Unlawful to hear remand applications after 24 hours, court rules
Published on: Friday, March 29, 2024
By:
FMT, V Anbalagan
The remand of R Thineshbalan was set aside by the Johor Bahru High Court as it was not heard within 24 hours of his arrest at 6am on Feb 4. (File pic)
PETALING JAYA: A High Court has ruled that applications by enforcement authorities to detain a suspect for investigation must be heard by the court within 24 hours of arrest.
Judicial Commissioner Kan Weng Hin of the Johor Baru High Court said magistrates must not treat this duty lightly but must perform it zealously as guardians of the constitution.
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Kan said this when releasing S Thineshbalan on Feb 6 after setting aside a magistrate’s order to detain him issued the previous day.
Police had wanted to detain Thineshbalan from Feb 4 to 7 pending investigations under Section 186 of the Penal Code for allegedly obstructing a police officer in the discharge of public duties.
Thineshbalan was arrested at Jalan Masai Lama, Johor at 6am on Feb 4 after a car chase which began at Jalan Permai Utara.
An application was filed in court at 3.47pm on the day of his arrest, but the detainee was only brought before the magistrate at 9am on Feb 5, some 27 hours after the arrest.
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Thineshbalan’s lawyer wrote to the High Court on Feb 5 seeking a revision of the magistrate’s order, which Kan heard the following day.
At the remand application, his lawyer objected to the extension of the remand on grounds that it was issued after a 24-hour time-frame prescribed by Sections 28 and 117 CPC.
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The judge noted that although a suspect is usually upon arrest taken to a police station for processing, Section 28(3) provides that the calculation of the 24-hour time period excludes travel time between the place of arrest to the magistrate.
Kan found that the 24-hour time frame was violated even after travel time between Jalan Masai Lama and the court in Jalan Ayer Molek, which he estimated at one hour, was excluded.
“Article 5 of the constitution and Section 28 of the CPC clearly states that the detainee must be produced before a magistrate before the expiration of the 24 hours from the date of arrest,” Kan said in his 11-page judgment.
He said the mere filing of the application for remand is not sufficient to comply with the requirements set out in both Article 5 and Section 28 of the CPC.
Instead, Kan said the magistrate was obliged to hear and dispose of the matter within 24 hours.
“Hence when the magistrate granted the order to extend the remand order until Feb 6, she had acted in contravention to Article 5(4) of the constitution and Section 28 of the CPC,” he said.
The prosecution is appealing Kan’s ruling to the Court of Appeal.
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