JUNE 9 — A remand application is governed by and must comply with Section 117 of the Criminal Procedure Code (CPC). which reads as follows:

Section 117(1) requires that when an arrested person cannot be investigated within 24 hours, and there are grounds for believing that the accusation or information is well-founded, the police officer conducting the investigation (IO) shall transmit to a Magistrate a copy of the entries in the investigation diary (ID) relating to the case, and shall simultaneously produce the accused before the Magistrate.

Section 117(2)(b) provides that where the offence under investigation is punishable with death or imprisonment of fourteen years or more, the Magistrate may authorise detention not exceeding seven days on a first application.

Crucially, Section 117(3) imposes a mandatory duty on the IO to state in the copy of the ID, any period of detention of the arrested accused immediately prior to the application, whether or not such detention relates to the application.

Section 117(5) further requires the Magistrate to allow representations to be made by the arrested person himself or through counsel before making any remand order.

The duty imposed by Section 117(3) is not merely directory. Its mandatory character was affirmed by the Federal Court in Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] where the apex court said:

“The onus is always on the police, the appellants herein, to satisfy the magistrate that an order to remand the respondent is necessary. As required by Section 119 of the CPC, the entries in the investigation diary must support the conclusion that there are reasonable grounds for believing the information or accusation that the respondent was involved in the [alleged offence] and also that further investigation is needed to fill in the gaps in the evidence gathered so far and it is necessary for such purpose to order a further remand.”

The Court further held that the police are under a duty not to suppress any material information that could sway the mind of the Magistrate. Non-disclosure of material information in the remand process was characterised by the Court as a “dereliction of duty and obligation bordering gross irresponsibility.”

The judicial function of a Magistrate in remand proceedings demands nothing less than unwavering vigilance, for the failure to do so risks sanctioning an unlawful curtailment of personal liberty.

Such an outcome is wholly incompatible with the constitutional guarantee that no person shall be deprived of his liberty save in accordance with law.

Accordingly, the Magistrate’s Court in Sungai Petani may have rightly rejected a police application to remand a lorry driver involved in a crash that killed six members of the same family in Kampung Baru Pinang Tunggal, Kedah. 

The learned Magistrate, Mohamad Azlan Basri, may not have been satisfied that there are legal grounds to authorize remand of the lorry driver. 

A remand can be incompatible with constitutional guarantee that no person shall be deprived of his liberty save in accordance with law.

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