No. BR 653/98 and issuance of the warrant to arrest the petitioner
On 10th September, 1998, Sub Inspector Rodrigo of the CIO,filed a further report in the same case at the Kesbewa Magistrate'sCourt, making the petitioner the first suspect. Rodrigo, for somereason, wanted to shroud his report in a veil of secrecy; for, his reportwas prefaced by a somewhat startling statement of law, that,in accordance with the case of Attorney-General v. JayasingheP, theMagistrate should treat his report as a confidential document; that itshould not only be kept in the personal custody of the Magistrate,but also that no other party should be permitted to inspect or readthe same. I may mention here that Jayasinghe's case, decided nearlyfifty years ago, does not reflect the law as it stands today and wasdetermined at a time when subsection 122 (3) of the repealed CriminalProcedure Code was in force, which absolutely prohibited any state-ment recorded in the course of a chapter XII enquiry from being seenby or disclosed to an accused person or his agents. It is a matterof surprise to us that this unwarranted and obsolete preface eitherescaped the attention of learned Senior State Counsel who appearedin support of the relief claimed for in Rodrigo's report; or, if he didobserve it, he took no steps to get it promptly expunged. Rodrigostated in this report that he investigated into a complaint made byK. V. I. Padmini on 11.8.1998 regarding causing grievous hurt bybeating with clubs and shooting; that after the injured personSomachandra's wife K. V. I. Padmini sent a petition to Her Excellencythe President, the CID was now in the process of making investi-gations. I may pause here to mention that in the petition sent byPadmini to Her Excellency, a copy of which was produced by the3rd respondent, there is absolutely no reference to an incident whichhad occurred on 1st June, 1998; but among some, other allegationsmade against the petitioner, she has stated that she had come toknow that the petitioner has “ordered" several police stations not toentertain any statement from her about throwing stones and firing at
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her house. Rodrigo reported that according to the statement madeby K. V. Eugine Padmini, a sister of K. V. I. Padmini, who now livesat Hingurakgoda, she had stated that when she was residing withher sister K. V. I. Padmini at Thalagala, on the night of 25th March,1998, some stones were thrown and some shots fired from thedirection of the petitioner's house; that she came to know that on30th March 1998 the petitioner had fired some shots in the air andthreatened her brother-in-law Somachandra; that in addition she sawon the morning of the 1st June, 1998, with the aid of a torch light,the petitioner's son Padmika, his servant Sena and several othersassaulting Somachandra with clubs; that she saw the petitioner givinga club which was in his hands to his son Padmika saying "kill him,finish him off"; that she saw the petitioner firing three or four shotsin the direction of Somachandra who was lying fallen. Although variousother statements and notes were quite readily submitted to us by 1stto 3rd respondents, Eugine Padmini's statement was not tendered tous for our perusal. The report did not say that the allegation of anyshots having being fired was found to be true on an examination madeat the spot.
Rodrigo's report further stated that according to the medicalreport filed therewith, the injuries on Somachandra were grievous(the medical report revealed no injury caused by a firearm); andthat offences punishable under sections 300, 141 and 316 weredisclosed against the suspects. Rodrigo stated in the report thaton the advice obtained from the Attorney-General, he was movingCourt to issue a search warrrant to search the petitioner's residenceand to issue a warrant to arrest the suspects, to be in force between10.9.98 and 17.9.98.
Before Rodrigo filed the report, the 2nd respondent alongwith Rodrigo, met the learned Magistrate in his Chambers and discussedabout the report they were intending to file that day and the learnedMagistrate expressed certain misgivings about issuing the warrantsof arrest asked for. Thereafter, according to the 2nd respondent hewent to the Piliyandala Police Station and informed the 3rd respondent
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over the telephone about the "developments". The 3rd respondentasked him to prepare a motion and further informed him that he wassending the 1st respondent and a named Senior State Counsel tothe Piliyandala Police Station. On the same day. that is the 10th ofSeptember, about 1 pm Rodrigo’s report was filed. Learned SeniorState Counsel assisted by the 1st respondent appeared in open Court,moved that the matter be taken up, and succeeded in persuadingthe Court to issue the warrants asked for. It is recorded with laconicbrevity that the warrants were asked for and were issued "becausethe suspect is a High Court Judge and that the Magistrate must assistthe police". This is a non sequitur. It was not submitted to theMagistrate that the petitioner was either avoiding to make a statementor was avoiding arrest by the investigators. It was not stated whythe Magistrate's assistance was required for the investigation by thearrest of the petitioner and others. However, the learned Magistratewhose conscience was apparently troubled, took the precaution toorder that he be promptly informed of taking the suspects into custodyand that they be produced before him without delay. The learnedMagistrate recorded the fact that the 1st respondent gave an under-taking to produce the suspects the following day itself. The Sinhalaword “hetama" seems to suggest that what the Magistrate was madeto believe was that the arrest will be made on the following day andthe suspects will be produced the same day. The Sinhala letter"ma“ conveys no other meaning.
Although no arguments were addressed to us on the mannerjn which the warrants were issued for the arrest of the petitionerand others, yet I think it is my bounden duty to express myview on that all important matter, which involves the liberty of thesubject, so as to prevent any abuse of process even in thefuture. As at date on which the warrants of arrest were asked for,proceedings had not been instituted against the suspects in termsof section 136 of the Code of Criminal Procedure (CCRP) Act.Had proceedings been instituted against them in terms of section136 (1) (b), and if the Magistrate were to issue warrants of arrestbecause the report disclosed an offence in respect of which a warrant
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shall be ordinarily issued in the first instance according to thefirst schedule of the CCRP Act, it would have been obligatory on theMagistrate (he shall), before issuing the warrants, to "examine onoath the complainant or some material witness or witnesses" (section139 (1)). In the instant case the investigations were said to beproceeding and warrants of arrest were apparently asked forand issued in terms of section 124 of the CCRP Act to assist theinvestigations. Section 124 reads :
“Every Magistrate to whom application is made on that behalfshall assist the conduct of an investigation by making and issuingappropriate orders and processes of Court and may, in particularhold, or authorize the holding of, an identification parade forthe purpose of ascertaining the identity of the offender, and mayfor such purpose require a suspect or other person to participatein such parade, allow a witness to make his identification from aconcealed position and make or cause to be made a record ofsuch parade."
It must be primarily borne in mind that the purpose of issuingprocess of Court is to obtain the appearance of a person in Courtand not to secure his presence in any police station or the CIDheadquarters. In addition to a suspect being compelled to attend Courtfor the purpose of an identification parade, as section 124itself indicates, there may be several other reasons why a suspect'spresence will be required in Court to assist the conduct of theinvestigations; for example, the investigators may require the suspect'shandwriting, fingerprints or samples of hair, fingernails, and blood forinvestigation of a crime.
If for the assistance of the conduct of an investigation, processof Court by way of issuing a warrant of arrest is required, theMagistrate must proceed to issue such warrant in terms of chapterV of the CCRP Act titled “of process to compel appearance". Section50 under that chapter provides that "every warrant of arrest issuedunder this Code . . . shall be in the prescribed form". The prescribed
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form is form No. 4 of the second schedule to the Code. The formprovides the following words in addition to specifying the offence "andoath being now made before me substantiating the matter of suchcomplaint, "(cf Form No. 3 – Warrant of Arrest in default of appearanceto summons; Form No. 6 – search – Warrant).
Issuing a warrant is a judicial act involving the liberty of an individualand no warrant of arrest should be lightly issued by a Magistrate simplybecause a prosecutor or an investigator thinks it is necessary. Itmust be issued as the law requires, when a Magistrate is satisfiedthat he should do so, on the evidence taken before him on oath.It must not be issued by a Magistrate to satisfy the sardonic pleasureof an opinionated investigator or a prosecutor.
Recording of evidence is a sine qua non, before issuing a warrantof arrest of a suspect, unless that warrant is issued for the failureto obey summons. To hold otherwise would mean that, in connectionwith an allegation of a commission of an offence in respect ofwhich a warrant of arrest could be issued in the first instance,if investigations are completed and proceedings are instituted inthe Magistrate's Court, the Magistrate is obliged, before issuinga warrant against the offender, to record evidence on oathsubstantiating the allegation; but in connection with an allegationof similar nature, were investigations are incomplete and no proceed-ings are instituted in Court, the Magistrate can issue a warrantfor the arrest of the offender without recording evidence on oathsubstantiating the allegation. There can be no justification for makingsuch a distinction.
I think I cannot do better than to echo the words of Sampayo,
J.where in a similar situation he observed : “The issue of a warrantis a serious matter, and the Magistrate should exercise his ownindependent judgment on the facts before he does this judicialact. In every case it is the duty of the Magistrate to see that thecomplainant or other person, when giving what purports to beoral evidence, gives it consciously and with due sense of his own
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responsibility, and that he not merely adopts general statementsalready printed and furnished to him by the proctor. The Magistrateshould himself record that evidence from the witness's own mouth,and should in no case recognize printed matter contained in formswhich the proctor may keep in stock. I think the practice followed inthis case is reprehensible, and I hope not to see another instanceof it". See Wills v. Sholay Kangan/3).
The petitioner's surrender and recall of the warrant of arrest
On the 10th of September, 1998, the petitioner went on the Benchin the performance of his judicial functions and he adjourned the Courtabout 12.45 pm. Soon thereafter, some lawyers brought to the noticeof the petitioner, that at the instance of the CID and on an applicationmade by Senior State Counsel, the Magistrate, Kesbewa, has issueda warrant for his arrest and a search warrant in relation to his house.In view of this information, the petitioner proceeded to the Magistrate'sCourt, Kesbewa, accompanied by a few lawyers and surrenderedhimself. The Magistrate thereupon cancelled the warrant of arrest andreleased the petitioner on bail on a personal bond for Rs. 1,000. TheMagistrate directed the Registrar of his Court to take steps to informthe CID over the telephone that, on the petitioner surrendering toCourt, the warrant issued for his arrest was cancelled. Before leavingthe Kesbewa Magistrate's Court, through an abundance of caution,the petitioner obtained a certified copy of the order made by theMagistrate enlarging him on bail and a letter by the Registraraddressed to the Director, CID, informing him, that as the petitionerappeared before Court on 10th September, 1998, the warrant issuedfor his arrest should not be executed and returned to Court. Thepetitioner was informed, before he left the Magistrate's Court, Kesbewa,by the Registrar of that Court, that the telephone message wasconveyed to the CID and was received by a woman Sub Inspectornamed Fonseka.
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Arrest of the petitioner
Having left the Kesbewa Magistrate's Court, the petitioner pro-ceeded to his residence with his lawyers. At the gate of his residence,about 5 pm he was confronted by several persons in civilian clotheswho identified themselves as police officers attached to the CIO, whohad come to take him into custody on a warrant issued for his arrest.One of that group who identified himself as the 2nd respondentPremaratne, was then shown the certified copy of the proceedingsof the Magistrate's Court, Kesbewa, enlarging the petitioner on bailand the letter addressed to the Director, CID, obtained from theRegistrar of the Magistrate's Court certifying to that effect. Althoughthe 2nd respondent denies having been shown the certified copy ofthe Magistrate's Court proceedings, I hold that it is more probable thatthe petitioner's lawyers had that certified copy with them and bothdocuments were shown to the 2nd respondent at that stage.
The petitioner states that the 2nd respondent refused to acceptthe letter as it was addressed to the Director, CID. On the 2ndrespondent's own admission, having read the letter addressed to theDirector, CID, he stated that he would not take the petitioner intocustody. The petitioner and his lawyers were thereafter permitted toenter the petitioner's residence. The 2nd respondent then contactedthe 3rd over his cellular telephone and informed him that the warrantof arrest has been recalled. The 3rd respondent had informed the 2ndthat he was sending the 1st respondent to the residence of thepetitioner. The 2nd respondent thereafter informed the petitioner andhis lawyers to await the arrival of the 1st respondent.
Meanwhile, the 2nd respondent executed the search warrantwith the consent of the petitioner. According to the 2nd respondent“when the house of Mahanama Tllakaratne was being searchedby me, he informed me that his pistol is in the almirah and hegave me the same with two magazines and nine live ammunitionsand a valid permit to possess same". About 7.30 pm the 1st respondentarrived at the petitioner's premises with a large posse of Police
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Senior Superintendent of Police and Others (Dheeraratne, J.)385
officers, some in civilian clothes and some in uniform. Accordingto the petitioner, when his lawyers attempted to show the 1st respond-ent the certified copy of the Magistrate’s Court proceedings and'the letter addressed to the Director, CID, the 1st respondent shouted,:"damned with the orders; I do not want to see that. Ignore that.
I can arrest him whatever the Magistrate has ordered. I have gota cut and dry order from the Attorney-General and the DIG. Evenwithout a warrant I can arrest him. We obtained the warrant becausehe is a Judge".
I accept the version of the petitioner that this was the mannerin which he was arrested. The 1st respondent was presenting afalse front that he got orders from the Attorney-General, as accordingto the 4th respondent he was informed of the arrest about 8.00 pmby the 3rd respondent. The 1st respondent admits having arrestedthe petitioner by placing his hand of the petitioner. Althoughthe 1st respondent states that he gave reasons for his arrest, onthe totality of the evidence before us, I hold that he gave no reasons;he came storming into the residence of the petitioner on the ordergiven by the 3rd respondent and arrested the petitioner. The petitionerwas, thereafter, taken to the CID headquarters in a police vehicle about9.30 pm. Petitioner's lawyers were not permitted to meet the3rd respondent so that they could show the documents in theirpossession to prove that the warrant was recalled and petitionerwas bailed out. The petitioner's statement was recorded till 2.30 amof 11th September, 1998. In the morning of the 11th the petitioner'slawyers were refused permission to have access to the petitionerand they were informed by the officers of the CID that he willbe produced that morning at the Magistrate's Court, Kesbewa. .
Production of the petitioner before the Chief Magistrate, Colombo
In the morning of the 11th September petitioner's lawyerswere anxiously waiting at the Kesbewa Magistrate's Court anticipatingthe production of the petitioner from the custody of the CID.
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About 12.45 pm, in desperation, petitioner's lawyers brought to thenotice of the Magistrate, Kesbewa, that the petitioner was still beingkept in the custody of the CID, in spite of the order made enlarginghim on bail. The Magistrate, Kesbewa, recorded the submissions ofthe lawyers and made a further order to release the petitioner.
Meanwhile, SI Rodrigo of the CID, filed a motion before theChief Magistrate, Colombo and produced the petitioner before himabout 1.00 pm. The motion stated that the petitioner was arrestedthe previous night about 7.30 pm in accordance with a warrant issuedby the Magistrate, Kesbewa. This warrant was produced alongwith the motion. The motion further stated that according to a reliableconfidential information, there was grave unrest in the areaaround Kesbewa Magistrate's Court in connection with the offencecommitted by the petitioner and the production of the petitioner beforethe Magistrate's Court, Kesbewa, would be imminently dangerousto the life of the petitioner.
I am of the view that the story of unrest at Kesbewa and theimminent threat to the petitioner's life was dishonestly concocted byRodrigo and the 1st respondent to hide, from the Magistrate, Kesbewa,their actions taken in defiance of the order made by him recallingthe warrant of arrest. It is passing strange that the 1st respondentand Rodrigo obtained confidential reliable information about the restivecrowd at Kesbewa but got no information of the receipt of the tel-ephone message conveyed to their office informing of the withdrawalof the warrant of arrest. Moreover, despite the undertaking given bythe 1st respondent to the Magistrate, Kesbewa, he failed to informhim promptly about the arrest of the petitioner; and for that reasonas well, he preferred not to face the Magistrate, Kesbewa. A StateCounsel, different from the one who appeared to obtain the warrant• of arrest, appeared before the Chief Magistrate when the petitionerwas produced before him. It appears that this unsuspecting StateCounsel was led by his nose by the 1st respondent who transfiguredhim to a mere mouthpiece. The learned State Counsel vehemently
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submitted that his instructions were that the warrant of arrest of thepetitioner was not recalled and the petitioner was not released onbail, when the Magistrate was told otherwise. The Chief Magistratepointedly put this position to the 1st respondent who was present inCourt and recorded – "Director, CID, states that he does not knowand further he had not been informed". This conduct of the 1strespondent is most reprehensible. The Chief Magistrate did what thelearned State Counsel should have done in the interest of justice.Having adjourned the Court, he telephoned the Kesbewa Magistratewho confirmed that the warrant was recalled and the petitioner wasreleased on bail.
The conduct of the 1st respondent in the Chief Magistrate'sCourt unequivocally suggests the he represented to the ChiefMagistrate – (1) that the petitioner was arrested on the warrant issuedby the Magistrate, Kesbewa, which warrant was returned to the ChiefMagistrate; (2) that he was unaware that the warrant was recalledat that stage and that no one has so informed him and (3) that thepetitioner was arrested on the authority of the warrant and of no other.
The first opportunity the 1st respondent got to inform a Courtof justice regarding the circumstances under which the petitionerwas arrested, was when the petitioner was produced before the ChiefMagistrate, Colombo. The 1st respondent had this to state inhis affidavit submitted to the Supreme Court relating to the circum-stances under which the petitioner was arrested : "on the same day(ie 10th) at 17.30 hrs at Deputy Inspector-General/CID office the 2ndrespondent telephoned the DIG and informed him that theaforesaid warrant had been recalled by the Magistrate, Kesbewa.At that stage the DIG/CID (3rd respondent) contacted the Hon. Attorney-General and informed me that Hon. Attorney-General had grantedapproval for the arrest of the petitioner under normallaw in terms of the Code of Criminal Procedure, and directed meto appraise the lawyers present at the High Court Judge's house theapproval of the Hon. Attorney-General. He further directed me
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to proceed to Thalagala, Kiriwaththuduwa, in the Kahathuduwa policearea and to arrest the petitioner and the other suspects", (para 8).
If the above statement is correct, why did the 1st respondentrefrain from saying so to the Chief Magistrate, Colombo? It wouldappear also that the 1st respondent gave the plaint State Counselinstructions which he knew to be false that he did not know of thewithdrawal of the warrant arrest. This false position of the 1strespondent is also supported by the 3rd respondent in his affidavit.The 4th respondent denies that he ever gave instructions to any PoliceOfficer to arrest anyone. At para 22C of his affidavit, the 4th respond-ent states : "when I learnt of the note alleged to have been madeby the 1st respondent and reproduced in the subparagraph "0“ ofparagraph 91 of the petitioner's affidavit, I immediately brought to thenotice of the additional Solicitor-General in charge of the subject andsuggested him to summon the 3rd respondent to ascertain the basison which such an incorrect note has been made. After the discussionwith the 3rd respondent, I brought to the notice of Her Excellencythe President being the Minister of Defence, that an incorrect notehas been made by the 1st respondent which had led to protest bycertain members of the Bar against Attorney-General's Department.Her Excellency assured me that she would call for a report from theIGP and take action in this matter. . .".
I accept the version given by the 4th respondent and observe thathis reaction to the note made by the 1st respondent, which he callsincorrect, is the natural reaction of anyone in his position. The masteryof the 1st respondent in the art of prevarication is amply demonstratedby the following averments he has made in his affidavit. “. . .I admitthat I informed the learned State Counsel that I was unaware thatthe petitioner has already being granted bail by the Magistrate's Court,Kesbewa, on 10.9.98 and wished to add that the petitioner nor hiscounsel produced any document to substantiate this fact and that thelearned Chief Magistrate, Colombo, was constrained to adjourn Courtin order to telephone the Magistrate of Kesbewa to ascertain as to
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whether in fact the petitioner had been granted bail. And wished toadd that if the petitioner did in fact show me, as stated in his affidavit,a certified copy of the said order granting bail, I cannot imagine asto why it was not produced in Court on this occasion" (para 34). Thisstatement is made by a man who knew very well that producing thepetitioner before the Chief Magistrate, Colombo, was something hecraftily manoeuvred, knowing well that the petitioner's lawyers wereawaiting his production at the Kesbewa Magistrate's Court.
Is the arrest of the petitioner according to procedure established by
As stated earlier it is admitted that the arrest of the petitionerwas made by the 1st respondent. To the learned Chief Magistrate,Colombo, he represented that the petitioner was arrested ona valid warrant issued by the Kesbewa Magistrate. Even if this warrantwas otherwise legally valid, the 1st respondent could not have arrestedthe petitioner on that warrant in view of subsection 52 (3) of the CCRPAct which states :
“when a warrant is directed to a peace officer by name itshall not be executed by any other peace officer unless endorsedby him by name."
The warrant was directed to U. E. C. Rodrigo, Sub Inspector ofPolice, and only he could have arrested the petitioner on that warrant.Rodrigo has not endorsed the warrant to enable another peace officerto execute it. This was probably why the 1st respondent abstainedfrom signing the warrant as the one who executed it, when heproduced that to the Chief Magistrate, Colombo. It is surprising thatlearned State Counsel who appeared when the petitioner was pro-duced before the Chief Magistrate, Colombo, overlooked these im-portant matters of law and was content to swallow the instructionsgiven to him by the 1st respondent hook, line and sinker.
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If the petitioner was not arrested on the warrant of arrest issuedby the Magistrate, a peace officer could only have arrested him interms of subsection 32 (1) (£>) of the CCRP Act, on the allegation ofhis having committed offences punishable under section 300 and 141of the Penal Code which are cognizable offences, in the circumstancesmentioned in that subsection. That subsection reads :
“Any peace officer may without an order from the Magistrateand without a warrant arrest any person who has been concernedin any cognizable offence or against whom a reasonable complainthas been made or credible information has been received ora reasonable suspicion exists of his having been so concerned."
Learned Solicitor-General who appeared for the 4th respondent,with his customary fairness, submitted that it is settled law that thearresting officer should be able to justify an arrest on one or moreof the grounds set out in subsection 32 (1) (b) and that in the instantcase there did not appear to be any justification for the 1st respondentto arrest the petitioner. Admittedly, the 1st respondent was not involvedwith the investigations of the alleged offences said to have beencommitted by the petitioner and the 1st respondent does not claimto have acted under subsection 32 (1) (b).
It appears to me that both the 1st and 3rd respondents cookedtheir notes after the petitioner was produced before the ChiefMagistrate, Colombo. It is stated in the written submissions filed onbehalf of the 1st to 3rd respondents that “the position taken up bythe 1st respondent was that at all times he was Acting purely on theorders of his superior the 3rd respondent and that as a police officerhe was bound to do so".
The 1st respondent states in his affidavit : “on the same day at19.30 hrs. I arrived at the house of the petitioner where I found the2nd respondent present along with the petitioner and four Attorneys-at-law. Mr. Premaratne informed me that the warrant of arrest of the
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petitioner had been recalled and he had also recovered a weaponsuspected to have been used by the petitioner to commit an offence.The 2nd respondent further informed me that the petitioner hadobtained ammunition from various police officers in order to test hisrevolver. I am aware that ammunition is an inventorized item, theobtaining of such ammunition was illegal and required furtherinvestigations under the Public Property Act" (para 9). "I then explainedthe charges of attempted murder and unlawful assembly committedby the petitioner and further informed the DIG/CID (3rd respondent)about the discovery of the weapon and received orders to arrest thepetitioner" (para 10).
There is nothing to indicate that the 1st respondent gave hisindependent mind to bear on the arrest of the petitioner: he executedthe orders given by his superior the 3rd respondent. The arrest underthose circumstances is illegal. See Gunasekera v. De Fonsekaf4);Muthusamy v. KannangaraF; Christy v. Leachinsk/6* and Corea v.The QueerF; I am of the view that the 1st and 3rd respondents havefalsely stated that they got the approval of the 4th respondent to arrestthe petitioner and further that he was informed of the arrest after theevent. The British Statesman, Herbert Henry Asquith, once observed,that the War office kept three sets of figures ; one to mislead thepublic, another to mislead the Cabinet and the third to mislead itself.Similarly, I would say it is quite probable that the CID kept three setsof facts on the issue of the arrest of the petitioner; one to misleadthe Chief Magistrate, another to mislead the Supreme Court and thethird to mislead itself.
I hold that the arrest of the petitioner is not in accordancewith the law. Further, the petitioner was unnecessarily and unreason^ably detained at the CID office at least from 2.30 am to 12.45 pmon 11th. Vide – Senaratne v. Punya de Silva and others0*. There is
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no complicity of the 4th/6th respondent and the 2nd respondent inthe illegal arrest. I hold that the 1st and 3rd respondents have violatedthe fundamental rights of the petitioner guaranteed under Articles 13(1) and 13 (2) of the Constitution by the unlawful arrest and detentionof the petitioner. I order the 1st and 3rd respondents to pay thepetitioner personally a sum of Rs. 50,000 each as compensation; inaddition, I direct the State to pay the petitioner a sum of Rs. 200,000as compensation and a sum of Rs. 50,000 as costs. The petitionerwill thus be entitled to in total, a sum of Rs. 350,000.
WIJETUNGA, J. – I agree.BANDARANAYAKE, J. – I agree.Relief granted.