SIRINIMAL SILVA. INSPECTOR OP POLICE,
POLICE STATION, CHILAW AND OTHERS
SUPREME COURTDHEERARATNE, J.
PERERA. J. ANDBANDARANAYAKE, J.
SC APPLICATION NO. 488/9812™ SEPTEMBER, 2000
Fundamental rights – Arrest of men and women found in a guest house -Applicability of the Brothels Ordinance – Article 13(1) of the Constitution.
The petitioner had a relationship of sexual intimacy with one LeelaPerera, a lonely widow. They met on 22. 07. 1998 and decided to spendthe night at the Sirisevana Guest House. At about 10.30 p.m., Is' to 6threspondents Police officers arrived and got them to open their bed roomand arrested them. They were taken to the Chilaw Police Station alongwith five women and four men, also taken into custody at the said GuestHouse. They were kept in custody until the 23rd and were produced beforethe Magistrate's Court, Marawila around 12 noon. An application for bailwas refused and the petitioner was remanded until 29. 07. 1998 whenhe was discharged.
According to the 1st respondent, the police officers were acting on theorders of the Senior Superintendent of Police, Chilaw when they visitedthe Guest House to investigate an “information” that there were severalLTTE suspects there. They found all the six rooms occupied andrequested the male and female occupants as to their respective identitieswhich they were unable to establish. Whereupon all of them werearrested and taken to the Police Station as a need arose to verify theiridentities. No one other than the occupants of the six rooms was takeninto custody. On 23. 07. 1998, the petitioner was produced before theMagistrate, Marawila along with the other “suspects" on charges underthe Brothels Ordinance.
In terms of the Brothels Ordinance, having sexual intercourse is notan offence. Section 2 of the Ordinance provides, inter alia, that anyperson who keeps or manages or acts or assists in the management of abrothel shall be guilty of an offence. There was no complaint against the
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petitioner and there was no reason at all to suspect that the petitionerhad committed any offence.
The arrest of the petitioner was wrongful and violative of his rightsunder Article 13(1) of the Constitution.
Cases referred to :
Coore v. James Appu (1920) 22 NLR 206
Abeykoon u. Kulatunga (1950) 52 NLR 47
Mahanama Tillakaratne u. Bandula Wickramasinghe (1999)
1 Sri L.R. 372 at 382
APPLICATION for relief for infringement of fundamental rights.
J.C. Welianuma for petitioner.
A.H.M.D. Nauaz, State Counsel for respondents.
Cur. adv. vull.
Editors Note : Vide Dorothy Silva v. Inspector of Police, Pettah78 N.L.R. 553.
December 12, 2000.
SH3RANI A. BANDARANAYAKE, J.At the time material to the application, the petitioner hada relationship of sexual intimacy with one Leela Perera, alonely widow. They met on 22. 07. 1998 and decided to spenda quiet night at the Sirisevana Guest House, Dankotuwa.About 10.30 p.m., their hopes for tranquillity were dashed tothe ground, when a group of persons rudely knocked at theirbedroom door. The door opened on six intruding policeofficers, two of whom were in uniform, and among them werethe first to fifth respondents. On inquiry by the petitioner theyinformed him that they were from the Chilaw Police Station.They arrested both of them and took them by a van, first to theDankotuwa Police Station and thereafter to the Chilaw PoliceStation. Five women and four men, also taken into custody atthe said Guest House, were taken in that van along with thepetitioner and his companion. From 2.30 a.m. on the 23rt July
Danny v. Sirinimal Silva, Inspector of Police,
Police Station, Chilaui and Others (Bandaranayake, J.)
they were kept in custody and were produced before theMagistrate, Marawila around 12 noon. An application madefor bail was refused and the petitioner was remanded until29. 07. 1998 when he was discharged.
The petitioner alleges that his arrest and detention wereviolative of Articles 12(1), 13(1) and 13(2) of the Constitution.
This Court granted leave to proceed in respect ofthe alleged infringement of Articles 13(1) and 13(2) of theConstitution.
The 1st respondent in his affidavit averred that on theorders of the Senior Superintendent of Police, Chilaw, he leftthe Police Station around 8.35 p.m. with a party of PoliceOfficers to investigate the information that several LTTEsuspects were residing at the Siri Sevena Guest House. Theyreached the Guest House around 10.45 p.m. There were sixrooms in the Guest House and all of them were occupied. Hespoke to the male and the female occupants separately andrequested them to furnish facts to establish their respectiveidentities. None of them were able to do so. A need thereforearose to verify the true identities of the said occupants and allthose who were present were arrested and taken to the PoliceStation, Chilaw. The petitioner was produced before theMagistrate of Marawila along with the other suspects on 23.
1998, on charges under the Brothels Ordinance.
Unfortunately, the Magistrate has almost mechanicallymade an order of remand because the police wanted them tobe remanded. In terms of the Brothels Ordinance, havingsexual intercourse is not an offence. Section 2 of theOrdinance, which stipulates the offences, reads thus:
“Any person who –
keeps or manages or acts or assists in themanagement of a brothel: or
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being the tenant, lessee, occupier or owner of anypremises, knowingly permits such premises or anypart thereof to be used as a brothel, or for the purposeof habitual prostitution; or
being the lessor or landlord of any premises, or theagent of such lessor or landlord, lets the same, or anypart thereof, with the knowledge that such premisesor some part thereof are or is to be used as a brothel,or is wilfully a party to the continued use of suchpremises or any part thereof as a brothel,
shall be guilty of an offence, and shall on conviction beliable
The word ‘brothel’ is not defined in the Ordinance andthe ordinary meaning of the word brothel’ is ‘a house orestablishment where prostitution is practiced.' The word‘prostitute’ ordinarily means ‘to devote to, or offer or sell for anunworthy, evil or immoral use; to hire out for sexualintercourse’. The ordinary meaning of‘prostitution’ means ‘theact or practice of prostitution’ (Chambers Dictionary. 1999reprint).
Bertram, C.J., in Coorev. James Appu111, having examinedthe purpose of the Criminal Law Amendment Ordinance,No. 21 of 1919, the legislative predecessor of the BrothelsOrdinance, observed:
“Speaking generally, the Ordinance and the Ordinanceswhich it amends do not penalize illicit sexual intercourse,except where the act takes place under circumstanceswhich are a public scandal, or an outrageous offence toindividual rights, or where it takes place with a girl underthe prescribed age. Similarly, the procurement of womenfor an act of sexual intercourse is not punishable, exceptin the case of a woman under twenty years of age(see section 6). But what the Ordinance does specially
Danny v. Sirinimal Silva. Inspector of Police.
Police Station. Chilaw and Others (Bandaranayake, J.)
penalize is the making a living out of the corruption anddegradation of others. It does this in three ways:
it enhances the penalties for brothel-keeping(section 4);
it punishes persons who live on the earnings ofprostitution (section 9(1) a); and
it further punishes persons who systematicallyprocure persons of whatever age for the purpose ofillicit intercourse." (at pg. 215)
Abeykoon v. Kulatunga121 is a case in which the meaning ofsection 2(a) of the Brothels Ordinance was discussed. In thiscase, two appellants were charged, the 1st with havingmanaged a brothel and the 2nd with having assisted the 1st inthe management of it. After trial both were convicted: the 1staccused was fined Rs. 500, the 2nd accused a fine of Rs. 250.
There was ample evidence before the learned Magistrate inregard to the 1st accused, that she managed a brothel.
The question which arose in this case was whether awoman who is or is kept in a brothel for purposes of consortingwith men can be said to assist in the management in thebrothel. Referring to the role of management. Nagalingam, J.,stated that,
“If however, the prosecution had been able to establishthat the 2nd accused did perform any act in regard to theadministration or control of the brothel, a case may be saidto have been made out against her; but the mere fact thatshe surrendered her flesh to enable persons who resortedto that place to gratify their sexual appetite cannotbe regarded as indicating that she assisted in themanagement of the brothel'' (emphasis added)
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It is thus evident that, in the circumstances of the instantcase, for the petitioner to be charged under the BrothelsOrdinance, there should have been evidence that he had eithermanaged or assisted in the management of the brothel. As itappears, there is no such evidence against the petitioner; hehas only been a passive occupant of the said Guest House, whohad wanted to stay overnight with his companion whereby hecommitted no criminal offence.
The petitioner’s grievance is that the respondents hadviolated his fundamental rights guaranteed in terms of Articles13(1) and 13(2) of the Constitution.
Article 13(1) of the Constitution reads as follows:
“No person shall be arrested except according to procedureestablished by law. Any person arrested shall be informedof the reason of his arrest."
Section 32(l)(b) of the Code of Criminal Procedure Act,specifies the established procedure for arrest and reads thus:
“who has been concerned in any cognizable offence oragainst whom a reasonable complaint has been made orcredible information has been received or a reasonablesuspicion exists of his having been so concerned.”
The arrest of the petitioner has to be lawful and for it to belawful, it should be carried out according to the establishedprocedure laid down by law. In this case, there was nocomplaint against the petitioner and there is no reason at allto suspect that the petitioner has committed any offence. Forthe purpose of bringing charges against a person under theBrothels Ordinance, there should be evidence suggesting thatsuch person was engaged in the management of the brothel.There is not even an iota of evidence suggesting that. Althoughthe respondents mentioned that they had to raid the saidGuest House as they had information that there were LTTEsuspects residing at the said premises, no one other than the
Danny v. Sirinimal Silva. Inspector of Police,
Police Station. Chilaw and Others (Bandaranayake. J.)
‘occupants’ of the six rooms was taken into custody. In thesecircumstances, I hold that the arrest of the petitioner wasunlawful and declare that the petitioner’s fundamental rightsguaranteed by Article 13(1) of the Constitution has beenviolated by 1st to the 6th respondents.
Admittedly, the petitioner was taken into custody around2.30 a.m. on 23. 07. 1998 and was produced before theMagistrate, Marawila around 12 noon of the same day. In thecircumstances I hold that there was no violation of Article 13(2)of the Constitution.
I must express my concern over Magistrates issuingorders of remand, mechanically, simply because the policewant such orders made. I cannot do better than to quote thewords of my brother, Dheeraratne, J., said in connection withMagistrates issuing warrants of arrest (in the case of MahanamaTillakaratne v. Bandida Wickramasinghe131) Magistrates shouldnot issue remand orders “to satisfy the sardonic pleasure ofan opinionated investigator or a prosecutor” (at pg. 382).Remanding a person is a judicial act and as such a Magistrateshould bring his judicial mind to bear on that matter beforedepriving a person of his liberty.
I accordingly hold that the petitioner is entitled to a sumof Rs. 25,000/- as compensation and costs payable by theState. I direct the 1st to 6th respondents to pay Rs. 5,000/- each,personally, as compensation. In all, the petitioner will beentitled to Rs. 55,000/- as compensation and costs. Thisamount must be paid within three(3) months from today.
The Registrar of the Supreme Court is directed to send acopy of this judgment to the Inspector General of Police.
DH£ERARATNE, J. I agree.
PERERA, J.- I agree.
DANNY v. SIRINIMAL SILVA, INSPECTOR OF POLICE, POLICE STATION, CHILAW AND