FAROOK V. RAYMOND AND OTHERS

012-SLLR-SLLR-1996-1-FAROOK-V.-RAYMOND-AND-OTHERS.pdf


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FAROOK
V.
RAYMOND AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA C.J.,
AMERASINGHE J. ANDRAMANATHAN J.
S.C. APPLICATION No. 156/95.
20 JUNE, 1996.
Fundamental Rights – Constitution, Article 13 (1) & (2) – Has the Courtjurisdicton to entertain a petition alleging violation of fundamental rightsarising from the order of a judicial officer? Can Magistrate order detentionunder the Customs Ordinance? Customs Ordinance, sections 126, 127 -Confiscation of passport – Arrest and detention other than as authorized bylaw.
Five matters arose for consideration:
Were the 1st and 2nd respondents – Police Officers – acting in accordancewith procedure prescribed by law?
Was the detention of the petitioner, after he was produced before theMagistrate, “upon and in terms of the order of such judge made in accordancewith procedure established by law?”
If the petitioner was held in custody upon and in terms of the order of ajudge that was not made in accordance with procedure established by law,is there a violation of any fundamental right recognized and declared by theConstitution?
If there was a violation, what may the Court legitimately do?
What is the appropriate order to be made?
The 2nd Respondent stopped a motor vehicle at a road block and suspectingthat the goods in the car were stolen or smuggled took the driver of the carand its two passengers to the Minuwangoda Police Station. When ittranspired that the goods belonged to the petitioner, the 1st respondentrequested him to report at the Police Station and when he did, treated himroughly, put him in the cell and after two hours directed Inspector Pathiranato record his statement. When the petitioner tried to explain matters to the
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1st Respondent he abused him. The 1st Respondent also took into hiscustody the Petitioner’s passport. After the Petitioner’s statement was recordedhe was put back into the cell. The 1 st Respondent’s allegation against thePetitioner was that an offence against the Customs Ordinance had beencommitted.
The 2nd Respondent produced the Petitioner and the two passengers of thevehicle who were Petitioner’s employees and the driver of the vehicle whichhad been hired before the Magistrate of Minuwangoda at his residencealleging that the Petitioner and his employees had committed an offenceunder the Customs Ordinance and requesting that the Petitioner and histwo employees be detained at the Minuwangoda Police Station pendingfurther investigations. The driver of the vehicle was released on bail, but thepetitioner and his two employees who were the passengers in the vehicle,were ordered by the Magistrate to be detained at the Minuwangoda PoliceStation.
They were released on17 April and the goods were ordered to be handed tothe District Secretary.
Held:
The actions of the Police can be referable only to section 126(1) of theCustoms Ordinance. The subsequent steps to be taken are prescribed insection 127. imprisoning the Petitioner and confiscating his passport, andbringing the Petitioner before a Magistrate and requesting the Magistrate toorder the further detention of the Petitioner in police custody, were thingsthe 1st Respondent was neither required nor authorized by law to do. Andby not producing the petitioner ‘with all convenient despatch’ before thenearest Director-General of Customs or other Customs officer, he failed toact according to procedure established by law viz. section 127 of theCustoms Ordinance. The 1st Respondent acted in constravention of thepetitioner’s fundamental right guaranteed by Article 13(1) of the Constitution-of freedom from arrest except according to procedure established by law.
The learned Magistrate had in his order of detention, stated that he isacting under the provisions of the Customs Ordinance and section 124 ofthe Code of Criminal Procedue Act.The provisions of the Customs Ordinancedo not authorize a Magistrate to order the detention of suspects in policecustody.
Section 124 of the Code of Criminal Procedure Act require the Magistrate toassist an investigation by making appropriate orders etc. but the provisionsdo not enable the Magistrate to make an order of detention.
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The detention of the Petitioner after he was produced before the Magistratewas not “upon and in terms of the order of such judge made in accordancewith procedure established by law”.
Quaere: per Amerasinghe J:
The order of the Magistrate appears immediately below the second page(the first page is missing) of a report filed by the 1st Respondent in whichthe 1st Respondent requests the detention of the Petitioner and his twoemployees for four days at the Minuwangoda Police Station. Where is thefirst page? How authentic is the record submitted by the Magistrate?”
Per Amerasinghe J:
“The object of Article 13(2) of the Constitution is to afford a person who hasbeen deprived of his personal liberty by executive action, to have the benefitof placing his case before a neutral person – a judge – so that a judicial mindmay be applied to the circumstances and an impartial determination madein accordance with the applicable law. The provision is designed to eliminatearbitrariness in depriving a person of his liberty, and this extends to theexclusion of arbitrariness on the part of a judge who orders that a personbrought before him be further held in custody, detained or deprived ofpersonal liberty. If in depriving a person of his liberty a judge does not actaccording to procedure established by law, there is a contravention of theguarantee enshrined in Article 13(2) of the Constitution”.
The Judiciary is one of the three limbs of the state and a judicial officermay be involved in the violation of a fundamental right in the exercise of hisduties. The present case is an example. However judicial power can onlybe exercised if the Court, tribunal or institution has jurisdiction. Article 126(1) however limits the jurisdiction of the Supreme Court to an infringementor imminent infringement by executive or administrative action.
Semble: Per Amerasinghe J:
“. . . Where a judge has abdicated his authority, for example by complyingwith or acceding to or acquiesing in proposals made by police officers andacting in concert with them, consenting rather than assenting, he would not,in my opinion, be acting judicially: it may be the act of an officer appointedto perform judicial duties and functions, but it would not be a judicial act.
Although it has been contended that the learned Magistrate had acted‘mechanically’ and complied with the proposal made by the police, there isinsufficient evidence adduced to arrive at such a conclusion.
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The 1st Respondent has violated the fundamental rights of the Petitionerguaranteed by Article 13(1) of the Constitution.
Cases referred to:
Naresh Mirajkar v. Maharashtra A1R 1967 SC 1
Budan Choudhary v. Bihar AIR 1955 SC 191.
Snowden v. Hughes (1944) 321 US1.
Perera v. University Grants Commission 1 FRD 103.
Velmurugu v. A. G. 1 FRD 180, 223.
Goonewardena v. Perera 2 FRD 246.
Saman v. Leeladasa [1989] 1 Sri LR 1.
Huddart, Parker Pty, Ltd. v. Moorehead (1908 – 1909) 8 CLR 330, 357.
Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1931)AC 275, 295.
Labour Relations Board of Saskatchewan v. John East Iron Works Ltd.(1949) AC 134, 149.
Kumarasinghe v. A. G. S. C. Application 52/82 S.C. Minutes of 06September, 1982.
Siriwardena v. Liyanage (1983) 2 FRD 310, 342 – 343.
Dayananda v. Weerasinghe (1983) 2 FRD 292, 297.
Leo Fernando v. A. G. [1985] 2 Sri LR 341.
Jayasinghe v. Mahendran and Others [1987] 1 Sri LR 206.
Dharmatilleke v. Abeynaike S. C. Application 156/86 S. C. Minutes of 15February, 1988.
Cannosa Investments Ltd. v. Ernest Perera and Others (1991) 2 Sri L.R.214.
Siriyawathie v. Pasupathi and Jansz S. C. Application 112/86 S. C.Minutes of 28 April, 1987.
APPLICATION for relief for infringement of fundamental rights.
R. K. W. Goonesekera with N. M. Saheed for Petitioner.
Kolitha Dharmawardena D.S.G. for Respondents.
Cur. adv. vult.
August 02, 1996.
AMERASINGHE, J.
The Petitioner complains that his rights guaranteed by Article 13of the Constitution were violated.The submissions of learned counselon the 20th of June, 1996 were principally concerned with the circum-
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stances in which the Petitioner was taken into custody by the Respond-ents and detained by them on the order of a Magistrate.The Court tooktime to consider the submissions of learned counsel, and during that timeit was felt that the assistance of learned counsel should be sought on thequestion whether the Court had jurisdiction to entertain a petition allegingthe violation of fundamental rights arising from the order of a judicialofficer. The Court therefore called for written submissions on that matterto be filed by the 25th of July 1996. The Court acknowledges its indebted-ness to learned counsel for their assistance.
There are five matters for consideration: (1) Were the first andsecond Respondents – the police officers – acting in accordance withprocedure prescribed by law? (2) Was the detention of the Petitioner,after he was produced before the Magistrate, “upon and in terms of theorder of such judge made in accordance with procedure established bylaw”?: (3) If the Petitioner was held in custody upon and in terms of theorder of a judge that was not made in accordance with procedure es-tablished by law, is there a violation of any fundamental right recog-nized and declared by the Constitution? : (4) If there was a violation,what may the Court legitimately do?: (5) What is the appropriate orderto be made?
Were the first and second Respondents -the police officers – act-ing in accordance with procedure prescribed by law?
According to an entry made by the 2nd Respondent in the GraveCrimes record of the Minuwangoda Police Station, dated 12th April1995, upon information received that smuggled goods were being trans-ported in a Morris Minor bearing registration No. 23 Sri 2044, a roadblock was set up, and the vehicle was stopped by the 2nd Respondentand a police constable. 75 dozen ties, ladies’ handbags, children’sshoes, school bags and baby napkins were found in two bags. Underthe front seats were two boxes, each containing 1000 wristwatch ‘cir-cuits’. One of the passengers had a Customs receipt issued to M.T.A.Farook dated 11.4.1995 (1R2) which stated that a sum of Rs. 21571/-had been paid as duty, made up as follows:
“Duty 9725T.T. 10080
L. 7771”
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The receipt did not contain any other information.
The 2nd Respondent in his affidavit states that since he found itdifficult to decipher the contents of the receipt – he states that it was"illegible” – and since the receipt “did not bear an immediate explana-tion to the goods in the car”, and since the receipt was in the name ofa person who was not in the car, he “entertained a reasonable suspi-cion that the goods found in the vehicle were either stolen or smuggledgoods”, and therefore arrested the driver and the two passengers andtook them to the Minuwangoda police station for further investigation.When it transpired that the goods belonged to M.T.A. Farook, the Peti-tioner in these proceedings, the 1st Respondent on the 13th of April1995 requested the Petitioner to report to the Police Station atMinuwangoda.The Petitioner went to the police station.
In paragraph 7 (a) of his affidavit, the 1 st Respondent states that“on the material which was then available as a result of the investiga-tions, (he) questioned the Petitioner and thereafter explained to thePetitioner that he had committed an offence under the Customs Ordi-nance and arrested him." In paragraph 7 (b) of his affidavit the 1stRespondent states that he “took charge of the passport of the peti-tioner for the purpose of investigating whether there was any truth inthe assertion made by the Petitioner. Thereafter the Petitioner made astatement to the police."
What was the “assertion made by the Petitioner" before his state-ment was recorded that made it necessary for the 1st Respondent totake over the Petitioner’s passport? The passport was not returneduntil the Supreme Court on the 22nd of March 1996 ordered its return.Under what provision of law was the petitioner deprived of his pass-port? Even if a law enforcement officer is empowered to deprive aperson of his personal liberty, he must do so strictly in accordancewith procedures prescribed by law: on the one hand if there are provi-sions of law regulating matters that are incidental to the arrest anddetention of a person, those provisions must be strictly complied with:On the other hand a law enforcement officer cannot arrogate to himselfpowers that the law does not expressly confer on him.
In his first statement to the police (1R4) on 13th April 1995, the
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Petitioner said that he was a trader who frequently travels abroad topurchase various goods. After one such journey to Hong Kong, hearrived at the airport at Katunayake on the night of the 11th of April1995. He stated that he had on that occasion brought 75 dozen ties,2000 “watch machines” and various other goods.
Mr. Dharmawardene drew our attention to the fact that when thePetitioner was questioned on the 17th of April 1995 about the docu-ment 1R12 – the Customs Declaration form he had filled on the night of11th April in which the items declared were –
“Personal clothingTie(s) 80 doz.
Batteries 30 pkts.
Children’s wear (sic.) 10 pcs”,
– the Petitioner in a second statement to the police (which hasbeen filed of record in these proceedings) stated that he had sold thebatteries on the 12th morning and that he had purchased 2000 watchmachines in Colombo which he entrusted to his employees for deliveryto a customer.
According to the 1 st Respondent, the Petitioner arrived at the po-lice station at 1.30 p.m. According to the police record (1R4) the Peti-tioner’s statement was recorded at 2.10 p.m.; and according to the 1stRespondent in paragraph 7 (c) of his affidavit and paragraph 8 of theaffidavit of the 2nd Respondent, the Petitioner was produced beforethe Magistrate of Minuwangoda at 3.50 p.m.
The Petitioner’s version is different. According to paragraph 14 ofhis affidavit, on the 13th of April 1995 certain police officers had vis-ited his residence in Colombo and left a message for him to report atthe Minuwangoda Police Station. He went there at about 10.30 a.m.The 1 st Respondent arrived at the station at about noon and ques-tioned him as to how he came to possess the goods. Before he couldexplain, the 1st Respondent directed a police officer to put him in acell. After about two hours the 1 st Respondent called the Petitioner tohis office and handed him over to Inspector Pathirana to have his state-ment recorded. The Petitioner states that when he tried to explain to
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the 1st Respondent how he had brought the neck-ties from Hong Kongand to produce the receipt issued by Customs for the payment of duty,the 1st Respondent abused him and directed the Sub-Inspector to recordhis statement and hand him over thereafter to the Customs authori-ties. After his statement was recorded, the 2nd Respondent put himback in the police cell. In paragraph 17 of his affidavit the Petitionerstates that the 2nd Respondent produced the Petitioner, the two pas-sengers of the vehicle, who were his employees, and the driver of thehired vehicle, before the Magistrate of Minuwangoda at his residencealleging that the Petitioner and his employees had committed an of-fence under the Customs Ordinance and requesting that the Petitionerand his two employees be detained at the Minuwangoda Police Stationpending further investigations. The driver of the vehicle was releasedon bail, but the Petitioner and his two employees who were the pas-sengers in the vehicle, were ordered by the Magistrate to be detainedat the Minuwangoda police station.
There is no specific denial by the 1 st or 2nd Respondents that thePetitioner was placed in a cell. The statement of the Petitioner accord-ing to the police records was made at 2.10 p.m. This was, as thePetitioner states, about two hours.after the arrival of the 1 st Respond-ent. The Magistrate’s order indicates that it was made at his residenceat 6 p.m. On a consideration of the evidence, I am inclined to believethe Petitioner’s narration of the events of the 13th of April 1995.
Unlike the 2nd Respondent who states that he had supposed thegoods might have been stolen or smuggled, the 1st Respondent hadno doubt in his mind: the goods were brought into the country in con-travention of the Customs Ordinance. In paragraph 7 (a) of his affidavitthe 1st Respondent states that he “explained to the Petitioner that hehad committed an offence under the Customs Ordinance and arrestedhim.”
That being the case, did the 1st Respondent who took over mattersafter the 2nd Respondent had made the arrest, act in accordance withprocedure established by law? Mr. Goonesekere submitted that, assum-ing the police were acting within their lawful powers, their actions can bereferable only to section 126 (1) of the Customs Ordinance. The subse-quent steps to be taken are prescribed in section 127. Imprisoning the
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Petitioner and confiscating his passport, and bringing the petitioner be-fore a Magistrate and requesting the magistrate to order the further de-tention of the Petitioner in police custody, were things the 1st Respond-ent was neither required nor authorized by law to do. And by not pro-ducing the Petitioner‘with all convenient despatch’ before the nearestDirector-General of Customs or other Customs officer, he failed to actaccording to procedure established by law, viz. section 127 of the Cus-toms Ordinance. I find myself in agreement with Mr. Goonesekere’ssubmissions. I have no hesitation in declaring that the 1 st Respondentacted in contravention of the Petitioner’s fundamental right guaranteedby Article 13 (1) of the Constitution of freedom from arrest exceptaccording to procedure established by law.
Was the detention of the petitioner after he was produced be-fore the magistrate, “upon and in terms of the order of such judgemade in accordance with procedure established by law?
The order of the magistrate appears immediately below the secondpage (the first page is missing) of a report filed by the 1st respondentin which the 1st respondent requests the detention of the Petitionerand his two employees for four days at the Minuwangoda police sta-tion. Where is the first page? How authentic is the record submitted bythe magistrate? (See the observations of the Court comprising G.P.S.de Silva, C.J., Kulatunga and Ramanathan, JJ. dated 04.08.95 andthe observations of Kulatunga, J. on 23.08.95 and 24.08.95 in the recordof this case).The learned magistrate acceded to the request of the 1strespondent and ordered that the petitioner and his two employees bekept in the custody of the police at the Minuwangoda police station.They were released on bail on the 17th of April and the magistratemade order that the goods be handed over to the District Secretary forfurther action tabe taken under the Customs Ordinance.
The learned Deputy Solicitor-General in his further written submis-sions made at the request of the Court states as follows:
“1. It is respectfully submitted that the learned magistrate has inhis order of detention, stated that he is acting under the provisionsof the Customs Ordinance and section 124 of the Code of CriminalProcedure Act. It is respectfully submitted that the provisions of
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the Customs Ordinance do not authorize a magistrate to orderthe detention of suspects in police custody. It is further submittedthat even though the provisions of section 124 of the Code ofCriminal Procedure Act require the magistrate to assist aninvestigation by making appropriate orders etc., the provisionsdo not enable the magistrate to make an order of detention.Therefore, it is submitted that the order of detention made by thelearned magistrate is not in accordance with proceduresestablished by law.”
I find myself in agreement with the submissions of Mr.Dharmawardene and commend his exemplary fairness.
I am of the view that the detention of the Petitioner after he wasproduced before the magistrate was not “upon and in terms of the or-der of such judge made in accordance with procedure establishd bylaw”.
If the petitioner was held in custody upon and in terms of theorder of a judge that was not made In accordance with procedureestablished by law, is there a violation of any fundamental rightrecognized and declared by the Constitution?
Article 13 (2) provides as follows: “Every person held in custody,detained or otherwise deprived of personal liberty shall be brought be-fore the judge of the nearest competent court according to procedureestablished by law, and shall not be further held in custody, detainedor deprived of personal liberty except upon and in terms of the order ofsuch judge made in accordance with procedure established by law.(The emphasis is mine).The object of Article 13 (2) of the Constitutionis to afford a person who has been deprived of his personal liberty byexecutive action, to have the benefit of placing his case before a neu-tral person – a judge – so that a judicial mind may be applied to thecircumstances and an impartial determination made in accordance withthe applicable law. The provision is designed to eliminate arbitrarinessin depriving a person of his liberty, and this extends to the exclusion ofarbitrariness on the part of a judge who orders that a person broughtbefore him be further held in custody, detained or deprived of personalliberty. If in depriving a person of his liberty a judge does not act ac-cording to procedure established by law, there is a contravention of theguarantee enshrined in Article 13 (2) of the Constitution.
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If there was a violation what may the Court legitimately do?
Mr. Goonesekere in his further written submissions, referring to H.M. Seervai, Constitutional Law of India, 3rd Ed. (1983) Vol. I pp. 225-236; Naresh Mirajkar v Maharashtra,m per Das, J. in Budan ChoudhryvBihari2) following Frankfurter, J. in Snowden vHughes,(3) maintainedthat in India and in the United States, it had been held that, judgescould be involved in the violation of fundamental rights.The liability forviolations of fundamental rights was the liability of the State: Perera vUniversity Grants Commission,w Velmurugu vA.-G.,{S) Goonewardenev Perera,<6> Saman v Leeladasaf7K The judiciary was one of the three‘limbs’ of the‘State’, the other two being the legislature and the execu-tive. A transgression by a judge made the State liable.
I have no hesitation in accepting the position that the judiciary isone of the three limbs of the State and that a judicial officer may beinvolved in the violation of a fundamental right in the exercise of hisduties. The case before us is an example. However, when we considerthe decisions in other jurisdictions, it is important to consider the rel-evant Constitutional provisions under which they have been made.Although our Constitution has many provisions that are based on theConstitution of India, there are others that significantly differ. Unlikethe American and Indian Constitutions, the Constitution of Sri Lankaexpressly confines the justiciability of fundamental rights. Article 17provides that “Every person shall be entitled to apply to the SupremeCourt, as provided by Article 126, in respect of the infringement orimminent infringement, by executive or administrative action, of a fun-damental right to which such person is entitled under the provisions ofthis Chapter”. (The emphasis is mine). “This Chapter” refers to theChapter on Fundamental Rights. Article 126(1) provides that the Su-preme Court shall have sole and exclusive jurisdiction to hear anddetermine any question relating to the infringement or imminent in-fringement by executive or administrative action of any fundamentalright… declared and recognized by Chapter III…”. (The emphasis ismine). Article 126 (2) provides that “Where any person alleges thatany such fundamental right. .. relating to such person has been in-fringed by executive or administrative action, he may himself or by anattorney-at-law on his behalf… apply to the Supreme Court… pray-ing for relief or redress in respect of such infringement.” (The empha-sis is mine).
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Article 3 of the Constitution states that Sovereignty is in the Peo-ple. Article 4 prescribes the manner in which the Sovereignty of thePeople shall be exercised. Article 4 (c) states that “the judicial powerof the People shall be exercised by Parliament through courts, tribu-nals and institutions created and established or recognized, by theConstitution… "The exercise of judicial power does not begin untilsome court, tribunal or institution created and established or recog-nized by the Constitution which has capacity to give a binding andauthoritative decision (whether subject to appeal or not) is called uponto take action: Cf. per Griffith, CJ. in Huddart, Parker Pty. Ltd. vMoorehead,lB) approved by the Privy Council in Shell Co. of AustraliaLtd. v Federal Commissioner of Taxation,®) and in Labour RelationsBoard of Saskatchewan v John East Iron Works Ltd.,"0). Judicial powercan only be exercised if the court, tribunal or institution has jurisdic-tion. Jurisdiction is the authority which a court, tribunal or institutionhas “to decide matters that are litigated before it or to take cognizanceof matters presented in a formal way for its decision.”The limits of thisauthority are imposed by the statute under which the court, tribunal orinstitution is constituted, and may be extended or restricted by the likemeans: Cf. Halsbury, 3rd Ed. Vol. 9 pp. 350-351. The Supreme Courtwas created by Article 105 of the Constitution. Article 126 (1) of theConstitution provides that the Supreme Court has sole and exclusivejurisdiction to hear and determine any question relating to the infringe-ment or imminent infringement of any fundamental right declared andrecognized by the Constitution, but it expressly limits the jurisdictionof the Court to an infringement or imminent infringement by executiveor administrative action.
As Mr. Dharmawardene pointed out in his further written submis-sions, the Supreme Court has consistently taken the view that viola-tions of fundamental rights by a judge acting judicially or by someoneexecuting his orders, will not attract the provisions of Article 126 ofthe Consitution, although the judge’s decision be erroneous or consti-tutes a wrong exercise of judicial discretion even if such decision orwrongful exercise of discretion is based on false or misleading mate-rial furnished to him maliciously: Velmurugu v. A. – G.(5) KumarasinghevA.-G.,(11> Sirlwardene v Liyanagef'2) Dayananda v WeerasingheJ13>Leo Fernando v A.-G.,"A) Jayasinghe v Mahendran and Others,"5)Dharmatilleke v Abeynaike,"5) Saman v Leeiadasa") Cannosa invesfments Ltd. v Ernest Perera and Others."7)
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In Siriyawathie v Pasupathi and Jansz,m the Court ordered thepetitioner to be produced before the magistrate for release, and it or-dered the payment of compensation by the State. The petitioner hadbeen ordered to be detained sine die although the magistrate was em-powered by law to detain the petitioner for 15 days.The petitioner hadbeen in prison for seven years. There is no reference in the judgmentto the effect of Article 126 read with Article 17. The Court expressedthe view that there had been a failure on the part of the executiveauthorities to rectify the matter.
Mr. Goonesekere expressed the opinion that the decisions of theSupreme Court “far from securing and advancing fundamental rightsas required by Article 4 (d) have allowed gross violations of fundamen-tal rights to go unpunished owing to a misreading of the doctrine ofjudicial immunity in the context of a fundamental rights jurisdiction.”As an‘organ of government’, the judiciary is obliged to respect, secureand advance the fundamental rights which are declared and recog-nized by the Constitution. It does so every day. The numerous deci-sions of this Court upholding the fundamental rights of citizens, in-cluding this decision, demonstrates the unique and important roleplayed by this Court in advancing fundamental rights. However, theCourt acts in accordance with the law. Whatever the reasons may bethat lead the framers of the Constitution so to do, the Constitutionlimits the jurisdiction of the Court to violations of fundamental rightsby executive or administrative action.
In the cases that have come before the Court, the infringementsresulted from acts of judges acting judicially, albeit erroneously. Onthe other hand if the person making the order was not fulfilling thefunctions and duties proper to an officer appointed to administer thelaw, viz. to form and pronounce an independent opinion on a matterplaced before him, he cannot be said to be acting'judicially’. If he hasbeen deprived by the law of the power of deciding and acting accordingto his own judgment, he cannot act ‘judicially’: discretion is an at-tribute, an inherent and essential characteristic, of judicial office: wherediscretion is ousted by law, the duties, functions and powers appurte-nant to judicial office are also taken away. (Cf. per de Alwis, J. inJoseph Perera vThe Attorney-General.(19) Similarly, where a judge hasabdicated his authority, for example by complying with or acceding to
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or acquiescing in proposals made by police officers and acting in con-cert with them, consenting rather than assenting, he would not, in myopinion, be acting judicially: it may be the act of an officer appointed toperform judicial duties and functions, but it would not be a‘judicial act'.Although learned counsel for the petitioner did submit that the learnedmagistrate had acted ‘mechanically’ and complied with the proposalmade by the police, there is insufficient evidence adduced before usto arrive at such a conclusion.
However, I direct that a copy of this judgment together with therecord in S. C. Application 156/95 be submitted by the Registrar of theSupreme Court to the Judicial Service Commission for such action asit may deem to be appropriate.
Order
For the reasons set out in my judgment, I declare that the 1strespondent violated the fundamental rights of the Petitioner guaran-teed by Article 13 (1) of the Constitution.
The 2nd Respondent had no part in the arrest or detention of thepetitioner and I therefore hold that he is not guilty of any transgres-sion.
The Petitioner was imprisoned from 13th April 1995 to 17th April1995 in violation of Article 13 (2) of the Constitution, but his depriva-tion of personal liberty during that period was, on the evidence placedbefore us, the consequence of a judicial as distinguished from an ex-ecutive or administrative action and I therefore hold that this Courthas no jurisdiction to entertain any complaint relating to that imprison-ment.
The State shall pay the petitioner a sum of Rs. 7,500/- as costs.
G. P. S. DE SILVA, C.J. – I agree.
RAMANATHAN, J. -1 agree.
Relief granted.