NIMALASIRI AND FIVE OTHERS
G. P. S. DE SILVA, C.J.,
ANANDACOOMARSWAMY. J. ANDSHIRANI BANDARANAYAKE, J.
S.C. NO.507/95DECEMBER 16,1996.
Constitution – Article 13(1) – Arrest – whether proper procedure has beenfollowed – Section 23(1), and 32(1)b of the Code of Criminal Procedure Act.
The petitioner has alleged that his arrest was not according to the provisions ofthe Code of Criminal Procedure Act (Code) nor under any other law and therebyhis arrest was not according to the procedure established by law. It wascontended that –
he was taken into custody without a warrant;
he was not informed of the reason for his arrest;
The plaint submitted that the petitioner is to be charged for (i) CriminalTrespass (ii) Criminal Intimidation. Under the Code a person who is suspected ofCriminal Intimidation shall not be arrested without a warrant. However a personwho is suspected of Criminal Trespass may be arrested without a warrant.Therefore when the Police took him into custody without a warrant they had actedlawfully and with authority on reasonable grounds.
The respondents stated that the petitioner was informed of the reasons for thearrest. The petitioner too has made a complaint to the Kohuwela Police on 8.8.95,in that complaint, he explained the incident which took place on 24.07.1995. Theevents that took place on 24.07.1995, have led the petitioner to a position wherehe would have known that sometimes or other the Police would contact him. Theaffidavit of the 2nd respondent explains that the compliant against the petitionerrelates to Assault and Criminal Trespass.
The only evidence to the contrary is the affidavit by the petitioners wife which wasaffirmed to after a lapse of 7 months.
On a scrutiny of the entirety of the material, it would appear that the case resolvesitself to one of "word against word”, the burden of proof lies clearly on thepetitioner.
APPLICATION under article 126 of the Constitution.
Cases referred to:
Sirisena and Others v. Earnest Perera – 1991 – 2 SLR 97 at 108
Channa Petris and Others v. Attorney-General and Others -1994 – 1 SLR 2
Piyasiri and Others v. Nimal Fernando. A.S.P. and Others 1988 – 1 – SLR 173at 183.
6. Jayakumar for the petitionerSuhada Gamlath S.S.C.. for respondents.
SHIRANI A. BANDARANAYAKE, J.
The petitioner, who is a businessman, alleges that he was taken bythe 2nd respondent around 10.30 p.m. on the 9th August, 1995 to theKohuwela Police Station in a Police Jeep. At the Kohuwela PoliceStation, the petitioner was informed by the 2nd respondent that thePettah Police wanted him arrested and the 1st respondent haddirected the 2nd respondent to keep the petitioner inside the cell atthe Kohuwela Police Station. On the 10th August, 1995 around
am, the 3rd respondent, a police officer attached to the PettahPolice Station, took charge of the petitioner from the Kohuwela PoliceStation. While he was inside the cell at the Pettah Police Station, the4th respondent appeared before him around 10.30 p.m. on the 10thAugust, 1995 and told him that he should give a written undertakingthat he will not create trouble to a person by the name of Sahabdeen.A bail bond was signed and he was released on the 10th August,around 10.30 p.m..
The petitioner alleges that his arrest was not according to theprovisions of the Code of Criminal Procedure Act nor any other lawand thereby his arrest was not according to the procedureestablished by law. He claims that 1st to the 5th respondents haveinfringed his rights under Article 13(1) of the Constitution.
The main contention advanced on behalf of the petitioner is thatrespondents did not arrest him according to the procedure laid downby law. Accordingly, it is submitted that –
he was taken into custody without, a warrant;
he was not informed of the reasons for his arrest.
Section 23(1) of the Code of Criminal Procedure Act states that –
“In making an arrest the person making the same shall actuallytouch or confine the body of the person to be arrested unlessthere be a submission to the custody by word or action andshall inform the person to be arrested of the nature of thecharge or allegation upon which he is arrested"
It was submitted that the police officers who arrested the petitionerhad no warrant for his arrest. It is important to consider the eventsthat took place prior to the arrest of the petitioner as it seems that thearrest was one incident in a sequence of events, in which thepetitioner was involved.
On the 24th July, 1995 a person named, Mustapha MohamedSahabdeen, made a complaint (4R1) at the Pettah Police Station. Hehad stated that the petitioner had come to his office situated atno. 213, Main Street, Colombo 11 around noon on 24th July andthreatened him that if he does not pay his money that he would eitherkill him or abduct him. Sahabdeen had also stated that he has not gotpetitioner's address with him but he would furnish it later. Sahabdeenmade a request to the Police to have an inquiry in regard to thisdispute in order to settle it.
On the 9th August, 1995 around 2.30 p.m. the O.I.C., Pettah hadsent a radio message (1R1) to the Kohuwela Police that the petitioneris needed at the Pettah Police Station as he is a suspect in anallegation of Criminal Trespass and Criminal Intimidation. On thesame day at 10.42 p.m. a message (1R2) was sent to the PettahPolice Station by O.I.C. Kohuwela requesting them to send an officerto take charge of the petitioner who has been arrested.
The question for decision is whether in these circumstances theproper procedure laid down by law has been followed in respect ofthe arrest of the petitioner. In this regard, a basic allegation putforward by the petitioner against the respondents is that thepetitioner was arrested without a warrant. The plaint submitted to theMagistrate's Court, Colombo on the 23rd August, 1995 which isproduced as 4R3 states that the petitioner is to be charged for –
Criminal Trespass; and
According to Section 32(1) (b) of the Code of Criminal ProcedureAct-
"Any peace officer may without an order from a Magistrate andwithout a warrant arrest any^person – who has been concerned inany cognizable offense or against whom a reasonable complainthas been made or credible information has been received or areasonable suspicion exists of his having been so concerned''.
Furthermore, under the Code of Criminal Procedure Act a personwho is suspected of Criminal Intimidation shall not be arrestedwithout a warrant. However, a person who is suspected of CriminalTrespass may be arrested without a warrant. A complaint was madeagainst the petitioner, and the petitioner was charged both forCriminal Trespass and Criminal Intimidation. Therefore, when thepolice took him into custody without a warrant, they had actedlawfully and with authority on reasonable grounds.
The second allegation by the petitioner is that he was notinformed of the reason for his arrest. The petitioner contends thatthereby his fundamental rights guaranteed and protected by Article13(1) of the Constitution have been infringed. Article 13(1) statesthat-
‘No person shall be arrested except according to procedureestablished by law. Any person arrested shall be informed ofthe reason for his arrest “
In order to support his argument, the petitioner has relied onSirisena and Others v. Earnest Perera where it was stated (byFernando J.)
"Article 13(1) thus contains a prohibition on deprivation ofliberty – no person shall be arrested. However, there is anexception, that such deprivation of liberty may be effected"according to the procedure established by law", (and this iscertainly more restrictive than the phrase “except inaccordance with the law") Further, even if a person is arrestedin accordance with the procedure established by law, he mustnevertheless be informed of the reason for his arrest."
The petitioner also relied on Channa Peiris and Others v. Attorney-General and Others<*>, where it was stated, (by Amerasinghe J.)
“The right to be deprived of personal liberty except accordingto a procedure established by law is enshrined in Article 13(1)of the Constitution. Article 13(1) prohibits not only the taking intocustody but also the keeping of persons in a state of arrest byimprisonment or other physical restraint except according toprocedure established by law."
The petitioner too has made a complaint (Pt) to the KohuwelaPolice on the 8th of August, 1995. In that complaint he explained theincident which took place on the 24th of July, 1995. The petitioner hassaid that an unknown person had come to his house on the 8th andhad threatened his wife and due to the fear created in the petitioner’smind he decided to make this complaint.
The arrest of the petitioner by the Kohuwela Police should beconsidered in this background. The petitioner was aware of thedispute between Sahabdeen and himself. He also knew that he toohad made a complaint at the Kohuwela Police Station. The importantquestion is whether the police had informed the petitioner the reasonfor his arrest. The 2nd respondent in his affidavit has stated that whenhe took the petitioner into custody he explained the purpose of thevisit and informed him of the complaint against him. (Assault andCriminal Trespass). This is also recorded in the Information Book(2R1) maintained at the Kohuwela Police Station. On the other hand,the petitioner's wife in her affidavit (P3) stated that the 2ndrespondent did not inform the petitioner the nature of the charge orthe allegation on which the petitioner was arrested on the 9th August,1995. However, it should be noted that the petitioner’s wife hassubmitted her affidavit only on the 19th May, 1996, after a lapse of 7months from the date of the arrest.
The Counsel for the petitioner, in his written submissions attemptedto gain support from Piyasiri and Others v. Nimal Fernando. A.S.Pand Others™. While agreeing with the view that "custody does nottoday, necessarily import the meaning of confinement but has beenextended to mean lack of freedom of movement brought about notonly by detention but also by threatened coercion, the existence ofwhich can be inferred from the surrounding circumstances", it shouldbe noted that the facts and circumstances of that case are quitedifferent from the present case. In Piyasiri’s case, the arrest of thepetitioner was highly speculative and was for the purpose ofascertaining whether any of them could be suspected of havingcommitted an offence of bribery.
The case for the respondents is that the petitioner was informed ofthe reasons for the arrest. The events that took place on the 24th July,1995, have led the petitioner to a position where he would haveknown that some time or other the police would contact him. Theaffidavit of the 2nd respondent explains that the complaint againstthe petitioner relates to Assault and Criminal Trespass. The 2ndrespondent avers that he explained the charges to the petitioner. Theonly evidence (apart from that of the petitioner) to the contrary, is theaffidavit by the petitioner’s wife which was affirmed to after a lapse of7 months which leaves us in doubt as to the veracity of it.
On a scrutiny of the entirety of the material placed before us, itwould appear that the case resolves itself to one of ‘word againstword". The burden of proof lies clearly on the petitioner. In this view ofthe matter, I hold that the petitioner has failed to establish theinfringement of Article 13(1) of the Constitution. The application failsand is accordingly dismissed but, in all the circumstances, withoutcosts.
G. P. S. DE SILVA, C. J. -1 agree.ANANDACOOMARASWAMY J. -1 agree.
JIFFRY v. NIMALASIRI AND FIVE OTHERS