22Sri Lanka Law Reports(2005) 1 Sri L. R.
ABDUL LATHIFVDEPUTY INSPECTOR GENERAL OF POLICE,NUWARA – ELIYA AND OTHERSSUPREME COURTFERNANDO. J.
YAPA..J ANDJAYASINGHE, J
S. C. APPLICATION NO. FR 244/20027 TH JULY, 26TH SEPTEMBER AND 29TH OCTOBER, 2003
Fundamental Rights – Malicious arrest and detention on an allegation of cheating- Articles 13 (1) and 13 (2) of the constitution.
The petitioner was the Chairman of S. F. (Pvt) Ltd. engaged in manufacturinggarments. The company had executed an order of garments for BIF (Pvt) Ltd.to the value of Rs. 10 Million at which stage there commenced an acute industrialaction at the petitioner’s company. The petitioner was threatened by theworkmen allegedly on the instigation of a powerful politician. The petitionercomplained to the 2nd respondent SSP, Nuwara – Eliya where upon he wasdirected to appear at the Nuwara -Eliya Police station. DIG, Nuwara Eliya (1strespondent) SSP (2nd respondent) the ASP (3rd respondent) HQI NuwaraEliya (4th respondent) and his subordinates at the Nuwara Eliya Police stationwere made parties to this application besides the IGP and the Attorney -General.
At that stage, the petitioner had also obtained an interim order from the DistrictCourt against the workmen creating disorder at the factory. On 03. 04. 2003when the petitioner appeared at the Police Station, he was informed that therewas a charge of cheating againts him. The charge was that a cheque which hehad issued to BIF (Pvt) Ltd. had been dishonored. It happened as it had beenpresented prematurely against instructions. An attorney-at-law representativeof the complainant company met the 4th respondent and informed that it wasa civil matter which had been since settled.
The 4in respondent said that the petitioner will be produced before the Magistratethe next day. But the petitioner was produced before the Magistrate at 8.00 p. m.on the same day with a misleading report and was remanded until 04. 04.
SCAbdul Lalhif v Deputy inspector General ol Police.2.3-
Nuwara – Eliya And Others (Jayasinghe, J.)
2002. The next day the attorney-at-law for the virtual complainant and thecomplainant Ramani Weeraratne appeared and informed court that the matterhad been settled and sought to withdraw the complaint. The petitioner evencomplained to the Prime Minister for help.
The petitioner’s version was also supported by the affidavit of his attorney – at- law and Ramani Weeraratne’s statement to the court.
The 4m respondent HQI Nuwara – Eliya had arrested and produced thepetitioner before the Magistrate on false grounds. There were noobjective grounds of suspicion against the petitioner.
By such arrest and consequent detention, the 3,d and 4,h respondentsand the State infringed the petitioner’s rights under Articles 13 (1) and13 (2) of the Constitution.
The 3rd and 4m respondents were personally liable for payment ofcompensation on the ground of such infringements in addition to theliability of the State.
Cases referred to :
1 .Senaratne V A Punya de Silva (1995) 1 Sri L R. 272
Channa Peiris V Attorney – General (1994) 1 Sri LR 1
Faiz V Attorney- General (1995) 1 Sri LR 372
APPLICATION for relief for infringement of fundamental rights.
Chandana Premathilake for petitioner.
K. A. P. Ranasinghe, State Counsel for 2nd to 6th respondents.
December 5, 2003.
JAYASINGHE. J.The Petitioner is the Chairman Smart Fashion (Pvt.) Ltd of NanuOya. At all'times material to this application Smart Fashion (Pvt.) Ltd had
24Sri Lanka Law Reports(2005) 1 Sri L. R.
executed an order of garments for Bairdwear Inter Fashions (Pvt.) Ltd.to the value of Rs. 10 million and was awaiting dispatch to BairdwearInter Fashions (Pvt) Ltd. At or about this time the workers of SmartFashion (Pvt.) had resorted to industrial action over the delay in thepayment of wages and anticipating the industrial action taking dangerousand life threatening proportions, the petitioner sought protection from theNanu Oya Police. Since the Police took no steps the Petitioner broughtto the notice of the Prime Minister the situation prevalent and also thefact that despite the 2nd and 3,d respondents being informed of thesituation, Nanu Oya Police had refused even to record his statement(P2). The Petitioner states that the Additional Secretary, Ministry ofIndustries had referred his complaint addressed to the Prime Minister(P2) to the Secretary of Defence for necessary action. Further PoliceHead Quarters too had referred P2 to the 1s' Respondent for appropriateaction. However no action was taken by Nanu Oya Police. The Petitioneralso complained that a powerful politician was behind the unrest createdat Smart Fashion (Pvt) Ltd. Since some of the employees were preventingSmart Fashion (Pvt.) Ltd. the Petitioner obtained an interim orderrestraining the offending employees from interfering with the managementof Smart Fashion (Pvt.) Ltd. The Petitioner states that on 03. 04.2002,when the Petitioner went into a hotel in Nuwara Eliya after attending theDistrict Court, a group of employees who were Defendants in the saidapplication came in and threatened him. Thereupon the Petitionercomplained to the 2nd Respondent on the telephone and subsequentlythree police officers from the Nuwara Eliya Police Station met him and ^informed the Petitioner that the 4"1 Respondent had requested him toreport to the Nuwara Eliya Police Station. The Petitioner accordinglywent to the Nuwara Eliya Police Station around 2.00 p. m. on the sameday and instead of recording his complaint he was informed after a lapseof about 2 hours that a complaint of cheating has been made againsthim and that he will be arrested. It was alleged that a complaint hasbeen made by Bairdwear Inter Fashions (Pvt.) Ltd. that a cheque drawnby the Petitioner has been dishonored by the bank. The Petitionerexplained to the 4'h Respondent that he has settled all his dues withBairdwear Inter Fashions (Pvt.) Ltd. and therefore there was no basis forthe police to arrest the Petitioner and requested the police to crosscheck with Bairwear Inter Fashions (Pvt.) Ltd. whether or not all dues havebeen settled. Nevertheless the 4lh Respondent was in no mood to ascertainthe factual position as he was acting at the behest of a powerful politician.
SCAbdul Lathif v Deputy inspector General of Police,25
Nuwara – Eliya And Others (Jayasinghe, J.)
The Petitioner thereupon contacted his attorney – at – law and BairdwearInter Fashions (Pvt.) Ltd. and requested them to come to the police stationand appraise the 4th Respondent in an endeavour to have him released.Accordingly attorney – at – law Mr. Rajapaksa and 3 officers from Bairdwearviz. Ramani Weeraratne, Loganathan Asokkumar and Sellamuttu appeared •at the station and informed the 3rd and 4lh Respondents that the Petitionerhad settled all the outstanding dues and sought to withdraw the complaintmade regarding the dishonorered cheque. The Petitioner says that the4'h Respondent refused the request. The 4"1 Respondent produced thePetitioner before the Magistrate around 8.00 p.m. who remanded him till
04. 2002. The Petitioner complains that the Respondents have bytheir conduct violated the Petitioner’s fundamental rights enshrined inArticles 13 (1) and 13 (2) and seeks compensation in a sum of Rs.
100,000/- from the 1sl to 7th Respondents. The Petitioner is also seekingan order from this court directing the 7lh and 8lh Respondents to initiate adepartmental inquiry and/ or criminal proceedings against the 1slto 6lhRespondents for the alleged violation.
The 4th Respondent filed objections ; stated that a complaint ofcheating was made by one Ramani Weeraratne on 15. 03. 2002 that acheque for R. 392,868 drawn by the Petitioner in favor of Bairdwear InterFashions (Pvt.) Ltd. has been dishonoured. Not once but twice; thatthe Petitioner could not be found during the investigations either at SmartFashion (Pvt.) Ltd. or his residence and was evading arrest; that thePetitioner had not paid the salaries and that the factory was closed; thatwhile investigations were proceeding the Petitioner had come hurriedly tothe Nuwara Eliya Police Station in order to escape a group of employeeswho had accosted him in the town; that having realized that he was theperson who was wanted in connection with the complaint of cheating the4lh Respondent proceeded to arrest him. The 4lh Respondent denies thatthe three persons referred to above by the Petitioner or attorney at law Mr.Rajapakse ever met him on that day or informed that the Petitioner hadsettled all the monies due from the Petitioner and therefore wished towithdraw the complaint against the Petitioner. The 4"] Respondent contendsthat there was reasonable suspicion that the Petitioner had committed acongnizable offence which warrants the arrest of the Petitioner. Fie deniesviolating any of the fundamental rights guaranteed by the Constitution.
2GSri Lanka-Law Repons(2005) 1 Sri L. R.
The Petitioner alleges that the 4m Respondent acted maliciously andwithout due cause in arresting him and thereafter in seeking a remandorder from the Magistrate.
The Petitioner contends that since the Petitioner had settled all hisdues to Bairdwear Inter Fashions (Pvt.) Ltd. there was no cause for the 4tnRespondent to arrest the Petitioner unless he was actuated by malice.Petitioner says that the cheque was issued to Bairdwar Inter Fashions(Pvt.) Ltd. With instructions not to deposit the said cheque for paymenttill the 22nd October as the necessary funds would be available only afterthat date. However Bairdwear Inter Fashions (Pvt.) Ltd. in violation of theinstructions had chosen to credit the cheque on the 9,h which wasconsequently dishonoured. The Petitioner says that the 3rd and 4threspondents rejected the contention of the Petitioner’s attorney that nocriminal proceedings could be instituted in the absence of any material toshow dishonest intention especially in view of P11 and that it was primafacie a civil transaction. The 4m Respondent denies that any of the personsreferred to by the Petitioner or any one from Bairdwear Inter Fashions(Pvt.) Ltd. informed him that all the monies due from the Petitioner hasbeen settled. The 4lh Respondent also denies that Ramani Weeraratne orany one else informed him that they wish to withdraw the complaint againstthe Petitioner. Mr. Rajapaksa in his affidavit P9 has averred that heexplained to both the 3rd and 4lh Respondents that there was nothing duefrom the Petitioner and that it was for that reason the complaint was soughtto be withdrawn. The 4lh Respondent had declined the request by RamaniWeeraratne. When the Petitioner was produced before the learnedMagistrate in open court on the following day (04. 03. 2002) attorney – at-law for Bairdwear Inter Fashions (Pvt.) Ltd., Ms.Tilaka Herat had informedcourt in the presence of the virtual complaint, Ms. Ramani Weeraratnethat all dues have been settled by the Petitioner and that she wishes towithdraw the complaint. The Petitioner has on 03.04. 2002 when he wasproduced before the Magistrate also told the Magistrate that BairdwearInter Fashions (Pvt) Ltd. had sought to withdraw the complaint which thepolice had refused. This position is supported by P4. Since Mr. Premathilakewas vehement in his assertion that the complainant sought to withdrawthe complaint before the police and which request the police declined thiscourt called for an affidavit from Ramani Weeraratne the virtual complainant.The said affidavit has been tendered to court and filed of record markedX. The said Ramani Weeraratne has averred that she went to the police
SCAbdul Lathif v Deputy inspector General of Police,07
Nuwara – Eliya And Others Jayasinghe, J.
station on 03.04.2002 between 4.00 p.m. and 6.00 p.m. on being informedby the Operations Manager of the company that the petitioner has beentaken into custody, with the intention of withdrawing the complaint as thePetitioner has paid the amounts due to the company on the 30"’March.She has averred that neither the 4lh Respondent nor the police officer whorecorded her statement were available at the police station and henceshe was unable to withdraw the complaint and left the police stationthereafter. It seems that the said Ramani Weeraratne has carefully wordedher affidavit to prevent any transgression on the version disclosed by thepolice. The uncontradicted fact is that Ramani Weeraratne intended towithdraw the complaint. It appears therefore that the position of the Petitionerthat the complainants sought to withdraw the complaint is not altogetherunfounded. The 3'° Respondent submitted to court that even though themonies have been paid yet the police intended to pursue the prosecutionagainst the Petitioner. The arrest of the Petitioner in the circumstancesseemed unnecessary unless actuated by external considerations.
The Petitioner also complains that the 4th Respondent in order topersuade the Magistrate to remand the Petitioner, sought to mislead theMagistrate into the belief that the Petitioner had been absconding; thatthe Petitioner had on previous occasions too given similar cheques withoutfunds and had committed financial frauds on the employees of SmartFashions (Pvt) Ltd.; that he was yet to record complaints regarding thoseincidents and that the investigations were yet continuing.
In the first instance the 4th Respondent’s assertion that the Petitionerwas evading arrest is not tenable. According to the Petitioner there was inthe Petitioner’s factory in March 2002 when the industrial actioncommenced, finished products to the value of Rs. 10 million and plant andmachinery worth 20 million. There was a threat of arson and the Petitionersuspected a hidden hand behind the unrest. The Petitioner has been intouch with the Nanu Oya Police ever since the industrial actioncommenced and sent 'PI to O. I. C, Nanu Oya and P 2 to the PrimeMinister pleading for help. The Petioner consulted his attorney – at- lawMr. Rajapakse who addressed a complaint P3 to O. I. C Nanu Oya. ThePetitioner sought an interim order from the District Court of Nuwara Eliyaagainst a group of employees from interfering with the management ofSmart Fashions (Pvt.) Ltd., 4 R3 relied upon by the 4m Respondent isproof of such interference. The Petitioner complains that the Policerefused to record his complaint but proceeded to record 4R3 relating to
28Sri Lanka Law Reports(2005) 1 Sri L. R.
the labor dispute. The Petitioner says that on 03. 04. 2002 when thePetitioner went into a Hotel in Nuwara Eliya after having attended Court,some of the employees who are Defendants in the said case threatenedhim and he consequently contacted the 2nd Respondent regarding thethreats and thereafter three police of officers from Nuwara Eliya PoliceStation met him and required him and the Defendants to meet the 4mRespondent at the police station. The Petitioner went to the Nuwara EliyaPolice Station at about 2 p.m. to make a complaint regarding the incidentthat took place in the Hotel. Police arrested him on an allegation forcheating.
The complaint of cheating against the Petitioner was made by RamaniWeeraratne on 15.03.2002 P5. The Petitioner states that only when hereported to the Nuwara Eliya Police station to lodge a complaint regardingthe incident that took place at the hotel in the Nuwara Eliya town earlier onthe same day that he was told that he would be arrested on a complaint ofcheating. Until that moment no police officers had come looking for himand had no notice of the complaint (P5)
If the 4!h Respondent says that 6th Respondent went looking for himit was false. The entries of the 6111 Respondent are self serving and aredesigned to mislead the Magistrate to obtain a remand order.
I am satisfied that the 4m Respondent misled the Magistrate intomaking a remand order by his allegation that the Petitioner had on previousoccasions too given similar cheques without funds in the account andthat investigations into such complaints are being continued. There is nomaterial placed before court to support the 4'h Respondent’s contentionthat the Petitioner has committed similar offences. The allegation that thepetitioner was evading arrest and investigations into other matters arecontinuing must also fail.
The position taken up by the 4lh Respondent there was no applicationto withdraw the complaints is palpably false and unworthy of a policeofficer on whom the responsibility of acting fairly reasonably and honestlyhas been discharged and his audacity to blatantly lie before this Courtdemands that this Court take serious congnizance of his conduct. Theattitude of 3rd and 4th Respondents clearly demonstrates that they werebeing led from behind the stage. Malice cannot be negatived.
SCAbdul Lathif v Deputy inspector General of Police,29
Nuwara – Eliya And Others (Jayasinghe, J)
In SenaratneV s. Punya de Silva and others(,) Amerasinghe, J. laiddown the test to be followed when an arrest is sought to be made withoutwarrant. His Lordship stated: “Were circumstances, objectively regarded-the subjective satisfaction of the police officer making the arrest in notenough – that should have induced the 1st Respondent to suspect that the
Petitioner was concerned in the commission of those offences?
the suspicion must not having been of an uncertain and vague nature, butof a positive and definite character providing reasonable grounds forconcluding that the Petitioner was concerned in the commission of the
offencesit is of importance that no one should be arrested
by the police except on grounds which the particular circumstances of thearrest justified entertainment of the reasonable suspicion.” In ChannaPeiris.Vs. Attorney General and Others <2) Amerasinghe, J. stated thatreasonable suspicion may be based upon matters within the officer’sknowledge or upon credible information furnished to him, or upon a
combination of both sourcesa suspicion does not become
reasonable merely because the source of the information is credit worthy.
If he is activated by an unreliable informant the officer making the arrestshould as matter of prudence act with great circumspection than if theinformation had come from a credit worthy source.” Amerasinghe, J. wenton to state “Article 13 (1) could be violated not only by the act of firstdepriving a person of his liberty in violation of procedure established bylaw, but also by holding any person in custody of the law during anyperiod unless perhaps the detention is extremely brief and momentary soas to be of a de mininus nature when he is deprived of his liberty contraryto the procedure established by law he is under'arrest.
In Faiz vs. Attorney General the Petitioner was arrested at about6.30 p.m. 26.04.1991 and produced before the Magistrate on the followingevening within the prescribed 24 hour maximum period, and remanded tillthe 29lh and released on bail. Fernando and Perera, J J. held that 13 (2)was violated. Fernando, J. explained that in the circumstances of thecase the detention was unnecessarily prolonged. In this case the Petitionercomplains that the 4lh Respondent induced the attorney at law Mr.Rajapaksa to leave the police station on the pretext that the Petitionerwould be produced on the following day and sought to produce him beforethe Magistrate at his bungalow around 8.00 p. m. This is clearly a violation 'of 13(2).
30Sri Lanka Law Reports(2005) 1 Sri L. R.
It is my view that the 4“’ Respondent could not have arrested thepetitioner and produced him before the Magistrate especially in view of thefact that he has repeatedly been told that the transaction between thePetitioner and Bairdwear was of a civil nature that in any event the moneydue has been paid. In those circumstances the question of reasonablesuspicion or the credibility of the source did not arise. It appears that thePetitioner was detained at the police station from 2.00 o’ clock until hewas produced before the Magistrate at his bungalow around 8.00 p. m.There is no cogent reason considering all attendant circumstances thattranspired to discount the Petitioner’s allegation that the 4in Respondentmisled both the Petitioner and his counsel that the Petitioner would beproduced before Court on the following day, but sought to produce himafter attorney-at-law had departed from the police station. Attorney-at -law, Mr. Rajapaksa in his affidavit P9 has stated that he inquired from the4lh Respondent when the Petitioner would be produced before theMagistrate so that he could make representations to secure his release.
On a consideration of all the material disclosed before court, I am of. the view that the 3rd and 4m Respondents have acted in violation of thePetitioner's rights as enshrined in Article 13(1) and 13 (2).
Accordingly the 3,d Respondent shall personally pay the Petitioner asum of Rs. 25,000/- as compensation.
The 4lh Respondent shall also personally pay the Petitioner a sumof Rs. 40,000/- as compensation.
I also order the State to pay a sum of Rs. 20,000/- as costs.
The 3rd and 4th Respondents and the State shall deposit the aboveamounts on or before 31. 03. 2004 with the Registrar of the SupremeCourt.
I also direct the National Police Commission in consultation withInspector General of Police to initiate disciplinary proceeding against the4lh Respondent upon charges of misleading the Magistrate into making aremand order and also stating to this court matters in his affidavit whichhe knows are not true.
FERNANDO. J-l agree.
YAPA. J. -I agree.