CORNELIS v. COOKSON.
0., Colombo, 13,452:
Action for wrongful entry into house and for wrongful arrest and confinementby police officers—Ordinance No. 16 of 1865, s. 69—Criminal ProcedureCode, chapters 4 and 6—Reasonable justification—Evidence:
The power given by section 59 of Ordinance No. 16 of 1865 to apolice officer to enter into and inspect without a warrant all premises ofpersons suspected of receiving stolen property, &c., is not superseded bythe provisions enacted in chapters 4 and 5 of ' the Criminal ProcedureCode. .
Whether the arrest of a person in whose possession things reasonablysuspected to be stolen property have been found is justifiable or not, willdepend on thereasonablenessof the suspicionentertained by the police
– Where a police officer had received information, true or false, whichled him to think that a person was a receiver of stolen goods, and where,a watch beingput upon. him,it was found that ahabitual criminalwent
into his housewith a parceland made himselfathome by sittingdown
Held, in anaction for damages brought bytheperson suspected,that
– entry into and search of his house for stolen property was jnstifiable,and that his arrest, after a third party had identified and. claimed certainof the articles seized, was not tortious.
HE plaintiff in this case, who was a goldsmith, sued threepolice officers for wrongfully entering into and searching
his house, and for wrongfully detaining certain goods belonging
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to. him. The first defendant was the Superintendent of Police, 1902.and the second and third defendants were Inspectors under hiscommand.
On the morning of the 21st November, 1899, the second defen-dant. with two or three constables, entered the plaintiff’s houseabout 7.30 a.h., and searched it for stolen property. The thirddefendant .helped the second defendant in the search. The plaintiffwas present, but did not object to the search. The police officersseized and removed to the police station some jewellery andvarious other articles. On the following day, one Paramanandachurned some of the articles seized: as his, alleging that hishouse had been robbed about four days previously. Theplaintiff was then taken up, confined in a cell, marched to thePolice Court, and charged with being in recent possession ofstolen goods. Be was tried and acquitted by the Magistrate onthe 29th November, but the police officers did not return to himthe articles removed by them. Plaintiff therefore claimed inthe present action (1) the return of his goods, or the paymentof their value, Bs. 1,441.75; (2) Bs. 500 as damages sustainedby him by loss of trade; and (3) Bs. 500 as damages for unlaw-fully entering and searching his house and arresting andconfining him.
The defendants pleaded justification as to searching theplaintiff’s house and arresting him, and the first defendant averredthat he detained the things a reasonable time pending inquiriesas to the owership of the articles seized.
The Additional District Judge; Mr. F. B. Dias, held1 that section59 of the Ordinance No. 16 of 1865 was not intended to curtail theCommon Law rights of the subject to seek redress for a trespassor other wrongful act committed by police officers; that, thoughthe second defendant had some grounds for entering and searchingthe plaintiff’s house, he acted unreasonably in making “ a cleansweep of tile man’6 house, and carrying away everything, leavingonly his electric battery in its place; ” that the defendants- had noreasonable grounds for seizing any of the plaintiff’s property orfor detaining it; that the detention of the goods wa6 arbitrary andcharacterized, by mala fides; and that he would have givenexemplary damages, but for the fact that the plaintiff’s counseldid not press for them, because the articles seized had beenrestored to the plaintiff subsequent to action. He thereforegave the nominal sum of Bs. 10 as damages on the second andthird cause of action, with costs in the class in which .the actionhad been Brought.
The defendants appealed.
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1902. Walter Pereira, for appellants, cited Ordinance No. 16 of 1865,
July 23, 24, sections 32 and 59; and Perera v. Hansard (8 8. C. C. 3).and 23.
Schneider, for respondent, cited Thiedeman v. Fernando
(2 N. L. B. 149).
Pereira, in reply, pointed out that Withers, J., had regrettedthe judgment delivered by him in Thiedeman v. Fernando.
Cur. adv. vult.
25th July, 1902. Monciusiff, A.C.J., after setting out the factsof the case, said:—
In order to understand the defence it is necessary to look atthe statutory powers conferred upon the police. The first pro-vision is section 59 of Ordinance No. 16 of 1865, which makes it" lawful for any police officer without a warrant to enter into
and inspect all premises of persons suspected of receiving
stolen property, any localitywhich he reasonably suspects
to contain stolen property, and then and there to take all necessarymeasures for the effectual prevention and detection of crime, and totake charge of all property reasonably suspected to have been.stolen,and of all articles or things which may serve as evidence of thecrime supposed to have been committed, and to take charge of allunclaimed property. ” Now, it was suggested that that provisionwas not in force because it has been superseded by chapters IV.and V. of the Criminal Procedure Code. I think I need say no moreabout that suggestion than that I am not disposed to believe thatthe mere enactment of these chapters was sufficient to ^repealthe very salutary provision which I have- just quoted from theOrdinance of 1865. It seems quite clear to me from that pro-vision, which is not touched by what Burnside, C.J., said inPerera v. Hansard 8 8. C. C. 3), that, if what the police did was.done with reasonable grounds, they were justified in their action.
The learned Judge stated that they made a clean sweep of thehouse, and apparently left the plaintiff nothing but an electricbattery with which to console himself. I think that that is asomewhat sweeping statement. The plaintiff undoubtedlyretained, among other things, some gold bars and materials withwhich he could carry on his electro-plating business. It may betrue that the police carried away a great many articles whichcould not be supposed to have been stolen, but their action was,in my opinion, eoverecf by the concluding terms of this section,-provided that they had reason to think that the detention of thearticles might assist them in detecting the authors of a crime.
With regard to the arrest, we were referred to section 32, sub-section (te), of the Criminal Procedure Code,' which provides that
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'■ any peace officer may, without an order from a Magistrate and1902.
without a warrant, arrest any person in whose possession anything
is found which may reasonably be suspected to be property stolen
or fraudulently obtained, or who may reasonably be suspected ofhaving committed an offence with reference to such a thing."
Now, the only question is whether the Superintendent of Policeand his inspectors were reasonably justified in doing what theydid. That matter must be looked at ’ with a due regard tocommon sense and the social conditions under which we live.
The police had evidently some information, true 'or false, whichled them to think that the plaintiff was a receiver of stolen goods.Therefore they put a watch upon' him, and when they found thatat an early hour in the morning one Jacobs was seen entering thehouse, .tbey thought themselves justified in searching it andcarrying away such articles as were necessary for their purpose.
Now, the case hinges to a great extent upon the character ofthis man Jacolis. There is no doubt .that he went into thehouse–the plaintiff himself admits it—and that he made himselfat home by sitting down .there. I see no reason to disbelieve theevidence of the constable that he had a parcel with him when hewent in. The constable’s conduct is explained by what he tellsus about this man. He said that he knew Jocolis, who was awell-known burglar, who had been previously convicted, and, hoadded in .this case, that at that moment he was under commit-ment for trial before the Supreme Court on a charge of burglarycommitted since this incident. Inspector Modder explains thathe knew the man Jacolis, that he knew that he was a habitualcriminal who had been convicted of house-breaking, and that hehad put detectives on because he had information that he wasfrequenting the plaintiff’s house. He adds that this man Jacoliswas suspected by the police of being .the burglar responsible forthe crime committed at Paramananda’s house. The Superinten-dent himself says that he considered he was justified in detainingthe things because an habitual criminal, who was suspected ofbeing concerned in a serious case of house-breaking, was seenentering the plaintiff’s house that morning with a parcel, and thatsome of the articles seized answered to the description of thethings stolen from Paramananda. It seems to me that the infor-mation which the police had in their possession justified them inhaving a very lively suspicion as to the nature of part of the tradewhich the plaintiff was carrying on; that they were justified inentering and searching the house and removing the articles whichthey did remove when they saw the man Jacolis making himselfat home there; and that, when some of the articles were identified7-
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JiOy 63, 64,
■ and 66.
by Paramananda, they were justified at the moment in putting theplaintiff -under arrest.
For these reasons I think that the learned Judge was wrong inholding that the defendants were not justified in doing what theydid, and that, with the exception of the Rs. 10 for the too longdetention of the plaintiff’s property, the judgment of the DistrictJudge must be set aside.
The exact order to be made with regard to costs wifi be containedin the judgment of my brother Wendt, with whom I entirelyagree.
I entirely concur with what has fallen from my Lord theChief Justice in regard to the action of the police on the21st November. We must of course be careful, while we protectthe police in the exercise of what are often very difficult duties,not to permit them to over-ride the rights of private individuals.But I do not think that it can be said in the present instance thatthe officers concerned acted unlawfully, or even with unnecessaryharshness. The plaintiff does say that he was beaten by twoconstables in his own house before his property was removed,but as I read the District Judge’s judgment, he does not believeplaintiff on that point, and consequently this tends further todiscredit the plaintiff as a witness. I think section 59 was amplejustification for ths taking of the plaintiff’s property into thecustody of the police, considering the nature of the property, thesituation in which some of it, at all events, was found, and the factthat Jacolis took a parcel into the house which the plaintiff wasunable to otherwise account for. I think, however, that thedetention of this property until the 26th March, that is to say, forover four months, was not justified by the circumstances. Thefinding of the articles in the plaintiff’s house had been advertisedin the Hue and Cry, and it was not alleged at the trial that anyclaimant to any part of this property had come forward in answerto that advertisement. Moreover, a formal letter of demand wasserved upon the defendants early in December, to which no replywas sent until after the institution of this action. I think that theaward of Rs. 10 to the plaintiff for damages consequent on thedetention of his property during the four months would besufficient compensation.
With regard to the arrest which took place on the 22nd Novem-ber, after Paramananda had identified some of the articles ashaving been among those which he . had lost from his own house,I am disposed to think that that man’s evidence alone was
sufficient to justify the anest, inasmuch as no reason iB shownwhy the police should not have acted upon it.
The order as to costs will be that the plaintiff will have hiscosts of instituting the -action and up to the 26th March, 1901,with Bs. 10 damages, and costs in the corresponding scale of theCourt of Bequests; but he will pay the defendants their costssubsequent to the 22nd March, 1901, as in the first class in theDistrict Court, and also the costs in appeal in the class in whichthey were incurred.
CORNELIS v. COOKSON