THE Sessions Court judge’s decision to examine the complaints from two Liberation Tigers of Tamil Eelam suspects of ill treatment by prison authorities is one that is well grounded in law.

It has been 40 years now that the law was highlighted in the case of Tan Hoe Watt v PP (1979).

In that case a High Court judge considered the procedure to be adopted when there was a complaint made by an accused person to the magistrate, before whom the accused person was brought, of ill-treatment by the police.

“Complaint” is defined under section 2 of the Criminal Procedure Code (CPC) as any allegation made orally or in writing to a magistrate, including a Sessions Court judge, with a view to his taking action under the CPC, that some person, whether known or unknown, has committed an offence.

The procedure as explained by the high court judge is as follows:

(a) If the complaint is made in writing, proceed to take cognisance if warranted [by section 128 of CPC] and then proceed as under sections 133, 136 and 137 of CPC;

(b) If the complainant makes an oral complaint either in open court or in chambers, then if the magistrate is not having other important or urgent matter then proceed to hear the complaint and take cognisance if needs be.

Otherwise request the complainant make a written complaint and thereafter proceed as under (a) above;

(c) If the oral complaint is made by a person who is being produced before the magistrate for remand or for an extension of remand, where there is difficulty in filing a written complaint and where there is allegation of police assault, then the magistrate should proceed to hear the complaint straight away if he is free and if he is not free then fix another earliest available date to hear the complaint.

The magistrate may advise the complainant to lodge a police report if he has not done so and order that the complainant be medically examined if there is an allegation of assault.

If there is any difficulty of getting an early date of hearing, the magistrate should consult the Sessions Court president with a view of getting another magistrate to hear the complaint;

(d) If the complainant makes the complaint at the beginning of the hearing of the case in which the complainant is an accused person, then preferably the magistrate should not take cognisance of the complaint as in not making the complaint earlier, the complainant obviously seeks to delay the trial.

The complainant can nevertheless file the complaint even after the criminal case against him has been completed.

Clearly, the law has provided for a procedure to deal with such complaints of police assault, abuse or ill-treatment – other than by way of a police investigation following a police report.

This goes to ensuring that a complainant is not deprived of his rights.

The Sessions Court judge should be commended for taking cognisance of an offence under section 128 of CPC and now setting December 5 and 6 to examine the complainants under section 133 of CPC.

Both are hugely significant under the circumstances.

Taking cognisance is a judicial act and may be broadly defined as “taking notice of an offence”.

In simple words, when the Sessions Court judge takes cognisance of the complaints, it means there is sufficient reason to believe that an offence has been committed.

This is in stark contrast to the Inspector-General of Police Abdul Hamid Bador’s assertions that the complaints were baseless and irresponsible.

To examine the complainants is the next step after taking cognisance. Here the court will examine the complainant on oath.

This is to enable the court to decide on the veracity of the complaints. It is like a preliminary inquiry.

So, who says the courts are not independent?

* Hafiz Hassan reads The Malaysia Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.