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11983] 2 Sri L. R.
WEERASINGHE AND OTHERS
RATWATTE J.. COLIN THOME J.. AND RODRIGO J.
S.C. APPLICATION NO. 97/1982DECEMBER 13. 1982
Fundamental Rights — Application under Article 126 of the Constitution —Order for remand made in the exercise of judicial discretion.
The Petitioner filed application under Article 126 of the Constitution, allegingviolation of his fundamental rights under Article 13(2) of the Constitution on theground that, based on false reports made by the 1st and 2nd Respondents theMagistrate had made orders for his remand.
Orders made by a judicial officer in the exercise of his judicial discretion do notcome within the purview of the special jurisdiction of the Supreme Court underArticle 126 of the Constitution, even though such orders may be the result of awrongful exercise of the judge's judicial discretion.
Casas Referred to:
S. C. Application No. 54/82, S. C. Minutes of 6.9.1982.
S. C. Application No. 35/79. S. C. Minutes of 17.9.1979.
APPLICATION under Article 126 of the Constitution.
Jayampathy Wickremaratne for Petitioner.
Priyantha Perera D. S. G. with N. G. Ameratunga S. C. for Respondents.
Cur. adv. vult
January 20. 1983.
At the conclusion of the arguments in this case on
we made order dismissing the Petitioner'sapplication without costs and indicated that we would deliver ourreasons later. We now give our reasons.
Dayananda v Weerasinghe and Others (Ratwatte. J.)
The Petitioner filed this application on 14.12.1982 underArticle 126 of the Constitution alleging that the fundamentalrights guaranteed to him by Article 13(2) of the Constitutionhave been infringed by executive or administrative action.
Article 13(2) reads as follows :
"Every person held in custody, detained or otherwisedeprived of personal liberty shall be brought before thejudge of the nearest competent court according toprocedure established by law. and shall not be further heldin custody, detained or deprived of personal liberty exceptupon and in terms of the order of such judge made inaccordance with procedure established by law."
The 1st Respondent is the Officer in Charge of theHunnasgiriya Police Station, the 2nd Respondent is a Sergeantattached to the same Police Station and the 3rd Respondent isthe Attorney General. The Petitioner prays for a declaration thatthe 1st and 2nd Respondents have infringed the fundamentalrights guaranteed to him by Article 13(2)of the Constitution.
The Petitioner states that he is the owner of a hotel inHunnasgiriya. On 04.09.1982 whilst he was in his hotel the 1stand 2nd Respondents and some other Police officers came tothe hotel at about 9 p.m and requested the Petitioner toaccompany them to the Police Station. According to thePetitioner no reasons were given by the 1 st or 2nd Respondentsor by any of the other Police officers for the Petitioner's arrest,although the Petitioner demanded to know why he was beingarrested. The Petitioner was taken to the Police Station and put inthe cell. The 2nd Respondent is said to have abused andthreatened the Petitioner. On the following day the 1stRespondent questioned the Petitioner and recorded hisstatement. The 1 st Respondent had asked the Petitioner whetherhe was involved in the activities of the Janatha VimukthiPeramuna and whether he had been involved in the insurgencyof 1971. The Petitioner had denied both allegations. On thesame day. that is on 05.09.1982, the Petitioner was produced
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before the Acting Magistrate of Teldeniya in case No. 139/82and the Acting Magistrate had remanded the Petitioner till
In the report field by the 1st Respondent on
in terms of Section 115(1) of the Code CriminalProcedure Act. No.15 Of 1979 as amended by Act. No. 52 of1980. the 1st Respondent states inter alia that on receivingreliable information on 03.09.1982 that there were likely to beincidents dangerous to the State and to security organisations,he conducted investigations. In the course of investigations the1st Respondent had arrested the petitioner as one of thesuspects. The 1st Respondent has further stated in the reportthat investigations were proceeding and had asked that thePetitioner be remanded till 1 5.09.1982. On a motion filed by anAttorney-at-law on behalf of the Petitioner the case had beencalled on 08.09.1982 befor the Magistrate. On that date as the2nd Respondent had informed Court that the investigation wereincomplete, order had again be made to remand the Petitioner till1 5.09.1982. On 15.09.1982 the 1 st Respondent field a furtherreport stating that the investigation were still proceeding andasked for a further date to file his report after completion ofinquiry. When the case was called on that date in open courtapplication had been made on behalf of the Petitioner for bail.The 2nd respondent had objected to bail as investigations wereincomplete and also because the allegations against thePetitioner was that he was involved in incidents which were athreat to the security of the State. The 2nd Respondent hadfurther stated that the Police intended consulting theAttorney-General regarding the case. The Magistrate hadthereupon remanded the. Petitioner till 22.09.1982. The 2ndRespondent in his affidavit had admitted the Petitioner'saverments regarding what transpired in Court on 15.09.1982.
On 22.09.1982 the Petitioner was produced in theMagistrate's Court and the 1st Respondent filed a further reportstating that he had been unable to complete investigations andthat the investigations were proceeding. On that date too anapplication for bail was made on behalf of the Petitioner. The2nd Respondent had objected and the Magistrate had made order
Dayananda v. Weerasinghe and Others (Ratwatte. J.)
remanding Petitioner till 06.10.1982. On 06.10.1982 the 1stRespondent filed a further report stating that he has made furtherinvestigations regarding the information received by him on
and that on the evidence he has so far recorded itappeared that the Petitioner and three others had been hidingnear the Police Station. The 1st Respondent moved for a date toarrest two other suspects and asked that the Petitioner be furtherremanded. An application for bail had been objected to by the2nd Respondent and the Petitoner had been further remandedby the Magistrate till 13.10.1982 and on that date he had beenfurther remanded till 27.10.1982. The Petitioner states in hisPetition that he filed an application in the Court of Appeal interms of Section 404 of the Code of Criminal Procedure Actaskfng that the Petitioner be enlarged on bail.
The Petitioner has attached to his application marked P1 theproceedings in the Magistrate's Court containing the reports ofthe 1st Respondent dated 05.09.82. 15.09.1982 and
and the Journal Entries of 05.09.1982,
982, 1 5.09.82 and 22.09.1 982. He has also attachedmarked P2 the 1 st Respondent's report dated 06.10.1982 andthe Journal Entry of that date.
The Petitioner in his petition and affidavit alleges that the 1 stRespondent has deprived the Petitioner of his personal libertyby making the reports referred to above maliciously to theMagistrate and that these reports had caused the Petitioner tobe kept in remand unjustly. The Petitioner further states thatthe 2nd Respondent had aided and abetted the 1stRespondent in these activities. The Petitioner goes on to statethat he verily believes that the three reports filed by the 1stRespondent are false. The Petitioner states in paragraph 26 ofhis petition that the 1 st and 2nd Respondents "bear ill will andmalice" and proceeds to give the numbers of three cases filedby the Police against three employees in the Petitioner's hotelfor offences under the Excise Ordinance. In paragraph 27 thePetitioner states that the 1st and 2nd Respondents are angrywith him for accompanying two persons from Hunnasgiriya tosee the Superintendent of Police, Kandy to lodge a complaintagainst the 1st Respondent.
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The 1 st and 2nd Respondents filed separate affidavits denyingthe allegations made against them by the Petitioner. As regardsparagraph 26 of the petition, they both state that the three caseswere filed upon the succesful detection of unauthorised sales ofarrack. As regards paragraph 27 of the Petition both respondentsstate that they were unware of any complaint made to the S.P.against the 1 st Respondent and of the alleged role played by thePetitioner in that regard.
When this matter was taken up for argument on 13.12.1982which was the last day of the two months period within whichthis Court had to finally dispose of this Petition as requiredby Article 1 26(5) of the Constitution, several affidavits were filedon behalf of the Petitioner in support of the allegations againstthe 1st and 2nd Respondents contained in paragraph 27 of thepetition. As the Respondents had no opportunity of meeting theaverments in these new affidavits, we indicated that we will notbe taking these affidavits into consideration.
At the commencement of the arguments in this case theDeputy Solicitor General raised a preliminary objection. It wasadmitted that on the application made by the Petitioner to theCourt of Appeal for bail, that Court had made order on
directing that the Petitioner be released on bail in asum of Rs. 2,500/- and that the Petitioner had in fact beenreleased on bail on 06.12.1982. The learned D.S.G. argued thatas the Petitioner has now been released on bail there was in factno basis for the Petitioner to pursue this application. In supportof his submission the D.S.G. cited the judgment of this Court inS.C. Application No.35/79 <1>which was also an application filedunder Article 126 of the Constitution. The Petitioner in that casewas a labourer in a state Corporation which was the 1stRespondent in the application. He alleged in his petition thatthere had been an infringement of the Fundamental Rightsguaranteed to him by Article 1 2(2) which states that no citizenshall be discriminated against on the ground among others, ofpolitical opinion. The Petitioner's allegation was that certainemployees of the Corporation who belonged to a Trade Unionwhich supported the United National Party had been promotedsolely due to their political opinions. It transpired that after this
Dayananda v. Weerasinghe and Others (Ratwatte. J.)
Court had issued notice of that application to the Respondentsand after notice had been served, the 6th Respondent to thatapplication, who was the Minister in Charge of that particularCorporation, had directed that all the promotions complained ofby the Petitioner as solely due to political opinion, be cancelled.The .direction of the Minister had been implemented. At thehearing in that application the 1st Respondent's Counsel hadtaken a preliminary objection that as the foundation for thePetitioner's claim for relief no longer existed, the pursuit of theapplication of the Petitioner was futile. This Court upheld thepreliminary objection and rejected the petition. I do not think thatjudgment applies to the facts of the instant case. In the instantapplication the Petitioner grievance is that he had been kept inunlawful detention due to the malicious acts of the 1 st and 2ndRespondents and he was prayed for a declaration that the 1 stand 2nd Respondents. have infringed the Fundamental rightsguaranteed to the Petitioner in Article 13(2) of the Constitution. Iam therefore of the view that there is no substance in thepreliminary objection raised by the D.S.G.. I shall accordinglyproceed to the Pettitioner's application.
As stated earlier the Petitioner is claiming a declaration fromthis Court against the 1st and 2nd Respondents. LearnedCounsel for the Petitioner conceded quite rightly in our view, thata judicial order does not come within the purview of Article 126of the Constitution. The Petitioner's case is that the remandorders made by the learned Magistrate were due to the false andmalicious reports filed by the 1 st Respondent who was aided andabetted by the 2nd Respondent who in addition made falsestatement to the Magistrate in open Court. It was contended onbehalf of the Petitioner that these actions of the 1st and 2ndRespondents resulted in the Petitioner being deprived of hispersonal liberty. Learned Counsel for the Petitioner stated that heis unable to rely on the arrest of the Petitioner on 04.09.1982and the remand order made on 05.09.1982 as this petition wasfiled only on 14.10.1982. Article 126(2) requires a person whoalleges that fundamental rights have been infringed, to apply tothe Supreme Court for relief within one month of the allegedinfringement. The petitioner is relying on the reports filed by the1st Respondent and the oral submissions made by the 2nd
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Respondent in the Magistrate's Court on 15.09.1982,
and 06.10.1982 and on the reiViand orders madeon those days. It was submitted on behalf of the Petitioner thatthough the further orders of remand were made by theMagistrate, they were the inevitable consequences of the acts ofthe 1 st and 2nd Resondents. It was further cdntended that whenthe 1st Respondent alleged, in his report that he had receivedinformation that the Petitioner was involved in acts whichendangered the security of the state, the 1 st Respondent soughtto make the Magistrate believe that the Petitioner came withinthe 1 st schedule to the Criminal Procedure (Special Provisions)Law No. 15 of 1978 as amended though the 1st and 2ndRespondents did not directly state so. Mr Wickremaratne for thePetitioner argued that the words "by executive and administrativeaction" in Article 126(2) also means "in consequence ofexecutive or administrative acts". It was finally submitted that onaccount of the aforesaid acts of the 1st and 2nd Respondentsthe orders made by the Magistrate were not "in accordance withprocedure established by law".
The question that arises for considerationJs whether thoughthe remand orders were made by a judicial officer, the Petitioneris entitled to relief on the ground, as alleged by him, that theremand orders were made as a result of the wrongful acts of the1st and 2nd Respondents. This question is now covered byauthority. In S. C. Application No. 54/82(2) a similar questionarose for decision. The Petitioner in that case alleged that amongthe fundamental rights infringed was the fundamental right declaredby Article 13(2). It was held in that case that there had been a"violation of the fundamental rights guaranteed by Article 13(2) ofthe Constitution, but this violation has been more the consequenceof the wrongful exercise of judicial discretion as a result of amisleading Police report", In view of this, this Court went on to statethat it was unable to grant the Petitioner the relief prayed for by him.In my view this judgment is directly in point. I do not think it isnecessary to consider the allegations of the Petitioner that the 1stand 2nd Respondents were actuated by malice and ill will towardshim. The fact remains that the remand orders were made by theMagistrate in the exercise of his judicial discretion. Even if suchorders were made on false or misleading reports it does not help the
Dayananda v. Weerasmghe and Others (Ratwane. J.)
Petitioner in this case because orders made by a Judge in theexercise of his judicial discretion do not come within the purviewof the special jurisdiction of the Supreme Court under Article126 of the Constitution, even though such orders may be theresult of a wrongful exercise of the Judge's judicial discretion. Insuch an event an aggrieved person's remedy is to invoke theappellate or revisionary powers of the Appellate Courts. For thesereasons we are unable to hold that the petitioner is entitled toany relief on this application.
Before I conclude I think it is pertinent to make somecomments on the procedure that has been followed in this case.The first report filed by the 1st Respondent was. as the reportitself states, filed in terms of Section 115(1) of the Code ofCriminal Procedure. Section 115(1) requires the Police to filealong with the report a summary of the statements, if any. madeby each of the witnesses examined in the course of theinvestigation. It is apparent from PI that no such summary hadbeen filed. It may be that by 05.09.1982 on which date thereport was filed the Police had no sufficient time to record anystatements of witnesses. The information received by the Policeappeared to relate to an offence falling under Chapter VI of thePenal Code which deals with "offences against the State." All theoffences under that chapter are cognizable offences and in termsof Section 109(5) of the Code, it was the duty of the officer-incharge of the Police Station to commence an investigation forthe discovery and arrest of the offender. The 1st Respondent hadas required by Section 115(1) forwarded the suspect to theMagistrate within 24 hours of the arrest. In terms of Section115(2) the Magistrate if he decides to make an order ofdetention had to record his reasons. The acting Magistratebefore whom the Petitioner was produced on 05.09.1982 hasnot recorded any reasons when he remanded the Petitioner.According to the Journal Entries of the 8th. 9th, 15th and 22ndSeptember and the 6th October, the Magistrate who made theremand orders has also not recorded any reasons apart frommerely stating that "the investigations are not complete." Thereports filed by the 1 st Respondent on the 15th and 22ndSeptember and on the 6th October are woefully inadequate.Even along with these reports a summary of statements made by
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witnesses have not been filed. By that time the Police must surelyhave recorded some statements. From the documents filedbefore us we do not know whether fuller reports were filed after
The Petitioner was released on bail only on
which means that he has been deprived of hispersonal liberty for a period of three months. It may be as statedby me earlier that the Magistrate thought that the petitioner camewithin either the 1st schedule or the 2nd schedule to theCriminal Procedure (Special Provisions) Law No. 15 of 1978.The Magistrate should have recorded his reasons for orderingthe remand of the Petitioner. It must be remembered that when aperson is remanded he is deprived of his personal liberty duringthe duration of the remand period and a person who isremanded is entitled to know the reasons why he is soremanded. Magistrates should be more vigilant and comply withthe requirements of the law when making remand orders and notact as mere rubber stamps.
The Registrar is directed to forward a copy of this order to theInspector General of Police for necessary action.
COLIN THOME. J. – I agree.
RODRIGO. J. — I agree.