MARCH 15 — Malaysia’s main legislation relating to criminal justice and its process are based on Indian law. These include the Penal Code (Revised-1997) (Act 574), the Evidence Act 1950 (Act 56) and the Criminal Procedure Code (Revised-1999) (Act 593).

The present Criminal Procedure Code (CPC) is essentially the successor to the Federated Malay States’ (FMS) CPC (Cap 6) which was applicable in the FMS in the 1920s. The CPC is based on the Indian Code of Criminal Procedure 1973 (CrPC).

Courts (at all levels), prosecutors and defence lawyers have referred to and relied on the Indian commentaries on the CrPC as well as Indian decisions in support of their respective decisions and submissions on the corresponding law in Malaysia.

Take the example of the recent Federal Court decision in Jusninawati bt Abdul Ghani v Public Prosecutor [2020] where the apex court had occasion to consider the new provision of Section 13(1)(a) of the CPC which casts a duty on the public to give information about the commission of an offence punishable under the Penal Code or any other written law.

To reach a decision on the new provision, the Federal Court referred to the old provision of Section 13(1)(a) which the apex court said corresponded with Section 39 of the CrPC. The apex court also referred to at least two Indian decisions before deciding to set aside the accused’s conviction and sentence in the High Court and affirmed by the Court of Appeal.

The apex court ruled that the accused was not obliged to report information about the commission of an offence punishable under Section 130JA of the Penal Code.

The decision was followed in the later case of Mustaza bin Abdul Rahman v Public Prosecutor [2021].

Reference to a corresponding provision of the CrPC is inevitable when a Malaysian provision comes before the court.

Take the example of Section 99 of the CPC, on procedure where dispute concerning land is likely to cause breach of peace, which corresponds with Section 145 of the CrPC. It authorises the Magistrate to determine which party is in actual possession of immovable property when there is a dispute that could lead to breach of peace.

The commentaries to the CrPC and decisions of the Indian courts inform us that the purpose of the authority is to intervene in disputes over immovable property to prevent breaches of peace.

The primary aim is to prevent violence and maintain public peace. It is not to decide ownership rights over the immovable property – that is, land.

Before initiating proceedings under Section 145, a preliminary inquiry or report is necessary to establish the existence of a dispute and the likelihood of breach of peace. This inquiry helps determine whether the situation warrants intervention under Section 145.

Accordingly, proceedings under Section 145 are not maintainable when a civil suit regarding the same property is pending, especially if the dispute involves rights, title, or ownership.

Indian courts have quashed proceedings under Section 145 where civil remedies are appropriate. These decisions emphasise the purpose and aim of Section 145 as an emergency measure to prevent breaches of peace.

This is illustrated in the recent Madhya Pradesh case of Nirbhay Singh vs Sumat Prakash Jain [2025]. In that case the applicant, after having sold his property, tried to take advantage of technicalities in order to deprive the respondent/purchaser from enjoying the fruits of the sale.

If the applicant was of the view that sale-deeds executed by him were null and void, then he should have commenced proceedings in the civil court for declaration of his title. But he did not do that and in spite of handing over the possession of the property to the respondent, he tried to illegally dispossess the respondent.

The applicant in fact went to the extent of pouring kerosene oil on him and started extending threat that he would commit suicide. The conduct spoke in volumes about the possibility of breach of peace.

Accordingly, the police were right in initiating the proceedings under Section 145.

Apart from that, the court said that proceedings under Section 145 were not maintainable when a civil suit regarding the same property was pending, especially if the dispute involves rights, title, or ownership.

Indian courts have also ruled that Section 145 does not legitimize a trespasser’s possession. A trespasser does not acquire any legal right to possession or ownership of the property in dispute merely by virtue that he is in actual possession of the property.

The wisdom in Section 145 of the CrPC seems to be this: In property disputes, tensions can escalate quickly, leading to potential breaches of peace. This is where Section 145 comes into play.

Similarly with Section 99 of the CPC. Preliminary requirements and limitations, as explained above, apply.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.