027-SLLR-SLLR-1994-V2-JAYAKODY-V.-KARUNANAYAKE-OFFICER-IN-CHARGE-POLICE-STATION-POLGAHAWELA-AN.pdf
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JAYAKODY
v.
KARUNANAYAKE, OFFICER-IN-CHARGE,POLICE STATION, POLGAHAWELA ANDATTORNEY-GENERAL
SUPREME COURT.
AMERASINGHE, J.
KULATUNGA, J. ANODHEERARATNE. J.
S.C. APPLICATION NO. 91/91.
JUNE 03 AND OCTOBER 9,1992.
Fundamental Rights – Arrest without warrant for alleged transport of voters atLocal Authorities Elections of 1991 – Local Authorities Elections Ordinance ss. 81,81A,81Band81C- Constitution, Articles 12, 13(1) and 14(1) (c).
The transport of voters at Local Authorities Elections is an offence under s. 81C ofthe Local Authorities Elections Ordinance but it is not a cognizable offence.Hence arrest without a warrant is not valid and constitutes an infringement underArticle 13(1) of the Constitution.
Where a person puts on the mantle of a de facto leader of a Group at theelections and is acknowledged as such there is no infringement under Article 12and 14(1) (c) of the Constitution. Being a strong supporter of a Group alone willnot entitle a person to exercise the same rights and privileges as enjoyed by thede jure leader of a recognised group at the election.
APPLICATION tor infringement of fundamental rights.
Lalith Athulathmudali P.C. with Ranjan Gooneratne, Dr. Ranjith Fernando,Mahendra Amerasekera, Anil de Silva, Ranjani Morawaka. T. M. S. Nanayakkara,Nalin Dissanayake. Kaiinga Indatissa for petitioner.
Upawansa Yapa, Additional Solicitor-General with B. Aluwihare S.C. forrespondent.
Cur. adv. vult.
November 18, 1992.
KULATUNGA, J.
The petitioner was the United National Party Member of Parliamentfor Polgahawela until December 1988. He was not nominated by the
U.N.P. to contest the General Elections held in 1989. Consequently,he moved away from the U.N.P. and during the Local Authorities
Jayakody v. Karunanayake, Offlcer-tn-Charge,
SC Police Station, Polgahawela and Attorney-General (Kulatunga, J.)265
Elections in 1991 he worked against the U.N.P. At the election ofmembers to the Polgahawela Pradeshiya Sabha, he supported theIndependent Group which was led by one Tennakoon. Although thepetitioner was neither the leader nor a candidate contesting as amember of that group, he claimed and was acknowledged during theelection campaign, to be the ‘de facto' leader thereof. One of theposters published on behalf of the Independent Group refers to thepetitioner as the ‘Lion of the North-West region’.
The petitioner complains that the 1st respondent, the Officer-in-Charge of the Polgahawela Police Station obstructed the electioncampaign of the Independent Group from the nomination day, untilthe conclusion of the election whilst the U. N. P., S. L. F. P. and B. J. P.members including Members of Parliament were allowed tocampaign freely and tour the electorate on the day of the poll. Thepetitioner himself was arrested without a warrant on the polling dayfor alleged transport of voters (which is a non-cognizable offence),and was remanded to Fiscal Custody where he remained until theconclusion of the election. He alleges that by reason of suchtreatment his rights under Articles 12(1), 12(2), 13(1) and 14(1) (c) ofthe Constitution have been infringed.
The petitioner states that on 26.03.91 two persons who wereprospective candidates of the Independent Group were arrested for amotor traffic offence and were detained at the Polgahawela PoliceStation with the result that they were precluded from signing thegroup nomination paper; that for eight years he had been residingat.’the Lihiniya Rest House, Polgahawela with the Resthouse-Keeper who is a relation of his when on 24.04.91 the AssistantSuperintendent of Police Maho (who he says is ill-disposed towardshim) visited the Polgahawela Police Station and ordered that all hisbelongings be removed from the Resthouse Keeper's residencewithin 6 hours; that on the same day the 1st respondent obstructedhim when he was on his way to an election meeting; and that on
he made a complaint (P3) at the Police Headquartersregarding the said acts of harassment directed against the electioncampaign of the Independent Group. I
I The petitioner also produced marked P4 a copy of a statementmade to the police on 01.05.91 by one Seneviratne, a candidate ofthe Independent Group who alleges that on 24.04.91 the A.S.P.,
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Maho disrupted one of his election meetings which was attended bythe petitioner; and that the next day the Officer-in-Charge of thePotuhera Police Station met him and suggested that he ceases tofunction as a member of the Independent Group.
On the day of the poll (11.05.91), the petitioner gave his car toTennakoon, the Leader of the Independent Group and toured theelectorate with him, meeting polling agents, counting agents andmaking arrangements to safeguard the interests of the IndependentGroup at the count. At about 1.30 p.m. they met Buddhadasa, one oftheir supporters and went to his house (which is a place close to theMawatta Junior School Polling Station). At that stage the 1strespondent accompanied by three other police officers arrived andarrested the petitioner and Tennakoon without informing them of thereason for their arrest and removed them to the Police Station.Tennakoon was released at about 3.00 p.m. but the petitioner waskept in police custody. On 12.05.91 police officers informed him thatthe allegation against him was that he had transported voters. Hewas, thereafter produced before the Magistrate who, on theapplication of the police, remanded him until 16.05.91.
The petitioner denies the alleged transport of voters (which is anoffence under s. 81C of the Local Authorities Elections Ordinance)and contends that in any event it is not a cognizable offence andhence he could not have been lawfully arrested without a warrant.
The 1st respondent states that prior to the Local AuthoritiesElections which were held in 1991 after the lapse of several years,Police Stations throughout the country had been directed to bevigilant in view of possible attempts to disrupt the peaceful conductof the poll; that on the night of 26.05.91, the police arrested twopersons who were found inside a railway carriage parked at thePolgahawela Railway Station; that the same night three persons whowere riding a motor-cycle were arrested as they could not produceidentity cards and the motor-cycle had no proper registration number.According to the petitioner, two of them namely, Premaratne andlliangakoon were prospective Independent Group candidates and bybeing detained at the Police Station on 27.03.91 they were precludedfrom signing the group nomination paper. They requested the policeto release them to enable them to attend to that matter; but the policedid not release them. The 1st respondent, however, denies that they
, Jayakody v. Kanjnanayake, Officer-in-Charge,
SC Police Station, Poigahaweia and Attorney-General (Kulatunga, J.)267
had informed him of the fact that they were prospective candidatesfor the Pradeshiya Sabha Elections. He states that they were releasedafter recording their statements {1R4 and 1R5), on 27.05.91.
In justification of the petitioner's arrest, the 1st respondent statesthat he received information that the petitioner was transportingvoters and canvassing votes; that when he visited the scene, heobserved the petitioner committing those acts in the proximity of theMawatta Junior School Polling Station, using vehicle No. 50 Sri 9797which was being driven by a driver; that the said acts constitutedoffences under Sections 81, 81A and 81B of the Local AuthoritiesElections Ordinance; and that he arrested the petitioner and thedriver, having informed them of the allegation against them afterwhich he took them to the Police Station along with the said vehicle.The 1st respondent denies the allegation that he arrested Tennakoon.In support of his version the 1st respondent has produced marked1R6,1R7 and 1R8 -1. B. Extracts of the notes of investigations in thecase. These include the statements of three voters (Arumugam,Chandrasiri and Jayaratne Banda) who state that the petitioner calledthem to vote and provided transport by vehicle. According to theentries made by the police, the information that the petitioner wastransporting voters had been given to the 1st respondent by a radiomessage transmitted by the Chief Security Officer for Mr. Rekawa,Member of Parliament; and at the time of his arrest, the petitioner hadshouted threats against Mr. Rekawa. I
I shall first consider the validity of the petitioner’s arrest. In thisrespect, it is very clear that Sections 81 and 81B relied upon by the1st respondent have no application to the facts before us. Unders. 81, the use of undue influence at an election is an offence. Unders. 81B the display of handbills, posters etc. on the day of the poll isan offence. There are no such allegations against the petitioner.
S.81A penalises a variety of acts including canvassing for votes andsoliciting the vote of any voter. The learned Additional Solicitor-General submitted that according to the statements of the threevoters, the petitioner had, besides transporting them, canvassed forvotes or solicited their votes in favour of the Independent Group andthereby committed an offence under s. 81A (3) which offence isdeclared cognizable by subsection 6 of the said section; and that thepetitioner's arrest was, therefore, lawful.
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The petitioner denies the alleged transport of voters (which is anoffence under s. 81C) and states that on the available facts he couldnot have been arrested for offences under s. 81, 81A or 81B. It is hisposition that he was arrested at Buddhadasa’s house. LearnedPresident's Counsel for the petitioner submitted that even assumingthe commission of an offence under s. 81C, the petitioner could nothave been arrested without a warrant for such offence; that apartfrom a prosecution, the only step which the police are empowered totake thereunder is to seize the vehicle used in committing the offenceand to detain it until the conclusion of the election. Upon theconviction of a person for an offence under s. 81C, a Court may alsomake order declaring the vehicle forfeit to the State. Counselsubmitted that-
as per the 1st respondent's notes, he arrested the petitionerfor transporting voters after informing the petitioner of suchreason for the arrest;
that the 'B* report made to Court on 12.05.91 (and allsubsequent reports) confirm that the impugned arrest hadbeen made for alleged transportation of voters; the saidreport further states that the petitioner is thereby guilty of anoffence under s. 81C;
that the present claim of the 1st respondent that he arrestedthe petitioner for offences under sections 81, 81A and 81B isan afterthought when he realised that the petitioner could nothave been lawfully arrested without a warrant for an offenceunder s. 81C or under the relevant provisions of the Code ofCriminal Procedure.
In support of his position that he was arrested at the house ofBuddhadasa, the petitioner has produced affidavits fromBuddhadasa (P5), Atapattu (P6), Tennakoon (P8) and Karunaratne(P12). Tennakoon was the Leader of the Independent Group and theothers referred to were loyal supporters of that group. All of themwere faithful followers of the petitioner who was their ‘de facto' leader.As such, they are not impartial witnesses. Hence, in the absence ofcorroboration from an independent source, I am unable to accepttheir version as to the place of the petitioner's arrest. On a balance of
Jayakody v. Karunanayake, Officer-in-Charge,
SC Police Station, Polgahawela and Attorney-General (Kulatunga, J.)269
evidence, I accept the 1st respondent's version that he was arrestedwhilst transporting voters. The three voters concerned have madestatements to the police stating that at the time of the petitioner'sarrest he was transporting them to the polling booth in a vehicle. Thepetitioner has failed to adduce any reason as to why the said votersshould have falsely implicated him in an offence, i, therefore, rejectthe petitioner's version.
However, I accept the submission of the learned Counsel for thepetitioner that on the basis of the available evidence the 1strespondent's claim that he arrested the petitioner for offences underSections 81, 81A and 81B is not true and that on the basis of his ownentries and the report to Court, the 1st respondent had purported toarrest the petitioner without a warrant for an offence under s. 80C(which is not a cognizable offence); and that the said arrest wasunlawful. If as the 1st respondent now claims the petitioner wasarrested for a different offence, then, as per the notes ofinvestigations, the 1st respondent failed to inform the petitioner of thereason for such arrest, in which event also, the impugned arrest; would be unlawful, (on account of such failure). I, therefore, hold thatthe petitioner’s rights under Article 13(1) of the Constitution have: been infringed.
Next, I consider the alleged violations of Articles 12(1) and (2) and14(1) (c) of the Constitution. The petitioner’s complaint in respect ofthe said Articles arises in consequence of alleged obstruction by the1st respondent of the election campaign of the Independent Group.In considering this complaint, the following matters are relevant:
The petitioner was neither the Leader nor a candidate of theIndependent Group. His legal status was that of a strongsupporter of the said group. He was also responsible for itsformation and he gave it such support as made it appear thathe was its virtual leader.
The petitioner appears to believe that by reason of his ‘defacto' leadership of the Independent Group, he was entitledto the same rights enjoyed by its ‘de jure' leader. However,the correct position is that his rights are no more than thoseenjoyed by any ordinary supporter of the group.
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Neither the Leader of the Independent Group (Tennakoon)nor any other member of that group has invoked thejurisdiction of this Court in consequence of alleged actsdirected against the group. Tennakoon has only filed anaffidavit regarding the arrest of the petitioner.
The two persons said to be prospective candidates of theIndependent Group and who were arrested by the police on
have not filed any affidavits to rebut the allegationthat they were found without identity cards and riding a motorcycle without a proper registration number. There is also noadmissible evidence that they informed the police of the factthat they were prospective candidates of the IndependentGroup.
Independent Group candidate Seneviratne who in hisstatement to the police (P4) makes allegations against thepolice has not filed an affidavit. Neither the A.S.P. Maho northe H.Q.I. Potuhera who are said to have obstructed hiselection campaign has been added as a party to theseproceedings to enable this Court to make a fair determinationin the matter.
On the basis of my findings, a prima facie case of an offenceunder $. 80C of the Ordinance has been made out againstthe petitioner. Even though he was not arrested for theoffence of soliciting the votes, a prima facie case of such anoffence (under s. 80A) has been made out on the basis of thestatements of the three voters who are said to have beentravelling in the petitioner’s vehicle.
It seems to me that the petitioner was not similarly circumstancedas M.P.’s belonging to the U.N.P. or the S.L.F.P. who werecampaigning at the election except to the extent that each of themwas a supporter of a recognised political party or an IndependentGroup; but the petitioner has exceeded his limit by purporting to puton the mantle of the Leader of the Independent Group, in particularon the day of the poll and seeking to exercise the same rights andprivileges as enjoyed by the 'de jure' Leader of the Group. In thecircumstances, I hold that the alleged infringements of the petitioner'srights under Articles 12 and 14(1) (c) have not been established.
sc
Jayakody v. Kamnanayake, Officer-in-Charge,
Police Station, Polgahawela and Attorney-General (Kulatunga, J.)
271
For the foregoing reasons, I grant the petitioner a declaration thathis rights under Article 13(1) have been infringed. In determining thecompensation payable to him, I have taken into consideration the factthat in my view the 1st respondent did not intend to ride rough shodover the law when he arrested the petitioner on 11.05.91. The 1strespondent made a mistake in making an unlawful arrest. In all thecircumstances, I consider it just and equitable to award the petitionercompensation in a sum of Rs. 3000/- (Rupees Three Thousand)together with Rs. 500/- (Rupees Five Hundred) as costs. I direct thestate to pay the said sum to the petitioner.
AMERASINGHE, J. -1 agree.
DHEERARATNE, J. -1 agree.
Relief granted.