MAHANAMA TILAKARATNE
v.
BANDULA WICKRAMASINGHE,
SENIOR SUPERINTENDENT OF POLICE AND OTHERS
Page 372
SUPREME COURT
DHEERARATNE, J.,
WIJETUNGA, J. AND
BANDARANAYAKE.J.
S.C. APPLICATION NO. 595/98
MAY 25 AND 28, 1999.
Fundamental rights ‑
Offences under sections 300, 141 and 316 of the Penal Code ‑ Issue of
warrant for arrest of suspect ‑ Section 124 of the Code of Criminal
Procedure Code Act ‑ Arrest after the cancellation of warrant and release
of suspect on bail ‑ Validity of arrest and detention of suspect in
police custody ‑ Arrest under section 32 (1) (b) of the CCRP Act ‑
Articles 13 (1) and 13 (2) of the Constitution.
On 11.06.1998 officer in
charge (OIC) of the Kahatuduwa Police Station filed a report at the Kesbewa
Magistrate's Court informing the Magistrate that he investigated into a
complaint made on 01.06.1998 by one
Somachandra that he had been assaulted on that day with clubs by three persons
including the petitioner's son and that an offence under section 316 (grievous hurt) has been disclosed.
The OIC obtained a date namely, 10.09.1998
to file a further report after completing investigations.
On 10.09.1998, Sub Inspector
Rodrigo of the CID filed a further report in the same case at the Kesbewa
Magistrate's Court. Relying on the statement of one Eugine Padmini, (which
statement was not tendered to the Supreme Court) that report implicated the
petitioner in the assault on Somachrandra and further
Page 373
alleged that the petitioner had fired four shots in the direction of
Somachandra who was lying fallen, offences punishable under sections 300, 141 and 316. In his report Rodrigo stated that on the advice of the Attorney‑General
he was moving for warrants to search the petitioner's house and to arrest the
suspects.
The Magistrate expressed misgivings about the warrants sought when
Rodrigo and the 2nd
respondent (Superintendent of Police, CID) met the judge in chambers.
Whereupon, a Senior State Counsel appeared assisted by the 1st respondent
(Senior Superintendent of Police) and persuaded the Magistrate to issue the
warrants asked for on the ground, which the Magistrate recorded namely, the
warrants were asked for "because the suspect is a High Court Judge and the
Magistrate must assist the Police". The warrants were apparently sought and
issued under section 124 of the CCRP Act. The Magistrate also directed the
police that he be kept informed of the arrest and the suspects be produced
before him the following day itself. The same day, the petitioner surrendered
to the Kesbewa Magistrate whereupon the Magistrate cancelled the warrant for
his arrest and enlarged him on bail, and directed the Registrar to notify the
CID the orders made. The Registrar addressed a letter to the Director, CID, in
compliance with the Magistrate's direction. The same information was also
conveyed to the CID by telephone which message was received by a woman sub
Inspector named Fonseka. Before leaving the Court, the petitioner obtained
certified copies of the Magistrate's order and the Registrar's letter addressed
to the Director, CID.
That evening the petitioner was at his residence with his lawyers when
several persons in civilian clothes who identified themselves as CID officers
arrived and sought to arrest the petitioner on a warrant. The 2nd respondent who was among them was shown the
copy of the
On 11.09.1998 SI Rodrigo
produced the petitioner before the
Chief Magistrate,
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and a State Counsel submitted to the Magistrate on instructions that the
warrant of arrest of the petitioner was not recalled and the petitioner was not
released on bail.
In proceedings before the Supreme Court, the 4th respondent (Attorney‑ General) denied
that he gave instructions to any Police officer to arrest anyone and that when
he learnt that the 1st
respondent had made a note of alleged instructions, he brought it to the
notice of the President.
Held:
1. The
purpose of issuing process of Court is to obtain the appearance of a person in
Court and not to secure his presence in any police station or the CID
headquarters. Thus, process may issue in terms of section 124 of the CCRP Act
to compel a suspect to attend Court for an identification parade, and to assist
investigators by requiring the suspect to provide handwriting, finger prints,
samples of hair, fingernails or blood for investigating a crime.
Per Dheeraratne, J.
"Issuing a warrant is a judicial act
involving the liberty of an individual and no warrant of arrest should be
lightly issued by a Magistrate simply because a prosecutor or an investigator
thinks it necessary.'
2. Unless
a warrant of arrest is issued for the failure to obey summons, recording of
evidence is a sine qua non before
issuing a warrant of arrest of a suspect whether investigations are completed
and proceedings are instituted in the Magistrate's Court under S. 136 (1) (b) of the CCRP Act or the
investigations are incomplete and no proceedings are instituted in Court. The
Magistrate must before issuing a warrant against the offender, record evidence
on oath substantiating the allegation.
3. On
the basis of the 1st
respondent's representations to the Chief Magistrate, the petitioner was
arrested on the authority of the warrant and no other. If that warrant was
otherwise legally valid, the 1st
respondent could not have arrested the petitioner as the warrant was
directed to SI Rodrigo, and SI Rodrigo had not endorsed the warrant to another
peace officer as required by section 52 (3) of the CCRP Act; nor was there any
justification for the 1st
respondent to have arrested the petitioner in terms of section 32 (1) (b) of the Act, as he was not involved
with the investigations of the alleged offences.
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4. The
defence that the 1st
respondent was acting purely on the orders of his superior the 3rd respondent and that as a police officer he
was bound to do so is untenable. The
arrest under those circumstance was illegal.
5. The
arrest and the detention of the petitioner in police custody were not in
accordance with the law and the 1st
and 3rd respondents
violated the petitioner's fundamental rights guaranteed by Articles 13 (1) and
13 (2) of the Constitution.
Cases
referred to:
1. Faiz v. Attorney‑General and others ‑ (1995) 1 Sri LR 372.
2. Attorney‑General v. Jayasinghe ‑ (1949) 50 NLR 203.
3. Wills v. Sholay Kangany ‑
(1915) 18 NLR 443.
4. Gunasekera v. De Fonseka ‑ (1972) 75 NLR 246.
5. Mufhusamy v. Kannangara ‑ (1951) 52 NLR 324.
6. Christy v. Leachinsky ‑ (1947) AC 583.
7. Corea v. The Queen ‑ (1954) 55 NLR 457.
8. Senaratna v. Punya de Silva and Others ‑ (1995) 1 Sri LR 272.
APPLICATION for relief for infringement of fundamental
rights.
Ranjith Abeysuriya, PC with Geethaka
Gunewardena and Ms. Priyadarshinie
Dias for petitioner.
Denzil Gunaratne with
Buddhika Jayasinghe and Udayanthi
Seneviratne for 1st , 2nd , and 3rd respondents.
K. C. Kamalasabayson, PC, SG with Jayantha
Jayasuriya, SSC Uditha Egalahewa, SC for 4th and 6th respondents.
Cur. adv. Vult.
Page 376
DHEERARATNE,
J.
This is a case teeming with several unusual and strange features,
perhaps unheard of in the annals of our judicial history. The petitioner was
admitted and enrolled as an Advocate in May, 1968. In September, 1978, he
joined the Sri Lanka Judicial Service and served at several places in the
Page 377
The 1st report filed in the Kesbewa Magistrate's
Court Case No. 8R 653/98
On 11th June, 1998, the officer‑in‑charge
(OIC) of the Kahathuduwa police station filed a report at the Kesbewa
Magistrate's Court, informing the Magistrate that he investigated into a
complaint made on 1st June by
one Uyana Hewage Niroshini Somachandra of Thalagala. The report stated that
according to the complaint, Uyana Hewa Somachandra was assaulted about 5.40 am
with clubs, at the byroad situated near the house of the petitioner, by
petitioner's son Padmika, a servant of his household named Sena, and a boy
working at a smithy close by called Upul; the incident was said to have
occurred when Somachandra was attempting to put his son Piyum Kalyana into a
school van. The report further said that Piyum Kalyana too made a statement to
the effect that the three persons named earlier assaulted his father with clubs
and that he ran away from that place; when he was running he heard some shots
being fired. The report further said that the injured Somachandra has made a
statement while being warded in the General Hospital Colombo; that an offence
punishable under section 316 (grievous hurt) has been disclosed; that while the
statements of Padmika, Sena and Upul were recorded, the petitioner had
volunteered to make a statement. A summary of the petitioner's statement was
given in the report. The OIC moved the Court by his report, to grant him a date
to file a medical report from the General Hospital, Colombo, and to file a
further report having investigated the matter further. The Court fixed 10th September as the date for further report. No
summons or warrant was requested to be issued by Court.
On 9th September on a motion filed by an AAL on
behalf of suspect Padmika, the case was called and he was bailed out on a
personal surety bond of Rs. 1,000.
Page 378
The 2nd report filed in the Kesbewa Magistrate's
Court case No. BR 653/98 and issuance of the warrant to arrest the petitioner
On 10th September, 1998, Sub Inspector Rodrigo of the
CID, filed a further report in the same case at the Kesbewa Magistrate's Court,
making the petitioner the first suspect. Rodrigo, for some reason, wanted to
shroud his report in a veil of secrecy; for, his report was prefaced by a
somewhat startling statement of law, that, in accordance with the case of Attorney‑General v. Jayasinghe(2),
the Magistrate should treat his report as a confidential document; that it
should not only be kept in the personal custody of the Magistrate, but also
that no other party should be permitted to inspect or read the same. I may
mention here that Jayasinghe's case, decided nearly fifty years ago, does not
reflect the law as it stands today and was determined at a time when subsection
122 (3) of the repealed Criminal Procedure Code was in force, which absolutely
prohibited any statement recorded in the course of a chapter XII enquiry from
being seen by or disclosed to an accused person or his agents. It is a matter
of surprise to us that this unwarranted and obsolete preface either escaped the
attention of learned Senior State Counsel who appeared in support of the relief
claimed for in Rodrigo's report; or, if he did observe it, he took no steps to
get it promptly expunged. Rodrigo stated in this report that he investigated into
a complaint made by K. V. I. Padmini on 11.8.1998 regarding causing grievous
hurt by beating with clubs and shooting; that after the injured person
Somachandra's wife K. V. I. Padmini sent a petition to Her Excellency the
President, the CID was now in the process of making investigations. I may
pause here to mention that in the petition sent by Padmini to Her Excellency, a
copy of which was produced by the 3rd respondent, there is absolutely no reference
to an incident which had occurred on 1st June, 1998; but among some other allegations
made against the petitioner, she has stated that she had come to know that the
petitioner has "ordered" several police stations not to entertain any
statement from her about throwing stones and firing at
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her house. Rodrigo reported that according to the statement made by K.
V. Eugine Padmini, a sister of K. V. I. Padmini, who now lives at Hingurakgoda,
she had stated that when she was residing with her sister K. V. I. Padmini at
Thalagala, on the night of 25th
March, 1998, some stones were thrown and some shots fired from the
direction of the petitioner's house; that she came to know that on 30th March 1998 the petitioner had fired some
shots in the air and threatened her brother‑in‑law Somachandra;
that in addition she saw on the morning of the 1st June, 1998, with the aid of a torch light,
the petitioner's son Padmika, his servant Sena and several others assaulting
Somachandra with clubs; that she saw the petitioner giving a club which was in
his hands to his son Padmika saying "kill him, finish him off"; that
she saw the petitioner firing three or four shots in the direction of
Somachandra who was lying fallen. Although various other statements and notes
were quite readily submitted to us by 1st to 3rd respondents, Eugine Padmini's statement was
not tendered to us for our perusal. The report did not say that the allegation
of any shots having being fired was found to be true on an examination made at
the spot.
Rodrigo's report further stated that according
to the medical report filed therewith, the injuries on Somachandra were
grievous (the medical report revealed no injury caused by a firearm); and that
offences punishable under sections 300, 141 and 316 were disclosed against the
suspects. Rodrigo stated in the report that on the advice obtained from the
Attorney‑General, he was moving Court to issue a search warrrant to
search the petitioner's residence and to issue a warrant to arrest the
suspects, to be in force between 10.9.98 and 17.9.98.
Before Rodrigo filed the report, the 2nd respondent along with Rodrigo, met the
learned Magistrate in his Chambers and discussed about the report they were
intending to file that day and the learned Magistrate expressed certain
misgivings about issuing the warrants of arrest asked for. Thereafter,
according to the 2nd
respondent he went to the Piliyandala Police Station and informed the 3rd respondent
Page 380
over the telephone about the "developments". The 3rd respondent asked him to prepare a motion and
further informed him that he was sending the 1st respondent and a named Senior State Counsel
to the Piliyandala Police Station. On the same day, that is the 10th
of September, about 1 pm Rodrigo's report was filed. Learned Senior State
Counsel assisted by the 1st
respondent appeared in open Court, moved that the matter be taken up,
and succeeded in persuading the Court to issue the warrants asked for. It is
recorded with laconic brevity that the warrants were asked for and were issued
"because the suspect is a High Court Judge and that the Magistrate must
assist the police". This is a non sequitur. It was not submitted to the
Magistrate that the petitioner was either avoiding to make a statement or was
avoiding arrest by the investigators. It was not stated why the Magistrate's
assistance was required for the investigation by the arrest of the petitioner
and others. However, the learned Magistrate whose conscience was apparently
troubled, took the precaution to order that he be promptly informed of taking the
suspects into custody and that they be produced before him without delay. The
learned Magistrate recorded the fact that the 1st respondent gave an undertaking to produce
the suspects the following day itself. The Sinhala word "hetama"
seems to suggest that what the Magistrate was made to believe was that the
arrest will be made on the following day and the suspects will be produced the
same day. The Sinhala letter "ma"
conveys no other meaning.
Although no arguments were addressed to us on
the manner in which the warrants were issued for the arrest of the petitioner
and others, yet I think it is my bounden duty to express my view on that all
important matter, which involves the liberty of the subject, so as to prevent
any abuse of process even in the future. As at date on which the warrants of
arrest were asked for, proceedings had not been instituted against the suspects
in terms of section 136 of the Code of Criminal Procedure (CCRP) Act. Had
proceedings been instituted against them in terms of section 136 (1) (b), and if the Magistrate were to issue
warrants of arrest because the report disclosed an offence in respect of which
a warrant
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shall be ordinarily issued in the first instance according to the first
schedule of the CCRP Act, it would have been obligatory on the Magistrate (he
shall), before issuing the warrants, to "examine on oath the complainant
or some material witness or witnesses" (section 139 (1)). In the instant
case the investigations were said to be proceeding and warrants of arrest were
apparently asked for and issued in terms of section 124 of the CCRP Act to
assist the investigations. Section 124 reads:
"Every Magistrate to whom application is
made on that behalf shall assist the conduct of an investigation by making and
issuing appropriate orders and processes of Court and may, in particular hold,
or authorize the holding of, an identification parade for the purpose of
ascertaining the identity of the offender, and may for such purpose require a
suspect or other person to participate in such parade, allow a witness to make
his identification from a concealed position and make or cause to be made a
record of such parade."
It must be primarily borne in mind that the
purpose of issuing process of Court is to obtain the appearance of a person in
Court and not to secure his presence in any police station or the CID
headquarters. In addition to a suspect being compelled to attend Court for the
purpose of an identification parade, as section 124 itself indicates, there may
be several other reasons why a suspect's presence will be required in Court to
assist the conduct of the investigations; for example, the investigators may
require the suspect's handwriting, fingerprints or samples of hair,
fingernails, and blood for investigation of a crime.
If for the assistance of the conduct of an
investigation, process of Court by way of issuing a warrant of arrest is
required, the Magistrate must proceed to issue such warrant in terms of chapter
V of the CCRP Act titled "of process to compel appearance". Section
50 under that chapter provides that "every warrant of arrest issued under
this Code . . . shall be in the prescribed form". The prescribed
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form is form No. 4 of the second schedule to the Code. The form provides
the following words in addition to specifying the offence "and oath being
now made before me substantiating the matter of such complaint. "(cf Form
No. 3 ‑ Warrant of Arrest in default of appearance to summons; Form No. 6
‑ search ‑ Warrant).
Issuing a warrant is a judicial act involving
the liberty of an individual and no warrant of arrest should be lightly issued
by a Magistrate simply because a prosecutor or an investigator thinks it is
necessary. It must be issued as the law requires, when a Magistrate is satisfied
that he should do so, on the evidence taken before him on oath. it must not be
issued by a Magistrate to satisfy the sardonic pleasure of an opinionated
investigator or a prosecutor.
Recording of evidence is a sine qua non, before
issuing a warrant of arrest of a suspect, unless that warrant is issued for the
failure to obey summons. To hold otherwise would mean that, in connection with
an allegation of a commission of an offence in respect of which a warrant of
arrest could be issued in the first instance, if investigations are completed
and proceedings are instituted in the Magistrate's Court, the Magistrate is
obliged, before issuing a warrant against the offender, to record evidence on
oath substantiating the allegation; but in connection with an allegation of
similar nature, were investigations are incomplete and no proceedings are
instituted in Court, the Magistrate can issue a warrant for the arrest of the
offender without recording evidence on oath substantiating the allegation.
There can be no justification for making such a distinction.
I think I cannot do better than to echo the
words of Sampayo, J. where in a similar situation he observed : "The issue
of a warrant is a serious matter, and the Magistrate should exercise his own
independent judgment on the facts before he does this judicial act. In every
case it is the duty of the Magistrate to see that the complainant or other
person, when giving what purports to be oral evidence, gives it consciously and
with due sense of his own
Page 383
responsibility, and that he not merely adopts general statements already
printed and furnished to him by the proctor. The Magistrate should himself
record that evidence from the witness's own mouth, and should in no case
recognize printed matter contained in forms which the proctor may keep in
stock. I think the practice followed in this case is reprehensible, and I hope
not to see another instance of it". See Wills v. Sholay Kangan(3).
The
petitioner's surrender and recall of the warrant of arrest
On the 10th of September, 1998, the
petitioner went on the Bench in the performance of his judicial functions and
he adjourned the Court about 12.45 pm. Soon thereafter, some lawyers brought to
the notice of the petitioner, that at the instance of the CID and on an
application made by Senior State Counsel, the Magistrate, Kesbewa, has issued a
warrant for his arrest and a search warrant in relation to his house. In view
of this information, the petitioner proceeded to the Magistrate's Court,
Kesbewa, accompanied by a few lawyers and surrendered himself. The Magistrate
thereupon cancelled the warrant of arrest and released the petitioner on bail
on a personal bond for Rs. 1,000. The Magistrate directed the Registrar of his
Court to take steps to inform the CID over the telephone that, on the
petitioner surrendering to Court, the warrant issued for his arrest was
cancelled. Before leaving the Kesbewa Magistrate's Court, through an abundance
of caution, the petitioner obtained a certified copy of the order made by the
Magistrate enlarging him on bail and a letter by the Registrar addressed to the
Director, CID, informing him, that as the petitioner appeared before Court on
10th September, 1998, the
warrant issued for his arrest should not be executed and returned to Court. The
petitioner was informed, before he left the Magistrate's Court, Kesbewa, by the
Registrar of that Court, that the telephone message was conveyed to the CID and
was received by a woman Sub Inspector named Fonseka.
Page 384
Arrest
of the petitioner
Having left the Kesbewa Magistrate's Court, the
petitioner proceeded to his residence with his lawyers. At the gate of his
residence, about 5 pm he was confronted by several persons in civilian clothes
who identified themselves as police officers attached to the CID, who had come
to take him into custody on a warrant issued for his arrest. One of that group
who identified himself as the 2nd
respondent Premaratne, was then shown the certified copy of the
proceedings of the Magistrate's Court, Kesbewa, enlarging the petitioner on
bail and the letter addressed to the Director, CID, obtained from the Registrar
of the Magistrate's Court certifying to that effect. Although the 2nd respondent denies having been shown the
certified copy of the Magistrate's Court proceedings, I hold that it is more
probable that the petitioner's lawyers had that certified copy with them and
both documents were shown to the 2nd
respondent at that stage.
The petitioner states that the 2nd respondent refused to accept the letter as it
was addressed to the Director, CID. On the 2nd respondent's own admission, having read the
letter addressed to the Director, CID, he stated that he would not take the
petitioner into custody. The petitioner and his lawyers were thereafter
permitted to enter the petitioner's residence. The 2nd respondent then contacted the 3rd over his cellular telephone and informed him
that the warrant of arrest has been recalled. The 3rd respondent had informed the 2nd that he was sending the 1st respondent to the residence of the
petitioner. The 2nd
respondent thereafter informed the petitioner and his lawyers to await
the arrival of the 1st
respondent.
Meanwhile, the 2nd respondent executed the search warrant with
the consent of the petitioner. According to the 2nd respondent "when the house of Mahanama
Tllakaratne was being searched by me, he informed me that his pistol is in the
almirah and he gave me the same with two magazines and nine live ammunitions
and a valid permit to possess same". About 7.30 pm the 1st respondent arrived at the petitioner's
premises with a large posse of Police
Page 385
officers, some in civilian clothes and some in uniform. According to the
petitioner, when his lawyers attempted to show the 1st respondent the certified copy of the
Magistrate's Court proceedings and the letter addressed to the Director, CID,
the 1st respondent shouted,:
"damned with the orders; I do not want to see that. Ignore that. I can
arrest him whatever the Magistrate has ordered. I have got a cut and dry order
from the Attorney‑General and the DIG. Even without a warrant I can
arrest him. We obtained the warrant because he is a Judge".
I accept the version of the petitioner that
this was the manner in which he was arrested. The 1st respondent was presenting a false front that
he got orders from the Attorney‑General, as according to the 4th respondent he was informed of the arrest
about 8.00 pm by the 3rd
respondent. The 1st
respondent admits having arrested the petitioner by placing his hand of
the petitioner. Although the 1st
respondent states that he gave reasons for his arrest, on the totality
of the evidence before us, I hold that he gave no reasons; he came storming
into the residence of the petitioner on the order given by the 3rd respondent and arrested the petitioner. The
petitioner was, thereafter, taken to the CID headquarters in a police vehicle
about 9.30 pm. Petitioner's lawyers were not permitted to meet the 3rd respondent so that they could show the
documents in their possession to prove that the warrant was recalled and
petitioner was bailed out. The petitioner's statement was recorded till 2.30 am
of 11th September, 1998. In
the morning of the 11th the
petitioner's lawyers were refused permission to have access to the petitioner
and they were informed by the officers of the CID that he will be produced that
morning at the Magistrate's Court, Kesbewa.
Production
of the petitioner before the Chief Magistrate, Colombo
In the morning of the 11th September petitioner's lawyers were anxiously
waiting at the Kesbewa Magistrate's Court anticipating the production of the
petitioner from the custody of the CID.
Page 386
About 12.45 pm, in desperation, petitioner's lawyers brought to the
notice of the Magistrate, Kesbewa, that the petitioner was still being kept in
the custody of the CID, in spite of the order made enlarging him on bail. The
Magistrate, Kesbewa, recorded the submissions of the lawyers and made a further
order to release the petitioner.
Meanwhile, SI Rodrigo of the CID, filed a
motion before the Chief Magistrate, Colombo and produced the petitioner before
him about 1.00 pm. The motion stated that the petitioner was arrested the
previous night about 7.30 pm in accordance with a warrant issued by the
Magistrate, Kesbewa. This warrant was produced along with the motion. The
motion further stated that according to a reliable confidential information,
there was grave unrest in the area around Kesbewa Magistrate's Court in
connection with the offence committed by the petitioner and the production of
the petitioner before the Magistrate's Court, Kesbewa, would be imminently
dangerous to the life of the petitioner.
I am of the view that the story of unrest at
Kesbewa and the imminent threat to the petitioner's life was dishonestly
concocted by Rodrigo and the 1st respondent to hide, from the Magistrate,
Kesbewa, their actions taken in defiance of the order made by him recalling the
warrant of arrest. It is passing strange that the 1st respondent and Rodrigo obtained confidential
reliable information about the restive crowd at Kesbewa but got no information
of the receipt of the telephone message conveyed to their office informing of
the withdrawal of the warrant of arrest. Moreover, despite the undertaking
given by the 1st respondent
to the Magistrate, Kesbewa, he failed to inform him promptly about the arrest
of the petitioner; and for that reason as well, he preferred not to face the
Magistrate, Kesbewa. A State Counsel, different from the one who appeared to
obtain the warrant of arrest, appeared before the Chief Magistrate when the
petitioner was produced before him. It appears that this unsuspecting State
Counsel was led by his nose by the 1st respondent who transfigured him to a mere
mouthpiece. The learned State Counsel vehemently
submitted that his instructions were that the warrant of arrest of the
petitioner was not recalled and the petitioner was not released on bail, when
the Magistrate was told otherwise. The Chief Magistrate pointedly put this
position. to the 1st
respondent who was present in Court and recorded ‑ "Director,
CID, states that he does not know and further he had not been informed".
This conduct of the 1st
respondent is most reprehensible. The Chief Magistrate did what the
learned State Counsel should have done in the interest of justice. Having
adjourned the Court, he telephoned the Kesbewa Magistrate who confirmed that
the warrant was recalled and the petitioner was released on bail.
The conduct of the 1st respondent in the Chief Magistrate's Court
unequivocally suggests the he represented to the Chief Magistrate ‑ (1)
that the petitioner was arrested on the warrant issued by the Magistrate,
Kesbewa, which warrant was returned to the Chief Magistrate; (2) that he was
unaware that the warrant was recalled at that stage and that no one has so
informed him and (3) that the petitioner was arrested on the authority of the
warrant and of no other.
The first opportunity the 1st respondent got to inform a Court of justice
regarding the circumstances under which the petitioner was arrested, was when
the petitioner was produced before the Chief Magistrate, Colombo. The 1st respondent had this to state in his affidavit
submitted to the Supreme Court relating to the circumstances under which the
petitioner was arrested : "on the same day (ie 10th ) at 17.30
hrs at Deputy Inspector‑General/CID office the 2nd respondent telephoned the DIG and informed
him that the aforesaid warrant had been recalled by the Magistrate, Kesbewa. At
that stage the DIG/CID (3rd
respondent) contacted the Hon. Attorney-General and informed me that
Hon. Attorney‑General had granted approval for the arrest of the
petitioner under normal law in terms of the Code of Criminal Procedure, and
directed me to appraise the lawyers present at the High Court Judge's house the
approval of the Hon. Attorney‑General. He further directed me
to proceed to Thalagala, Kiriwaththuduwa, in the Kahathuduwa police area
and to arrest the petitioner and the other suspects". (para 8).
If the above statement is correct, why did the
1st respondent refrain from
saying so to the Chief Magistrate, Colombo? It would appear also that the 1st respondent gave the plaint State Counsel
instructions which he knew to be false that he did not know of the withdrawal
of the warrant arrest. This false position of the 1st respondent is also supported by the 3rd respondent in his affidavit. The 4th respondent denies that he ever gave
instructions to any Police Officer to arrest anyone. At para 22C of his
affidavit, the 4th respondent
states : "when I learnt of the note alleged to have been made by the 1st respondent and reproduced in the subparagraph
"O" of paragraph 91 of the petitioner's affidavit, I immediately
brought to the notice of the additional Solicitor‑General in charge of
the subject and suggested him to summon the 3rd respondent to ascertain the basis on which
such an incorrect note has been made. After the discussion with the 3rd respondent, I brought to the notice of Her
Excellency the President being the Minister of Defence, that an incorrect note
has been made by the 1st
respondent which had led to protest by certain members of the Bar
against Attorney‑General's Department. Her Excellency assured me that she
would call for a report from the IGP and take action in this matter. . .".
I accept the version given by the 4th respondent and observe that his reaction to
the note made by the 1st
respondent, which he calls incorrect, is the natural reaction of anyone
in his position. The mastery of the 1st respondent in the art of prevarication is
amply demonstrated by the following averments he has made in his affidavit.
". . .I admit that I informed the learned State Counsel that I was unaware
that the petitioner has already being granted bail by the Magistrate's Court,
Kesbewa, on 10.9.98 and wished to add that the petitioner nor his counsel
produced any document to substantiate this fact and that the learned Chief
Magistrate, Colombo, was constrained to adjourn Court in order to telephone the
Magistrate of Kesbewa to ascertain as to
whether in fact the petitioner had been granted bail. And wished to add
that if the petitioner did in fact show me, as stated in his affidavit, a
certified copy of the said order granting bail, I cannot imagine as to why it
was not produced in Court on this occasion" (para 34). This statement is
made by a man who knew very well that producing the petitioner before the Chief
Magistrate, Colombo, was something he craftily manoeuvred, knowing well that
the petitioner's lawyers were awaiting his production at the Kesbewa
Magistrate's Court.
Is the
arrest of the petitioner according to procedure established by law?
As stated earlier it is admitted that the
arrest of the petitioner was made by the 1st respondent. To the learned Chief Magistrate,
Colombo, he represented that the petitioner was arrested on a valid warrant
issued by the Kesbewa Magistrate. Even if this warrant was otherwise legally
valid, the 1st respondent
could not have arrested the petitioner on that warrant in view of subsection 52
(3) of the CCRP Act which states:
"when a warrant is directed to a peace
officer by name it shall not be executed by any other peace officer unless
endorsed by him by name."
The warrant was directed to U. E. C. Rodrigo,
Sub Inspector of Police, and only he could have arrested the petitioner on that
warrant. Rodrigo has not endorsed the warrant to enable another peace officer
to execute it. This was probably why the 1st respondent abstained from signing the warrant
as the one who executed it, when he produced that to the Chief Magistrate,
Colombo. It is surprising that learned State Counsel who appeared when the
petitioner was produced before the Chief Magistrate, Colombo, overlooked these
important matters of law and was content to swallow the instructions given to
him by the 1st respondent
hook, line and sinker.
Page 390
If the petitioner was not arrested on the
warrant of arrest issued by the Magistrate, a peace officer could only have
arrested him in terms of subsection 32 (1) (b)
of the CCRP Act, on the allegation of his having committed offences
punishable under section 300 and 141 of the Penal Code which are cognizable
offences, in the circumstances mentioned in that subsection. That subsection
reads:
"Any peace officer may without an order
from the Magistrate and without a warrant arrest any person who has been
concerned in any cognizable offence or against whom a reasonable complaint has
been made or credible information has been received or a reasonable suspicion
exists of his having been so concerned."
Learned Solicitor‑General who appeared
for the 4th respondent, with
his customary fairness, submitted that it is settled law that the arresting
officer should be able to justify an arrest on one or more of the grounds set
out in subsection 32 (1) (b) and that
in the instant case there did not appear to be any justification for the 1st respondent to arrest the petitioner.
Admittedly, the 1st
respondent was not involved with the investigations of the alleged
offences said to have been committed by the petitioner and the 1st respondent does not claim to have acted under
subsection 32 (1) (b).
It appears to me that both the 1st and 3rd respondents cooked their notes after the
petitioner was produced before the Chief Magistrate, Colombo. It is stated in
the written submissions filed on behalf of the 1st to 3rd respondents that "the position taken up
by the 1st respondent was
that at all times he was acting purely on the orders of his superior the 3rd respondent and that as a police officer he
was bound to do so".
The 1st respondent
states in his affidavit : "on the same day at 19.30 hrs. I arrived at the
house of the petitioner where I found the 2nd respondent present along with the petitioner
and four Attorneys-at‑law. Mr. Premaratne informed me that the warrant
of arrest of the
petitioner had been recalled and he had also recovered a weapon
suspected to have been used by the petitioner to commit an offence. The 2nd respondent further informed me that the
petitioner had obtained ammunition from various police officers in order to
test his revolver. I am aware that ammunition is an inventorized item, the
obtaining of such ammunition was illegal and required further investigations
under the Public Property Act" (para 9). "I then explained the
charges of attempted murder and unlawful assembly committed by the petitioner
and further informed the DIG/CID (3rd respondent) about the discovery of the weapon
and received orders to arrest the petitioner" (para 10).
There is nothing to indicate that the 1st respondent gave his independent mind to bear
on the arrest of the petitioner : he executed the orders given by his superior
the 3rd respondent. The
arrest under those circumstances is illegal. See Gunasekera v. De Fonseka(4); Muthusamy v. Kannangara(5); Christy v. Leachinsky(6) and Corea v. The Queen(7); I am of the view that the 1st
and 3rd respondents have falsely stated that they got the approval
of the 4th respondent to arrest the petitioner and further that he
was informed of the arrest after the event. The British Statesman, Herbert
Henry Asquith, once observed, that the War office kept three sets of figures ;
one to mislead the public, another to mislead the Cabinet and the third to
mislead itself. Similarly, I would say it is quite probable that the CID kept
three sets of facts on the issue of the arrest of the petitioner; one to
mislead the Chief Magistrate, another to mislead the Supreme Court and the
third to mislead itself.
I hold that the arrest of the petitioner is not
in accordance with the law. Further, the petitioner was unnecessarily and
unreasonably detained at the CID office at least from 2.30 am to 12.45 pm on
11th. Vide ‑ Senaratne v. Punya de Silva and others(8). There is
Page 392
no complicity of the 4th/6th respondent and the 2nd respondent in the illegal arrest. i hold that
the 1st and 3rd respondents have violated the fundamental
rights of the petitioner guaranteed under Articles 13 (1) and 13 (2) of the
Constitution by the unlawful arrest and detention of the petitioner. I order
the 1st and 3rd respondents to pay the petitioner personally
a sum of Rs. 50,000 each as compensation; in addition, I direct the State to
pay the petitioner a sum of Rs. 200,000 as compensation and a sum of Rs. 50,000
as costs. The petitioner will thus be entitled to in total, a sum of Rs.
350,000.
WIJETUNGA,
J. ‑ I agree.
BANDARANAYAKE,
J. ‑ I agree.
Relief granted.