014-SLLR-SLLR-1999-V-1-ANURA-BANDARANAIKE-v.-W.-B.-RAJAGURU-INSPECTOR-GENERAL-OF-POLICE-AND-OTHE.pdf
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ANURA BANDARANAIKE
v.W. B. RAJAGURU, INSPECTOR-GENERAL OFPOLICE AND OTHERS
SUPREME COURTDHEERARATNE, J.,
WADUGODAPITIYA, J. ANDBANDARANAYAKE, J.
S.C. APPLICATION NO. 239/97DECEMBER 8, 1998.
Fundamental rights – Entering a house to arrest a person – Powers of a policeofficer – Sections 24 and 25 of the Code of Criminal Procedure Act – Section125 of the Evidence Ordinance – Article 12 (1) of the Constitution.
On 12. 02. 1997 at about 2.15 am the 2nd respondent Deputy Inspector-Generalof Police, Criminal Investigation and the 3rd respondent Deputy Director, CriminalInvestigation entered the petitioner's residence without a warrant or the petitioner'spermission purporting to act under sections 24 and 25 of the Code of CriminalProcedure Act on the basis that they had 'reason to believe” that a murdersuspect – one Punchi Nilame had entered the premises. Those respondents statedthat they acted on the instructions of the 1st respondent Inspector-General ofPolice who had told the 1st respondent that a private informant whom he (the1st respondent) had known personally for 15 years and had given reliableinformation on many previous instances told him that he (the said informant) hadobserved Punchi Nilame entering the petitioner's residence at about 9 pm on 11..02. 1997. The informant was then produced before the 2nd respondent who afterquestioning him directed the 3rd respondent to question him further. The 3rdrespondent has made a note that he questioned the informant who stated thathe observed the suspect entering the petitioner's residence from the rear sideentrance.
The informant refused to disclose his identity; and no IB extracts were producedto show whether the informant had been questioned inter alia, regarding thecircumstances of his presence near the petitioner's residence which was situatedin a high security zone, guarded by security personnel. The credibility of theinformation had not been checked. The police searched the petitioner's residencebut did not find Punchi Nilame. No other house Jn the vicinity was searched.
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Inspector-General of Police and Others
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Held:
The 1st respondent failed to satisfy court that he received any reliableinformation from an informant. The 2nd and 3rd respondents failed to satisfycourt that they had "reason to believe" that the suspect had entered thepremises of the petitioner.
Section 125 of the Evidence Ordinance which inter alia provides that apolice officer shall not be compelled to say whence he got the informationof any offence has no application where a violation of a fundamental rightis alleged. The respondent cannot under the cover of section 125 proclaimthat he had "reason to believe" the information on which they acted. Itis the duty of the court to scrutinize the material placed before the courtand determine whether in fact the informant referred to existed.
APPLICATION for relief for infringement of fundamental rights.
Faiz Musthapha, PC with Ananda Kasturiarachchi, Sanjeewa Jayawardena, Nalin
Dissanayake, Ms. Faisza Markar and Thushani Machado for the petitioner.
Palitha Fernando, DSG, with Buvaneka Aluvihare, SSC for the respondent.
Cur. adv. vult.
February 19, 1999.
JUDGMENT OF THE COURT
The petitioner has a unique and a distinguished parentage; his latefather was one time Prime Minister of this country and his mother,besides being the present Prime Minister, has been Prime Ministerseveral times earlier. The petitioner is their only son. Her Excellencythe President of Sri Lanka, is his sister. In his own right, the petitionerhas been a Member of Parliament for about 20 years; he was at onetime the Leader of the Opposition and a Minister of State. Thebackground of the petitioner is mentioned here, not to accord himany special privilege before the law, but to demonstrate how thefundamental rights of even a person of such standing are liable tobe violated by errant executive and administrative action. The libertyof one citizen is no less and no more important that of any other.
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The incident which will be narrated later, which gave rise to thepetitioner’s complaint of the violation of his fundamental rights, isconnected with the assassination of the late Nalanda Ellawala (Ellawala),a youthful Member of Parliament at Ratnapura about 4 pm on 11.02. 1997. The petitioner stated that he is a near relative and a closeassociate of the Ellawala family and knew young Ellawala intimatelyfrom Ellawala’s infancy. The petitioner states that he was greatlyshocked and deeply grief-stricken at the news of the assassinationwhich he received about 6 pm on that day. One of the suspects inthe assassination of Ellawala is Susantha Punchi Nilame (PunchiNilame), a Member of Parliament. At the time of the assassination,both the petitioner and Punchi Nilame, as Members of Parliament inthe opposition, represented the same political party, namley, the UnitedNational Party.
The petitioner's Colombo residence, where the incident complainedof occurred, is situated adjoining the residence of his mother the PrimeMinister and both those premises abut Rosmead Place. Along theKynsey Roadside boundary of the petitioner's premises, there is a bye-lane which comes to a dead end immediately passing the petitioner’spremises. From this bye-lane there is a side entrance to the petitioner'sresidence. Access could be had to the petitioner's mother's residence,from the petitioner's own residence, through a connecting door situatedat the rear of his residence. The petitioner, as a Member of Parliament,is provided with security personnel, who are attached to the Govern-ment Ministerial Security Division. A high security zone screens theresidences of the petitioner and his mother. No outsider could gainaccess to any one of those two premises, either from the directionof Wijerama-Rosmead Place intersection, or from the direction ofKynsey Road, without obtaining clearance from the security personnelposted along Rosmead Place, at the two ends of the security zone(sketch P4). The two check-points are manned by members of theelite Special Task Force, the Army and the Police.
On 11.02. 1997, the petitioner left from his residence at Horagolla,to the Gampaha Kachcheri, in order to submit the nomination papersof candidates contesting several local bodies in the Gampaha District,from the United National Party. He returned to his residence inColombo around 1.30 pm. About 11 pm he retired to bed; his bedroomwas situated on the upper floor of his residence. The only personsin the petitioner's residence, besides himself, were, his Chief Security
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Inspector-General of Police and Others
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Officer, Hewage Torrington Swarnathilake (Swaranthilake) of theMinisterial Security Division and several domestic servants. In the earlyhours of 12. 02. 1997, about 2.15 am when the petitioner was asleep,he was suddenly awakened by Swaranthilake, who informed him thattwo persons, later identified as 2nd and 3rd respondents, haddemanded and gained forcible entrance to his residence and wereinsisting upon making a search of every room (affadavit P5). Thepetitioner immediately got out of his bedroom in order to descend thestairs. To his surprise, he encountered the 2nd and 3rd respondentsalready ascending the staircase despite the vehement protests ofSwaranthilake. The petitioner states that he was considerably fright-ened by the rude intrusion of 2nd and 3rd respondents and heapprehended harm to his person and/or property. The petitioner promptlyasked the two intruders, who were wearing civilian clothes, who theywere, and why they had come to his residence at that hour. The tworespondents then identified themselves and told the petitioner that theyhad been ordered by the 1st respondent to search the petitioner'sresidence for Punchi Nilame, who they said was the prime suspectin the assassination of Ellawala. The petitioner vehemently protestedagainst the unlawful and forced intrusion into his residence. He alsofelt utterly humiliated because the search suggested that he was aperson capable of harbouring a man wanted in connection with aheinous crime. However, after a thorough search of the bedroomsof the petitioner's residence, which lasted about 20 minutes,respondents left, finding no Punchi Nilame anywhere Strangley noother house in the vicinity was searched.
The petitioner stated that he subsequently came to know that the2nd and 3rd respondents had arrived at his residence with a posseof policemen in several police vehicles, which had created theimpression to the neighbours that a large scale raid was beingconducted on the petitioner's residence. The petitioner also statedthat the 4th respondent had forced his servants through threats aridintimidation to open the front door of his residence, through whichthe 2nd and 3rd respondents gained entrance.
The petitioner contended that by the acts of the 1st to 4threspondents, his fundamental rights guaranteed under Articles 12 (1)of the Constitution were violated.
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The 2nd and 3rd respondents admitted the search of the premisesof the petitioner. The position of the 1st respondent is that on theday of the killing of Ellawala, around 11.20 pm, a person known tohim personally, who has been a private informant for a period of over15 years contacted him over the telephone at his official residence.According to the 1st respondent, the informant had furnished himwith accurate and reliable information on many previous instancesduring his career as a police officer. The informant had told him thathe saw Punchi Nilame enter the residence of the petitioner at RosmeadPlace, through the side entrance, around 9.00 pm and that the petitionerwas harbouring him. Since the 1st respondent considered this infor-mation to be reliable, he immediately contacted the Deputy Inspector-General in charge of the Criminal Investigation Department (CID), whois the 2nd respondent, and 2R passed on the information receivedby him. He told him that the informant was long-standing privateinformant who had given him accurate information on many previousinstances. The 1st respondent had instructed the 2nd respondent toconsider the information given by him and take necessary action.He also instructed the 2nd respondent to be at his office so that hecould make arrangements for the informant to meet the 2nd respondentin his office. The 1st respondent instructed the informant to proceedto Police Headquarters and meet the 2nd respondent. The 1strespondent submitted that he had sufficient reason to believe that thepetitioner was harbouring Punchi Nilame.
The 2nd respondent averred that on 11. 02. 1997, around 11.30pm he was contacted by the 1st respondent who informed him thata long-standing private informant, who had furnished him with reliableinformation in the past had informed him that he had seen PunchiNilame enter the residence of the petitioner at Rosmead Place around9.00 pm. The 1st respondent informed him that he would get theinformant to meet him at his office and directed him to report to hisoffice immediately. He then contacted the 3rd respondent around 11.35pm and instructed him to report at his office. Around 12.10 am on12. 02. 1997, a person said to be the informant was produced beforehim by Sub Inspector Chandrasena, who was the duty officer (2R1).The 2nd respondent questioned the informant who did not disclosehis name. The 2nd respondent formed the opinion that there wasreason to believe him and instructed the 3rd respondent to questionthe informant further. The 2nd respondent was of the opinion that theinformation given by the informant should tie kept confidential as far
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as possible, lest the suspect comes to know and attempts to escapebeing arrested.
The position of the 3rd respondent is that he questioned theinformant in detail and that he considered the information to becredible. He was of the view that immediate action should be taken.As there was no time to obtain a warrant lest the suspect shouldescape, he decided to act in terms of sections 24 and 25 of the Codeof Criminal Procedure Act and to search the residence of the petitionerwith a view to arresting Punchi Nilame, who was suspected of havingcommitted the offence of murder. He informed the 2nd respondentof his intention and instructed the 4th respondent to report to himto assist in the investigation. The 4th respondent denied that he hadintimidated or threatened the servants of the petitioners in order tofacilitate access of the 2nd and 3rd respondents to the petitioner'sresidence.
The respondents relied on the relevant provisions of section 125of the Evidence Ordinance which states that –
"No Magistrate or police officer shall be compelled to saywhence he got the information as to the commission of anyofffence, . .
Accordingly, it was submitted that the respondents cannot becompelled to disclose the identity of the informant. Further it wassubmitted that under sections 24 and 25 of the Code of CriminalProcedure Act, if there was “reason to believe" that a person to bearrested has entered into any place, a search could be carried outby a person who had the authority to arrest.
In spite of this provision, it is not infrequently that this court hasbeen taken into confidence and confidential and/or privileged materialplaced before the Judges (off the record) for them to satisfy themselvesas to the relevant matters which have resulted in the executives oradministrative decisions which were in question. No such attempt atsuch disclosure was made in this case. At the hearing of thisapplication, the question as to the existence or non-existence of this
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so-called informant loomed so large, that we questioned the learnedDSG whether he made any attempt to verify for himself the existenceand identity of this person. He confessed that he was neither informedby the respondent police officers nor did he venture to ask them forthe so-called informant's identity. When it comes to a question ofviolation of fundamental rights, it would be highly dangerous from theview-point of the liberty of the citizen, for us to permit officials toconveniently hedge behind section 125 of the Evidence Ordinance andproclaim that they had "reason to believe” that matters on materialparticulars provided by persons whose identity cannot be disclosed,must be taken as true. In these circumstances it is our bounden dutyto scrutinise the material placed before us by the State mostdiligently, to find out the truth as to the existence or non-existenceof such an informant in the first place.
The 1st, 2nd and 3rd respondents in their affidavits, state thatsince the petitioner is a senior member of the United National Partyand since the suspect is also a member of the same party, they hadreason to believe that the petitioner was harbouring him with theintention of protecting a fellow Member of Parliament of his ownparty from being arrested.
It is common ground that the petitioner's residence is situated ina high security area where 24-hour surveillance is carried out. The1st, 2nd and 3rd respondents say that they had spoken to theinformant but according to their affidavits only the 1st respondent wasaware of the identity of the informant. Except the document marked3R1, there are no IB extracts attached to the affidavits of the respond-ents. 3RI is a document prepared by the 3rd respondent which statesthat –
"… I questioned the informant in detail but he was not preparedto discolose his identity but he stated that he has been a long-standing private informant of Inspector-General of Police,Mr. W. B. Rajaguru and he has passed him valuable informationwhich was found to be true and correct. The informant stated thathe personally saw the suspect entering into the house of MP forUNP Mr. Anura Bandaranaiake at about 2100 hrs. through the rear
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side entrance and that Mr. Anura Bandaranaike was harbouringsuspect Susantha Punchinilame, who is wanted in a case of doublemurder. He further stated that for a successful arrest of S.Punchinilame. prompt action should be taken without affording theperson to be arrested an opportunity of escape. I believe theinformation to be credible. There is no time to obtain a warrant
it
This is a self-serving document. It is the burden of the respondentsto prove that the search was lawful. Although the respondnetssubmitted that they were of the belief that the information was reliable,no satisfactory evidence was placed before us to indicate the basisof their conclusion. Although the 1st respondent stated that theinformant had for the past 15 years furnished him with accurate andreliable information and although this statement was repeated parrot-like by 2nd and 3rd respondents, no details of these items of accurateand reliable information have been provided to us so as to enableus to verify the truth of this statement. According to 3RI, the informantstated that "he personally saw the suspect entering into the houseof MP for UNP, Mr. Anura Bandaranaike at about 2100 hrs”. The 1stand 3rd respondents have averred that they questioned the informantin detail. We have not been provided with any details on what hewas questioned upon; nor the answers given by him. What is in ourpossession is their bare statements to effect that the informant wasquestioned in detail. There are no contemporaneous notes availableas to what these details are. There is nothing to indicate that the1st, the 2nd or the 3rd respondents questioned him as to where hewas when he said he saw the suspect entering the petitioner's premisesfrom "the rear side entrance". Was he questioned how far away hewas from the rear side entrance of the petitioner's residence whenhe saw the suspect? What was state of the illumination available forrecognising the suspect that night? How did the suspect get nearthe rear side entrance of the petitioner's residence? Did he walk orcome in a vehicle? Was he alone or in the company of another? Mostimportantly, was the informant asked how he entered the high securityzone to see what he says he saw? What did the informant meanwhen he said "and Anura Bandaranaike was harbouring him"? Thereis nothing to indicate that the informant was questioned on these lines.
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These are questions any normal person with average intelligencewould have asked an informant in order to satisfy himself as to whetherthe informant was speaking the truth or not. We are starved of thosedetails and there is nothing to indicate that the respondents had anyof those details themselves.
The 1st respondent has failed to satisfy us that he received anyreliable information from an informant who has been supplying himsuch information for 15 years previously. The 2nd and 3rd respondentshave failed to satisfy us that they had “reason to believe" that thesuspect has entered the premises of the petitioner. In thesecircumstances it is more likely that the informant was non-existent andthat the search was conducted in the petitioner’s residence with someother undisclosed purpose in mind.
We find that the 4th respondent has only played a minor role inthis incident in the company of his superiors. We hold that the 1stto 3rd respondents have violated petitioner's fundamental right to equalprotection of the law guaranteed under Article 12 (1) of theConstitution. We direct each of the 1st, 2nd and 3rd respondents topersonally pay to the petitioner a sum of Rs. 40,000 as compensationand Rs. 10,000 as costs; and the State to pay the petitioner a sumof Rs. 200,000 as compensation. The petitioner will be entitled in allto a sum of Rs. 350,000. This amount should be paid within one monthfrom today.
DHEERARATNE, J.WADUGODAPITIYA, J.
SHIRANI BANDARANAYAKE, J.
Relief granted.