police supervision can be made by a court of magistrate either:

a. On conviction (see Criminal Procedure Code, s. 80, in part A of Chapter VII); or

b. In other cases (see Criminal Procedure Code, ss. 81, 82, 84, 86, 86A of Part B of Chapter VII).

            Provisions as to the period of supervision, restrictions on a person placed under police supervision and punishment for breach of such restrictions are to be found in Part C of Chapter VII (ss. 92A 92B and 92C).

An application for police supervision normally comes from the police and, when the application is not made on conviction, it is normally made in the form of a letter to the magistrate.

 The majority of such applications are made by the police in respect of recidivists recently discharged from gaol after having served the sentences passed on them. Notifications of such discharges are given by the prison authorities to the local police authorities under the provisions of regulation 181 of the Prisons Regulations, 1948. This regulation reads

   “Regulation 181: In the case of the discharge of recidivists who do not wish to proceed to another district, officer in charge shall notify the local police authorities.”

The object of such notification is to enable the local police to take whatever action they think necessary and proper towards the prevention of crime, etc. (Code of Criminal Procedure, Part IV), e.g., by applying for security for keeping and for good behaviour or police supervision under Code of Criminal Procedure, Chapter VII.

Such applications involve communications between the local police and the local magistrate, certain investigations and inquiries and ultimately proceedings to be taken by the magistrate in the presence of the accused when witnesses are to be heard, etc. These are summonses to be served on Witnesses to be called by the police and, although this is rare, by the person against whom it is applied to have the order issued by the magistrate. This, of course, takes time and I therefore think it is not proper for the prison officer to notify the local authorities the same day a recidivist is discharged. In such cases the police suddenly find a person (e.g., a notorious house breaker) in their hands and they may have to apply to the magistrate under Criminal Procedure Code, s. 83 (Schedule III, Form xi), for detention or else have to keep an eye on him under an order for keeping the peace or else police supervision is made. In cases of arrest and detention there is, no doubt, some hardship on the man; in the case of observation by, the police there is some hardship of some members of the police force.

 To go over such difficulties I think it is always advisable for the prison officers to notify such discharges of recidivists to the local police authorities in sufficient time so as to enable the local police to apply to the magistrate and take all the necessary preliminary steps before the order is made while the man is still in gaol serving his term of imprisonment 3 This m hardship) of being kept in custody after having served his term of imprisonment while preliminary steps are taken by the police and will save the police the trouble of constantly watching the man until the magistrate decides about the application made. Magistrates are normally very busy and it is riot normally’ to be expected that a magistrate will find time to deal with such applications the same day they are submitted to him. Circumstances differ from one place to another, but I should think that notifications by prison officers to the local police authorities in respect of the discharge of recidivists should be made not less than one month before the date of such discharge. A longer period will always be better especially in remote districts, e.g., El Fula and the Jebel Districts in this Province.

 The local police authorities normally obtain a copy of the accused’s fiche (search slip) from his prison file and attach it to their application. This Copy of fiche is normally taken by the investigator when dealing with the case in respect of which the accused had been committed. This copy of fiche may be a good guide to the police in deciding whether to apply to the magistrate or not as all the accused’s previous convictions are endorsed on the back of it but once the police decide to make an application to the magistrate three new copies of search slips must be taken by the police and forwarded to the Identification Bureau. Two copies of these search slips will be endorsed with the Bureau Serial Number and previous convictions, if any, and returned. When the security proceedings are taken “the first search slip will be put in evidence, if not denied by the accused, and become part of the proceedings. It must not be removed from the case papers, except in the case of an acquittal when it must be forwarded together with the second search slip to the Identification Bureau where they will be destroyed, together with the third search slip.” “If the accused is. . . bound over or place under police supervision …the police of the District must prepare one record slip (Identification Bureau Forms No. 2 males and No. 3 females), endorse it with the particulars of bond or order of police supervision and forward it to the Identification Bureau. The record slip will be filed in the Bureau as a permanent record and the second search slip will be returned to the police and can be attached to any relevant papers [e.g. copy of police super vision sent by the magistrate after confirmation to the police] retained by police, and the second search slip may be destroyed.” This quotation is taken, with the necessary alterations to suit the object of this letter, from Identification Bureau Instructions, paragraph 4 (Summary of Movements of Search and Record Slips) issued by the Commissioner of Police as amended in 1949.

            The evidence normally submitted by the police when applying to a magistrate for an order of police supervision is the fiche of accused on which there are endorsed his previous convictions. Most magistrates, it seems, take the record of convictions in the fiche as evidence. In the Sudan this is incorrect. It is stated in paragraph 5, Part II of the Instructions referred to above: “With regard to previous convictions it should be noted that information supplied by the Bureau cannot be used as evidence if a man denied such convictions. Such information can only be used as a means of ascertaining where that evidence can be found. The actual proof must be obtained from the local police and the place where the man was convicted.” Both in England and in India the law is different from the Sudan and I need not go into the details of it.

 The police need not confine itself to the production of fiche and the proof of the previous convictions recorded thereon. It may prove that the person is a habitual offender or else is dangerous, etc., by evidence of general repute (Criminal Procedure Code, s. 85 (2)).

              The procedure to be adopted by a magistrate in respect of inquiry to be held by him as to the truth of the information and prior to the issue of his order is to be found in Criminal Procedure Code, s. 85 (I) and (2). Subsection (2) of this section provides, with certain exceptions, that “such inquiry shall be made as far as practicable in the manner hereinafter laid down for conducting trials and recording evidence in non-summary trials before a magistrate.” The proceedings are judicial and evidence must be taken on oath’. Our Code of Criminal Procedure, s. 85 is based on the Indian Code of Criminal Procedure, s. 117. It may be useful to make the following quotations from eminent Indian commentators when writing about the Indian Code of Criminal Procedure, s. 117.

a)S. C. Sarkar, Law of Criminal Procedure 145-146 (2nd ed.), states: “An inquiry under Chapter VIII is not a ‘trial’ and the person charged is not an ‘accused’ but a quasi-accused. Inquiry must be made and no person can be bound down on the police report or the statement of a co-accused. Even admission or consent to give security (or be placed under police supervision in our case) does not dispense with an inquiry before final order. Further evidence in subsection (I) indicates that some evidence may be taken before the order under section 112, India (Sudan Code of Criminal Procedure, s. 84). The inquiry is not strictly limited by the terms of the order made under section 112 (Sudan Code of Criminal Procedure, s. 84). The ordinary rules of evidence must be observed except as to admission of repute (section 85 (3), Sudan). The onus lies on the party at whose instance the proceedings are started (normally the police).”

b)  I Mitra, Indian Code of Criminal Procedure 274—275 (13th ed.), states: “The inquiry to be held under this section is a full judicial inquiry. All the formalities of a judicial proceeding have to be observed in the inquiry. . . . the court must act on evidence duly recorded in the presence of the accused person and it is not open to it to take into consideration any information obtained otherwise than from such evidence. This, of course, refers to the final decision in the case, and not to the initiation of the proceedings. . . . The accused person must be given sufficient time to bring his witnesses and have their evidence recorded. Where the accused has not had this opportunity the order against him must be set aside. . . . The person against whom proceedings have been initiated under this chapter has a right to be defended by a pleader.”

c)         In I Sohoni, Code of Criminal Procedure 362 (15th ed. 1960), the author wrote: “The inquiry to be held by a magistrate in cases under this section is a full judicial inquiry, evidence being taken in the presence of the party charged and opportunity given for the cross-examination of witnesses. The power given by section 107 (Sudan Code of Criminal Procedure, s. 81) for taking security is no doubt given for the suppression of crime, but when once the case has come into court section 117 (Sudan Code of Criminal Procedure, s. 85), provides that the inquiry is to be conducted as a judicial one, and it then becomes a judicial proceeding pure and simple.”

d)         Sastry, Code of Criminal Procedure 73—74 (3rd ed., Kharbanda, 1956), states: “The section contemplates full judicial inquiry in the presence of the parties. . . . Inquiry cannot be held outside magistrate’s jurisdiction sufficient time to produce evidence must be given. . . . Expenses of calling witnesses may be realised first. . . . ‘Further evidence’ must be ejusdem generis with the ‘information’. . . . Magistrate should give reasons in support of the order. . . . The High Court can interfere in revision if the order is without legal basis.”

             On Code of Criminal Procedure 1925, s. 85 (3) [equivalent to Indian Code of Criminal Procedure 1898, s. 117 (4)], Sastry, op. cit., at 74, states: “This is an exception to the general rule of evidence (and) should be sparingly used and only in exceptional circumstances . . . . This type of evidence must be carefully weighed and no improper laxity should be permitted.”

e)         Ranganadhaiyar, Code of Criminal Procedure 305—306 (7th ed. 1954), states: “The power given herein is no doubt for prevention of crime. But once the proceedings come into court, this section provides that the inquiry should be a full judicial inquiry, evidence being taken in the presence of the person proceeded against and an opportunity given to him for cross- examination of witnesses. . . . The magistrate is bound to compel the attendance of defence witnesses unless he considers the application is made for purposes of vexation or delay or defeating the ends of justice and if he refuses, then he should record in writing the grounds of refusal as required. ... It is the duty of the magistrate to inquire into the truth of the information and not to act on the suspect’s mere willingness to execute a bond (noting authority to the contrary) On Code of Criminal Procedure 1925, s. 85 (3), see generally Ranganadhaiyar, op. cit., at 311-318.

f)          I (A.I.R.) Commentaries, Code of Criminal Procedure, s. 117, n. 2 at 352-353 (5th ed. Chitaley and Rao), states: “The section cannot be interpreted as giving a weapon to the magistrate in his executive capacity for the suppression of crime. He is bound to hold a judicial inquiry and investigate the truth of the information upon which proceedings have been instituted under this chapter and give a legal finding before passing the final order for security. He cannot be too careful to place on record evidence of a cogent, convincing and reliable kind and should not make up for the carelessness, incompetence and supineness on the part of the police to bring home a specific crime to a particular person…..He cannot act on the basis of his own personal and extra-judicial knowledge obtained as a result of local inquiry, or as a result of a previous case tried by him.” See generally, ibid. at 349-371.

 The term “judicial proceedings” is defined in the Sudan by Code of Criminal Procedure, s. 13.

  Before any such judicial proceedings are taken by a magistrate it is his duty first to issue a summons (proper forms are Nos. 13 and 14 of Schedule III to Criminal Procedure Code) or a warrant (proper form is No. 15 of Schedule III to the Criminal Procedure Code) calling “upon the person summoned or arrested to show cause why an order for police supervision should not be made” (last paragraph of Criminal Procedure Code, s. 84). Such issue of summons is mandatory and without it proceedings have to be quashed. Such summons must be issued in good time so as to enable the person served with it to bring an advocate if he so desires or else prepare his witnesses in defence.

  The irregularities in the proceedings now under consideration (and some of them are serious enough to warrant setting such proceedings aside) are:

1. The application was made by Superintendent of Police El Obeid on January 30, 1962 (see his Arabic letter No. 52 records), yet the proceedings were taken one day before that day, i.e., on January 29, 1962.
2. A warrant (which is not the proper form) was issued and signed on January 29, 1962. This is Judicial Form No. B. 3 and it is the ordinary “Warrant of Arrest of person accused” under Criminal Procedure Code, ss. 51 and 64. A person against whom proceedings are taken under Criminal Procedure Code, Chapter VII, is not, strictly speaking, an accused person and the proper form for his arrest, if need be, is Form No. 15 of the Third Schedule to Criminal Procedure Code, which is not a printed form.
3. The proper form (No. 15 referred to above) was issued the same day (January 29, 1962) and the accused was arrested but this warrant form was not signed by a magistrate;
4. The person was taken before the magistrate on January 29, 1962. No judicial evidence was taken by the magistrate in his presence. The magistrate contented himself by simply telling him about the application by the police and by recording four words stated by him to the effect that he did not object to an order of police supervision being passed against him; the magistrate then passed his order. This is wrong and I refer to paragraph 12 (a) of this Note (the quotation from S. C. Sarkar);
5. It is the duty of a magistrate to ascertain from the person against whom he wants to pass an order of police supervision, the town or district “chosen by himself,” being a town or district in which supervision in the opinion of the court can be adequately effected,” and specify it in the order. In this case he was not so asked. J refer in this respect to the first part of paragraph of Criminal Procedure Code, s. 92B, and to Criminal Court Circular No. 34; and lastly
6. The magistrate did not record his reasons why he made his order. An order for police supervision (not a conviction) can only be made for one or more of the reasons specified in Criminal Procedure Code, s. 82, and the fact that such reasons exist to the satisfaction of the magistrate must be stated, with reasons in a judgment before the issue of the magisterial order in this respect.

It is for all the reasons referred to above that I refuse confirmation of the magisterial order of January 30, 1962, and direct that fresh proceedings be taken on the lines indicated in this note.

Most magistrates go wrong about this matter and about the nature of such proceedings and, therefore, I propose to issue a general detailed directive on the subject.

Whenever an order for police supervision is made at least six copies of the order must be prepared, signed by the magistrate and sent to me with the record of the proceedings.

 Commandant of Police Kordofan and Controller of Prisons Kordofan may be interested in some points of this opinion and so I am sending them copies of it. In case any of them wishes to issue any instructions to his subordinates I shall be obliged for sufficient copies thereof (say 12) for distribution to the Resident Magistrate in this Circuit.