Nota : Pandangan dibawah telah dikirim melalui email kepada PG pada 25 jul 2009 oleh Dr Abdul Rani Kamaruddin dan PG siarkan sepenuhnya tulisan dan pandangan beliau. Semuga ianya membawa menafaat kepada semua dalam memahami apa itu inkues dan keperluannya dari sudut undang-undang negara.Betul ke pendapat AG dan Prof Shad bahawa Inkues kematian itu mandatori?
Sedikit petikan dari kertas persidangan saya bertajuk “Inquries of Death under malaysian CPC” yang dibentangkan di Athens, Greece pada July 2007
Sedikit petikan dari kertas persidangan saya bertajuk “Inquries of Death under malaysian CPC” yang dibentangkan di Athens, Greece pada July 2007
The investigation officer shall send the body to the nearest government hospital or other convenient place for holding a post mortem examination of the body by a Government Medical Officer (pathologist) if there appears to the Investigation officer any reason to suspect that the deceased came by his death in a sudden and unnatural manner or by violence or the death resulted in any way from or was accelerated by any unlawful act or omission on the part of any other person.
A post mortem is not necessary if the investigation officer is satisfied as to the cause of the death and that the deceased came by his death by accident. Sometimes, death is the result of old age, or from long and incurable disease, the police may issue the burial permit without the need of conducting an autopsy on the corpse. Where post mortem/autopsy is not required, the police officer may direct that the body be buried immediately (Section 330 CPC).
Section 13(1)(b) CPC requires every person who is aware of any sudden death or unnatural death or death by violence or of any death under suspicious circumstances, or of the body of any person being found dead without its being known how that person came by death, he shall in the absence of reasonable excuse, the burden of proving which shall lie upon him, immediately give information to the officer in charge of the nearest police station or to a police officer or the nearest Penghulu (village chief) of the commission or intention or of the sudden, unnatural or violent death or of the finding of the dead body, as the case may be. Failure to forward such information is an offence under section 176 and or 202 of the Penal Code. Both provide for imprisonment of up to 6 months and or fine.
The Magistrate in receipt of the report need not hold an inquiry if he is satisfied with the cause of the death by stating the reasons for doing so, but shall report the same to the Public Prosecutor together with all reports and documents connected with the matter. (Section 333(1) CPC). The Magistrate should proceed as soon as may be to hold an inquiry if he decides otherwise (Section 333(2) CPC).
A Magistrate holding an inquiry under this Chapter if he considers it expedient that the body of the deceased person should be examined by a Medical Officer in order to discover the cause of death may, whether a post-mortem examination has been made under section 331 or not, issue his order to the Government Medical Officer to make a post-mortem examination of the body, and may for that purpose order the body to be exhumed. Until such an order is made, the pathologist is not duty bound to do a second post mortem if one has already been done (Section 335(2) CPC; See Ho Kooi Sang v Universiti Malaya [2004] 5 CLJ 445)
An inquiry or a report to the Public Prosecutor is not necessary if criminal proceeding have been instituted against any person concerned with the death of the deceased (Section 333(3) CPC),
Where death of person occurs while in the custody of the police, in a mental hospital or prison, the officer having the custody or the person in charge shall immediately intimate the matter to the nearest Magistrate, and if he thinks expedient, hold an inquiry to the cause of death (Section 334 CPC).
The Public Prosecutor, however, may at any time directs the Magistrate to hold an inquiry, and the Magistrate is then obliged to do so and to forward the evidence and his findings to the Public Prosecutor. The Public Prosecutor may even require the Magistrate to reopen the inquiry and if necessary have the body exhumed if it appears to him that further investigation is necessary unless a finding of murder or culpable homicide not amounting to murder has been returned against any person (Section 339(1) CPC).
An inquest is a proceeding under the Criminal Procedure Code. It means an inquiry by a Magistrate with a view to record a finding as to the cause of death and to any of the circumstances connected therewith with regard to which the Public Prosecutor may also have directed a Magistrate to make inquiry.
Note: Inkues kematian tidak perlu jika magistrate tidak merasai ianya perlu atau prosiding jenayah telah diambil terhadap mana-mana orang diatas kematian itu, Bagaimanapun, Pendakwaraya boleh mengarahkan Majistret supaya inkues dibuat.
Section 13(1)(b) CPC requires every person who is aware of any sudden death or unnatural death or death by violence or of any death under suspicious circumstances, or of the body of any person being found dead without its being known how that person came by death, he shall in the absence of reasonable excuse, the burden of proving which shall lie upon him, immediately give information to the officer in charge of the nearest police station or to a police officer or the nearest Penghulu (village chief) of the commission or intention or of the sudden, unnatural or violent death or of the finding of the dead body, as the case may be. Failure to forward such information is an offence under section 176 and or 202 of the Penal Code. Both provide for imprisonment of up to 6 months and or fine.
The Magistrate in receipt of the report need not hold an inquiry if he is satisfied with the cause of the death by stating the reasons for doing so, but shall report the same to the Public Prosecutor together with all reports and documents connected with the matter. (Section 333(1) CPC). The Magistrate should proceed as soon as may be to hold an inquiry if he decides otherwise (Section 333(2) CPC).
A Magistrate holding an inquiry under this Chapter if he considers it expedient that the body of the deceased person should be examined by a Medical Officer in order to discover the cause of death may, whether a post-mortem examination has been made under section 331 or not, issue his order to the Government Medical Officer to make a post-mortem examination of the body, and may for that purpose order the body to be exhumed. Until such an order is made, the pathologist is not duty bound to do a second post mortem if one has already been done (Section 335(2) CPC; See Ho Kooi Sang v Universiti Malaya [2004] 5 CLJ 445)
An inquiry or a report to the Public Prosecutor is not necessary if criminal proceeding have been instituted against any person concerned with the death of the deceased (Section 333(3) CPC),
Where death of person occurs while in the custody of the police, in a mental hospital or prison, the officer having the custody or the person in charge shall immediately intimate the matter to the nearest Magistrate, and if he thinks expedient, hold an inquiry to the cause of death (Section 334 CPC).
The Public Prosecutor, however, may at any time directs the Magistrate to hold an inquiry, and the Magistrate is then obliged to do so and to forward the evidence and his findings to the Public Prosecutor. The Public Prosecutor may even require the Magistrate to reopen the inquiry and if necessary have the body exhumed if it appears to him that further investigation is necessary unless a finding of murder or culpable homicide not amounting to murder has been returned against any person (Section 339(1) CPC).
An inquest is a proceeding under the Criminal Procedure Code. It means an inquiry by a Magistrate with a view to record a finding as to the cause of death and to any of the circumstances connected therewith with regard to which the Public Prosecutor may also have directed a Magistrate to make inquiry.
Note: Inkues kematian tidak perlu jika magistrate tidak merasai ianya perlu atau prosiding jenayah telah diambil terhadap mana-mana orang diatas kematian itu, Bagaimanapun, Pendakwaraya boleh mengarahkan Majistret supaya inkues dibuat.
Dr Abdul Rani Kamarudin
Pensyarah Undang-Undang
UIAM
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