Elasinghe v. Wijewickrema and Others
v.WIJEWICKREMA AND OTHERS
FERNANDO, J., KULATUNGA, J.
AND DHEERARATNE, J.
SC APPLICATION 218/92.
FEBRUARY 17, 1993.
Fundamental Rights – Illegal Arrest — Principles applicable to arrest – Detention.
In a case of arrest –
It is not the duty of the Court to determine whether on the availablematerial the arrest should have been made or not. The question for the Courtis whether there was material for a reasonable officer to cause the arrest.
Proof of the commission of the offence (or a prima facie case forconviction) is not required ; a reasonable suspicion or a reasonable complaintof the commission of an offence suffices. The test is an objective one.
A suspicion is proved to be reasonable if the facts disclose that it wasfounded on matters within the police officer's knowledge or on the statementsmade by other persons in a way which justify him giving them credit.
During a period of emergency a wider discretion is vested in the policein the matter of arrest.
Where the duty to inform the reason for arrest is concerned –
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This duty which was established by common law and recognized by statute isnow a fundamental right. The obligation is to give the reason at the momentof arrest or where it is, in the circumstances excused, at the first reasonableopportunity.
The petitioner was arrested as a person wanted for subversive activities andconspiracy to assassinate a number of persons including politicians, police officers,members of parliament and local bodies, television artistes and a Vice-Chancellorof a University. The Police version was that the petitioner was arrested afterthe allegation was explained to him. The petitioner stated that he was interrogatedabout the alleged murders on the day of the arrest itself.
The petitioner's arrest under Regulation 18 (1) of the Emergency Regulationswas lawful and so also was his detention.
Cases referred to:
Muttusamy v. Kannangara 52 NLR 324.
ft. v. Corea 55 NLR 457.
Withanachchi v. Herat SC 144-45/86 S.C.M. of 01.07.88.
Wijewardena v. Zain SC 202/87 ; S.C. Mins, of 24.07.89.
Piyasiri v. Fernando  1 Sri LR 173.
Joseph Perera v. Attorney-General S.C. Nos. 107-109/86 SC Mins, of25.05.87.
Dumbell v. Roberts (1944) 1 All ER 326, 329.
Gunasekera v. De Fonseka 75 NLR 246.
Yapa v. Bandaranayake  1 Sri LR 63.
Mallawarachchi v. Seneviratne SC Appeal No. 212/88 SC Mins, of28.09.1989.
APPLICATION for relief fpr infringement of fundamental rights,ft. K. W. Goonesekera for petitioner.
D. P. Kumarasinghe, D.S.G. for respondents.
Cur. adv. vult.
March 19, 1993.
•The petitioner who was arrested on 09.01.92 by police officersattached to the Crime Detection Bureau, Colombo and has sincebeen kept in detention on the 6th floor of the Police Headquarterscomplains that his arrest and detention infringe his fundamentalrights. This Court granted him leave to proceed in respect of the
Elasinghe v. Wijewickrema and Others
alleged infringement of Articles 13 (1) and (2) of the Constitution.At the time of his arrest the petitioner was 27 years of age and wasserving as a Mathematics Instructor at the Sri JayawardenapuraUniversity.
The petitioner states that he had been previously arrestedon 29.10.89 by the army and was released on 20.03.90 without anycharges having been framed against him. Immediatley thereafter, hehad found employment in the Department of Census and Statistics.On the day of his second arrest on 09.01.92, after work he left theSri Jayawardenapura University and was approaching the WijeramaJunction, at about 4.10 p.m. when 4 persons in civilian clothingincluding the 1st respondent (Sub-Inspector Wijewickrema) arrived ina motor car No. 11 Sri 7160. They forcibly pushed him into the carand took him away. At Narahenpita, he was blindfolded and takento a place which he later came to know is the National IntelligenceBureau ; the same night he was taken to the 6th floor of the PoliceHeadquarters and was detained there under an order dated 10.01.92issued under Regulation 19 (2) of the Emergency Regulations, wherehe remains detained to-date.
The petitioner further states that from 9th to 23rd January 1992,he was taken daily to the N.I.B. in the morning and interrogatedthere by the 4th respondent (Inspector of Police Perera) and otherpolice officers and was brought back to the 6th floor in theevening ; that they assaulted him and questioned him about hisconnections with student bodies, activities in respect of the PeaceAccord, Impeachment Motion and about murders. On 03.02.92 hewas produced before a Magistrate and was ordered to be detainedfor a further period of 30 days ; that he was kept incommunicadountil 04.02.92 on which date he was shown to his father, theVice-Chancellor, Sri Jayawardenapura University and some membersof the academic staff who visited him ; and that on 03.03.92 he wasforced to sign a statement before Police Sergeant Wijeratne andPolice Constable Kalyani (typist) purporting to be a statement madebefore Assistant Superintendent of Police Gnanaratne (whom he hadnever met).
The petitioner's case (according to his petition) is that he wasabducted by the police without giving any reasons ; that his arrestis invalid for want of material justifying it and his detention is invalid
as it follows an unlawful arrest and (b) as it cannot be justified
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on the basis of his conduct after his release from detention withoutcharges in 1990.
The 1st respondent admits having arrested the petitoner on09.01.92 accompanied by 3 other police officers all of whom travelledin the motor car No. 11 Sri 7160 and that they were in civilianclothings. It is his position that the petitioner was arrested on suspicionthat he was concerned in subversive activities during the recentinsurgency.
In support he has produced Information Book extracts 1R1 and1R7 containing the notes of investigations. According to those notes,the police party left the C.D.B. at 8.00 a.m. on 09.01.92 to checkcertain information regarding a wanted person. At Hanwella theyengaged an informant to look for one Gamini. At 3.20 p.m. theinformant returned and reported that Gamini was not there andsuggested that they ambush near the Pubudu Club, Nugegoda, whichis a place which Gamini used to frequent. At 4.20 p.m. whilst theywere passing Wijerama junction, on their way to Nugegoda, theinformant showed a person who was at the bus stop and said thathe is a person wanted in connection with murders and subversiveactivities at the Sri Jayawardenapura University.
In 1R7 the 1st respondent has recorded that as the said informanthad previously given reliable information, he sent away the informantand went up to the petitioner ; that having disclosed his identity hearrested the petitioner at 4.15 p.m., after explaining the allegationand forthwith proceeded to the Station with a view to questioninghim in detail. They ascertained from the petitioner his name and hisoccupation and his temporary place of residence in Dehiwela andthe fact that the petitioner's home town is in the Elpitiya police area.The 1st respondent informed his superior officer about the arrest andobtained instructions to have the petitioner detained on the 6th floorpending investigations. He was so detained under detention orders1R2.-1R3 and 1R4 issued under Regulation 19 (2) of the EmergencyRegulations for a period of 90 days commencing 10.01.92. Instructionswere also given to P.C. 6012 to notify the arrest of the petitionerto the Vice-Chancellor, Sri Jayawardenapura University and to sendmessages to the Mirihana and Elpitiya police stations regarding thesaid arrest. It would appear from the records of messages given thatby 14.01.92 the Vice-Chancellor and the petitioner's family were soinformed (Vide 1R8, 1R9, 1R10, 1R11 and 1R12).
Elasinghe v.Wijewickrema and Others
The respondents deny taking the petitioner to the N.I.B.and interrogating him there or the alleged questioning by the4th respondent. According to them, it was the 1st respondent whointerrogated the petitioner in consequence of which on 04.03.92 thepetitioner made a statement before A.S.P. Gnanaratne confessinghaving conspired to assassinate a number of persons includingpoliticians, police officers, Members of Parliament and local bodies,television artistes and a Vice-Chancellor of a University. Thisstatement has been produced marked 1R6. It is this statement whichthe petitioner states he was forced to sign. It is to be noted thatin his counter affidavit the petitioner admits that the 1st respondentquestioned him from 04.02.92 to 20.02.92.
In view of the statement 1R6, an Additional Secretary, Ministryof Defence issued a preventive detention order dated 20.03.92 underRegulation 17 (1) of the Emergency Regulations (1R5) in terms ofwhich the petitioner has been kept in detention on the 6th floorto-date. At the hearing of this application, the Senior State Counselrepresenting the respondents informed us that the petitioner hassince been indicted on 20.07.92 with charges of conspiracy to commitmurders and the case against him is presently pending before theHigh Court.
In his submissions, the learned Counsel for the petitioner did notappear to urge that the petitioner's present detention is unlawful. Iam of the view that in the light of the petitioner's statement 1R6the detention order 1R5 which is currently in force is justified. Weunderstand from counsel that the voluntariness of this statementwill be contested in the High Court. I will therefore refrain from anyobservations which may prejudice those proceedings. However,counsel contended that the petitioner's arrest under Regulation18 (1) of the Emergency Regulations is invalid in that there was nomaterial which gave rise to a reasonable suspicion that the petitionerwas concerned in any offence under the said regulations ; that thesaid arrest is speculative i.e., in the hope that further investigationsmight disclose evidence of the suspect's involvement in anoffence; and that no material has been placed before this Court tojustify the said arrest by the application of the objective test. Counselcited many decisions including Muttusamy v. Kannangara ;ft v. Corea t2); Withanachchi v. Herat» ; Wijewardena v. Zain (4>and Piyasiri v. Fernando (s>. He reiterated the petitioner's averment
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that the action by the police really constituted an abduction ofthe petitioner and that this is confirmed by the fact that he was forciblyremoved without informing him of the reason for such removal.
PRINCIPLES APPLICABLE TO ARREST
It is not the duty of the Court to determine whether on theavailable material the arrest should have been made or not.The question for the Court is whether there was materialfor a reasonable officer to cause the arrest. Withanachchi v.Herat (3).
Proof of the commission of the offence (or a prima facie casefor conviction) is not required ; a reasonable suspicion ora reasonable complaint of the commission of an offencesuffices. The test is an objective one. Joseph Perera v.Attorney-General (6). Dumbell v. Roberts (7) ; Gunasekerav. de Fonseka (8).
A suspicion is proved to be reasonable if the facts disclosethat it was founded on matters within the police officer'sknowledge or on the statements made by other personsin a way which justify him giving them credit. Muttusamyv. Kannangara <1> see also Yapa v. Bandaranayake (9>.
During a period of emergency, a wider discretion is vested inthe police in the matter of arrest. As Wanasundera, J. saidin Joseph Perera v. Attorney-General (supra)-
“ This wider discretion vested in the police is logicaland is necessary for the proper performance of thefunctions of the police and for the maintenance of thelaw and order in the country."
Duty to inform the reason for arrest-
This duty which was established by common law and recognized
by statute is now a fundamental right. In Mallawarachchi v.
Seneviratne (10) it was held :
Elasinghe v. Wijewickrema and Others
" The obligation is to give the reason at the moment ofarrest or where it is, in the circumstances excused, at thefirst reasonable opportunity."
APPLICATION OF THE PRINCIPLES TO THE FACTS OF THISCASE
The salient features of the facts which I have earlier summarisedare as follows
It has not been alleged that the petitioner was maliciouslysingled out for arrest on the ground of any private motive.
In fact, the police left on investigations on the day in questionin search of a “ wanted person " (not necessarily the petitioner).At Hanwella, they engaged a reliable informant to look for oneGamini. Having failed to find him there, they were on theirway to Nugegoda to look for him when at the Wijerama junctionthe informant showed the petitioner as being another manwanted for subversive activities.
The 1st respondent says that he arrested the petitioner havingexplained the allegation but promptly took him to the Stationfor better questioning. Petitioner's own averments cire to theeffect that his interrogation relating to, inter alia, allegedmurders commenced on the day of the arrest itself.
The police had taken prompt action to inform the ViceChancellor of the Sri Jayawardenapura University and thepetitioner's family the fact that he had been arrested.
On the basis of the above facts, I am satisfied that the policehad reason for suspicion to justify the petitioner's surest and thathe was informed of the reason for his arrest as required by law. Assuch, the petitioner's arrest under Regulation 18 (1) of the EmergencyRegulations is lawful ; and hence the alleged infringement of Article13 (1) of the Constitution has not been established. I am also satisfiedthat in the light of the allegations against the petitioner of beingconcerned in large scale subversive activity, the petitioner's detentionunder Regulation 19 (2) on orders, 1R2, 1R3 and 1R4, pendinginvestigtions is lawful. The petitioner complains that he was not
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shown the said orders. This is denied by the 1st respondent. It isclear from the petitioner's own affidavit that he was aware of theorder for his detention under Regulation 18 (2); and hence the allegedinfringement of Article 3 (2) by reason of such detention fails.
For the foregoing reasons, the petitioner has failed to establishany violation of his fundamental rights. Accordingly, I dismiss thisapplication, but without costs.
FERNANDO, J. – I agree.
DHEERARATNE, J. – I agree.
ELASINGHE v. WIJEWIKREMA AND OTHERS