040-SLLR-SLLR-1983-2-MARIYADAS-RAJ-v.-ATTORNEY-GENERAL-AND-ANOTHERS.pdf
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Mariyadas Raj v. Attorney-Genera! and Another
461
MARIYADAS RAJ
v.ATTORNEY-GENERAL AND ANOTHER
SUPREME COURT
SHARVANANDA. J.. RANASINGHE. J. AND RODRIGO. J.
S.C. APPLICATION NO. 130/837 FEBRUARY 1983.
Fundamental Rights — Illegal arrest — Failure to communicate reason for arrestto arrestee — Article 13(1) of the Constitution.
Held —
Article 13(1) embodies a rule which has always been regarded as vital andfundamental for safeguarding the personal liberty in all legal systems where theRule of Law prevails. Anyone who is arrested shall be informed at the time ofarrest of the reasons for his arrest. The purpose of this rule is to afford theearliest opportunity to the arrested person to remove any mistake,misapprehension or misunderstanding in the mind of the arresting official anddisabuse his mind of the suspicion which actuated the arrest.
The contention that S.l. Godagama who was the person who arrested thepetitioner has not been made a respondent and the grant of the applicationwould involve a finding adverse to the officer is based on a misapprehension asto the nature of the present proceedings. What the petitioner is complaining ofis an infringement of his fundamental right by executive or administrative action,that the state has through the instrumentality of an over-zealous or despoticofficial committed the transgression of his constitutional right. The protectionafforded by Article 1 26 is against infringement of fundamental rights by theState, acting by some public authority endowed by it with the necessary coercivepowers. The relief granted is principally against the State although thedelinquent official may also be directed to make amends and/or sufferpunishment.
The petitioner could have been spared the trauma of arrest and detention, hadS.l. Godagama only told him the ground for his arrest, namely suspicion on hispart that the petitioner was an illegal immigrant: the petitioner could and wouldhave satisfied the sub-inspector that he was not an illegal immigrant, that he hadlawfully entered and was staying in Sri Lanka, by the exhibition of his IndianPassport, which bore the endorsement of the relevant visa permitting his entryand stay. For the default of S.l. Godagama the State is in the circumstances,liable to pay fair compensation.
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11983] 2 Sri L R.
Cases referred to :
Muthusamy v. Kannangara 52 NLR 524.
Christie v. Leachinsky 1947 AC 573.
Corea v. The Queen 55 NLR 457.
McNabbv. USA 1943 318 US 332, 343. 87L.Ed. 819.
Velmurugu v. Attorney-General and Another S.C. Application No. 74/81—S.C. Minutes of 9.11.1981.
Maharaja v. Attorney-General 1 978 2 all ER 670, 679 PC.
Thornhill v. Attorney-General 1981 AC 61.73.
Ratnasara Thero v. Udugampola. Superintendent of Police S.C. ApplicationNo. 1 25/82 — SC Min. 8.2.83.
APPLICATION complaining of infringement of the fundamental right ofprotection against illegal arrest.
V. S. A. Pullenayagam with S. C. Chandrahasan. Miss N. KanapathipiUai andMiss D. Wijesundera for petitioner.
Priyantha Perera, D.S.G. with Nimal Amaratunga. State Counsel for 1strespondent.
S. D. P. Valentine with C. Kadiramanpulle for 2nd respondent.
Cur. adv. vult
14 February 1983.
SHARVANANDA, J.
The petitioner in this case is a foreigner. He is a citizen of Indiaholding an Indian Passport bearing No. K 988409. He hascome to Sri Lanka on 10.11.1 982 on a Sri Lankan visaNo. 67904/82 issued at the Office of the Deputy- HighCommissioner for Sri Lanka in Madras on 2.11.1982.
By his petition under Article 126 of the Constitution thepetitioner complains, that while he was staying with- one AnthonyRodrigo at Chilaw, he was awaken up from his sleep at about
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Manyadas Raj v. Attorney-General and Another (Sharvananda. J.)463
1 a.m. on 13th November 1982 by the 2nd Respondent, NihalKarunaratne, an Inspector of Police, Chilaw and was brutallyassaulted and was arrested and taken to the Chilaw PoliceStation in spite of his pleading that he was a mere visitor to thehouse of Anthony Rodrigo, having come from India two daysago. Petitioner states that when- he was arrested he was notinformed of the cause or ground for his arrest. By his petition thepetitioner complains that on 13th November, 1 982, he,
(a) was – subjected to cruel inhuman treatment andpunishment in violation of Article 11 of the Constitution,
and
(b) was arrested not according to procedure established bylaw, nor was informed of the reason for his arrest, inviolation of Article 13(1) of the Constitution.
The petitioner was produced before the Acting Magistrate atabout 7.30 or 8.30 p.m. on 13.11.1982 and on the order of theMagistrate he was remanded. He was ultimately discharged fromdetention only on 3.12.1982. Articles 11 and 13(1) apply to allpersons; not only to citizens.
By his affidavit the 2nd Respondent has stated that he hadnothing to do with the arrest and assault of the petitioner. Heproduced an affidavit from one Dhammika Godagama. Sub-Inspector of Police. Chilaw dated 30.1.1983. in support of hisdefence. According to the latter's affidavit it would appear that itwas Sub-Inspector of Police. Dhammika Godagama who arrestedthe petitioner in the early hours of 13.11.1982 and not the 2ndRespondent. In his affidavit Sub-Inspector of Police. Godagamahas stated that he arrested the petitioner because he suspectedthe petitioner to be an illegal immigrant.
In view of these affidavits it would appear that the petitionerhad made a mistake in identifying the 2nd Respondent as thePolice Officer who arrested him and assaulted him on
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1.1982. The case against 2nd Respondent was thereforenot pressed by Counsel for the petitioner. Counsel howeversubmitted that the case of the petitioner was that the PoliceOfficer, whoever it might be. who arrested him did not complywith the mandatory requirements of the law which obliged theofficer arresting a person to inform him the reasons for hisarrest; since Sub-Inspector of Police Dhammika Godagama hasowned that it was he who arrested the petitioner on 13.11.1982and not the 2nd Respondent, the failure to communicate thereasons for his arrest was ascribable to Godagama. Theinfringement by executive or administrative action of thefundamental right guaranteed by Article 13(1) of the Constitutionto be informed of the reasons for his arrest thus consisted inDhammika Godagama, the Police Officer, not informing thepetitioner of the reasons for his arrest on 13.1 1.1982. Counselvery relevantly pointed out that in his affidavit DhammikaGodagama had not refuted the petitioner's averments in hisaffidavit that the officer vyho arrested him did not inform him thecause or grounds for his arrest, and that in the circumstancesthe allegation of infringement of the petitioner’s constitutionalright of freedom from arbitrary arrest guaranteed to him byArticle 13(1) of the Constitution has been established. In thisconnection the 'B' Report made by the Officer-in-Charge of theChilaw Police Station dated 13.1 1.1 982, under Chapter III of theCriminal Procedure Code provides relevant material" supportingthe petitioner's allegation. It is stated in the report that in thecourse of a search of the house of Anthony Rodrigo "wequestioned a person who was sleeping in front of the said houseand found that he has come from India and that he has no visa toremain here, that he was a person called Mariyadas Raj of TamilNadu territory and as such we took him into custody andproduced to the Police. I state that further investigations inconnection with this person are being carried on and move thathe be remanded till 23.1 1.1982 and until the investigations areover." It is quite clear that the petitioner was taken into custodyby the Police Officer because he was suspected to be an illegalimmigrant and that he had no valid visa. The petitioner in his
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Mariyadas Raj v. Attorney-General and Another (Sharvananda. J.)465
affidavit has stated that he had pleaded with the Police Officerwho arrested him that he was a mere visitor to the house, havingcome from India two days ago and that he had stated that hecould show his passport and air ticket. But the said Police Officerhad turned a deaf ear to his pleas. Had Sub-Inspector Godagamaduly informed the petitioner the reasons for his arrest asmandated by the law, the suspicion which was the warrant forthe exercise of his Police powers of. arrest and detention wouldhave been dispelled, and there would have been no justificationfor the arbitrary arrest and detention of the petitioner. Had Sub-Inspector of Police, Godagama complied with the law andinformed the petitioner of the reasons for his arrest, namely thathe suspected the petitioner to be an illegal immigrant, it isinconceivable that the petitioner who had with him his Indianpassport would have failed to show his passport, which at page1 7 had the visa endorsed on it authorising the entry into Ceylonof the petitioner within one month of the date of issue, namely2.11.1982 and stay in Ceylon for one month from the date of hisentry namely 10.11.1982. In view of this visa there would havebeen no foundation for Sub-Inspector Godagama's suspicionthat he was an illegal immigrant. These circumstances tend tomilitate against the acceptance of any denial by Godagama of thepetitioner s version that he was not informed of the reasons forthis arrest. The allegation of the petitioner that when he wasarrested he was not made aware of the reasons for his arrest bythe Police-Officer who arrested him has. in’ my view, beenestablished.
Article 13(1) provides that.— "No person shall be arrestedexcept according to procedure established by law. Any personarrested shall be informed of the reasons for his arrest."Section 23(1) of the Code of Criminal Procedure Act No. 15 of1 979. provides that —
"in making an arrest, the person making the same . . .shall inform the person to be arrested of the nature of thecharge or allegation upon which he is arrested."
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[1983] 2 SriLR.
The corresponding provision of the Criminal Procedure Code,which was repealed by the Code of Criminal Procedure Act of1979, namely, Section 23(1) of the Code does not specificallyprovide for the person arrested to be informed of the nature ofthe charge or allegation upon which he is arrested. Even thoughthere was no such express provision in the Criminal ProcedureCode, Gratien, J.. in Muthusamy v. Kannangara (1), held that"whenever a Police Officer arrests a person on suspicion withouta warrant "common justice and common sense" require that heshould inform the suspect of the nature of the charge uponwhich he is arrested." He relied on the judgment of the House ofLords in Christie v. Leachinsky (2). as authority for the principleand expressly desired that the following general propositionsenunciated by Lord Chanceller Simon should be borne in mindby all Police Officers in this country :—
"1. If a Police Officer arrests without a warrant, uponreasonable suspicion, he must, in ordinary circumstancesinform the person arrested of the true ground of arrest. Heis not entitled to keep the reason to himself or give areason which is not the true reason. In other words acitizen is entitled to know on what charge or on suspicionof what crime he is seized.
2. If a citizen is not. so informed, but is nevertheless seized,the Policeman, apart from certain exceptions, is liable forfalse imprisonment."
In Corea v. The Queen. (3) — Giatien J„ with whom Fernando,A. J., agreed re-affirmed at page 462 his conviction
"that in this country (as in England) a Police Officer whoarrests private citizens with or without the authority of awarrant is equally obliged to notify the arrested person ofthe reason for interfering with his personal freedom. Arecognition of this fundamental rule …. is demonstrablyimplicit in the scheme of our Code."
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Mariyadas Raj v. Attorney-General and Another (Sharvananda. J.)467
Against this background the present Criminal Procedure Actchose specifically to make express provision that the person tobe arrested should be informed of the nature of the charge orallegation upon which he is arrested. The concern of the framersof Constitution for this elementary principle was manifestedwhen they caused it to be incorporated in the Constitution andmade a justiciable fundamental right; section 13(1) of theConstitution, unequivocally and in no uncertain terms providesthat the person arrested shall be informed of the reasons for hisarrest. The law is solicitous for the freedom of individual and hastherefore enacted that the person who is arrested, is entitled toknow the reasons for his arrest and has elevated this right into afundamental right with the attendant sanctions for its breach.
In Leachinsky case (2) — Lord Simonds observed at page 591 ;—
"Putting first things first. I would say that it is the right ofevery citizen to be free from arrest unless there is in someother person, whether a constable or not. the right to arresthim. And I would say next-that it is a corollary of the right ofevery citizen to be thus free from arrest that he should beentitled to resist arrest unless that arrest is lawful. How canthese rights be reconciled with the proposition that he may be
arrested without knowing why he is arrested?Blind
unquestioning obedience is the law of tyrants and of slaves; itdoes not yet flourish on English soil".
Professor Glanville L. Williams in his article "Requisites of avalid arrest" in 1954 Criminal Law Review page 6 at page 16criticises the reason given by Lords Simonds as "somewhatlegalistic", because few people know the law of arrest in such away what they can decide on the spot whether the arrest towhich they are being subjected is legal. In his opinion the truereason is a different one. e.g. the reason given by ViscountSimon L.C., in the same case at page 588 in the followingwords :—
"If the charge on suspicion of which the man is arrested isthen and there made known to him, he has the opportunity ofgiving an explanation of any misunderstanding or of calling
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attention to other persons for whom he may have beenmistaken with the result that further inquiries may save himfrom the consequences of false accusation."
One more reason is that it acts as a safeguard againstdespotism and over-zeal, as remarked by Prof. GlanvilleL. Williams (Supra) page 17 —
"The rule has the effect of preventing the Police fromarresting, on vague general suspicion not knowing the precisecrime suspected but hoping to obtain evidence of thecommission of some crime from which they have power toarrest."
In McNabb v. U.S.A. (4) Frankfurter, J„ observed at page 343 —
"Experience has therefore counselled that safeguards mustbe provided against the dangers of the over-zealous as well asthe despotic. . . . Legislation such as this, requiring that thePolice must with reasonable promptness show legal causefor detaining arrested persons constitutes an importantsafeguard."
There is thus good reason and sense for the person arrested tobe entitled to know why he is being arrested and what is thecrime he is suspected to have committed.
The Constitution of the Democratic Socialist of Sri Lanka.1978 has, as reasonably to be expected, given this human rightthe status and sanction of fundamental right. On being arrested,a person must be informed of the reason for his arrest, the verynature of the right indicates that if he is not informed, hisdetention after the arrest is illegal. The omission to so notifycannot be regarded as a mere irregularity. According to ViscountSimon in the Leachinsky's case —
"the matter is a matter of substance and turns on theelementary proposition that in this country a person is, primafacie entitled to his freedom and is only required to submit torestraints on his freedom if he knows in substance the reasonwhy it is claimed that this restraint should be imposed" (page567).
SCManyadas Raj v. Attorney-General and Another (Sharvananda. J.)
469
Article 1 3(1) embodies a rule which has always been regardedas vital and fundamental for safeguarding the personal liberty inall legal systems were the Rule of Law prevails. The InternationalCovenant on Civil and Political Rights (1966) also provides"Anyone who is arrested shall be informed, at the time of arrestof the reasons for his arrest and shall be promptly informed ofany charges against him" (Article 9(2) ). The purpose of this ruleis to afford the earliest opportunity to the arrested person toremove any mistake, misapprehension or misunderstanding inthe mind of the arresting official and disabuse his mind of thesuspicion which actuated the arrest.
The Deputy Solicitor General submitted that the petition shouldfail for the reason that Godagama, Sub-Inspector of Police, whowas the person who arrested the petitioner has not been made arespondent to these proceedings, and that the grant of theapplication would involve a finding adverse to the said officer.This submission is based on a misapprehension as to the natureof the present proceedings. What the petitioner is complaining ofis an infringement of his fundamental right by "executive oradministrative action", that the State has through theinstrumentality of an over-zealous or despotic official committedthe transgression of his constitutional right. The protectionafforded by Article 126 is against infringement of fundamentalrights by the State, acting by some public authority endowed byit with the necessary coercive powers. The relief granted isprincipally against the State, although the delinquent official mayalso be directed to make amends and/or suffer punishment.
In this connection, it is apposite that I should reiterate what Istated in my judgment in Velmurugu v. Attorney-General andanother (5).
"It is to be noted that the claim for redress under Article 126for what has been done by the executive officers of the State isa claim against the State for what has been done in theexercise of the executive powers of the State. This is not
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vicarious liability; it is a liability of the State itself; it is not aliability in tort at all; it is a liability in the public law of the State— vide Maharaja v. Attorney-General of Trinidad (6).
On this analysis it is not of much consequence whether theviolation of petitioner's fundamental right was caused byInspector of Police, Nihal Karunaratne (2nd Respondent) or Sub-Inspector of Police. Godagama. in the exercise of the coercivepowers with which the State has clothed them. The relevantquestion is. has the impugned infringement of petitioner'sfundamental rights been caused by "executive or administrativeaction"; if the answer is in the affirmative then the State is liable.
The Deputy Solicitor General then contended that in any eventthe action of the Police Officer concerned does not constitute"executive or administrative action" such as would give to thepetitioner the right to apply for relief under Article 1 26 on theground of contravention of his constitutional rights. In my viewthis contention is not well founded. Sub-Inspector of Police.Godagama. is a repository of State Power, charged with law-enforcement duties. In the performance of his police duties herepresents the executive arm of the State and his action is to bedeemed the action of the State. As was stated by the PrivyCouncil in Thornhill v. Attorney-General (7)—
"It is beyond question, however, that a Police Officer incarrying out his duties in relation to the maintenance of order,the detection and apprehension of offenders and bringingthem before a judicial authority, is acting as a public officercarrying out an essential executive function of any sovereignvirtue of a public position under State government in the name
and for the Stateare not to be treated as if they were the
acts of private individuals, although in doing them the officialacted contrary to the express command of the State Law.Where a State official acting under the colour of Stateauthority invades, in the course of his duties, a private rightsecured by the federal constitution, that right is violated even ifthe State Officer not only exceeded his authority, butdisregarded the special command of the State Law."
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Mariyadas Raj v. Attorney-General and Another (Sharvananda. J.)471
In this context it is relevant to bear in mind that Article 4(d) ofthe Constitution mandates all organs of government not torestrict or deny the fundamental rights declared by theConstitution but to secure and advance them.
What is "executive or administrative action" and its ambit havebeen discussed by me more fully in my judgment in theVelmurugu case (supra). It is to be noted that in Ratnasara Therov. Udugampola(8). Superintendent of Police, et al. (8), thewrongful seizure by the Gampaha Police of petitioner's 20,000phamplets which he intended to publish, was held by a DivisionalBench of this Court to constitute an infringement of thepetitioner's fundamental right under Article 14(1 )(a) of theConstitution and the petitioner's application under Article 126was allowed. This decision is explicable only on the basis that theunlawful action of the Superintendent of Police, in causing theseizure of the petitioner's phamplets. in the exercise of hispowers, though an individual action of a police officer, wasregarded by the Court to be constituting "executive oradministrative action". It is to be noted that the State did notcontest the position that the police officer's action constituted"executive or administrative action."
On the application of the above criterion of "executive oradministrative action", the State cannot disown responsibility forthe misfeasance or misconduct of Sub-Inspector of Police,Godagama; it is answerable for the wrong way that the officerhad chosen to exercise the powers with which the State haveinvested him.
I agree with the relevant submission of the Counsel for thepetitioner and I hold that the petitioner has established theallegation that his fundamental right assured to him by Article13(1) of the Constitution has been infringed by "executive oradiministrative action". Accordingly. I make the declaration thatthe arrest of the petitioner on the 13.1 1.1982 by Sub-Inspectorof Police, Godagama was not according to procedure establishedby law and that the petitioner was not informed of the reasons
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for which he was arrested, in contravention of Article 13(1) ofthe Constitution.
The material on record does not justify the grant of adeclaration that the petitioner was subject to cruel and inhumantreatment and punishment in violation of Article 11 of theConstitution. Counsel for the petitioner too did not press thisallegation.
As stated earlier the petitioner could have been spared thetrauma of arrest and detention, had Sub-Inspector of Police.Godagama only told him the ground for his arrest, namelysuspicion on his part that the petitioner was an illegal immigrant;the petitioner could and would have satisfied Sub-Inspector thathe was not an illegal immigrant, that he had lawfully entered andwas staying in Sri Lanka, by the exhibition to him of his Indianpassport, which bore the endorsement of the relevant visapermitting his entry and stay. For the default of Sub-Inspector ofPolice, Godagama, the State is, in the circumstance, liable to paya fair compensation. Officers who feel called upon to arrest otherpersons (whether they are citizens or not) and deprive them offreedom in the discharge of what they conceive to be their duty,ought strictly and scrupulously, observe the forms and rules oflaw and have due regard for their ponstitutional or fundamentalrights.
I allow the application of the petitioner against the 1stRespondent in respect of his complaint of violation of Article13(1) and grant the declaration that the arrest of the petitioneron 13th November 1982. was in violation of Article 13(1) of theConstitution and direct the State to pay Rs. 5000/- ascompensation to the petitioner. I also make order that the 1stRespondent pay the petitioner the costs of this application. SinceSub-Inspector, Godagama has not been a party to theseproceedings, I do not make any order against him thoughstrongly I disapprove his flouting the law and exercising hispowers despotically.
SC Manyadas Raj v. Attorney-General and Another (Sharvananda. J.j473
As the petitioner has by mistakenly made Inspector NihalKarunaratne. the 2nd Respondent, instead of Sub-Inspector.Godagama. I dismiss the application against him and direct thepetitioner to pay him Rs. 150/- as costs of this application.
RANASINGHE, J.—I agree.
RODRIGO, J.—I agree.
Application allowed;
Compensation ordered;
Application against 2nd respondent dismissed.