(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. DIKRAN K. HAYGOIJNI

AC-CR-REV-317-1967

 Principles

·  Criminal Procedure—Person under arrest—Police (General) Regulations, s. 46 (4)— Imperatively is entitled to communicate with his legal adviser.

According to the Police (General) Regulations, 5. 46 (4), a person who is under arrest must not be denied the right to communicate with, his legal adviser, at any time and under any circumstances, during the police investigation. The court has no discretion under the same section

Judgment

Advocates: Badr Eddin Suliman . . . . . . . . . . for accused

Abdel Rahim Musa . . . . . . . . . . . . for Attorney General, for prosecution

Galal Ali Lutfi J. July 10, 11967: -This is an application against a decision refusing communication between an arrested person and his legal counsel.

The facts are briefly as follows:

On June 20, 1967, one Dikran K. Haygouni was arrested by the police on charges, which may fall within the ambit of the Defenc of the Sudan (General) Regulations, 1967. Owing to the fact that the investigation is not yet completed, accused is still kept in custody by order of Police Magistrate, Khartoum, and he is not allowed to communicate with any body, including his legal adviser.

His legal counsel, Advocate Badr El Din Ahmed Suliman, applied to the Police Magistrate to allow him to interview the accused but his application was refused on the following grounds:

1. The Police (General) Regulations, s. 46 (4), does not make it imperative that the magistrate must grant the arrested person the permission to communicate with his legal adviser, especially when the circumstances are not normal.

2. The Prisons Regulations, s. 116, read with section 17 of Schedule IX is not applicable because it refers to interviewing a convicted prisoner who was already tried and not an arrested person as the accused in this case.

3. That the accused has been arrested under the Defence of the Sudan (General) Regulations, 1967, and the police are empowered to keep him in custody for fourteen days.

4. That owing to the seriousness of the situation and non-completion of the investigation the interview should be refused.

On application to His Honour, Judge of the High Court, Khartoum, the decision of the Police Magistrate was upheld, and as usual no reasons were mentioned in spite of the fact that both the aforesaid advocate and the Attorney-General have made two submissions arguing different points of law. He only stated in the Case Diary that he sees no reason to intervene, and that is all.  

Accused’s legal adviser is now applying to this court to set aside the decision of the Police Magistrate, which was endorsed by His Honour, Judge of the High Court, on the grounds put by him in a nutshell as follows:

(a) That the Prisons Regulations, s. 116, is applicable in this particular Situation.

(b) That even if the Police General) Regulations. s. .46 (4), is alone applicable, the said section confers no discretion upon the authorities to refuse an arrested person the right to communicate with his legal adviser.

(c) That even if section 46 (4) confers such discretion it was badly exercised by the learned Magistrate.

The prosecution represented by the Attorney-General’s office submitted that the Prisons Regulations, s. ii6, is not applicable in this case, because the term’” unconvicted prisoner” referred to in section 17’ of Schedule IX does not include those who are still undergoing police investigation. It is further submitted that the applicable (section is the Police (General) Regulations, s. 46 (4). where the main operative word is the word ORDINARILY which indicates that there are other circumstances which may be labelled as extraordinary and which would provide a basis for disallowing the communication desired. It is suggested by the learned Representative of the Attorney-General (Sayed Abdel Rahim Musa) that the accused can communicate with his legal adviser after the completion of the investigation.

These are briefly the arguments put forward by the two parties and from them it appears that the points for determination may be summarized as follows:

FIRST: Is the Prisons Regulations, s. ii6, applicable in this case?

SECONDLY: lilt is not applicable, is the Police (General) Regulations, s. 46 (4), applicable?

THIRDLY: If section 46 (4) is applicable is it imperative that the accused must be allowed to communicate with his legal counsel or is it just a discretionary matter left for the assessment of the magistrate?

FOURTHLY: If it is a discretionary matter was the discretion properly exercised?

Considering the first point concerning the applicability of the Prisons Regulations, s. 116, we find that the questioning of the accused and the investigation of his case is still going on. The police in such situations are fully responsible for the accused’s remand and it makes no difference whether he is kept in a cell in the Central Prison or in an ordinary police room. The prison premises are usually used by the police in such cases for security purposes and for the convenience of the accused himself.

But this does not necessarily imply that the Prisons Regulations are to be applied. In my opinion it is the nature of the legal process in operation, which determines the Regulations to be applied, and not the place where the accused is kept. It follows, therefore, that the Prisons Regulations, s. 116, must be ruled out and consequently I need not discuss the arguments concerning it in the Police Magistrate’s reasons for his decision and the submissions of the two parties.

This brings us to our second, third and fourth points, as to whether section 46 (4) is applicable: and if applicable, is it within the discretion of the Police Magistrate to refuse permission; and if he has such a discretion. are there any grounds to justify the rejection of the application

In my view, as I have stated before, as long as the whole matter is still at the stage of police investigation the applicable law is the law which governs the police conduct in such cases which is the Police (General) Regulations. Section 46 (4), which is the relevant and applicable part of the said Regulations, reads as follows:

“An arrested person shall ordinarily be allowed to communicate with relatives or a legal adviser, but only under direct police supervision:

messages shall be conveyed through the police and interviews shall take place in the presence of a policeman.”

The learned representative, of the Attorney-General in interpreting this section contends that the word “ORDINARILY” used in this pro vision means: in ordinary circumstances which implies that there are other extraordinary circumstances (e.g., during a state of emergency) where the magistrate has a discretion to refuse the arrested person’s application to communicate with his legal adviser. I regret that I do not share the Attorney General’s opinion regarding the legal interpretation of the word “ordinarily” in the said section. The word “ordinarily’’ in its common usage has two main meanings assigned to it.

FIRST: it means a matter of regular occurrence or commonplace, or as of right.

SECONDLY: it means usually, or in most cases, when reading the relevant section, we find that it is well understood without the least doubt that it is the arrested person’s right to be granted per mission to communicate with his legal counsel in all circumstances and there is nothing from which a discretion to refuse can be inferred. This is supported by the following:

(1)     When the word “SHALL” is used before the word “ORDINARILY” there will be no room for any discretion and it imposes an obligation to act. If the word “ordinarily” in this context is interpreted as to confer discretionary power on the

Police or Police Magistrate, then the word “SHALL” will be redundant and will have no meaning. A person cannot have a thing as imperative, and discretionary at the same time. If the legislature has the intention to give such powers, the word “MAY” would have been used instead of the word “SHALL.”

(2) If there are other extraordinary circumstances where this general principle will be diverted from, the legislature would not have kept silent without enumerating them as it has done so in other places, e.g. Code of Criminal Procedure, s. 288, where the said word is used in the negative sense. By adding new situations to this section where it is not to be applied, we will be doing that on mere guessing and surmise.

(3) Since this section lays down a fundamental principle, which is of paramount importance as regards the liberty of the individual, the rules of interpretation governing strict construction should be applied in favour of the accused. Maxwell, The Interpretation of Statutes (Edited by Roy Wilson and Brian Galpin), 275 (11th ed., 1962), states: “The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.”

(4) In all the Indian authorities, which explain this section, 1 did not come across a single opinion, which supports the learned Attorney- General’s interpretation. They unanimously agree that it is the arrested person’s right to have such communication and it must not be denied under any circumstances. They expressly provide that he is entitled to have a private interview with a law agent duly licensed to practice as advocate and that the interview should take place within sight of the investigating officer or policeman appointed by him but not within hearing.

V. Mitter, Police Diaries Statements, Reports, Investigation and Prosecution, 226 (2nd ed., 1956), made this point so clear, he states:

“It is in the interest of justice that an accused person should have access to legal advice even while he is in police custody during the courses, of an investigation. An interview with a legal adviser should not be refused to a prisoner who is remanded to police custody. . But his interview can be subjected to legitimate restrictions as that the inter view must take place in the presence of a police officer though he must be stationed out of earshot. An accused person is entitled to have access to legal advice under reasonable restrictions even when he is in police custody during the course of an investigation. The court cannot uphold the action of the police when it refuses to allow the legal advisers of the accused to interview him

The learned representative of the Attorney General put forward the following suggestion:

“It remains to suggest that the petitioner can after the determination of the investigation communicate with his legal advisers. At that stage the magistrate can with impunity order the prison authorities to afford the communication if the accused still remains in their custody.

With due respect this suggestion is supported by neither law nor practice. The interview will have no value after a confession is exacted prom the arrested person. In the case of Jahangirilal and Others v. Emperor (1935) A.I.R. Lahore 230, it was held that “the matter is really reduced to a farce if interviews are allowed only after a confession has been recorded. Nor is it a compliance with these rulings that the applications made to the Superintendents of police or to the District Magistrates should be kept pending or delayed until the confession has been secured.”

In the case of Amolak Ram v. Emperor (1932) AIR. Lahore j3/x4, the court strongly emphasized this point of granting permission to communicate with the legal advisers. The court went further to say that in future it would take drastic measures against any policeman who did not comply with this principle. The judge states that. “ ... if in future I come across arty attempts to put an accused person to needless harassment or throw obstacles in the way of his defence. I shall have no option, but to direct his transfer to a judicial lock-up or release him on bail or otherwise as may be considered proper.”

I Sothoni, Code of Criminal Procedure, 817 (15th ed., 1962), under the title: “Accused entitled to legal assistance in remand proceedings” states:

“However serious a crime a person may be accused of it is of paramount importance that counsel should be allowed to see the accused and take his instructions, without there being any police officer within earshot. To deny such a right to the accused will be to infringe two elementary but cardinal principles of British Criminal Jurisprudence, viz., that an accused person is entitled to be considered innocent until he is actually found to be guilty, and secondly, that all communications between an accused person (or indeed any litigant) and his legal advisers are privileged and confidential.”

So this privilege, which is one of the fundamental rights to which any arrested person is entitled, is not subject to any discretion and cannot be refused. But if for the sake of argument we disregard all the above and we accept as correct the Attorney General’s interpretation that there is a discretion in extraordinary circumstances, then was the discretion properly exercised? and were there any grounds to justify the refusal of the accused’s application?

In my view the discretion was not properly exercised. There is nothing in the Defence of the Sudan (General) Regulations, 1967, which deprives the accused of his right to communicate with his legal adviser. And the State of Emergency cannot be pleaded as such to suspend such a right unless there is something specific to this effect and expressly provided for.

It is alleged without giving reasons for such allegations that the investigation will be prejudiced. As far as I know the proceedings will be imperilled if all the facts have not been ascertained and further evidence against the accused still remains to be obtained and he is allowed to communicate without restricted supervision with persons other than a legal adviser. But in this case the investigation will not be affected because the application is for an interview with a legal adviser and it will take place under police supervision.

Abdel Magid Imam J. July 12, 1967: —I completely agree with the above-mentioned note. I think the relevant section is the Police (General) Regulations, s. 46 (4). The word “ordinarily” mentioned therein should mean, if at all, that the purpose of the interview, in the normal course of things, is to assist the accused arrested person to be able to defend himself; if not, it should be held as redundant.

Section 46 (4) above gives an arrested person a supplementary right to his inalienable right to defend himself by pleader. There is nothing in the Defence of the Sudan (General) Regulations, which curtails or purports to curtail this supplementary right.

Abdel Magid Hassan J. July 12, 1967: —I agree to both notes. Section 46 (4) is the correct law applicable. Accused getting in touch with his advocate is a fundamental right, which could not be denied wherever the rule of law is prevailing.

Galal Ali Lutfi J. July 12, 1967: - We hereby order that the decision of the Police Magistrate and His Honour the Judge of the High Court be quashed and that the accused be allowed to communicate with his legal counsel forthwith.