017-SLLR-SLLR-1999-V-1-ABDUL-RAZAK-AND-ANOTHER-v.-DHARMADASA-CHEIF-INSPECTOR-OF-POLICE-KATUGAST.pdf
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[1999] 1 Sri LR.
ABDUL RAZAK AND ANOTHER
v.DHARMADASA, CHIEF INSPECTOR OF POLICE,KATUGASTOTA AND OTHERS
SUPREME COURTG. P. S. DE SILVA, CJ.,
P. R. P. PERERA, J. ANDBANDARANAYAKE, J.
S.C. APPLICATION NO. 877/96 (FR)
DECEMBER 17, 1998
Fundamental rights – Unlawful arrest and detention – Articles 13 (1) and 13 (2)of the Constitution.
The 1st petitioner and his son the 2nd petitioner were reputed businessmen inKandy. The 3rd respondent was an Attorney-at-law. On 10.11.1996 at about 7pm the petitioners were returning home and were driving along a narrow roadclose to the lane where their residence was situated. At that point of time the3rd respondent was driving a car along the same road but in the opposite direction.Next an argument occurred between the 3rd respondent and the petitioners whenthe vehicles driven by the 3rd respondent and the 1st petitioner found it difficultto pass each other. After the argument the 3rd respondent drove away threateningthat he would complain to the police and have the 1st petitioner remanded. On11.11.1996 the 1st respondent Chief Inspector visited the petitioners at theirbusiness office and arrested them on a complaint made by the 3rd respondentand took them to the Katugastota Police station. The 1st respondent informedthe petitioners that the 2nd respondent had given him specific instructions to arrestthe petitioners and produce them at the Police station. According to the 3rdrespondent's complaint to the Police, at about 7 pm on 10.11.1996 the 1st petitionerhad abused him and the 2nd petitioner had attempted to seize the 3rd respondentby his shirt collar. On that complaint the 1st respondent produced the petitionersbefore the Magistrate on a “B“ report alleging that the petitioners had committedoffences under sections 332, 480 and 484 of the Penal Code, whereupon theMagistrate committed the petitioners to remand custody.
Held:
The “B" report presented to the court did not justify the allegation of an offenceunder section 332 of the Penal Code which was the only cognizable offencereferred to therein. The other two offences are non-cognizable offences for which
SCAbdul Razak and Another v. Dharmadasa, Chief Inspector
of Police, Katugastota and Others (Perera, J.)129
an arrest without a warrant cannot be made. Hence the arrest and detention ofthe petitioners were wrongful and the 1st and 2nd respondents had infringed therights of the petitioners guaranteed by Articles 13 (1) and 13 (2) of the Constitution.
Per Perera, J.
“Having regard to the facts and circumstances of this case, there is very littledoubt in my mind that the 1st and 2nd respondents arrested the petitioners atthe instigation of the 3rd respondent… I would have had no hesitation in awardingsubstantial compensation personally against the 3rd respondent, but for the factthat the petitioners have specifically stated that they claim no relief from him."
Case referred to:
Faiz v. Attorney-General and Others – (1995) 1 Sri LR 372.
APPLICATION for relief for infringement of fundamental rights.
Faiz Musthapha, PC with Sanjeewa Jayawardena for petitioners.
Rienzie Arsekularatne, DSG with Harsha Fernando, SC for State.
Dr. J. De Costa with Upali Kirindigoda for the 3rd respondent.
Cur. adv. vult.
February 23, 1999.
PERERA, J.
In the present petition to this court, the petitioners complain that the1st and 2nd respondents have acted in violation of their FundamentalRights guaranteed by Articles 13 (1) and 13 (2) of the Constitution.The petitioners have, in the circumstances, sought a declaration tothis effect from this court with the prayer that the 1st and 2ndrespondents be ordered to pay compensation in a sum of Rs. 1 millionto the said petitioners.
The facts relating to this complaint of the 1st and 2nd petitionersare as follows:-
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The 1st petitioner is a reputed businessman and is the owner ofseveral commercial establishments in and around Kandy. He is theChairman and Managing Director of Bobby Industries (Pvt) Ltd., amanufacturing concern specialising in Jossticks and other relatedproducts, and is also the Chairman and Managing Director of MonaraMatch Co., (Pvt) Ltd.
The 2nd petitioner is the son of the 1 st petitioner who is presentlypreparing for the Chartered Institute of Management AccountantsStage 1 examination. He is also a Director of both the aforesaidcompanies referred to above.
According to the petitioners they were arrested by the 1strespondent on the 11th of November, 1996, in pursuance of a falsecomplaint made by the 3rd respondent. This arrest was effectedwithout a warrant and without explaining to them the reason for sucharrest.
The 1 st respondent is the Chief Inspector of the Katugastota Policestation and the 2nd respondent is the OIC of the same station.
According to the petitioners around 7.00 pm on the 10th of November,1996, the 1st and 2nd petitioners were returning from Kandy to theirresidence at 1st lane, Mavilmada, Kandy. The 2nd petitioner wasdriving the van bearing registration No. 61-5801 followed by the 1stpetitioner who was driving the car bearing registration No. 19-9065.The petitioners proceeded in their aforesaid respective vehicles alongthe road which connects the Mavilmada road and the intersection ofthe 2nd and 1st lanes. The said road is a steep and narrow oneand as such two vehicles could not pass abreast of each other. Asthe petitioners approached the said intersection, they observed a cardriven by the 3rd respondent approaching them at an excessive speedfrom the direction of the 2nd lane. As the 3rd respondent failed todip the headlights of his car in accordance with established drivingrules, the petitioners who were driving up the hill were blinded bythe glare emanating from the light of the said headlights and theywere, therefore, compelled to stop their vehicles.
SCAbdul Razak and Another v. Dharmadasa, Chief Inspector
of Police, Katugastota and Others (Perera, J.)131
The 2nd petitioner who had stopped at the aforesaid intersectionthereafter drove past the 3rd respondent in the direction of the 2ndlane. The car driven by the 3rd respondent passed the intersectionand entered the aforesaid road at a high speed without dipping itsheadlights. As it was not possible for the 1st petitioner's car and the3rd respondent's car to pass each other, the 3rd respondent had drivenup alongside the 1st'petitioner's car and asked him to reverse thevan up to Mavilmada road. The 1st petitioner had explained to the3rd respondent that the Mavilmada road was about 200 yds awayand requested him to reverse his car on to the intersection whichwas only a few yds behind him. Thereupon, the 3rd respondent hadabused the 1st petitioner in foul language and stated that the 3rdrespondent was an Attorney-at-law and that he would complain to thePolice and have the 1st petitioner remanded.
By this time, the 2nd petitioner had arrived on the spot and advisedthe 3rd respondent that there was no necessity for such abuse overa trivial matter. The 3rd respondent had continued to abuse bothpetitioners and had threatened to have both of them remanded.Thereupon, the 1st petitioner had driven his car along the ditch onto the road with the assistance of the 2nd petitioner and proceededto their residence.
The petitioners state further that on the following day – ie on11. 11. 1996 at or about 8.30 am the 1st respondent had visited thepetitioners in the office at Bobby Industries (Pvt) Ltd., and requestedthem to accompany him to the Katugastota Police station. When thepetitioners inquired from the 1st respondnet as to why they wererequested to accompany him to the Police station, the 1st respondenthad informed them that he had to record statements from bothpetitioners on a complaint that had been made against them by the3rd respondent. The petitioners had then requested the 1st respondentto record their statements at the office. This request had been turneddown by the 1st respondent who had informed them that the 2ndrespondent had given him specific instructions to arrest the petitionersand to bring them to the Katugastota Police station.
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Accordingly, the petitioners had arrived at the Katugastota Policestation around 11.00 am that morning and met the 1st respondent,who had then read out a complaint made by the 3rd respondent. The3rd respondent in this complaint had stated that the petitioners hadabused him and that the 2nd petitioner and attempted to seize the3rd respondent by his shirt collar at around 7.00 pm on the previousnight at the aforesaid intersection.
The petitioners then denied the aforesaid allegations and madetheir statements relating to this incident. (Copies of the statementsmade by the 1st and 2nd petitioners are annexed to the petitionmarked P2 and P3).
Thereafter, according to the petitioners, the 1st respondent showedthem a document and informed them that the said document hadalready been prepared to produce them before the Magistrate, Kandy.The petitioners had protested stating that they had not committed anyoffence and had requested the 1st respondent to release themforthwith. The 1st respondent had refused to do so and had informedthe petitioners that they were “under arrest". On the same day, ataround 1.30 pm – ie 11. 11. 1996, the petitioners were producedbefore the Additional Magistrate, Kandy, by the 1st respondent on thebasis of the aforesaid document which had been previously shownto them. The petitioners later discovered that this document was a'B' report bearing number B/42292/96 (P4).
According to the said 'B' report, the petitioners had committedoffences punishable under sections 332, 480 and 484 of the PenalCode. The petitioners state that although there were several lawyerspresent in court at the time the petitioners were produced, no lawyerwas willing to appear on their behalf.
The 1st respondent had having filed this report moved that thepetitioners be released on bail. However, several lawyers whoappeared for the 3rd respondent had strenuously objected to bail beinggranted. Thereupon the Additional Magistrate committed the petitionersto remand custody and directed that the case be called in open courton 19. 11. 1996. Thereafter, this case was called before the Magistrate
SCAbdul Razak and Another v. Dharmadasa, Chief Inspector
of Police, Katugastota and Others (Perera, J.)133
on the 12th of November, 1996, on a motion filed on behalf of thepetitioners and the Magistrate released the petitioners on cash bailin a sum of Rs. 5,000 each with two sureties who were ordered todeposit a sum of Rs. 10,000 each. In addition, the said Magistratedirected the petitioners to report to the Katugastota Police station onevery Sunday till the conclusion of the trial. (A true copy of the said'B' report and the journal entries of the said case have been producedmarked P4. The Order of the Additional Magistrate dated 11. 11. 1996committing the petitioners to remand custody has been producedmarked P4A and the order of the Magistrate releasing the petitionerson bail dated 12. 11. 1996 is marked produced P4B).
Mr. Musthapha, PC invited the attention of this court to the 'B'Report which, inter alia, states that of the two vehicles which hadcome up the road, the 1st vehicle had driven past the virtual com-plainant and that the virtual complainant had also at a later stagedriven away from the scene of the alleged incident. Specific attentionof this court was also invited to the fact that there is no mentionwhatsoever in the 'B' report filed in court that the 3rd respondent hadbeen prevented from proceeding in any direction. Hence, counselcontended that their was no justification whatsoever to allege thecommission of the offence of wrongful restraint (section 332 of thePenal Code) in the aforesaid 'B' report.
It was also submitted that the other offences alleged in the said'B‘ report, namely, offences under sections 480 and 484 of the PenalCode are non-cognizable offences for which a Peace Officer shall notarrest without a warrant, (vide 1 st schedule of the Criminal ProcedureCode Act, No. 15 of 1979 read with the definition of "non-cognizableoffences" in section 2 of that Act).
These offences are bailable offences, and as such, the petitionerswere entitled to be released on bail in terms of the provisions of section116 (1) of the Code of Criminal Procedure Act, No. 15 of 1979.
It was counsel's submission that the 1st respondent had no warrantfrom a competent court to arrest either of the petitioners on11. 11. 96. The arrest of the petitioners was, therefore, not in
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accordance with the procedure established by law and as such the1st respondent has acted in violation of their fundamental rightsguaranteed by the provisions of Article 13 (1) of the Constitution.
The petitioners state that they were arrested by the 1 st respondentat the instance and instigation of the 3rd respondent.
It was also submitted on behalf of the petitioners that neither the1st respondent nor the 2nd respondent requested the petitioners tofurnish security with a view to releasing them (vide section 116 (1)of the Criminal Procedure Code). Hence, the consequential detentionof the petitioner for the purpose of producing them before theAdditional Magistrate was illegal and unlawful and was in violationof Articles 13 (1) and 13 (2) of the Constitution.
The petitioners have also averred that when the above case filedagainst them by the respondents was called in court on the 19th ofNovember, 1996, the Katugastota Police had informed the Magistratethat they would not be filing a plaint against the said petitionersand the learned Magistrate then referred this matter to the MediationBoard for settlement.
Having regard to the facts set out in the affidavits filed by thepetitioners and the submissions of President's Counsel, I have carefullyexamined the affidavits filed by the respondents and the writtensubmissions filed on their behalf. The 1st respondent in his affidavitstates that in this case he has merely performed his statutory dutiesas a Police Officer on a complaint (1R1) made by the 3rd respondentin accordance with the relevant provisions of the Criminal ProcedureCode Act.
On a complaint made by the 3rd respondent to the KatugastotaPolice on the 10th of November, 1996, he had deputed a subordinateofficer to proceed to the scene of the alleged offence and havingrecorded the statements of the wife of the 3rd respondent and thetwo petitioners, had the petitioners arrested and produced in theMagistrate's Court, Kandy.
SCAbdul Razak and Another v. Dharmadasa, Chief Inspector
of Police, Katugastota and Others (Perera, J.)135
The petitioners were produced in court by the 1st respondentupon a 'B‘ report (P4) alleging that they had committed offences undersections 332, 480 and 484 of the Penal Code (vide P4 & 1R6) andstating that further investigations were proceeding. The 1strespondent moved that the petitioners be released on bail upon suchterms as the court deems fit.
Counsel for the State in the written submissions filed on behalfof the 1st and 2nd respondents has submitted that the direction ofthe 1st respondent requiring the petitioners to attend the Police Stationwas a lawful order, which a Police officer investigating a cognizableoffence was empowered to make in terms of section 109 of the Codeof Criminal Procedure Act. He also contended that the arrest of thepetitioners was lawfully effected undef the provisions of section 32(1) (b) of the aforesaid Act. This section counsel submitted,empowered any Peace officer to arrest without a warrant any personwho has been concerned in any cognizable offence, or against whoma reasonable complaint has been made, or credible informationhas been received, or a reasonable suspicion exists of his havingbeen so concerned.
In this case, it was State counsel's contention, that the 'B' report- P4, disclosed the commission of the offence of wrongful restraint(section 332) which is a cognizable offence. Hence there was sufficientmaterial for the respondent if he gave credence to the complaint ofthe 3rd respondent to act upon the basis that a cognizable offencehad been committed. In the aforesaid circumstances, State counselsubmitted that the arrest of the two petitioners by the respondentswas a lawful arrest effected according to the procedure establishedby law. The detention in the Police station thereafter up to the timethe petitioners were produced before the Magistrate was hencelawful. It was State counsel's submission that the petitioners havefailed to establish that their fundamental rights guaranteed by Articles13 (1) and 13 (2) of the Constitution have been violated by the 1stand 2nd respondents. I
I am in entire agreement with this submission of State counselon behalf of the respondents that if there was any material which
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disclosed that the petitioners had committed an offence under section332 of the Penal Code which is a cognizable offence, the conductof the respondents could in no way be faulted for the reason thatthey have acted under the provisions of section 32 (1) (b) of the Codeof Criminal Procedure Act.
In the said circumstances, it was indeed necessary for this courtto ascertain upon a perusal of the 'B' report marked P4, whether onthe basis of the facts set out in that report the petitioners had eitherjointly or severally committed an offence under section 332 of thePenal Code. With this objective in view, I have given my carefulconsideration to the contents of P4, which is based upon the materialwhich was available to the Police at the time this report was filed.The 'B' report (P4) bears the heading, "Intimidation and attemptedassault". According to the 'B' report (P4), the petitioners are allegedto have threatened and abused the 3rd respondent and attemptedto pull him out of his car in order to assault him. The 3rd respondenthad at this stage with some degree of difficulty, closed the door ofhis motor car and had driven away.
It is nowhere alleged in the 'B' report – P4, that the petitionershad prevented the 3rd respondent from proceeding in any direction.In other words, it does not disclose the commission of an offenceunder section 332 of the Penal Code, which is the only cognizableoffence referred to in the 'B‘ report. The other two offences punishableunder sections 480 and 484 of the Penal Code are non-cognizableoffences for which a Peace officer shall not arrest without a warrant,(vide first schedule read with the interpretation of "non-cognizable" insection 2 of the Code of Criminal Procedure Act, No. 15 of 1979).
Section 332 of the Penal Code sets out the punishment of theoffence of wrongful restraint. The offence of wrongful restraint isdefined in section 330 of the same Code:
"Whoever voluntarily obstructs any person so as to prevent thatperson from proceeding in any direction in which that person hasthe right to proceed is said "wrongfully to restrain that person."
SCAbdul Razak and Another v. Dharmadasa, Chief Inspector
of Police, Katugastota and Others (Perera, J.)137
It is implicit in the analysis of the word, “obstruction" in the aforesaidsection that the complainant should have been dissuaded from pro-ceeding on his way because of fear induced in his mind of impendingunlawful harm – (vide offences under the Penal Code, second editionat page 155, G. L. Peiris). On an examination of the document P4,it is clear that there is no material from which one could draw theinference that an offence punishable under section 332 of the PenalCode had been committed or even an allegation to that effect.
Having regard to the facts set out above, I am of the opinion thatthe 1st and 2nd respondents by arresting the petitioners without awarrant in this case, where there was no credible information thata cognizable offence had been committed, had acted in violation ofthe law. It is in my view reasonable to conclude on the material placedbefore this court that the respondents have deliberately stated in the'B' report that an offence under section 332 of the Penal Code hadbeen committed for the purpose of justifying the arrest of the petitionerswithout a warrant. If this type of conduct on the part of Police officersis condoned by this court, the very salutary provisions relating toarrests contained in the Code of Criminal Procedure Act would berendered nugatory. Indeed it was these irresponsible acts on the partof the 1st and 2nd respondents that ultimately culminated in theincarceration of the petitioners in the Kandy Remand Prison withoutany justification whatsoever. Such conduct on the part of Police officersmust indeed be strongly condemned.
In the above circumstances, I hold that the arrest and the detentionof the petitioners at the Police station by the respondents up to thetime the petitioners were produced before the Magistrate by the 1stand 2nd respondents constituted wrongful arrest and wrongfuldetention and that such arrest and detention was therefore not inaccordance with the procedure established by law.
Having regard to the facts and circumstances of this case, thereis very little doubt in my mind that the 1st and 2nd respondentsarrested the petitioners at the instigation of the 3rd respondent. Thiscourt in Faiz's case held that a person who induced or instigated theunlawful arrest or detention of a person would himself be liable for
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the violation of such person's fundamental rights guaranteed by Article13 of the Constitution, (see Faiz v. AG & Others01).
In the present case, I would have had no hesitation in awardingsubstantial compensation personally against the 3rd respondent, butfor the fact that the petitioners have specifically stated that they claimno relief from him.
Having regard to the facts of this case, I hold that the 1st and2nd respondents have acted in violation of the fundamental rights ofthe petitioners guaranteed by Articles 13 (1) and 13 (2) of theConstitution.
I accordingly direct the 1st respondent to pay –
CompensationinasumofRs.15,000 to the 1stpetitioner,
CompensationinasumofRs.15,000 to the 2ndpetitioner.
The 2nd respondent is directed to pay –
CompensationinasumofRs.15,000 to the 1stpetitioner,
CompensationinasumofRs.15,000 to the 2ndpetitioner.
Both the 1st and 2nd respondents are ordered to pay a sum ofRs. 2,500 as costs to the two petitioners. The 1st and 2nd respondentsare ordered to pay the compensation and costs to the two petitionerswithin three months of the date of this judgment.
I also direct the State to pay the petitioners a sum of Rs. 50,000as compensation.
The petitioners would accordingly receive a total sum of Rs. 112,500as compensation and costs.
G. P. S. DE SILVA, CJ. – I agree.
BANDARANAYAKE, J. – I agree.
Relief granted.