Cases pertaining to Section 81 of the Code of Criminal Procedure are some of my favorite from among the cases I have represented. Therefore I do have some knowledge about these cases. There is a certain way to deal with these cases- you can file objections. In fact, the preliminary objection that such a case could not be filed and continued can be raised at the outset.
In most occasions, grounds to file a preliminary objection are provided to us by the police themselves. Most of the time, these cases are used incorrectly in Sri Lanka. What the police often do is treat the breach of public order as a fight between the two parties and make both parties defendants in the same case. However, this is incorrect. This is what gives us the opportunity to file preliminary objections.
To understand this, we must look at case law and basic principles of law. We must consider against whom can an 81 case be filed, and what kind of a case an 81 case is. Section 81 is for prevention orders. Of the two options for solutions in law, i.e., punishment and prevention, Section 81 belongs in the category of preventive solutions.
There are no punishments involved in preventive measures. Punishments are meted out when the prevention order is violated. There is punishment for violating the prevention order. These punishments are not physical punishments, they are monetary. That is another notable characteristic of these cases.
That means, 81 cases are preventive orders. It is not punitive. Preventive orders are unique because of this characteristic. You cannot use these orders against just about anybody. Specific requirements need to be fulfilled in this regard. These requirements are mentioned in Sections 81-87 of the Code of Criminal Procedure.
At least one of the following 4 requirements should be fulfilled. What are they?
If these facts are apparent, the Magistrate can order them to show cause why they should not be ordered to execute a bond.
So, if you have not committed what is being alleged, you can file preliminary objections based on the following. One such instance is when both parties of the case are named first and second respondents of the same case. This cannot be done but many police stations do this. When preliminary objections are filed, the court will give a decision. The court will accept our preliminary objection and ask the police to withdraw the case and to file the case correctly.
Then the police will withdraw the case. If someone attacked you and then they filed a case against you claiming that you were the assailant, both parties would be telling the police that the other party is the assailant. In such situations, the police find it difficult to resolve the matter and they file a case against the both of you for breach of peace. They would name the two parties as respondents 1 and 2. In such a situation, you have not only been subjected to a assault, you now have to execute a bond. In this situation, the best thing to do is to file preliminary objections and getting the case dismissed.
The correct procedure in an 81 case would be to present the parties in two different cases. One is the respondent party and the other is the aggrieved party. This too is done on grounds of breach of peace and not because the police could not settle the issue.
There are many such cases in which preliminary objections can be filed and the case can be thrown. Some behaviours such as the usage of foul language after getting drunk, land cases, drunkenness do not come under Section 81 and the rule that both parties cannot be made respondents in the same case does not apply. The allegation needs to be specific. It cannot be based on assumptions or possibilities or suspicions of what could be. If the case is based on any such thing, it becomes grounds for preliminary objections.
In addition to the abovementioned 4 factors, the charges should be specific to the respondent. There aren’t any recent judgments regarding this matter but there were many judgments in the past.
The Magistrate must be satisfied that the charged has actually committed an offense as alleged. It has to be specific. An altercation between two parties regarding a land is a case under Section 66 and the police can file a case under Section 81 as well in the event that the conduct of the parties breached the peace. In such a case, regardless of who has ownership of the land, the Magistrate can order both parties to execute bonds for keeping the peace if the Magistrate is satisfied that the parties engaged in breach of peace. That would be advantageous to establish breach of peace in a case under Section 66.
Behaviour such as shouting, singing loudly, hooting etc. are not considered as breach of the peace. The act committed or likely to commit has to be violent, and directed at persons or property or land. What’s more important is that the act has to be a wrongful act in law.
The offense has to be an act that has caused or is likely to cause a breach of peace. Therefore, a person cannot be made to execute a bond due to the likelihood of the occurrence of a murder. That can be done only if it is connected to breach of peace. The Magistrate must receive accurate information. Action cannot be taken against loitering by vagrants or mobs under this provision. Sometimes the police do that. In Giruwapattuwe Mudali v. Anderissa, it is stated that only the habitual offender can be named the respondent and that others cannot be named respondents.
Although this is a preventive order, under special circumstance, the Magistrates have the authority to imprison the individual for a period of six months or for such period as the court thinks fit to release them to the society. Such imprisonment cannot exceed six months. Also, an individual can be imprisoned for the duration of time until they sign the bond.
It is very important to file preliminary objections and rectify the situation. Otherwise, an innocent party could be ordered to execute a bond for an offense committed by someone else.
When filing cases under Section 81, the police must report facts to the courts and they must do so with responsibility. They cannot file these cases based on heresy. They cannot file these cases to ensure the wellbeing. They can file these cases only when it is certain that the individual has committed the act and that the peace will be breached if they remain at large or if they are not subjected to executing a bond. It is said that a sworn statement should be given. This Section is very important.
Often the police would use this Section to file a case against both parties in an altercation. However, this is not correct, preliminary objections can be filed in such instances.
If you receive a notification to be present at court, or if you were taken into custody and presented before courts, Sub Section (a) has legal provisions for your attorneys to file preliminary objections or to show cause regarding why you should not be ordered to execute a bond. Your attorney will file preliminary objections as written submissions. This is the first instance to get the case dismissed. If you have to how cause regarding why you should not be ordered to execute a bond, this too will be done through a written submission. This is called inquiry. It is often done through written submissions. You can ask the courts to call for witnesses or submit statements via affidavits.
Then the judge will issue the decision after considering the submissions made. When you do this, it is better to quote relevant causes as much as possible. If the decision by the Magistrate is unsatisfactory, you can ask for a revision from the high courts.
By: Lakshan Dias, Attorney at Law