v.MAHENDRAN AND OTHERS
SHARVANANDA, C.J.. WANASUNDERA, J. AND H. A. G. DE SILVA. J.
S.C. APPLICATION No. 86/86.
OCTOBER 22. 1986.
Fundamental rights-Detention under Vagrants Ordinance for loitering-Validity oforder-Warrant of detention-Vagrants Ordinance, s. 3, 4, 8-House of DetentionOrdinance s. 4-Judicial Order.
The petitioner had been convicted for the second time for loitering at night on a highwaywithout being able to give an account of herself when questioned by the Police (s. 3 (1)(c) of the Vagrants Ordinance) and on a report from the Probation Officer ordered to bedetained at a State House of detention on a Warrant of Detention (s. 8 of the VagrantsOrdinance). Although the warrant of detention did not specify the period this omissionwas only an irregularity. The irregularity does not invalidate the Warrant of Detention.
Per H. A. G. De Silva, J.:
"I must observe that Magistrates who issue such warrants of detention should becareful to see that the provisions of the law are complied with and the warrants arecomplete in every necessary detail'.
APPLICATION for infringement of fundamental rights.
Nimal Senanayake, P.C. with Miss S. M. Senaratne and Mrs. A. B. Dissanayake for thepetitioner.
Sarath Silva, D.S.G. with Mrs. Anusha Navaratne. S.C. for 1st and 2nd respondents.
November 27, 1986.
A. G. DE SILVA, J.
The petitioner has filed this application under Article 126 of theConstitution alleging violation of her fundamental rights guranteed byArticles 10, 11, 12(1), 12(2), 13(2), 13(3), 13(5), 14(a), 14(b)and 14(b) by the executive or administrative action of therespondents. She has inter alia prayed for-
an order releasing the petitioner from detention, and (b) forcompensation in a sum of Rs. 100,000 for violation of herfundamental rights.
The petitioner was apprehended by the Police at Bambalapitiya on24.1.1986 and charged in M.C. Mount Lavinia Case No. 32646 withan offence under section 3(1) of the Vagrants Ordinance (Cap. 32) inthat she was found loitering at night on a highway and failed to give anaccount of herself when questioned by the Police..
On 5.02.86 she pleaded guilty to the said charge (vide J.E. of'
in IR2) and the learned Magistrate remanded her till 19.03.86 jand called for a Probation Report. She was further remanded on
till 4.03.86 and on receipt of the Probation Report thelearned Magistrate ordered that the petitioner be detained at the StateHouse of Detention at Gangodawila and issued Warrant of Detention2 R1 to that effect. At the conclusion of the hearing of this applicationthis Court made order directing the Magistrate of Mt. Lavinia todischarge the petitioner from the proceedings in M.C., Mt. Lavinia32646 and hence the petitioner is no longer in detention.
The Probation Report revealed inter alia that she had on a previousoccasion pleaded guilty to a charge for a similar offence and had beenfined Rs. 5. The 1st respondent has in his Probation Reportrecommended that the petitioner be detained at the State House ofDetention, Gangodawila as she could not be rehabilitated in thesurroundings in which she was living, (vide 1R2). The 1st respondentalso states that he made his recommendations bona fide and in thebest interests of the petitioner and the Court was not bound to acceptthis report.
Learned counsel for the petitioner submitted that the detention ofthe petitioner by the 2nd respondent, who is the Officer-in-Charge ofthe said House of Detention was illegal in that he was unable toproduce a valid order of detention. It was his contention that 2R1 wasnot a valid order of detention.
Section 4(1) of the Houses of Detention Ordinance (Cap. 33)empowers a Magistrate to order a person convicted of an offenceunder its summary jurisdiction, who in his opinion is a vagrant withinthe meaning of the Ordinance to be detained in a House of Detentionuntil, as provided for in sub-section (2) thereof, she avails herself ofsuitable employment found for her or until she is removed ordischarged as provided for in the Ordinance. Section 2 defines avagrant for the purposes of this Ordinance but it is quite evident thatthe petitioner does not fall within this definition.
Section 3(1 )(c) of the Vagrants Ordinance however enacts that-
"Every person wandering abroad—and not having any visiblemeans of subsistence, and not giving a good account of himself;shall deemed an idle and disorderly person within the true intent andmeaning of this Ordinance, and shall be liable upon the firstconviction to be imprisoned with or without hard labour, for anyterm not exceeding fourteen days, or to a fine not exceeding tenrupees".
Section 4(a) states that-
'Every person convicted a second time of being idle and
disorderlyshall be deemed a rogue and vagabond within the
true intent and meaning of this Ordinance, and shall be liable to beimprisoned with or without-hard labour for any period not exceedingone month, or to a fine hot exceeding twenty rupees".
Section 8 states that-
"In any case in which the offender against any of the provisions,whether of the last preceding section or any other preceding sectionof this Ordinance, is a female, the Court may in its discretion direct,both in respect of any imprisonment to which she may be sentencedin the first instance and in respect of any imprisonment to which shemay be sentenced in default of a fine, that, instead of beingimprisoned in one of the regular prisons of Ceylon, she shall becommitted to any house of detention established under the Housesof Detention Ordinance, and there detained until the expiration ofher sentence, and sections 5 and 6 of the said Ordinance shall applyto every such person so detained".
Since the petitioner has been convicted of an offence under thisOrdinance for the second time she is liable to the enhancedpunishment under section 4(a). i.e. one month's simple or rigorousimprisonment or a fine not exceeding twenty rupees. The Magistratecan under section 8, commit her to any House of Detentionestablished under the Houses of Detention Ordinance until theexpiration of her sentence, i.e. up to one month only. Learned counselcomplains that since the Warrant of Detention 2R1 does not specifythe period for which she is to be detained, the warrant is invalid. Thereappears to be certainly an. irregularity but this irregularity does nothowever invalidate the warrant and hence the 2nd respondent actedlawfully in detaining the petitioner in terms of the warrant. I mustobserve that Magistrates who issue such warrants of detention shouldbe careful to see that the provisions of the law are complied with andthe warrants are complete in every necessary detail. It behoves theauthority to whom the warrants are addressed, to bring it to the noticeof the Magistrates when such are wanting and incomplete in any way,so that any errors due to inadvertence or otherwise may be promptlyrectified.
The present application is one for the alleged infringement of thepetitioner’s fundamental rights. As stated by the 2nd respondent in hisaffidavit, the petitioner was detained at the State House of Detentionin compliance with and under the authority of the Warrant of Detention2R1 issued by the Magistrate of Mt. Lavinia. This is a judicial orderand could have been canvassed in appropriate proceedings. I do notthink that in the circumstances of this case the petitioner is entitled torelief under Article 126 of the Constitution. I therefore dismiss thisapplication. There will be no costs.
SHARVANANDA. C.J.-I agree.WANASUNDERA, J.-l agree.Application dismissed.