012-SLLR-SLLR-1985-V1-EDIRISURIYA-v.-NAVARATNAM-AND-OTHERS.pdf
EDIRISURIYA
v.NAVARATNAM AND OTHERS
SUPREME COURT.
SHARVANANDA. C.J., WANASUNDERA. J. AND RANASINGHE. J.
S.C. APPLICATION No. 109/84.
NOVEMBER 28, 29 AND 30, 1984.
Fundamental Rights-Application under Article 126 (2) of the Constitution for violationof fundamental rights of freedom from arbitrary arrest and detention (Article 13(1) and
) and equality (Article 12 (1) and (2) )-Time limit for such application-Detentionunder Regulations 18 (1) and 19 (2) of the Emergency Regulations-Sections 36, 37and 38 of the Code of Criminal Procedure Act.
On 20th July 1984 the 2nd respondent (Officer-in-charge of the Tissamaharama PoliceStation) went to the residence of the petitioner along with some police officers,searched his house sometime between 2.15pm. and 4.00 p.m. and took him to theold Police Station, Galle which they reached about 8.00 p.m.. saying he was wanted bythe 1st respendent (Deputy Inspector-General of Police. Southern Range) and alsoremoved some books and journals for which a receipt D was issued. On the night of21.7.1984 a Detention Order (A/3R1) issued by the 1st respondent purporting to actunder Regulation 19 (2) of the Emergency (Miscellaneous Provisions and Powers)Regulations No. 7 of 1984 said to be effective from the previous day was served onhim. The petitioner was kept under detention at the old Police Station in the charge ofthe 3rd respondent (Officer-in-charge of the Galle Police Station) and Questioned up toabout 26.7.84 about the burning of the Tissamaharama Magistrate’s Court which hadtaken place on 29.6.84. me petitioner alleged that he had not at any time beeninformed of the reasons for his anest and the arrest was not in fact and in law accordingto procedure established by law and the questioning of him about the fire in theMagistrate's Court of Tissamaharama was mala fide and because he belonged to apolitical party opposed to the party now in power.
The 2nd respondent averred that he explained the reason for the arrest to the petitionerthat it was in connection with investigations into the offence of setting the Magistrate'sCourt on fire and the damage so caused. After the attest the petitioner was detained inpursuance of the Detention Order A/3R1.
He also raised the objection that the petition dated 20.9.1984 was time-barred as itwas more than one month after the arrest on 20.7.1984 and that the validity of theDetention Order was not justiciable. The petitioner has countered the allegation that theapplication was time-barred by the plea that he could not have filed the applicationbetween 20.7.84 and 30.8.84 when he was released as the members of his family, hi%relations and lawyers who h8d been permitted to see him (and that too after 25.7.84)were strictly forbidden to discuss the case, and that in any event the Court could grantrelief under Article 126 (4) of the Constitution.
Held-
The time limit of one .month set out in Article 126 (2) of the Constitution ismandatory, Vet. in a fit case the Court would entertain an application m8de outside thelimit of one month provided an adequate excuse for the delay could be adduced. If thepetitioner had been held incommunicado, the principle lex non cogit ad impossibiliawould be applicable. But here there were documents proving that the petitioner hadopportunities to discuss his case with his wife and lawyer.
Even if the petitioner was not told on 20.7.1984 or at any time thereafter that he wasarrested, the objection that the petitioner has failed to make his application within onemonth of the arrest is unsustainable and cannot stand in the face of the facts whichmake it clear that the petitioner was in fact arrested, whether that arrest was accordingto law or not being another matter.
The petitioner's detention from 20.7.84 (8 00 p.m.) till his release on 30.8.1984was under Regulation 19 (2). A person can be taken in for detention under Regulation18(1) either for purposes of search or by way of arrest without warrant and such aperson can be detained up to a period of ninety days in a place authorised by theInspector-General of Police or by a Deputy Inspector-General of Police. When theexercise of powers such as these is challenged it is open to the Court to go into thematter and see whether or not the impugned power has been exercised as required bylaw in circumstances under which alone such power could have been exercised. Oncethe existence of facts and circumstances upon which a reasonable man could have soacted is established to the satisfaction of the Court, the ‘judicial intrusion' should thencome to a halt. It is only if no reasonable man could have, in the circumstances, donewhat was done, that the Court can justifiably intervene. On the material available at the*time incriminating the petitioner (though subsequently recanted) the detention ordercan be supported.
Sections 36, 37 and 38 of the Code of Criminal Procedure Act (providing for theproduction of an arrested person before a Magistrate) are not applicable in relation to a*person arrested under Regulation 18.
The arrest and detention were legal and the application fails.
Cases referred to:
. Vadivet Mahenthiran v. A.G. et ai-S.C. Application No. 66 of 1960, S.C.
Minutes of5.8.1980.
. B. M. Jayawardena v. A.G. era/ – S.C. Application No. 4 of 1981, S.C. Minutes
of 6.3.1981.
. Gunawardena etalv. E.L. Senanayake at at – S.C. Minutes of 8.4.1981.
. Hewakumippu v. 6. A. de Silva, Tea Commissioner et al-S.C. Application
No. 118/84-S. C. Minutes of 10.11.1984.
"(5). Janatha Finance and Investments Ltd. v. D. J. F. Liyanage – S.C. ApplicationNo. 127 of 82: S.C. Minutes of 14.2.82.
(0). Yasapala v. Rani! Wtckremasinghe et al – S.C. Application No 103 of 1980:S.C. Minutes of 8.12.80.
. Kumaranatunga v. Samarasinghe and Others: S.C. Application No. 121 of
1982 – S.C. Minutes of 3.2.1983.
. Venkata Ramiah v. State of Andhra Pradesh MR 1964 Andh. Pr. 416, 419.
. Pierisv. Commissioner of Inland Revenue (1963) 65 NLR 457.
. Deviprasad KhandeW and Sons Ltd. v. Union of India AIR 1969 Bom. 163,173.
APPLICATION under Article 126 of the Constitution.
Dr. Colvin R. da Silva with 8. Weerakoon, Miss M. Kanapathipillai, K. Balapatabendi.A. 0. R. Fernando and Miss Saumya de SitvB for petitioner.
Sunil de Silva, Additional Solicitor-General with Upawansa Yapa, DeputySolicitor-General end Mrs. S Tillekawardena for 2nd, 3rd and 4th respondents.
Cur. adv. vult.
January 15* 1985.
RANASINGHE, J.
Jhe petitioner, who is an attorney-at-law and had also been a Memberof Parliament, has come before this Court, under the provisions ofArticle 126(2) of the Constitution, alleging that the 1st to 3rdrespondents, who are all members of the Sri Lanka Police Force, have
*by their actionsviolated the petitioner's fundamental rights
as contained in Article 13 (1), (2) (viz. freedom from arbitrary arrestand detention), and also in Article 12(1) and (2) (viz. right to equality)of the Constitution of the Democratic Socialist Republic of Sri Lanka".
The position taken up by the petitioner is briefly : that, on the 20thJuly, 1984, the 2nd respondent, who is the Officer-in-charge of theTissamaharama Police Station, came along with several other policeofficers to his residence at Hambantota, searched his residence and
'thereafter took him away from his house stating that he was wantedby the Deputy Inspector-General of Police, Southern Range", who isthe 1 st respondent, that the 2nd respondent also removed from thepetitioner's home "some political books and some journals that hadcome by post around that time", and in respect of which the receipt*marked 'D', was issued by the 2nd respondent; that the petitionerwas driven away in a police vehicle, and was taken to the old PoliceStation at Galle at about 8p.m. ; that, on the night of the followingday, 21.7.84, a Detention Order, issued by the 1st respondent,purporting to act under Regulation 19(2) of the Emergency(Miscellaneous Provisions and Powers) Regulation No. 7 of 1984. andsaid to be effective from the previous day, was served on him ; thatthe petitioner continued to be detained at the said old Police Station inthe charge of the 3rd respondent, who was the officer-in-charge ofthe Galle Police Station ; that 'A' is a copy of the said DetentionOrder; that the petitioner was not permitted to see either themembers of his family or his lawyers for several days ; that from about
the petitioner's wife was allowed to see him ; that thereafter,from time to time, the petitioner's wife and relations and his lawyerswere allowed to see him ; that on such occasions the petitioner andhis visitors were expressly directed 'not to discuss about the case' ;that, during the time he was so detained, the petitioner wasquestioned, up to about 26.7.84, about the burning of theTissamaharama Magistrate's Court, (which had taken place on29.6.84) ; that, on or about 28.8.84, the Court of Appeal issuednotice of an application for Habeas Corpus made by the petitioner'swife seeking the release of the petitioner: that amongst the groundsset out in the said application is a ground set out in this petition, viz.that the said Detention Order could not have been legally issued under*the provisions of the said Regulation 19 (2) for the reason that theconditions precedent to such detention had not obtained, and thattherefore the petitioner’s detention on the orders.of the 1st,respondent was unlawful; that at no.time.was the petitioner informedby the respondents that he was under arrest; that, even if therespondents were to claim now that the petitioner had been soarrested, such arrest was not, in fact or in law, according to procedureestablished by law ; that the petitioner was not also informed of anyreason for such arrest; that therefore the respondents have violatedthe petitioner's fundamental right enshrined in Article 13 (1) of theConstitution ; that the detention and the questioning of the petitioner
in regard to the fire in the Magistrate's Court of Tissamaharama wasmala fide ; that the petitioner was never 'a communalist or a racialist';that the Police have acted mala fide for reasons other than those nowgiven merely- because he was a former Member of Parliament andfbelongs to a political party opposed to the party now in power; thatthe said unlawful acts of the respondents have caused him damageand financial loss in a sum of Rs. 20.000 which said sum thepetitioner claims from the respondents jointly and severally.
When this matter was taken up for inquiry it transpired that noticehas not been served upon the 1 st respondent who has been reportedto be out of the Island ; and the inquiry was proceeded with as againstthe other respondents.
The position put forward by the 2nd, 3rd and 4th respondents(hereinafter referred to as 'the respondents") is briefly : that the 2ndrespondent arrested the petitioner on 20.7.84, as he lawfully might,for the purpose of conducting further investigations into the offence ofdamaging the said Magistrate's Court of Tissamaharama by fire as he.the 2nd respondent, had formed a suspicion, in consequence ofcertain statements which had been recorded in the course of theinvestigation into the said offence, that the petitioner himself wasguilty of an offence in regard to the said incident; that, at the time thesaid arrest was effected, the 2nd respondent explained to thepetitioner the reason for such arrest, that "it was in connection withthe investigations into the offence committed with the damage to theTissamaharama Magistrate's Court by setting it on fire"; that the 2ndrespondent complied with the procedures established by law for thepurpose of making such arrest; that, at the time of such arrest, the2nd respondent also recovered from the possession of the petitioner a12 bore cartridge for the possession of which the petitioner had nolicence, which said act also constituted an offence under the saidemergency Regulations 3 of 1983 ; that the petitioner was, after sucharrest, detained at the old Police Station in Galle in pursuance of aDetention Order (a copy of which was produced marked 3R1) lawfullyissued by the 1st respondent under the provisions of Regulation19 (2) of the said Emergency Regulations 3 of 1983 ; that the saidDetention Order was served on the petitioner; that during the periodthe petitioner was so detained, members of the petitioner's family andseveral attomeys-at-law visited the petitioner.
Learned Additional Solicitor-General, who appeared for therespondents, also put forward several 'counter submissions'objecting to the petitioner's application being inquired into by thisCourt, that the said application has not been made within the timelimit of one month set out in Article 126 (2) of the Constitution, for thereason that the said petition, which alleges a violation of a*fundamental right (declared in Article 13(1), viz. freedom fromarbitrary arrest) on 20.7.84, has been lodged in this Court only on the20th September 1984 ; that, in terms of Section 8 of the PublicSecurity Ordinance (Chapter 40), the said Detention Order, which hasbeen made under the provisions of the Emergency Regulations, is notsubject to review, by this Court and is therefore, not justiciable ; thatthe provisions of Article 15 (7) read with those of Article 155 (2) ofthe Constitution permit the promulgation of procedures by way ofEmergency Regulations, made under the provisions of the PublicSecurity Ordinance (Chapter 40), which will have the effect ofoverriding, amending or suspending the operation of not only theprovisions of the Code of Criminal Procedure Act No. 15 of 1979, butalso of the provisions of Article 13(1) and (2) of the Constitution.
The submissions made on behalf of the petitioner to counter theobjection, that the petitioner's complaint of the infringement of thefundamental right under Article 13 (1) of the Constitution is out oftime are . that the petitioner was not informed, at the time he wastaken away from his home on the 20th July by the 2nd respondent,that he was being arrested : nor was he so informed at any later pointof time : that, that being so, the limitation in regard to time would notrun against the petitioner: that in any event, the petitioner could nothave, during the period 20.7.84. to 30.8.84 taken any steps to havecome before this Court: that during the said period even though the •petitioner was permitted to see his wife, his relations and his lawyers,yet. he could not have given any instructions to them to take any stepsto obtain any relief for him as he, the petitioner, was expresslyforbidden to have any discussion with them 'about the case': that inany event this Court could grant the petitioner relief in terms ofsub-article (4) of Article 126 of the Constitution.
This Court has consistently proceeded on the basis that the timelimit of one month set out in Article 126 (2) of the Constitution, ismandatory: Vadivel Mahenthiran v. A.G. et al {1) ; 8. M.Jayawardena v. A.G. etal{ 2); Gunawardena et al v. E. L. Senanayake
et at (3) ; Hewakuruppu v. G. A. de Silva, Tea Commissioner et al (4) ;In Vadivel Mahenthiran's case (supra) and in Hewakuruppus case(supra), this Court has expressed the view that this Court has adiscretion in a fit case, to entertain an application made outside thatsaid time limit of one month but that, in such cases, the petitioner•must provide an adequate excuse for the delay in presenting thepetition.
Article 126 (1) of the Constitution has conferred upon this Courtsole and exclusive jurisdiction to hear and determine any questionrelating to the infringement or imminent infringement by executive oradministrative action of any fundamental right declared andrecognized by Chapter 3 of the Constitution. The right to invoke suchjurisdiction by an aggrieved person is set out in Article 17, which hasbeen given the status of a fundamental right itself. Article 4 (d) of theConstitution has ordained that the fundamental rights which aredeclared and recognized by the Constitution should be respected,secured and advanced by all the organs of government and should notbe abridged, restricted or denied save in the manner and to the extentprovided by the Constitution itself. A solemn and sacred duty has beenimposed by the Constitution upon this Court, as the highest Court ofthe Republic, to safeguard the fundamental rights which have beenassured by the Constitution to the citizens of the Republic as pa?t oftheir intangible heritage. It. therefore, behoves this Court to see thatthe ful| and free exercise of such rights is not impeded by any flimsyand unrealistic considerations.
The learned Additional Solicitor-General conceded that, if thepetitioner had, after he was taken into custody by the Police, been held’incommunicado, then the period he was so held without having theopportunity of communicating with his relations and or lawyers and oftaking any meaningful steps to invoke the jurisdiction of this Court•should not and would not be counted in computing the period of onemonth referred to in sub-article (2) of Article 126 of the Constitutionand that the maxim lex non cogit ad impossibilia would, in such asituation, apply. He, however, contended that the petitioner in thiscase cannot be said to have been held under such restraint, and thatthere is no justification for not counting the said period of one monthfrom the 20th July 1984 itself. – in respect of the complaint ofinfringement of the provisions of Article 13(1).
Notes made by the Police officer who was on duty during the visitspaid from 28.7.84, to'29.8.84 to the petitioner by the members ofhis family and by several attorneys-at-!aw whilst the petitioner wasunder detention, have been produced marked 2R6 to 2R18. Whilst2R7, 2R8, 2R9, 2R10, 2R11,2R12, 2R14, 2R16 and 2R17 disclose*that no discussions took place ‘about the case' between the petitionerand his visitors ; 2R7 and 2R10 clearly show that the petitioner andhis visitors had been expressly directed not to speak or talk 'about thecase'. If that had been the situation which had prevailed throughoutthe period of detention, then the petitioner cannot be faulted andpenalised for not coming before this Court before the expiration of aperiod of one month from 20.7.84-or even from 27.7.84. Nomeaningful step could have been taken, or even attempted to be takenin such circumstances. A consideration of several other documents,out of the group of documents referred to earlier, however, revealsthat, although such stern directions had been given at times, yet, atother times the petitioner had had no such constraint imposed uponhim and he had not only been able to hand over to his wife adocument, which is of the utmost importance in regard to hisdetention, but had also been able to speak freely to a lawyer, who sawhim about the statement he, the petitioner, had made to the Policeand also “discuss the case”. 2R8 dated 3.8.84 shows that theDetention Order served on the petitioner was handed over by thepetitioner to his wife. That the petitioner had spoken, about thestatement made by him to the Police, to Sarath Wijesirighe, anattorney-at-law, without any hindrance, and had also similarly"discussed the case" with the said attorney-at-law is evidenced by thedocument 2R13 dated 19.8.84. The attorney-at-law, through whom*the petitioner has filed this application in this Court and who is alsoclosely connected to the petitioner by marriage, had also visited thepetitioner on at least two occasions. It is also in evidence that, whilst*the petitioner was still under detention, an application for a writ ofHabeas Corpus, seeking the release of the petitioner, was filed in theCourt of Appeal by the petitioner's wife. It has also to be noted that anapplication for relief under the provisions of Article 126(2) of theConstitution can be made to this court, in terms of the self sameprovisions, by an attorney-at-law on behalf of the petitioner. Such anapplication is not required to be made by the petitioner himself.
It has also been contended on behalf of the petitioner, as set outearlier, that the petitioner not having been told that he has beenarrested either on the 20th July 1984, or at any time thereafter thesaid objection – of not coming before this Court before the expiration*of a period of one month from the date of arrest – cannot besustained. It is the position of the petitioner that he was neverarrested, but that he was only told that the 1 st respondent wanted tomeet him. He bases his claim upon an arrest only because therespondents claim to have arrested the petitioner. Whether the claim,founded upon a breach of a Fundamental Right by an executive oradministrative act, is based upon facts which are alleged by theapplicant of his own personal knowledge, or whether such claim isbased upon a set of facts asserted by the respondents, what gives riseto an application for relief or redress under Article 126 (2) of theConstitution is the infringement (or the imminent infringement) in factof such Fundamental Right. If there is no such infringement then thereis no cause for an application under sec, 126 (2) of the Constitution.Whatever form such complaint takes – whether it be upon theapplicant's own knowledge or upon the assertions made by therespondent himself – an infringement is essential. Not only: is aninfringement essential; the date of such alleged infringement alsobecomes essential in view of the element – of one month – set out inthe said sub-article (2) of Article 126 of the Constitution.
The position of the 2nd-4th respondents is that the petitioner wasarrested – and it is their position that it was a lawful arrest – on the20th July 1984 at the petitioner's home in Hambantota. Although theexact time of such arrest has not been expressly stated, yet, it is clearthat the said arrest would have been effected sometime between2.15 p.m. and 4 p.m. Having regard to all the circumstancessurrounding : the arrival of the 2nd respondent at the petitioner'shome on the 20th July 1984 shortly after 2 p.m. with several otherpolice officers , what the 2nd respondent said and did in that house onthat occasion : the petitioner being taken from his home that eveningby the 2nd respondent in the police van : the place and the manner inwhich the petitioner was thereafter kept during the night of the 20thJuly and the days which followed ; and having regard also to the entry2R4, to the statement ’E" made by the petitioner to the police on27.7.84, and to the explanation set out in sub-section (1) of sec. 23of the Code of Criminal Procedure Act No. 15 of 1979, it is clear notonly that the petitioner was arrested – whether such arrest was
effected according to law or not is another matter – by the police onthe 20th July 1984, and that the Petitioner, who is himself a lawyer,would have realised, at least by the 27th July 1984, that he had infact been arrested, and was being detained upon the basis of theDetention Order which had been served on him on the 21st July*1984.
The petitioner has not, apart from stating that his wife waspermitted to see him only from about the 25th July 1984 and hislawyers only about two weeks thereafter, and that one lawyer, whosavv him with the permission of the Inspector-General oTPolice on oneoccasion, was instructed by the 3rd respondent not to discuss thecase, in his petition referred to his inability to have presented hispetition to this Court within the time limit of one month set out in thesaid Article 126 (2). Nor has he pleaded any excuse or explanationregarding the failure to comply with the said requirement.
On a consideration of the foregoing, I am of opinion that theobjection raised on behalf of the respondents – to the considerationby this Court of the claim based upon the alleged infringement of thepetitioner's Fundamental Right set out in Article 13(1) of theConstitution – must be upheld.
Although it is not necessary to consider the other objection putforward on behalf of the respondents, based upon the provisions ofsec. 8 of the Public Security Ordinance (Chapter 40), and Articles15 (7) and 155 (2) of the Constitution, suffice it to say that this Courthas on several earlier occasions asserted the right of this Court toentertain complaints in regard to the validity of various Orders made inpursuance of the powers conferred by Emergency Regulationspromulgated under the provisions of the Public Security Ordinance(Chapter 40), and has clarified the scope, nature and the extent of thepowers of this court to examine and pronounce upon the legality andvalidity of such Orders – Janatha Finance and Investments Ltd. v. D. J•F. Liyanage (5); Yasapala v. Ranil Wickremasinghe et. a!., (6);Kumaranatunga v. Samarasinghe and Others (7). Having regard to theprinciples set out in the said Judgments, I am of poinion that thisobjection must fail.
petitioner was detained at the old Police Station, Galle from 8 p m. on
– after he had been taken away from his home, around 4p.m. on 20.7.84, in custody by the 2nd respondent – until he wasreleased on 30.8.84, in charge of the 3rd Respondent. The^respondents rely upon the Order – marked 'A' and also 3R2 – tojustify the said detention. The said Order is as follows :
'DETENTION ORDER
By virtue of powers vested on me in terms of Regulation No. 19 (2) of theGovernment Gazette No. 306/8 of 18.7.84.
I. A. Navaratnam, Deputy Inspector-General of Police. Southern Range, do herebyauthorise Officer-in-Charge of Police Station, Galle the detention of suspect TENNYSONEDiRISOORiYA of Sea Spray, Galewela, Hambantota in his custody at Old Police StationGalle from 20.7.84 to 17.10.84.
21.7.84.
Date.
A. Navaratnam,
Deputy Inspector-General of Police.Southern Range."
The principal submission put forward on behalf of the Petitioneragainst the validity of the said Detention Order is : that the 1 stRespondent, who is said to have made the said Order, had no powerto have made such an Order: that Regulation 19 (2) of the saidEmergency. Regulations does not operate to confer power upon theInspector-General of Police (or on any Deputy Inspector-General ofPolice) to make an Order of Detention such as 'A' (or 3R1) for thereason that the said Regulation is not an empowering provision suchas, for example, the preceding Regulations 16 and 17 are.
Regulation 18(1) empowers inter alia, any police officer to 'search,detain for purposes of such search or arrest without warrant any
T>er$onwhom he has reasonable ground for suspecting to
be concerned in or to be committing or to have committed an offence
under any emergency regulation" Regulation 19, whilst it
provides in paragraph (1) that the provisions of Sec. 36, 37, and 38of the Code of Criminal procedure Act No. 15 of 79 shall not apply inrelation, to persons arrested under regulation 18, provides inparagraph (2) that 'any person detained in pursuance of the provisionsof regulation 18 in a place authorized by the Inspector-General of
Police may be so detained for a period not exceeding ninety daysreckoned from the date of his arrest under that regulation, and shall atthe end of that period be released by the officer-in-charge of that placeunless such person"
A consideration of the provisions of Regulations 18 and 19, referredto above, shows that the combined effect of these two Regulations isthat where a person, who falls within any one of the three categoriesof persons referred to in the latter half of paragraph (1) of Regulation18. is either "detained for purposes of search" or "arrested without awarrant" by any of the persons referred to at the commencement ofthe said paragraph (1), then that person, if he is detained in a placeauthorized by the Inspector-General of Police (or by a DeputyInspector-General of Police) could continue to be so detained for aperiod of ninety days, and that the said period of ninety days is to becalculated from the date on which he was arrested under Regulation18. The period of ninety days referred to in paragraph (2) ofRegulation 19 applies only to a person who is detained in a placeauthorized by the Inspector-General of Police (or by a DeputyInspector-General of Police). A person who can be so detained in suchan authorized place is a person who has either been detained forpurposes of search or has been arrested without a warrant underRegulation 18. The pre-requisites to a detention extending up toninety days empowered by paragraph (2) of Regulation 19 are : aperson who has already been taken in for detention under paragraph(1) of Regulation 18, either for purposes of search or by way of arrestwithout a warrant, and : a place authorized for such detention by theInspector-General of Police (or a Deputy Inspector-General of Police).The power to take a person in, either by way of detention for purposesof search or by way of arrest without a warrant, is provided by*Regulation 18 (1). The power to keep such a person in detentionthereafter from that point of time up to ninety days is furnished byRegulation 19 (2). That the wording of paragraph (2) of Regulation 19.is sufficient to empower the Inspector-General of Police (or aDeputy Inspector-General of Police) to authorize a place of detentionadmits of no doubtBindra. Interpretation of Statutes (6 edt.) p49; Venkata Ramiah v. State ofAndra Pradesh (8).
The nature, scope and the extent of the powers of this Court whenan Order, which is said to have been made under the provisions of anemergency regulation such as the said Emergency Regulation No. 7 of
1984 and which is regular on the face of it, is produced have beendiscussed in the several judgments of this Court referred to earlier -the Janaiha Finance and investments Ltd., case (supra); Yasapala'scase (supra); andKumaranatunga’s case (supra).
Paragraph (1) of Regulation 18 also sets out, in the second half ofthat paragraph, the circumstances under which the powers ofdetention and of arrest, specified therein, can be exercised by those to■ whom such authority is granted. The existence of at least one of thegrounds specified therein is a condition precedent to the exercise ofthe power of detention or of arrest. It does not confer a power toarrest arbitrarily. It is a power to be exercised only upon the existenceof the cicumstances expressly stated therein. When the exercise ofsuch powers is challenged it is open to the Court to go into it and seewhether or not the impugned power has been exercised as required bylaw in circumstances under which alone such power could have beenexercised. Once the existence of facts and circumstances, uponwhich a reasonable man could have so acted is established to thesatisfaction of the Court, the ’judicial intrusion* should then come to ahalt. It is,not open to the Court to substitute its own opinion for that ofthe person who has been vested with the power to act. It is only if thefacts and circumstances, upon which the impugned order is sought tobe justified by those who have exercised the powers in question, aresuch that it is clear that no reasonable man could have, in thesecircumstances, done what has been done, that the court canjustifiably intervene.
The 2nd respondent seeks to justify his action upon the contents ofthe two.statements, 2R2A, dated 12.7.84, and 2R1A, dated•15.7.84, made by the two suspects K. Gamini and L. Prematilakarespectively, both of which had been recorded in the course of thepolice investigations into the burning of the TissamaharamaMagistrate's Court building on the night of 29.6.84. In their’statements the suspects implicate the petitioner as having engagedthem to set fire to‘the court building. The 2nd respondent, though hewas the officer-in-charge of the Police Station, Tissamaharama andcould have acted on his own, had, nevertheless, decided to consulthis superior officers. It was only thereafter, on the 20th July, 1984,upon receipt of the directions from the 1st respondent set out in2R19R1, that the 2nd respondent had proceeded to the petitioner'shome and taken him into custody. The 2nd respondent has, in his
affidavit filed in this Court, averred in paragraph 6 : ‘I only admit that Iarrested the petitioner at his residence on 20.7.84 on the orders ofthe 1st respondent*. This averment, it must be noted, has been madeby the 2nd respondent whilst expressly answering an averment in thepetition. I do not think that this averment must be taken to mean that, <in taking the petitioner into custody, he was merely carrying out anorder he had received from a superior, and that he himself had noknowledge of the facts and circumstances upon which the petitionerwas being taken into custody, and that there was no occasion for himto exercise his own independent judgment in regard to this matter. Infact, the succeeding averments in this affidavit, particularly paragraphs7. 8 and 9, make it quite clear that he was himself aware of all therelevant facts and circumstances and had himself considered thematter.and taken the view that the petitioner had to be taken intocustody for further investigations. 2R1,9R1 had been in the nature ofan approval of what he himself had thought should be done. Twocounter affidavits have been filed by the petitioner, marked "G* and“H", from K. Gamini, who had earlier made the statement 2R1A, andL. Prematilaka, who had earlier made the statement 2R2A,respectively. In these affidavits these two persons retract their earlierstatements, which incriminate the petitioner and state that their earlierstatements incriminating the petitioner were made at the instigation ofthe 2nd respondent. These two affidavits, though dated 24.10.84,were filed in this Court only on 21.11.84, the day before this matterwas due to be taken up for inquiry by this Court on 22.11.84 ; and noopportunity was thus given to the 2nd respondent to file a counteraffidavit in regard to the said allegations. In those circumstances it isnot possible, upon the material before this Court, to pronounce uponthe truth or falsity of the said allegations. This matter has, therefore, to.be considered upon the material placed before this Court as thematerial available to, and upon which the 1 st and 2nd respondentsacted on the 20th and 21st July 1984.
•
It was contended that the fact that the 1 st respondent directed therelease of the petitioner a few hours after the Court of Appeal directedthe issue of notice in the Habeas Corpus application amounts to anadmission that such detention could not be supported. As set outearlier, the 1 st respondent had not been served with notice and wasnot, therefore, present at the inquiry before this Court. It wascontended, on behalf of the 2nd-4th respondents, that no adverseinference should be drawn against the respondents ; for the reason
why the 1st respondent acted in the way he did would only be amatter for conjecture. This submission made on behalf of therespondents should, in my opinion, be accepted.
The Order 3R1 (or A) has, admittedly, been made on 21.7.84.Although it is sought to be made applicable from 20.7.84, 3R1 (or A)cannot, in law, have any retrospective effect, It will, therefore, beoperative only from the earliest moment of that day, 21 st July 1984.
Regulation 19(1) makes the provisions of secs. 36, 37 and 38 ofthe Code of Criminal Procedure Act No. 15 of 1979 not applicable inrelation to persons arrested under Regulation 18. Thus the provisionsof the Code of Criminal Procedure Act requiring : the person arrestedto be sent before a Magistrate without unnecessary delay : the personarrested not to be detained in any event for a longer period thantwenty-four hours: arrests without warrant to be reported to theMagistrate, will hot apply in regard to those arrested under the saidRegulation 18. Even if the arrest of the petitioner attracted to it theprovisions of secs. 36 and 37 of the Code of Criminal Procedure ActNo. 15 of 1979, yet, the detention of the petitioner from about 2.15p.m. on 20.7.84 to midnight of the 20th-21st July would not be
In this connection it is also relevant to bear in mind the principle :that as long as an authority has the power to do a thing, it does notmatter if he purports to do it by reference to a wrong provision of law,and the order can always be justified by reference to the correctprovision of law empowering the authority making the order to makesuch order-Bindra (6 edt.) Interpretation of Statutes p. 153; Peiris v.Commissioner of Inland Revenue (9) Deviprasad Khandelvel and SonsLtd. v. Union of India {10) ; Kumaranatunga's Case (supra).
In this view of the matter, I am of opinion that the detention of thepetitioner, from the time he was taken into custody on 20.7.84 untilhe was released on 30.8.84, did not constitute an infringement of thepetitioner's Fundamental Rights declared and recognised in Article13(2) of the Constitution.
The petitioner has, in his petition, complained of infringements of hisFundamental Rights embodied in Article 12(1) and (2) of theConstitution. No submissions were, however, made to this Court inregard to them at the hearing of this application. Having regard to the
principles that have been laid down by this Court in applicationsalleging infringements of the Fundamental Rights embodied in Article12(1) and (2) of the Constitution, it appears to me that the materialset but in the petition is insufficient to establish the claim put forwardunder the said Article.
For these reasons. I am of opinion that the petitioner's claim mustfail. The application is accordingly dismissed, but without costs.
SHARVANANDA, C. J. – I agree.
WANASUNDERA, J.
I have read the judgment of Ranasinghe J. and I am in agreement withthe order proposed by him. Since I have arrived at this sameconclusion for reasons somewhat different from him on some mattersand my reasoning may be of some interest in construing the legalprovisions considered by us, I think it would be useful if I were briefly toset them down here.
It is not necessary to recapitulate the facts which are detailed byRanasinghe J. in his judgment. First, I shall turn to the two preliminaryobjections raised by the learned Deputy Solicitor-General Ranasinghe,J. has upheld the first of these objections, namely, that the petition isout of time as it has not been filed within one month of the allegedviolation of the fundamental right as required by Article 126 (2) of theposition to avail himself of his constitutional remedies within the timelimit could be accepted.
The validity of the first preliminary objection depends on thequestions – first, whether or not the petitioner can be said to havebeen arrested and the date of such arrest and, second, whether or notthe excuse of the petitioner that he was under restraint and not in aposition to avail himself of his constitutional remedies within the timelimit could be accepted.
In regard to the first question, I agree with Ranasinghe J. that thepetitioner would or should have been aware that he was under arrestat least by 27th July 1984.1 am inclined to think that in making the socalled arrest on 20th July at the petitioner's residence at Hambantota,spoken to by the police, while the police intended to arrest thepetitioner, and in their own minds thought that they were making anarrest, they had probably out of tact or regard for the standing andstatus of the petitioner, conducted themselves in such a manner as tomake it equivocal and ambiguous to the petitioner and the by-standerswhether what was taking place was an arrest or the petitionerwas being taken merely for questioning Viewed in this light, I can see
no real conflict between the affidavits relied on by the petitioner andthe respondents. In view of this finding, his petition is out of time andcannot be entertained by us unless he can provide some legaljustification for the delay.
My brother Ranasinghe, J. has taken the view that, while the delaycould be excused up to a point of time during his detention, thepetitioner was thereafter in a position to avail himself of his legal rightsand therefore his application would still fall outside the prescribed timelimit. It is conceded by counsel that if the petitioner during his period of.detention was not afforded an opportunity of communicating with hisrelations and lawyers or was so placed that he could not or was unableto take any meaningful steps to invoke the jurisdiction of this Court,then such period should be left out of the reckoning in computing thetime limit under Article 126 (2). It is also conceded that while underdetention orders the petitioner was expressly enjoined not to speak ordiscuss 'about the case' with any of his visitors. 'The case' referred tois the investigation into the setting fire to the Magistrate's Court.Hambantota, which the police were investigating and in respect ofwhich the petitioner states he was unlawfully detained.
My brother Ranasinghe, J. refers to a few instances when;according to him, this injunction not to discuss "the case' had notbeen complied with. For example, the petitioner had been able to handover the Detention Order served on him to his wife. It would appearthat on one occasion he had also managed to discuss the statement, he made to the police with the attorney-at-law Sarath Wijesinghe.Ranasinghe, J. also states that Mr. Fernando his present attorney anda close relation had visited him on about two occasions. Finally, duringhis period of detention, his wife had filed an application for Habeas
Corpus, which had directly or indirectly led to his release, apparentlythe suggestion being that this may have been done on his instructions.On this material, Ranasinghe J. is of the view that the petitioner did infact have the opportunity of availing himself of his legal remedieswithin the time limit.
As against this, it is conceded that after his arrest the petitioner washeld incommunicado and it was only on the 25th July that his wife wasallowed to see him. After the lapse of about two weeks his lawyers
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were allowed to see him. But all this time he was under a strictinjunction not to discuss his case. Even the lawyer who obtained theInspector-General's permission to visit him was expressly instructedby the 3rd respondent not to 'discuss the case*. The injunction itappears operated both ways, i.e., imposed both on the petitioner ancPhis visitor. The discussions, if any, referred to by my brother wouldhave been in violation of these express instructions and mustnecessarily have been of a furtive, hurried and incomplete nature. It issignificant that in documents 2R7, 2R8, 2R9. 2R10, 2R11, 2R12,2R14, 2R15, 2R16,2R17 and 2R18-the record of such visits-specific note has been made of the fact that nothing relating to thecase was discussed at such meetings. This would give some Idea ofthe strictness and force of the injunction and how meticulously it wasenforced. In fact, even a letter addressed to the Inspector-General ofPolice, handed by the petitioner to the detaining authoritiesquestioning his detention, was returned to him. My brother himselfhas thought that they were 'stern instructions'.
the only document suggesting anything to the contrary is 2R 13.This is a record of the visit on 19th August 1984 by Mr. SarathWijesinghe. On this occasion, apart from Mr. Sarath Wijesinghe. thepetitioner's wife and two daughters, his brother and brother's sonwere all present. The entry shows that those persons arrived at 10.45a m. The note states that the petitioner discussed his statement to thepolice with Mr. Wijesinghe and Mr. Wijesinghe left at 11.25 a m.Thereafter the entry goes on to say that they disfcussed the case andthe others left at 12.10 p.m. It is therefore far from clear from thissubsequent sentence who the “they' meant, i.e., as to whether it waswith Mr. Wijesiijghe or with the others that the petitioner discussedthe case apart from the discussion of his statement to the policementioned earlier. In any event, could it be said on this flimsy materialthat the petitioner had been afforded that amount of facilities, timeand freedom that is reasonably expected by the law in the case of aperson so placed, so as to enable him to discuss his case and instructcounsel ? I am unable to say that even the minimum standardsexpected in such a situation have been met in this case. I wouldtherefore overrule both the preliminary objections.
detained for a period of 90 days. The power for such detention iscontained in regulation 19 itself and takes effect automatically byoperation of law. In addition, regulation 19 empowers the I.G.P. tonominate the place of detention.
* While regulation 19(1) makes the provisions of sections 36, 37and 38 of the Code of Criminal Procedure Act inapplicable in relation toa person arrested under regulation 4, I do not think that as theregulation stands, it dispenses with the requirement for the arrestedperson to be produced before a Magistrate. While the effect ofregulations 18 and 19 is to obviate the need for a magisterial order inrespect of the period of detention or as regards the place of detention,yet the requirement for production of an arrested person before aMagistrate remains untouched. Such a requirement is alwaysconsidered a salutary provision to ensure the safety and protection ofan arrested person. It is more than a mere formality or an empty ritual,but is generally recognised by all communities committed to the Ruleof Law as an essential component of human rights and fundamentalfreedoms. In fact, if the petitioner had been produced before aMagistrate upon his arrest, some of the matters now in issue beforeus may not have arisen for consideration. Accordingly, in my view, theproduction of the detainee is still a requirement of the law even thoughupon such production the police can do no more than invite theMagistrate's attention to the provisions of regulations 18 and 19. Inthe face of these provisions, I presume the Magistrate cannot makeany order except to make a note of this and thereupon for all practicalpurposes his concern in the matter will cease.
I have arrived at the above conclusions witnout disputing Mr. Sunil.de Silva's submission that Article 15 (7) of the Constitution enablesrestrictions to be imposed by Emergency Regulations on thefundamental rights contained in Article 13 (2). But the relevantprovisions must be subjected to a close scrutiny to indicate my• reasoning.
Let me begin with Article 13 (2), which is worded as follows"Every person held in custody, detained or otherwise deprived ofpersonal liberty shall be brought before the judge of the nearestcompetent court according to procedure established by law, andshall not be further held in custody, detained or deprived of personalliberty except upon and in terms of the order of such judge made inaccordance with procedure established by law,'
It would be observed that this constitutional requirement in so far as itis relevant to the matter now being discussed contains twocomponents, namely –
that a detained person shall be brought before the judge of
the nearest competent court, and%
that this should be done according to procedure establishedby law.
I do not think that it can be seriously suggested that the requirementfor an accused person to be produced before a Magistrate is providedfor in the ordinary law. namely the Code of Criminal Procedure Act.referred to below and not in the Constitution. For, if so. why did thedraftsman of the Constitution labour to include a provision such asArticle 13 (2) in the Constitution ?
The Code of Criminal Procedure Act 15 of 1979 contains thefollowing provisions, establishing the procedures contemplated in (2)above. These sections are as follows
”36. A peace officer making an arrest without warrant shallwithout unnecessary delay and subject to the provisions hereincontained as to bail, take or send the person arrested before aMagistrate having jurisdiction in the case.-'37. Any peace officer shall not detain in custody orotherwise confine a person arrested without a warrant for alonger period than under all the circumstances of the case isreasonable, and such period shall not exceed twenty-four hoursexclusive of the time necessary for the journey from the place ofarrest to the Magistrate.
"38. Officers in charge of police stations shall report to theMagistrates' Courts of their respective districts the cases of alt-persons arrested without warrant by any police officer attachedto their stations or brought before them and whether suchpersons have been admitted to bail or otherwise.”
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Now, in whatever way these provisions may be worded, thereference therein to the need for the production of a suspect before aMagistrate is merely a repetition and a recital of the constitutionalrequirement and is set down by way of preface. That requirement isone not provided by the Code but by the Constitution and what thesections of the Code really provide for is the procedure for bringingsuch person before a Magistrate and for the period of detention.
Accepting learned Deputy Solicitor – General's submission that thefundamental right can be restricted, the queston is whether that hasbeen done or been done effectively in the present case. He haspointed to regulation 19(1), which states :
* ‘The provisions of sections 36, 37 and 38 of the Code of CriminalProcedure Act, No. 15 of 1979, shall not apply in relation topersons arrested under regulation 18.’
This provision certainty has the effect of overriding the provisions ofthe Code of Criminal Procedure Act. but leaves untouched andunaffected the requiremerit of Article 13 (2). If it is intended to restrictthe requirement of 13 (2) – which undoubtedly can be done by asuitable wording of the regulation so as to have a direct impact onArticle 13 (2) itself, when natural security or public order demandsit – this must be specifically done. Article 13 (2) cannot be restrictedwithout a specific reference to it. But this has not been done. Insteadwe have a restriction imposed on the operation of sections 36 to 38of the Code. In the result the constitutional requirement that adetained person ‘shall be brought before the judge of the nearestcompetent court* remains unaffected. Though it will continue to existin a truncated form stHl being a constitutional requirement, it must becomplied with in a reasonable way and within a reasonable time.
What then are the consequences of this omission ? Noconstitutional requirement relating to fundamental rights can generallybe treated as a technicality. It behoves us therefore to see thatprovisions such as this, safeguarding human rights and humanfreedom are exactly complied with. But in the present case, the arrestand the detention (both as regards the period and place of detention)have been otherwise provided for by the law and are valid. They arenot made to depend on a magisterial order. The conclusion I havearrived at turns on a question of construction. It is essentially a legalissue. The police appear to have been unaware of these implications,but there is nothing to suggest that the police had intended to riderough-shod,over the law. The petitioner has also not.been prejudicedby this omission in any substantial way. In these circumstances I feelthat an order .against the respondents would not be justified.
In the resultWould dismiss this application, but without costs.
Application dismissed.