general principles on investigation

General Principles on Investigation

The Presenters : Ratisutinah Binti Sulaiman 1112558Nurul Basirah Binti Razak 1112548Adibah Binti Ahmad Humaidi 1112550Dewi Masithah Binti Umar 1112544

(TLC 2)

Criminal Procedure in Syariah Court

[Chapter 3 : General Principles on Investigation]

2

General Principles on Investigation

•Investigation in general is a process to inquire into a matter systematically before the prosecutor can proceed with prosecution in court .

•Generally, “investigation” covers a wide range of powers bestowed by law on the religious enforcement officers.

•It includes the power to arrest, detain, search, seize and examine witness.

•The purpose of the investigation is mainly to find evidence on whether the suspected person has actually committed the crime or not.

•The prosecution will only be done if the investigation is completed and the evidence found is against the person so suspected.

•Hence, “investigation” refers to the process to discover and collect evidence for the purpose of a criminal case.

Continue..

•The power to investigate is mainly given to the relevant authority, such as police officers(PO).

•In most Syariah cases, the power to investigate is given to the religious enforcement officers (REO) and police officers (PO).

Continue..

INVESTIGATION UNDER THE SYARIAH CRIMINAL PROCEDURE

ACTo‘Arrest, Search, Seizure & Examination of Witnesses’.

Section 58(4) – AILA (FT) Act 1993 (Act 505)

“ The Majlis may appoint from among the members of the general public service of the Federation a Chief

Religious Enforcement Officer & Religious Enforcement Officers to carry out the investigations of offences under

this Act or under any other written law prescribing offences against precepts of the religion of Islam”

= empowers the Chief Religious Enforcement Officer (CREO), Religious Enforcement Officers (REO) & Police Officers (PO) to conduct investigations.

CONTINUE. .

Syariah Criminal Procedure Act gives some important powers to the REO & PO* for the purpose of investigation.

PO are given the same, or even more powers than REO in carrying out investigations. For instances, only the police have the power to pursue a suspect throughout the country.

Section 21 (SCrPE – Slgr) “For the purpose of arresting any person whom he has power to arrest without warrant under this Enactment, a police

officer may pursue such person in any part of Malaysia”.

CONTINUE . .Section 16

Power to seize offensive weapons. “The REO or other person making any arrest under this Enactment may take from the person arrested any offensive weapons which he has about his person & shall deliver all weapons so taken to the police”.

Which is only PO have the power to keep any weaponry confiscated during investigation.

Section 66(1) “Every invstgtn under this Chapter shall be completed w/o unnecessary delay, & as soon as it is completed the officer making the invstgtn shall, unless the offence is of a character which the Chief Syariah Prosecutor has directed need not be reported to him, forward to the Chief Syariah Prosecutor a report setting forth the names of the parties, the nature of the information, & the names of the person who appear to be acquainted with circumstances of the case”.

The initial practice of the Islamic Criminal Procedural Law

• It does not differentiate between the offices of prosecuting officers and investigating officers.

• One person can hold two functions : to investigate the case and also to bring the case to court (to prosecute).

• However, the practice has changed whereby both offices are separated to comply with the concept of separation of powers.

• The reason of the change : 1. Avoiding the misuse and concentration of power 2. Due to the complications that may arise in the application of the law.


9

Cont..

•Basically, the process of investigation is starting from the report made by any individual who know about the commencement of the wrong act to the authority who has power to take an action.

•Investigation is very important in order to collect evidences to support the case.

# commencement of action = an action (a lawsuit) commences (begins officially) when the party suing files a written complaint or petition with the clerk of the court.

10[Chapter 3 : General Principles on Investigation]

1)The office of prosecuting officers/Religious Enforcement Officer REO) In Syariah cases : Preparing the case to be brought to the court.

2) Investigating Officers : Gathering the evidence.


11

Who Shall Conduct Investigation?

Power to INVESTIGATE have been provided under

Part IV of SCrPE

Section 54 – First Information Report (FIR) Section 57 – where seizable offence suspected.

Section 72 – Cognizance of offences by judge

Islam encourage amar ma’ruf and nahi munkar and it is an obligation for the Muslim to prevent and avoid wrong doing. Any individual who have a knowledge relating to the commission of an offence shall report it to the REO.

12[Chapter 3 : General Principles on Investigation]

Appointment of Syariah Prosecutors and Religious

Enforcement OfficersSection 58 (4) of the AILA [Administration of Islamic Law (FT) Act 1993 (Act 505)] :“ The Majlis may appoint from among the members of the general public service of the Federation a Chief Religious Enforcement Officer and Religious Enforcement Officers to carry out the investigation of offences under this Act or under any other written law prescribing offences against precepts of the religion of Islam”.

-There is actual separation of powers between the investigating and prosecuting officers under the Syariah Criminal Procedure Legislation though administratively both officers are placed in the same unit, that is investigation and prosecution unit.


13

Commencement of Investigating

-Investigation in Syariah matters may be commenced when there is reasonable cause to suspect there is a commission of crime or that there is reasonable cause based on apparent facts.

- The people in authority must make sure that the accused is the offender and punish the offender.


14

Cont…- Abdul Karim Zaydan said : the complaint in Islam is valid if the complaimant is an ‘aqil (sane person)

- Among the conditions : The information is specific and clear, the subject matter of the complaint is an offence, the subject is within the jurisdiction of the judge and the complaint made is in any acceptable form.


15

Cont..-According to the majority of the Muslim jurists, there are two types of complaints on information.

1. A complaint or information by mutatawwi’ or public – when a person comes forward for the sake of Allah. He is neither authorised by any statutory law nor delegated with any power to act, but his acts are only for the purpose of being rewarded by Allah.

2. A complaint made by a muhtasib – a person who is given some powers by the authorities to enjoin good and forbid evil. He may report the crime to the judge if he believes that a certain crime has been committed.


16

Investigation under the Syariah Criminal Procedure Act

- An investigation may be commenced due to two major reasons :1) When there is information conveyed to the

religious enforcement officers.2) When there is a complaint made directly to

a Syarie’ judge.

The investigation process is depending on the types of offences either it is a seizable offence or a non-seizable offence.


17

Seizable and non-seizable offences

- Section 2 of SCrPE :Seizable offence is an offence punishable with imprisonment for one year or more, for which a religious enforcement officer may arrest without warrant.Non-seizable offence is an offence punishable with imprisonment for less than one year or with fine only for which a REO may not arrest without warrant.[Chapter 3 : General Principles on

Investigation]18

Information to REO

Section 9 of SCPA:Every person shall give information to the REO or PO if he knows that a crime is being committed or there is intention of any person to commit it.Section 54 of SCPA:(1) If the information given orally to REO, it must be reduce in writing & be read over to the informant.(2) The information must be in Form 5 of the Second Schedule and sign by the informant.

Cont…

The information is significant to certify the act of the REO to conduct the investigation.Section 56 of SCPA:The information in Form 5 under S.54 of SCPA shall be admitted as evidence in any proceeding conducted under the SCPA.

Cont…Section 55 of SCPA1)If the information received in pursuance of s 54 concern a non-seizable offence, the informant shall be referred to a judge of the Syariah Subordinate Court.

2) The REO shall not proceed with investigation unless there is an order to investigate (OTI) from the Chief Syariah Prosecutor.

3) The REO who receives the “OTI” may conduct investigation but can’t may any arrest without warrant.

1. Whether the REO can proceed the investigation if there is no information given in writing or there is no information received by the officers?

2. Whether the information in writing form is mandatory or directory?

Questions arise ???

The answer !

1) REO may proceed the investigation even there is no information received, provided that there is reasonable cause to proceed with the investigation.

Section 57 of SCPE:

If from information received or otherwise a REO has reason to suspect the commission of a S.O…and shall proceed in person or shall depute one of his subordinate officers to proceed to the spot to inquire into the facts and circumstances of the case and to take such measure as may be necessary for the discovery of the offender..

Cont…

2)The requirement that information be reduced to writing is not mandatory, provided that the enforcement officer has reasonable cause to suspect the commission of the alleged crime and the offence is of a seizable nature.

Complaint to JudgeSection 74 of SCPA:When a judge receives a complaint, he shall examine the complainant upon oath using Form 6 of the Schedule.

Section 75 of SCPA: If the judge has reasonable doubt as to the truth of the complaint, he may inquire into the case himself or he may authorise a REO, who shall later report to him, to inquire as to ascertain the matter. The judge also may postpone the process of compelling the person complained against until the truth is ascertained trough inquires.“inquires” in this section means a process of investigation.

Cont…

If the commencement of investigation: Is begun by information to the REO, the provisions classify the offences into seizable and non-seizable offences.By complaint to judge, there is no classification.

Differences between Seizable and Non-Seizable offences

Seizable Offences Non-Seizable OffencesPunishable with imprisonment for one year or more.

Punishable with imprisonment for less than one year or with fine only.

REO or PO may ordinarily arrest suspect without warrant.

REO or PO arrest suspect with warrant.

Differences between Information and ComplaintInformation Complaint

Not defined by the law. Defined under Section 2 of SCPE.

May be given to REO or PO (Section 9).It can be in orally to REO, who later shall reduce the information to writing (Section 54).

An allegation made orally or in writing to a judge for him to take action against one he know or doesn’t know has committed or guilty of an offence (Section 2).

Shall be written in Form 5. There is no required form to be filled.

The informant shall sign Form 5.

The complainant shall take an oath under Form 6.

THANK YOU

general principles on investigation

Documents