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Topic 9 Inititaion of Proceedings in Court - Rebecca

The document discusses the initiation of criminal proceedings in Malaysia. It explains that a magistrate may take cognizance of an offence based on a complaint, their own knowledge, a warrant from the public prosecutor, or a person brought before them in custody. It outlines the definition of a complaint and discusses the necessary conditions for initiating proceedings under Sections 128-132 of the Malaysian Criminal Procedure Code. These include examining any complainant under oath to ascertain the facts of the alleged offence before issuing further process.

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Katrina Ellen
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29 views48 pages

Topic 9 Inititaion of Proceedings in Court - Rebecca

The document discusses the initiation of criminal proceedings in Malaysia. It explains that a magistrate may take cognizance of an offence based on a complaint, their own knowledge, a warrant from the public prosecutor, or a person brought before them in custody. It outlines the definition of a complaint and discusses the necessary conditions for initiating proceedings under Sections 128-132 of the Malaysian Criminal Procedure Code. These include examining any complainant under oath to ascertain the facts of the alleged offence before issuing further process.

Uploaded by

Katrina Ellen
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPT, PDF, TXT or read online on Scribd
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Topic 8:

INITIATION
OF
PROCEEDINGS

Week 12

By Ms. Rebecca Mathan


Objective:

Its merely to ascertain facts; to separate unfounded


from substantial cases to prevent innocent persons
being put in police custody and to help the magistrate
to judge whether there are grounds for investigations
as well as for proceedings with the case.
Cognisance

– Cognisance means the point when a Magistrate takes judicial notice of an


offence. When the Magistrate applies his mind to the suspected commission of
an offence before taking any Judicial action on it, but with the object of
deciding whether he should or should not take such action, he takes
‘cognisance of the offence’.

– Under Section 128 of the CPC, there are at least four sources through which a
M may take cognisance of an offence. They are by complaint; his own
knowledge or suspicion that an offence has taken place; warrant issued by the
public prosecutor requiring him to inquire; by person brought before him in
custody.

Janab’s Key to Criminal Procedure by Datuk Dr. Hj. Hamid Sultan


Complaint

– S.2(1) of the CPC means allegation made orally or in


writing to a magistrate with a view of his taking
action under the CPC that some person, whether
known or unknown, has committed or is guilty of an
offence.
Bong Kim Son v PP [1998] 1 MLJ 645,
Augustine Paul JC

– “Complaint” must be distinguish from “Information”.


– “Information” which is a statement relating to the commission of an
offence made to a police officer under s107 CPC
– “Complaint” – is an allegation made to a magistrate with a view to his
taking action under the Code (PP v Leonard [1960] MLJ 13)
Condition necessary for Initiation of
Proceedings
– The Conditions necessary for the initiation of proceedings are provided under
ss128 – 132 of the CPC.
- Section 128(1) of the CPC provides that the magistrate may take cognizance of
an offence in any of the following four situations:
- (a) upon receiving a complaint as defined under the CPC;
- (b) upon his own knowledge or suspicion that such offence has been
committed;
- (c) whenever it appears to the Public Prosecutor that an offence has been
committed and he, by warrant under his hand, requires a magistrate to inquire
into the offence and such magistrate received the warrant
Condition necessary for Initiation of
Proceedings
- (d) on any person being brought before him in custody without
process, accused of having committed an offence which such
magistrate has jurisdiction to try.

- The term “Complaint” – defined under s2(1) of the CPC means that
allegation made orally or in writing to a magistrate with a view to his
taking action under CPC that some person, whether known or
unknown, has committed or is guilty of an offence.
THE CONCEPT OF TAKING
COGNIZANCE OF OFFENCES BY
COURT
CONDITIONS
–S. 128 CPC – Situation where M may take cognizance of offences
–S. 129 CPC – Except in the case of complaints laid by PP no court
shall take cognizance of certain offences unless with the written
sanction of the PP. Sanction is only valid for 1 month from the date
on which is was given.
–S. 130 CPC – Where the complaint by PP is necessary
–S. 131 CPC – Where complaint by person aggrieved
–S. 132 CPC – Where complaint by husband
Reza Kianmehr v PP [2013] 7
CLJ 265

– It has been decided that under s128(1)(a) of the CPC, a magistrate may
take cognizance of an offence upon receiving a complaint as defined by
the CPC. Thus, the complaint in this case was made to the magistrate by
an offence authorized by Suruhanjaya Pengangkutan Awam Darat under
oath and at the same time the officer applied for a summons to be
issued against the appellant. Hereafter, the magistrate decided to take
cognizance of the offence and the magistrate proceeded to issue the
summons against the appellant under s35 CPC as in his opinion there
was sufficient grounds for doing so.
– Besides when a magistrate takes cognizance of an offence under s128(1)(b) above, the
accused is entitled to require that the case shall be tried by another magistrate as
provided under s128(2) of the CPC.
– S129 CPC provides for the diffence which no court shall take cognizance without a
written sanction of the Public Prosecutor except in the case of complaint laid by the
Public Prosecutor. The said sanction must be acted on within one month from the
date on which it was given.
– Further, ss130, 131 and 132 of the CPC allow only a particular or certain person to
make a complaint of certain offences.
– Once the magistrate has taken cognizance of an offence upon receiving a complaint
under s128(1)(a) above, the step to be followed are given in ss133 to s137 CPC.
Situation:

– Ric, aged 20, instruct you as follows:


On Friday 21.7.2017, I was at Bizarre supermarket. As I was leaving the
supermarket, I was detained by Wic, the house detective for allegedly
taking a pair of sunglasses without paying for it. Wic took me to see Dic,
the manager of Bizarre Supermarket. In Dic’s presence, Wic asked me to
admit to the offence but I refused. Wic got angry with my refusal and Wic
punched me a few times, causing injuries to my face and body. I fell down.
Dic helped me up and told me to go home and forget the whole incident. I
did not steal anything from that supermarket. I want to know whether I
can institute a private summons against Wic and Dic.
PART IV of CRIMINAL PROCEDURE
CODE
S. 128 TO S. 137
- THE CONCEPT OF TAKING
COGNIZANCE OF OFFENCES BY
COURT
- INSTITUTION OF PRIVATE
PROSECUTION
Procedures after Magistrate has taken
cognizance of offence

– A Person may lodge a complaint at the police station and the complaint
must be recorded in writing, read and signed by the complainant.
– On the other hand, a person may, if the offence is non-seizable, lodge a
complaint directly to the magistrate whereupon the procedures under
ss133 to 136 of the CPC will then follow.
Procedures after Magistrate has taken
cognizance of offence

– Examination of complainant
– (a)Where to examine complainant?
– (b)Object of examination
– Postponement of issues of process
– Dismissal of complaint
Commencement of Proceeding before a
Magistrate Courts

– Section 136 of CPC Provides that if the M opines that there is sufficient
grounds for proceeding, he shall issue a summons for the attendance of the
accused if it is a summon case under the fourth column of the First
Schedule of CPC; or a warrant to cause the accused to be brought or to
appear before him if it is a warrant case under the fourth column of the
First Schedule to the CPC
DATUK SERI S. SAMY VELLU V S.
NADARAJAH [2000] 8 CLJ 117

– There are several issue in this case (please read on your own), just to highlight on
2 as below:
– 1ST ISSUE
– Q: Whether ss133-136 and s380 of the CPC which contains provisions for the
prosecution by individuals are contrary to Art 145 (3) of FC.
– Held HC: if M had any doubts as to the truth of the complaint of an offence, he
can either inquire into the case himself or direct some police officer to make
inquiries into the case of ascertaining the truth or falsehood of the complaint, and
the police officer is to report to him the result of such inquiries.
– M merely are investigatory.
– The Section refers to the M and not the Magistrate Court.
– S.173 of CPC – only MC conducts trials
DATUK SERI S. SAMY VELLU V S.
NADARAJAH [2000] 8 CLJ 117

– 3rd ISSUE
– Q: Whether ss133-136 which contains provisions to commence proceedings
without investigation and/ or without the attendance of the accused to be
heard before such commencement, is invalid and void as being contrary to
Art 5 FC and Art 8 FC?
– Held HC: these procedures are contained in law. Thus, the issue of process
upon the applicant is in accordance with the law. Via these sections too all
persons to have committed non-seizable offences are equal and are equally
protected.
TAN HOE WATT V PP (1980) 2 MLJ 46

– “MAY” - IT IS DISCRETIONARY ONLY FOR


THE MAGISTRATE TO TAKE COGNIZANCE
OF THE OFFENCE COMPLAINED OF.
S. 498 PC
When to examine complainant?

PP v MAH CHUEN LIM & ORS [1975]


-The magistrate granted the application for an order for
medical treatment after the accused’s counsel complained
that the accused was assaulted by the police.
-Syed Othman J called the case for revision and said that for
the order to be valid the M must first enquire into the
alleged offence (Of Assault by the police) upon complaint
under oath but in this case there was no such complaint.
When to examine complainant?

PP v TAN HOE WATT v PP [1980]


-held that the M takes cognizance of an offence when he has the
intention to initiate judicial proceedings against the offender not
when he is informed by the complainant or the police report.
The M is not bound to examine the complainant until after he has
taken cognizance of the offence.
When to examine complainant?

RE RASIAH MUNUSAMY [1983]


-Facts: the M issued a warrant of arrest merely based on the
strength of the complainant’s complain and the FIR.
-Held Edgar Joseph J:
“the very first thing the M must do upon receipt of a complaint
under s.133(1) (which includes a complainant under s. 132) is at
once to examine the complainant upon oath and reduce the
substance of examination into writing which shall be signed by
the M and the complainant……..”
When to examine complainant?

RE RASIAH MUNUSAMY [1983]


-Held Edgar Joseph J:
“……..it follows therefore that merely to call the complainant to
attest the complaint upon oath is not sufficient nor would be
sufficient to follow up this with an unrecorded and unsworn
interview. The requirements given above are mandatory, their
object being to enable the M to decide on the veracity of the
complaint for upon that will depend his decision as to whether or
not a process should issue”
INSTITUTION OF PRIVATE
PROSECUTIONS
– BY AGGRIEVED INDIVIDUALS WHO HAVE EITHER BEEN
REFERRED TO MAGISTRATE BY THE POLICE

– MAKING A ‘COMPLAINT’ DIRECTLY TO THE


MAGISTRATE BY THE ENLIGHTENED INDIVIDUAL
Thank you

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