LAW 601: CRIMINAL PROCEDURE CODE

CLASS: LWH07C
FIRM 2: MESSRS TUN & ASSOCIATES

ONLINE DISCUSSION & WRITTEN ASSESSMENT

PREPARED BY

TUN LAILA BINTI TUN RAFAEE 2017719351

PREPARED FOR
MISS SHARIFAH NUR ASMAA' SYED AZMAN

DATE OF SUBMISSION
9 JULY 2021
ANSWER

a) The issue is whether Apel’s arrest by Pak Mat and Ali is lawful?
The Criminal Procedure Code (CPC) or common law do not define the word “arrest”, however,
in Black’s Law Dictionary, “arrest” is defined as to deprive a person of his liberty by lawful authority.
Article 5(1) of the Federal Constitution states that “no person shall be deprived of his personal liberty
in accordance with the law”. This means that the arrest must be in accordance with CPC, otherwise it is
considered the suspected person is deprived of his liberty. Section 15 states that in making an arrest the
police officer or other person making the same shall touch or confine the body of the person to be arrested
unless the person submitted by word or action. Three modes that amount to arrest are, actual touching, by
confining the body of the person to be arrested or submission to custody by word or action.
Arrest can be categorized as constructive arrest or actual arrest. Actual arrest means that whatever
constitutes a valid arrest under the Code. In the case of PP v Johari bin Abdul Kadir [1987] 2 CLJ 66,
the court held that he was arrested because if the man tried to escape from the bus, the police would have
stopped him. While constructive arrest can be seen in the case of PP v Roseyatimah bte Neza & Anor
[1989] 1 MLJ 360, the court held that there was arrest as she was in the state of being watched or
guarded. A person was under arrest if it can be implied that personal liberty has been restrained. The case
of Sha’aban v Chong Fook Kam [1969] 2 MLJ 219 provides three situations that constitute a valid
arrest which must adhere to Section 15(1) of CPC. Firstly, the arrestor states a clear term, secondly, there
is a use of force by the arrestor, third, though the arrestor did not use force but it is clear from his words
or actions that he will use force to prevent the individual from fleeing. While in the case of Jayaraman &
Ors v PP [1982] 2 MLJ 306 FC, it was held that the statement “Don’t go anywhere” did not constitute
an arrest. But it is observed that there was an arrest because the liberty of the people was restrained.
Considering that the men were at the place where the attacks took place, it would be rational for the men
to not move when the police told them so.
Section 27 of the CPC provides that a private person may arrest without warrant any person who
commits a non-bailable and seizable offence in his view. The person arrested must be handed over
without unnecessary delay to the nearest police officer or police station. The private person may only
exercise this when the offence in question is committed in his view. “View” here has two interpretations
which are his sight, or his opinion. The strict interpretation in Durga Singh [1963] 1 Gr LJ 827 states
that “view” means in his presence. The case of PP v Sam Hong Choy [1995] 4 MLJ 121 laid down the
liberal interpretation “in his view” as such close proximity to the scene. It was held that a man committing
a non bailable and seizable offence and tries to escape, is to be treated as one single transaction. Though
the private person did not actually witness the non bailable offence and seizable offence, it suffices when
he was certain that the persons running away were the offenders. The case of Nazir v Rex AIR 1951 All

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3, liberal approach not only interpreted “view” as only his sight, but also his presence, but in Sheo Balak
Dusadh v PP 1948 AIR All 103 held that the act of running and robbery itself constitutes a series of
action. Seeing another man running is considered that he had seen an act which constitutes the action of
robbery as a whole.
By applying Section 15 of the CPC, Pak Mat and Ali can be presumed to have made an action to
arrest. Ali as the passer-by had chased after Apel and successfully grabbed him by touching him, while
Pak Mat’s action amounted to Apel's arrest when he shouted to Ali to assist him in arresting Apel. Both
actions of Ali and Pak Mat linked with Article 5(1) of Federal Constitution and falls under the
definition of “arrest”, where Apel’s liberty of moving around has been deprived by Ali and Pak Mat. It
can be said that both Ali and Pak Mat had done a constructive arrest towards Apel, by referring to the
case of PP v Roseyatimah bte Neza, Apel is in the state of being held guarded, firstly when he was
chased by Pak Mat, and secondly when he was caught by Ali. These two events proved that Apel’s
personal liberty has been restrained.
Next, Pak Mat chased Apel falls under the first situation under the case of Sha’aban v Chong
Fook Kam, where he shouted to Apel immediately after he saw Apel was taking money from Nenas
aggressively. He also fits the third situation where he clearly showed that by chasing Apel is for the
purpose to prevent Apel from getting away. While Ali falls under the second situation under the same
case as he used force upon Apel in order to arrest him for Pak Mat. By applying the case of Jayaraman
& Ors v PP, Pak Mat and Ali’s actions indeed constitute an arrest by limiting Apel’s liberty.
Based on Section 27 of the CPC, Apel’s taking away Nenas’s money and kicked his bicycle are
non-bailable and seizable offence, witnessed by Pak Mat. Pak Mat and Ali are private person to arrest
Apel and hand him over to the police authority immediately. As for Pak Mat, his “view” suits the strict
interpretation under the case of Durga Singh as he was presence in the situation when Apel kicked
Nenas’s bicycle and took his money forcefully. By applying PP v Sam Hong Choy also, he can be said
to be in close proximity to the scene as he witnessed Apel’s actions. After he shouted only Apel ran away,
hence this falls under liberal interpretation. While for Ali, he also falls under liberal interpretation as per
PP v Sam Hong Choy, he saw Apel was running away and he heard Pak Mat was shouting for him to
catch Apel, though he did not see the non-bailable offence committed by Apel, but seeing Apel ran away
after being chased by Pak Mat is sufficient and reasonable for him to make the arrest upon Apel. While
for Ali, as referring to the case of Sheo Balak Dusadh v PP, Ali saw Apel run away and listening to Pak
Mat’s shouting to catch Apel is considered as one transaction under liberal approach.
For conclusion, Pak Mat and Ali under Section 27 legally arrest Apel as they are private person
and Apel committed non-bailable offence and seizable offence as he kicked Nenas’s bike and took away
his money, hence Apel’s arrest by Pak Mat and Ali is lawful.

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 b) The issue is whether the order for attendance made by Constable Nano to Sunny is lawful?
Section 13(1) of CPC provides that the public are obliged to report to the police if they know of a
crime. In the case of Jusninawati bt Abdul Ghani v PP , the court affirmed that the new amendment of
Section 13(1)(a) CPC puts a duty on the public to give information about the commission of an offence
punishable under the Code or any other written law. Failure to follow such law will be punishable under
Section 176, with penalties of up to six months’ imprisonment, a fine of up to RM2,000, or both,
depending on the type of information withheld.
Attendance of witness in general terms is the power vested to the policemen to require attendance
of a witness to give their testimony or insight in regards to the case. This is provided in Section 111 of the
criminal procedure court. Attendance of witnesses is purposely to question the said witness whereas there
is also power of the policemen to conduct such questioning sessions.
In Section 112, it vest the right of the investigation officer to question or examine any person.
Section 112(2) compels the person being questioned under obligation to provide answers to questions
produced by the officer in regards to the case. The said witness shall be legally compelled to speak only
the truth as per Section 112(3). Moreover, Section 112(4) puts an obligation on the police officer
conducting the oral examination to inform the person being examined, on their duty to answer all the
questions in truth as per (2) and (3).
Meanwhile in Section 113 is in regards to the admission of statements of evidence. Section
113(2) provides that When any witness is called for the prosecution or for the defence other than the
accused, the court shall, on the request of the accused or the prosecutor, refer to any statement made by
that witness to a police officer in the course of a police investigation.
In the case of PP v Sandra Margaret Birch [1977] 1 MLJ 129, the Court held the view that any
statement or information given must fulfill the requirements of section 113 of CPC. Namely before there
shall be no threat, inducement or promise was used and after arrest a proper caution ought to be
administered during questioning.
Furthermore, in this case the court also in view in order for a testament of a witness to be
admitted in court, the witness must be acquainted with the facts and circumstances of the case at the
material time. In other words, the said witness must be examined by the officers as soon as possible. It is
noted that whatever admission under 112 is not admissible in court. All the information pursuant to
section 112 is only to get information in assisting investigating. Hence the said admission is not
admissible in court. Whereas, Section 113 is the exception for section 112 and in order for it to be
admissible the requirement illuminated in PP v Sandra Margaret Birch [1977] 1 MLJ 129 must be
fulfilled.

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 In Charles Ak Peter Nain (M) / Public Prosecutor v Public Prosecutor / Charles Ak Peter
Nain (M) (CROSS APPEAL) [2008] MLJU 279, the court stated that if the making of the statement
appears to the court to have been caused by any inducement, threat or promise having reference to the
charge proceeding from a person in authority and sufficient in the opinion of the court to give the person
charged grounds which would appear to him reasonable for supposing that by making it he would gain
any advantage or avoid any evil of a temporal nature in reference to the proceeding against him, the
statement made would be inadmissible. Illuminating what had been affirmed in Sandra Margaret Birch.
From the facts of the case, Sunny has the obligation to make a statement to the authorities as per
Section 13(1) and he may be punished as pursuant to Section 176. Moreover, it is clear that Sunny was
being called right after Sunny refused to give his statement at the Cafe before. Constable Nano has the
right to make such an order to call Sunny to give his evidence as pursuant to Section 111. Furthermore,
Constable Nano has the power to question and examine Sunny as illuminated in Section 112. It would be
foreseen after the refusal by Sunny, Constable Nano viewed him as a main witness hence Sunny was
considered by Constable Nano as acquainted with the facts and circumstances of the case at the material
time. Furthermore, for the statement made by Sunny to be admissible in court, Constable Nano must not
apply threat or promise or any inducement to Sunny and cautiously when questioning him. Hence it is
clear all the requirements as per Sandra Margaret Birch has been fulfilled.
To conclude, Constable Nano was acting lawful in making such an order towards Sunny.

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 c) The issue is whether the arrest conducted by Constable Nano on Oren is lawful?
First sub-issue is whether the requirement of arrest under the Criminal Procedure Code (CPC) is fulfilled?
Arrest is defined in Black’s Law Dictionary as deprivation of personal liberty by lawful authority
by lawful authority. Article 5(1) of the Federal Constitution provides that no person shall be deprived
of his personal liberty in accordance with the law. Thus, arrest must be in accordance with law, otherwise
the suspected person will be deprived of his personal liberty. Section 2 interprets seizable offence as
offence where police officer may arrest without warrant. Under First Schedule, offence of extortion is a
seizable offence, whereby Section 384 provides that whoever intentionally puts any person in fear of any
injury and thereby dishonestly induces that person to deliver property commits “extortion”.
In the current situation, Oren threatened Jambu to expose Jambu’s father’s drug addiction on the
school’s Twitter account forcing Jambu to give his watch to Oren. This amounts to the offence of
extortion under Section 384 and consequently it falls within a seizable offence within interpretation of
Section 2 and allowing Constable Nano to arrest Oren without warrant.
Actual arrest was illustrated in the case of PP v. Johari bin Abdul Kadir [1987] 2 CLJ 66, it
was arrest because if the man tried to escape from the bus, the police would have stopped him. Section 15
states that in making an arrest the police officer shall touch or confine the body of the person to be
arrested unless there is a submission to the custody by word or action. An arrest will only be lawful if the
police satisfy the requirements in Section 15. Case of Sha’aban v. Chong Fook Kam [1969] 2 MLJ
219 highlighted elements constituting a valid arrest. Arrest occurs when a police officer states in terms
that he is arresting or when he uses force to restrain the individual. It occurs also when, by words or
conduct, he makes it clear that he will, if necessary, use force to prevent the individual from going where
he may want to go.
Here, in accordance with Section 15, Constable Nano had arrested Oren by way of touching him
and confining Oren’s body. As illustrated in PP v Johari bin Abdul Kadir, it is an actual arrest based on
the act of handcuffing Oren, it can be said that Constable Nano would not want him to escape. Referring
to Sha’aban v. Chong Fook Kam, arrest occurred here when Constable Nano used force to restrain Oren
by pushing him through the wall, handcuffing him and pulling him out of the Internet Cafe.
According to Section 23(1)(a), a police officer may arrest without warrant any person who has
been concerned in a seizable offence and a reasonable suspicion exists of his having been so concerned.
To illustrate on reasonable suspicion, the case of Tan Eng Hoe v AG [1933] MLJ 151may be referred to.
Here, the applicant fitted the description of the offender, he looked physically similar to the perpetrator.
The court held a reasonable man would have suspected the applicant of being the offender in the
circumstances thus the police was justified in arresting him without warrant.

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 Here, Constable Nano is a police officer and the offence committed by Oren is extortion, which is
a seizable offence thus Section 23(1)(a) is applicable here and Constable Nano may arrest him without
warrant. In addition, by virtue of Section 23(1)(a), the requirement of arrest applicable here is reasonable
suspicion. Similarly with the case of Tan Eng Hoe v AG, description of Oren, who was wearing a blue
colored shirt has been communicated by Sergeant Omega to Constable Nano. Putting on the analogy of
the reasonable man, it is reasonable for Constable Nano to suspect Oren to be the offender informed by
Sergeant Omega due to the similar description such as the blue coloured shirt worn by Oren. Thus, the
requirement of reasonable suspicion under Section 23(1)(a) is fulfilled. To conclude, the requirement of
arrest under Section 15(1) and Section 23(1)(a) CPC has been complied with.
However, in arresting a child, Section 83A of Child Act 2001 (CA) must be referred to. This
section provides that a child cannot be handcuffed following arrest unless the offence he is held for is a
grave crime, or the child forcibly resists arrest, or attempts to evade arrest. Case of Re N (A Child)
[2003] 3 MLJ 45, the court Section 83(1) of Child Act makes it manifestly clear that the arrest and
detention of a child has to be in accordance with the Act thereby rendering CPC inapplicable as expressly
provided and Section 110 of the Act which provides for the arrest of 'any person' for the commission of
any offence against the Act to be in accordance with the CPC must be interpreted as being applicable to a
person who is not a child.
Here, it can be assumed that Oren is a school student, below 18 years old as it was mentioned in
the fact about e school’s Twitter account, and is therefore a child within the meaning of the CA. By virtue
of Section 83A of CA, the procedure to arrest Oren must be in compliance with this Section. Case of Re
N (A Child) illustrates that the arrest of a child must be in accordance with this Child Act. Here,
Constable Nano did not comply with this provision as he handcuffed Oren. There is no necessity to
handcuff Oren because Oren has obediently followed Constable Nano’s instruction thus Oren did not
forcibly resist the arrest or attempted to escape. In addition, the crime of extortion is not a grave crime.
Next, the issue of whether the use of force during arrest is valid will be discussed. Section 15(1)
of CPC clearly states that a police officer only needs to touch or confine a person to effect an arrest.
Therefore, force cannot be used against a person who has submitted to police custody. Based on Section
15(2), if a person forcibly resists the arrest or attempts to evade the arrest, the officer may use all means
necessary to effect the arrest. Thus, the police have the right to use reasonable force if the person resists.
But, Section 19(1) states the person arrested shall not be subjected to more restraint than is necessary to
prevent his escape.
In the current situation, despite the fact that Oren obediently followed Constable Nano’s
instructions, Nano still pushed Oren roughly towards the wall. By virtue of Section 15(2), Constable
Nano is allowed to use force in arrest if Oren resisted the arrest. However, there is no resistance in the

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beginning, thus the rough push against the wall is not reasonable. Next, by virtue of Section 19(1),
considering the young age and condition of Oren who was scared during that moment, it is unnecessary to
drag Oren out roughly from the Café which resulted in more bruises on Oren’s body. It can be said that
Constable Nano violated Section 19(1) by using excessive force. Even though Constable Nano might be
required to use force towards Oren when Oren kicked his leg, only proportionate restraint is allowed and
not an excessive one.
Therefore, Constable Nano has violated Section 83A of CA by handcuffing Oren even though no
resistance to arrest was made by Oren. Next, Section 15(2) may be invoked to justify Constable Nano’s
using force against Oren however, as the force used is excessive, Section 19(1) is not complied with. To
conclude, Constable Nano’s arrest against Oren is not in compliance with procedures under CPC
rendering the arrest unlawful.
In conclusion, the requirement for arrest under Section 15 and Section 23(1)(a) has been fulfilled
by Constable Nano however Section 19(1) of CPC and Section 83A of Child Act were not complied
with thus the arrest is unlawful.

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 d) The issue is whether the decision made by Plato in granting the remand application is
considered legal?
According to Article 5(4) of the Federal Constitution (FC) and section 28 of the Criminal
Procedure Code (CPC), no person shall be detained for more than 24 hours. Section 117(1) of CPC
provides that whenever any person is arrested and the investigation cannot be completed within 24 hours
and there are grounds to believe that the accusation is well-founded, the police officer conducting the
investigation shall immediately transmit to a Magistrate a copy of the entries in the diary and shall at the
same time produce the accused before the the Magistrate. There are three elements under Section 117(1)
that need to be fulfilled before a remand application can be granted. Firstly, the accused must be
produced before a Magistrate in order for the magistrate to determine the necessity of remand and enable
the accused to make any representation.
In this situation, Constable Nano saw Apel on 1 October 2019 at around 3 pm and after
questioning and conducting a search on him, only then he arrested him. On 2 October 2019 around 4 pm,
Inspector Bruno brought Apel before Plato, the Magistrate in the Shah Alam Court to apply for a remand
application. Thus, Inspector Bruno has complied with Article 5(4) of the FC as well as Section 28 and
117 (1) of the CPC as Apel was brought before the magistrate within 24 hours (excluding the time of the
journey).
Secondly, there must be furnishing grounds for believing that the accusation or information is
well-founded. In Hashim bin Saud v Yahaya bin Hasim [1977] 1MLJ 259, the phrase "to complete
investigation" means that the investigation has begun, proceeded with reasonable diligence, and that it has
provided grounds to believe that the complaint is well-founded, and that the suspect must be held under
remand. Further, in Dasthigeer Mohamed v Kerajaan Malaysia [1999] 6 CLJ 317, the court stated that
a remand order cannot be based solely on the fact that a serious crime has been committed and that the
person arrested is a suspicious person. It must be founded on some degree of confidence that he is the
wrongdoer and that the remand is necessary to complete investigations.
In the current situation, Inspector Bruno has shown the grounds for believing that the accusation
is well-founded. Here, after Constable Nano searched Apel’s body, he found RM180 and ecstasy pills
were hidden in Apel’s pocket, thus he immediately arrested him. By referring to Dasthigeer Mohamed v
Kerajaan Malaysia, although Apel denied and refused to cooperate pertaining to the RM200 cash notes,
the accusation is still well-founded and there is a degree of confidence that the remand is necessary as
there was a report made by Nenas which is the ground to believe that Apel took the money and the fact
that RM180 was in the possession of Apel strengthened the suspicion that Apel took Nenas’s money.
Since Apel’s statement and Nenas’s report is contradict with each other, 24 hours is not adequate to
complete the investigation as the police need to find evidence and witness to complete the investigation.

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Further, Constable Nano also found ecstasy pills hidden in Apel’s pocket. Since the pills need to be
brought to the chemistry department for the chemist to analyse the drug and the result cannot be obtained
within 24 hours, the investigation cannot be completed. Therefore, a remand is compulsory to complete
the investigation. Thus, by referring to the case of Hashim bin Saud v Yahaya bin Hasim, Inspector
Bruno produced grounds to believe that the accusation is well-founded in order for the remand to be
granted as this element has been fulfilled.
Thirdly, the investigating officer must produce the Investigation Diary (ID) to the Magistrate.
According to Section 119 of CPC, an ID is a day by day record that need to be maintained by every
investigating officer and the content includes the time at which the order for investigation reached him,
the time at which he began and closed the investigation, the places visited by him and a statement of the
circumstances ascertained through his investigation. By virtue of Section 117 and Section 119, the
production of an investigation diary is mandatory. In the case of PP v Audrey Keong Mei Cheng [1997]
3 MLJ 477 the court stated that the police must produce a copy of the diary as required under section 119
of the CPC. Besides, in Re Detention of R. Sivarasa & Ors [1997] 1 CLJ 47, the failure to produce
proper diary entries was deemed fatal to the application for an extension of remand, since it meant that the
Magistrate did not have the prescribed material to act on in his judicial inquiry when considering whether
or not to order remand.
In this present case, by applying Section 117(1) and 119 as well as the case of PP v Audrey
Keong Mei Cheng, Inspector Bruno has produced ID before the magistrate (Plato) on the ground “ to
complete the investigation concerning Nenas at Taman Kayangan Shah Alam”. The fact is silent on the
details of the ID. Thus, it can be assumed that the requirements under s. 119 have been met as the details
of the investigation have been included in the diary whereby the ID has been maintained by Inspector
Bruno and the content included the time when the order for investigation reached him, the time when he
began and closed the investigation, the places he visited and a statement of the circumstances ascertained
through his investigation. Therefore, Inspector Bruno is assumed to describe the investigation adequately
and diligently in the entries of the diary. Besides, the first 24 hours had been fully utilised as Inspector
Bruno conducted an investigation on Apel at the police station where he proceeded in recording his
statement and asked Apel about the RM200 cash notes. Further, by referring to the case of Re Detention
of R. Sivarasa & Ors, since there is a transmission of proper entries of the diary for the application for
the remand, thus, Plato has the prescribed material to act upon in his judicial inquiry in deciding whether
or not to order further remand. The third element therefore, has been fulfilled.
In addition, Section 119(2) of the CPC states that an accused person shall not be entitled to
inspect the diary either before or in the course of any inquiry or trial. This can be illustrated in Saul
Hamid v Public Prosecutor [1987] 2 MLJ 736 where the arrested person is not entitled to call for or

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inspect the ID unless the police officer concerned refers to it for purposes of sections 159 or 160 of the
Evidence Act, 1950, in which only such parts of it as are referred to shall be shown to the arrested person.
Similarly, the case of Re The Detention of Leonard Teoh Hooi Leong [1998] 1 MLJ 757 also
emphasised that neither the accused person nor his counsel would have any means of knowing the entries
of the diary before or in the course of any inquiry or trial. In this instant case, by referring to Section
119(2) of the CPC and the above cases, Apel’s counsel has no right to inspect the ID unless Plato or
Inspector Bruno makes disclosure thereof during the remand proceedings and if Inspector Bruno refers to
it for purposes of Section 159 or 160 of the Evidence Act 1950, to refresh Apel’s memory and only such
parts of it shall be shown to the arrested person as in Section 119 CPC. There is nowhere in the fact
which stated that Plato or Inspector Bruno makes disclosure under Section 159 or 160 of the Evidence
Act. Thus, although Plato granted the remand application without taking into account a request made by
Apel's defence counsel to inspect the particulars in the Investigation Diary during the remand proceeding,
it is still considered to be legal.
Other than that, in Bal Krishna v Emperor AIR 1931 Lah 99, the Magistrate has a duty to
balance between allowing the police to conduct investigation and also not depriving the person of his
fundamental liberty. Further, in Re Detention of R.Sivarasa & Ors, the grounds mentioned in Section
117(1) are subject to judicial scrutiny and the Magistrate shall determine the necessity to grant a remand
order and a Magistrate has a judicial duty under Article 5(4) of the FC to decide whether a person should
be detained.
In the current case, Plato has a judicial duty to decide whether to grant an application of remand
for Apel. Since there are good grounds for the application of remand to be granted, Plato must have been
satisfied that remand is necessary to help complete investigation because all elements are fulfilled under
Section 117(1) and Section 119 of the CPC.
In conclusion, Plato has satisfied that the remand is absolutely necessary in order for Inspector
Bruno to complete their investigation. The decision made by Plato in granting the remand application is
considered legal as there was good grounds for granting the remand and all the elements under Section
117 and 119 of the CPC have been fulfilled.

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 e) The issue is whether the issuance of a warrant by Tolstoy, the Magistrate against Constable
Nano is legal?
The first sub-issue is whether Tolstoy has a good ground to issue the warrant in the first place?
Summons and warrants of arrest are the means by which a person accused of an offence is
brought to court to face criminal proceedings against him. A ‘summons case’ is defined under Section
2(1) of CPC to mean a case relating to an offence not being a ‘warrant case’. For a summon to be valid, it
must satisfy the requirement under Section 35 of CPC whereby it must be in writing, clear and specific,
signed by the Registrar and sealed by the court. In Michael Raymond Taylor v PP [1989] 3 MLJ 212, a
person who appears before a court in obedience to a summons surrenders himself to the custody of the
court.
Whereas a ‘warrant case’ relates to an offence punishable with death or with imprisonment for a
term exceeding 6 months as per Section 2(1) of CPC. Section 38 of CPC stipulated that a warrant of
arrest shall be issued by a court, be in writing, signed and bear the court’s seal. The warrant may be
issued; (1) Magistrate’s court of any class; or (2) a sessions court or its registrar, as per Section 5(1) of
Subordinate Courts Act 1948.
Column 4 to the First Schedule of CPC provides a guide for the specific process on whether a
warrant or a summons shall be issued in the first instance. Here, Lawa lodged a report under Section 323
of PC against Constable Nano. Pursuant to Column 4 to the First Schedule of CPC, it specifically
stated that for the offence of voluntarily causing hurt under section 323 of the PC, a summons shall
ordinarily be issued in the first instance. Therefore, Tolstoy has no good ground to issue the warrant in the
first place.

The second sub-issue is whether the issuance of warrant is done properly or not?
In the process of initiation of proceedings, according to Section 128 of CPC, pertaining to
cognisance of offences by a Magistrate, a Magistrate may take cognisance of an offence in the event of;
(a) upon receiving a complaint. Complaint under Section 2(1) of CPC is defined as an allegation made
orally or in writing to a Magistrate with a view to his taking action that some person, whether known or
unknown, has committed or is guilty of an offence.
Under Section 133 of CPC, pertaining to an examination of complainant, subsection (1) stated
that; (a) the Magistrate shall set a date for the examination of the complainant; (b) the Magistrate shall
serve on the Public Prosecutor (PP) a notice in writing at least 7 clear days before the date of the
examination. The notice must specify the date of the examination, and particulars of the complaint
received; (c) the Magistrate shall not proceed with the examination unless the prescribed notice under (b)
has been served on the PP; (d) on the date of examination, the complaint shall be reduced into writing and
signed by the complainant and the Magistrate and; (e) the PP may appear and assist the Magistrate during

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the examination. In Re Rasiah Munusamy [1983] 2 MLJ 294, the Magistrate must first, upon receipt of
a complaint under section 133(1) and 132 is at once to examine the complainant upon oath and reduce the
substance of the examination into writing which shall be signed by the magistrate and the complainant. It
is a kind of a preliminary enquiry, but care must be taken not to inquire into the case for the defence.
Section 133(2) of CPC stated that this section will not be applicable when the application is
made by a police officer, public officer or a public servant acting in his official capacity, meaning that it
only applies to a complaint made by a private person. The Magistrate, after satisfied as to the allegations
in the complaint, could order a summons be issued and order for the attendance of the accused by virtue
Section 136(1) of CPC. Furthermore, under Section 47 of CPCs, application for warrant may be issued
in lieu of a summons if the Magistrate sees reason to believe that the person complained against has
absconded or will not obey the summons as per the case Karpal Singh v PP [1991 ] 2 MLJ 544.
To apply, Tolstoy, the Magistrate took cognisance on the complaint by Lawa against Constable
Nano pursuant to Section 128(1)(a) of CPC under Section 323 of PC that she sustained bleeding and
bruising on her body. In the process of examination of complaint, on 30 June 2019, Tolstoy has set the
date of examination to 20 July 2019 as per Section 133(1)(a) of CPC and then informed the PP the
intention to conduct examination, 20 days before the examination. However, the notice must be served in
writing yet Tolstoy only informed the PP. Thus, it does not comply with Section 133(1)(b) of CPC and
pursuant to Section 133(1)(c) of CPC, examination shall not proceed. On the issue of DPP’s absence
during examination, the ‘may’ in Section 133(1)(e) of CPC indicated that the absence of DPP will not
affect the examination. Furthermore, since this is a complaint by a private person, Section 133 of CPC
must be adhered to. Yet, Tolstoy did not follow the procedure especially under Section 133(1)(b) of
CPC. The act of conducting the examination although not following the law and procedure shows that
Tolstoy was not acting professionally, given he is a Magistrate. Thus, the examination conducted is
illegal.
Subsequently, during the examination, after being satisfied with Lawa’s police report and
application of issue of summons, Tolstoy ordered the issue of warrant against Constable Nano instead of
issue of summons which contrasted Section 136(1) of CPC. Referring back to the first issue, it was
correct for Lawa to apply summons but Tolstoy was wrong to issue a warrant as he did not follow the
column 4 to the First Schedule of CPC that for offence under Section 323 of PC, summons shall be
issued at the first instance.
To conclude, Tolstoy, the Magistrate, has no good ground to issue the warrant in the first place.
Moreover, the procedure was not properly done under the Criminal Procedure Code. Therefore, the
issuance of a warrant against Constable Nano is illegal.

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