044-NLR-NLR-V-75-Mrs.-SITA-GUNASEKERA-Petitioner-and-A.-T.-E.-FONSEKA-Assistant-Superintendent.pdf
246
Gunasekera v. De Fonseka
1972 Present: H. N, G. Fernando, C.J., G. P. A. Silva, S.P.J.,
and Alles, J,
Mrs. SITA GUNASEKERA, Petitioner, and A. T. DE FONSEKA(Assistant Superintendent of Police) and 2 others, Respondents
8. C. 411 of 1971—In the matter of an Application for a Mandate in the
nature of a Wril of Habeas Corpus under Section 45 of (he Courts Ordinance
Public Security Ordinance—Emergency Regulations No. G of 1971 made thereunder—Regulations IS, 19, 20, 21 (2), 55—Power of arrest, without warrant, underRegulation 19—Meaning and effect of the words “ whom he has reasonableground for suspecting ”—Criminal Procedure Code, as. 32 (1) (6), 53—PenalCode, ss. 5, 92—Courts Ordinance, s. 45—Habeas corpus.
Although Regulation 19 of the Emergency Regulations No. 6 of 1971(published in Gazette of 15th November 1971) empowers any officer mentionedtherein to arrest without warrant a poreon whom he has reasonable ground forsuspecting to bo concerned in an offence punishablo under any EmergencyRegulation, a condition precedent for such arrest is that the officer who arrestsshould himself reasonably suspoct that the person arrested had been concernedin some offence under the Emergency Regulations. Accordingly, where anAssistant Superintendent of Polico has purported to arrest a person underRegulation 19 merely because he had orders to do so from his superior officer,the Superintendent of Polico, and was not personally aware of the actualoffence of which the person arrested was suspected by the Superintendent ofPolice, such arrest is liable to be declared in habeas corpus proceedings to havebeen unlawful.
H. N. G. FERNANDO, C.J.—Ounasekera v. De Fonseka247
.A. PPL IC ATI ON for a writ of habeas corpus.
P.B. Tampoe, with Prins Rajdsooriya and Lalcshman Guruswamy,for the petitioner.
V. S. A. Pullenayegum, Deputy Solicitor-General, with IanWikramanayake, Senior Crown Counsel, and S. Sivarasa, Crown Counsel,for the respondents.
Cur. adv. vult.
January 21, 1972. H. N. G. Fernando, C.J.—
This was an application for a Writ of Habeas Corpus in respect ofone P. C. Gunasekera, who was arrested by the Assistant Superintendentof Police, Galle, at about midnight on 4th December 1971. ThePetitioner, who is the wife of Gunasekera, averred in an affidavit thatthe arrest and consequent detention were illegal and wrongful, and inaddition that the arrest was made mala fide and in revenge for certainactions and statements regarding the policies of the Government and theactions of the Police which had been made by a Member of ParliamentMr. Prins Gunasekera, who is the brother of the corpus Gunasekera.
Notice of the application to this Court was issued on the AssistantSuperintendent who aiTested him and also on the Superintendentof Prisohs, Mahara, and the Commissioner of Prisons. There were thenfiled in this Court affidavits of the Assistant Superintendent of Policeand the Commissioner of Prisons, and also an affidavit fromA. Navaratnam, Superintendent of Police, Southern Division.
The affidavit of the Superintendent of Police (hereinafter referredto as " the S. P. ”) contained averments—
. (a) that the corpus Gunasekera had been arrested on 18th March 1971on suspicion of being concerned in a conspiracy to overthrowthe Government, and that he then had in his possession certaindocuments indicative of his involvement in such a conspiracybut that he was released as the evidence appeared to beinsufficient ;
that in the course of further investigations into the conspiracy
referred to above, statements of various persons were recordedon certain dates in June, July and December 1971;
that the documents and statements referred to above gave to the
Superintendent of Police reasonable ground for suspecting thatthe corpus had been concerned in committing an offence punish-able under Regulation 22 (sic. 21) of the Emergency Regulations.
The Superintendent further stated that on the night of 4th December1971 he instructed the Assistant Superintendent of Police from Colomboto arrest the corpus and to produce him at the Galle Police Station forinterrogation. The affidavit of the A. S. P. averred that the instruction
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H. N. G. FERNANDO, C.J.—Gunasekera v. De Fonscka
to him was to take Gunasekera into custody “under the EmergencyRegulations ”, and the position for the Crown at the hearing of thisapplication has been that the corpus was duly arrested under Regulation19 of the Emergency Regulations. The corpus was held in custodyat the Galle Police Station until 18th December 1971, when he wasproduced before the Magistrate, Galle, who then made an order thathe be detained in Prison. It was conceded for the Crown during thehearing that the Order for detention made by the Magistrate underRegulation 20 was purely administrative, and that such an Order cannotvalidly authorize the detention of a person, unless the person hadbeen validly arrested under the powers conferred by Regulation 19.
I must here mention that the learned Deputy Solicitor-General didpropose to argue that Regulation 55 of the Emergency Regulationshad ousted the jurisdiction of this Court to inquire into the validityof an arrest purporting to have been made under Regulation 19. Wehowever indicated to him that there is no possibility of our doubtingthe correctness of the opinion to the contrary which was held unanimouslyby the Bench which decided the case of Hirdaramani (ApplicationNo. 354/71—S. C. Minutes of 30.12.71) K
It was averred by the petitioner that at the time of the arrestof Gunasekera, the A. S. P. merely stated that he had orders from Colomboto arrest Gunasekera, and that he was not able to furnish any informationother than that he was acting on orders from Colombo. These avermentsof the petitioner were not contradicted in the affidavit of the A. S. P.,but we accepted as correct his averment that he had informed Gunasekerathat he was arresting him “ under the Emergency Regulations ”. In theresult it was clearfrom the affidavitsof theS.P. and the A.S.P. that thecorpus was arrested because the S.P. suspected that he had been concernedin some offence, and that the A.S.P. who arrested him had no suchsuspicion and could not and did not inform the corpus of the particularsof the alleged offence.
The S.P. in his affidavit denied that he had ordered the arrest of thecorpus in bad faith. It was not however necessary for us to make anyinquiry into the petitioner’s allegation of bad faith, since her applicationfor the writ had to succeed on a ground of law.
Regulation 19 (1) of the Emergency Regulations confers powers on anypolice officers, any member of the Ceylon Army, Royal Ceylon Navy orRoyal Ceylon Air Force, or the Commissioner of Prisons or any Superin-tendent, Assistant Superintendent or Probationary Superintendent of aPrison, or any Jailor or Deputj' Jailor, or any Prison Guard, or PrisonOfficer, or any other person authorized by the Prime Minister to act underthis regulation. It provides that any one of these numerous personsmentioned therein may search, detain for purposes of such search, orarrest without warrant, any person :—
(a) who is committing an offence under any Emergency Regulation ; or'(1971) 75 N. L. R. 67.
H. N. O. FERNANDO, C.J.—Ounasekera v. De Fonseha
249
(6) who has committed an offence under any Emergency Regulation; or
(c) whom he has reasonable ground for suspecting to be concerned in orto be committing or to have committed an offence underany Emergency Regulation.
Any of these numerous officers will of course know that he has a powerof arrest under Regulation 19 ; but there is something else as important,or even much more important, which such an officer must know, namely,whom can he lawfully arrest ? It is clear that he can arrest a personwho is committing an offence under any Emergency Regulation, and thathe can also arrest a person who has committed such an offence. If an ArmyPrivate does arrest a person and is subsequently called upon to justify thearrest, whether in a Court of Law or before some military superior, he canjustify the arrest by establishing a fact, namely, that the person was com-mitting an offence at the time of the arrest or had committed such anoffence before his arrest. In both these instances an individual becomesliable to arrest because of something he is doing or something he has done.It is not however the case for the Crown that the ground for the arrest inthe present case was that Gunasekera was committing or had committedan offence under any Emergency Regulation.
Regulation 19 also expressly contemplates a third instance in which anofficer empowered by the Regulation may make a lawful arrest, namely the
arrest of a person “ whom he has reasonable ground for suspecting”.
The case for the Crown waB that the arrest in the present case was lawfullymade on this ground.
The language of Regulation 19 has the plain meaning that the thirdinstance in which the Regulation empowers an officer to arrest is where HEreasonably suspects something concerning an individual. On the factsof the present case therefore, Regulation 19, according to its plain meaning,did not authorize the A. S. P. to arrest Gunasekera, because on the aver-ments in the affidavits it was the 'Superintendent, and not the A.S.P.himself, who suspected that Gunasekera had been concerned in someoffence under the Emergency Regulations. Indeed there are also extrinsioreasons for adhering to this plain meaning.
In Muttusamy v. Kannangara1 52 N. L. R. 324 and in Corea v. TheQueen 2 55 N. L. R. 457, this Court held that when a Police Officer arrestsa person without a warrant, he Bhould, save in certain exceptionalcases, inform the suspect of the true ground of arrest. This duty toinform a person of the grounds for his arrest is no mere arbitraryrequirement. A citizen has a right to resist an unlawful arrest; buthe can only exercise that right if he is informed of the grounds upon whichhe is being arrested. In the case of Christie v. Leachinsky 8 (1947) A. C.583, Lord Simon said " Is citizen A bound to submit unresistinglyto arrest by citizen B in ignorance of the charge against him ? I thinkthat cannot be the law of England”. Recognition in Ceylon of the
* (1961) 62 S. L. B. 324.■ (1954) 66 N. L. B. 457.* {1947) A. O. 688.22-Volume LXXV
250
H. N. G. FERNANDO, C.J.—Gunaaekera v. De Fonscka
English Law on this matter is found in s. 53 of the Criminal ProcedureCode. Even when a person is arrested under the authority of thewarrant of a Court of law, s. 53 requires the arresting officer to informthe person of the substance of the warrant, which of course includesreference to the offence which the person is alleged to have committed.I am entirely in agreement with the observation of Gratiaen J. inMvltusamy v. Kannangara that this requirement applies a fortiori wherea person is arrested without a warrant.
There is every justification, in common sense, for this requirement.It iB only if a person is informed of the ground for his arrest, or (in otherwords) of the offence of which he is suspected, that he will have anopportunity to rebut the suspicion or to show that there is some mistakeas to identity. If, for instance, he is told that he is suspected of havingcommitted some offence in Colombo on a particular day, he may be ableimmediately to produce perfect proof that he was not in Colombo onthat day; if he is told that the person wanted on suspicion is XYZ Perera,he may be able to establish by production of his driving licence that heis not that person. In such circumstances, the officer might well desistfrom taking the person into custody.
According to the decisions which I have cited there are exceptionalcases in which the requirement will not apply, particularly cases in whichit is obvious in the circumstances that a person must necessarily knowwhy he is being arrested. Examples of such cases are found in paragraphs
, (c), (e) and (f) of s. 32 (1) of the Criminal Procedure Code. So alsoif a person is arrested under Regulation 19 of the Emergency Regulationswhen he is committing an offence, then the requirement that he be informedof the ground for his arrest may not apply. But the present case does notfall within these exceptions.
This requirement obviously cannot be complied with unless the arrestingofficer himself knows the grounds for arresting a particular person.Since the A. S. P. in the present case did not have that knowledge, he wasclearly unable to comply with this requirement.
The learned Deputy Solicitor-General submitted that the decisionsreported in Mutlusamy v. Kannangara1 52 isT. L. .R. 324, and in Coreav. The Queen2 55 N. L. R. 457, have wrongly appb'ed the English law andshould therefore be reconsidered. In support of this submissionCounsel could only refer to s. 92 of the Penal Code which provides thatthere is no right of private defence against an act done by a public servantacting in good faith under colour of his office. This only means however;that a person cannot use force to resist what appears to be a lawfularrest; but s. 92 surely does not deprive a person of his right to avoidarrest if he can do so without resort to force or violence. In any event,apart from Counsel’s bare pronouncement that our section 92 is differentfrom the English Law, he made no attempt to show either by argumentor by reference to case law or text books, that the English Law on the
1 (1951) 69 N. L. R. 324.* (2954) 56 N. L. B. 451.
H. N. G. FERNANDO, C.J.—OunasekcraA). De Fonseka
251
point is different from that contained in s. 92. Counsel failed toadduce any good reason for his suggestion that the two cited ctaseawere wrongly decided-
I do not say that the omission to inform a person of the grounds forhis arrest will necessarily render an arrest unlawful. But the existenceof the requirement that in a case such as the present one a person mustbe informed of the grounds for his arrest confirms the plain meaningof the relevant language in Regulation 19, namely that the officerwho arrests a person suspected of an offence must himselfentertain the suspicion.
The circumstances of the Indian case of Deshpande1 (1945) A. I. R.Nagpur 8, are important and relevant in the present context. Rule 129of the Defence of India Rules provided that—
“ Any Police Officermay arrest without warrant any person
whom he reasonably suspects of having acted
in a manner prejudicial to the publio safety or to the
efficient prosecution of the war.”
The High Court of Nagpur held that it was for the Police Officer makingan arrest under this Rule to show that he had reasonable ground forsupicion. It was not enough for Some other authority (in that case theProvincial Government) to furnish by affidavit the grounds for the arrest.The Court observed as follows:—“ The only affidavit we have on theside of the Crown is one which tells us about the suspicions entertainedby the -Provincial Government, not by the police officer making thearrest. But what we have to determine here is what were hissuspicions, and were they reasonable, and not what the ProvincialGovernment’s suspicions are ”. The decision was affirmed by thePrivy Council in King Emperor v. Deskpande2 (47 Criminal LawJournal of India (1946) p. 831).
Thus in the instant case the fact that the Superintendent of Policeentertained some suspicion regarding the corpus Gunasekera did notjustify the arrest. The A. S. P. had no power to make the arrest unlesshe himself suspected that the corpus had been concerned in some offence.
The Deputy Solicitor-General repeatedly submitted that the languageof Regulation 19 has the meaning that because the S. P. suspected thecorpus of some offence the Regulation empowered him not merely toarrest the corpus but also to cause him to be arrested. In my understanding,the principal ground on which he supported this construction of theRegulation was that if a person is in fact committing an offence he maylawfully be arrested under Regulation 19 even by an officer who does notactually see him committing the offence. He suggested as an examplea case where a Military Officer seated in the front of a vehicle sees personslaying explosives under a bridge with the object of destroying it; hesubmitted that if the officer then ordered other personnel in the vehicle
1 (1945) A. I. B. Nagpur 8.* 4? Criminal Law Journal of India (1946)i p. 881.
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H. N. G. FERNANDO, C. J.—Qunasekeru v. De Fcmseka
to arrest those persons, such an arrest would be lawful even though theother personnel do not themselves see the persons laying the explosives.I agree that arrests by the other personnel would be lawful; but theliability to arrest arises in this example not because a person is seeinglaying the explosives but because in fact he is commiting an offence.Regulation 19 does not in such a case require that the officer who makestho arrest should himself have seen the commission of the offence. Theground for the arrest in such a case is not the same as the ground reliedon in the instant case.
I have pointed out in the judgment in the case of Hirdaramani thatRegulation 19 confers powers of arrest on literally thousands of membersof the Police, Prisons or the Armed Services.- But the Deputy Solicitor-General’B construction means that, in addition, any person whosoevercan lawfully make an arreBt if any of the thousands of the members ofthose Services orders or requests the arrest to be made. I amquite unable to agree that Regulation 19 was enacted with anysuch drastic intention.
Section 32 (1) (6) of the Criminal Procedure Code provides that aPeace Officer may without a warrant arrest any person “ against whom areasonable suspicion exists of his having been concerned in any cognizableoffence.” Let me assume that under that section it is lawful for asubordinate Police Officer to effect an arrest upon an order given by asuperior officer, although the subordinate officer does not himselfentertain a suspicion. But when Regulation 19 is compared with s. 32
(6), it is apparent that there has been a deliberate departure fromtho language of s. 32 (1) (b). Regulation 19 does not refer to the existenceof a suspicion ; it clearly provides for an arrest by an officer who himself
has reasonable grounds for suspecting In the face of this
deliberate departure from the language of s. 32 (1) (6), it would be in myopinion quite unjustifiable for a Court to give to Regulation 19 the samewide meaning as can be probably be given to s. 32 (1) (b).
Consequent upon certain observations of my brother Silva, there wassuggested from the Bench this possible construction of Regulation 19 :If a senior Police Officer reasonably suspects that some person has beenconcerned in an offence and communicates that suspicion to a subordinateofficer, can it be said that the subordinate then “ reasonably suspects ”the same thing within the meaning of Regulation 19 ? The learnedDeputy Solicitor-General did not however adduce any argument insupport of this construction; we accordingly had at the least toassume that, on the factB of the instant case, the arrest of the corpuscould not have been justified on the suggested construction ofRegulation 19.
In construing Regulation 19, I have referred to the English text ofthe Emergency Regulations as published in the Government Gazette ofAugust 15, 1971. But reference was made during the hearing to theSinhala text of Regulation 19 as published in the same Gazette, because
G. P. A. SILVA, S.P.J.—Qunastkcra v. Dt Fonstka
263
of some suggestion that its language might support the constructioncontended for by the Crown. It was found however that, according tothe Sinhala text, there is power to arrest a person only for the limitedpurpose of searching him- The Deputy Solicitor-General had to admitthat, if the Sinhala text of an enactment has to be accepted as authenticby reason of the provisions of the Official Language Act, then the arrestin the instant case was manifestly unlawful.
I was satisfied for the reasons which have now been stated that thearrest of the corpus was unlawful because the officer who arrested himdid not reasonably suspect that he had been concerned in some offenceunder the Emergency Regulations.
P. A. Silva, S.PJ.—
The circumstances of the complaint which gave rise to this applicationare set out in detail in the judgment of My Lord the Chief Justice withwhich I agree. I should, however, wish to add a few words myself oncertain aspects that have come up for consideration in this application.
In the recent application for a writ of Habeas Corpus for the productionof B. P. Hirdaramani1 before this Court, while there was a difference ofopinion as to the justiciability of a detention order under Regulation 18of the Emergency Regulations, the full Court expressed the view thatthe detention of a person under the powers conferred by Regulation19 was justiciable and that the test to be applied under that Regulationwas an objective test. I see no reason to deviate from that view in regardto Regulation 19 which we are concerned with in the present application.
Two questions arise for consideration in this application, namely,whether the officer who took the detainee, P. C. Gunasekera, into custodyhad reasonable grounds for suspecting him to be concerned in or to becommitting or to have committed an offence under any EmergencyRegulations, and, if so, what material constituted such reasonable grounds.The affidavit of the Superintendent of Police, Southern Division,Mr. Navaratnam, was to the effect that he ordered the AssistantSuperintendent of Police, Mr. Fonseka, from Colombo, to take P. C.Gunasekera into custody. The latter proceeded to a house at Ahangamaand complied with the order of his superior officer. The affidavitindicates that so far as the person arresting was concerned he did nothave any material before him on which he could base any reasonablegrounds of suspicion nor was he aware of any such grounds. Once thisadmission is made, it seems to me that the condition precedent to thearrest and detention of the corpus, under Regulation 19 ceases to exist.
1 (1971) 7SN.L.B.67.
254
G. P. A. SILVA, S.P.J.—Gvnasc/cera v. De Fonscko
I shall now examine the legal position which compels this conclusion.The section of the Criminal Procedure Code which relates to arrestswithout warrant is section 32 the relevant portion of which reads :—
“ 32.(1) any peace officer may without an order from a Magistrate
and without a warrant arrest—
any person who has been concerned in any cognizable offence oragainst whom a reasonable complaint has been made or credibleinformation has been received or a reasonable suspicion existsof his having been so concerned(The underlining is mine.)
It is not unreasonable to think that whoever was responsible forpromulgating the Emergency Regulations modelled Regulation 19 onSection 32 of the Criminal Procedure Code. The construction of therelevant portion of this section which strikes one at first sight is thatany person making an arrest under this section need not himself havereasonable grounds of suspicion, the words being “ a reasonable suspicionexists ”. If it was necessary for a person arresting to have such reasonablegrounds the legislature may well have used different language to conveythat requirement. This power may have been expressed in this waypartly because such power was exercisable by a limited class, namely,the peace officers as defined in the Criminal Procedure Code, the numberbeing comparatively small at the time of the introduction of the CriminalProcedure Code, and there was little risk of the few officers acting outsidethe law. Even with the use of these words it is of course possible tocontend that a person making an arrest must himself entertain a reasonablesuspicion. This is for the reason that it is a generally accepted principlesupported by judicial interpretation that a police officer who wouldotherwise be justified in arresting a man without a warrant under Section32 of the Criminal Procedure Code nevertheless acts illegally if he doeBso without informing the suspect of the nature of the charge upon whichhe is arrested. The exceptions to-this rule are that the arrest should bemade in such circumstances that the man arrested must know the generalnature of the offence for which he is arrested or that the man himselfproduces the situation which makes it practically impossible for the officerarresting to inform him—vide Muttusamyv.Kannangara1,52 N.L. R. 324,and Corea v. The Queen2, 55 N. L. R. 457. The person arresting will notbe able to inform the person arrested of the reasons for the arrest unlesshe is himself aware of the facts leading up to the arrest which producedin his own mind reasonable grounds for suspicion that the person arrestedhad committed an offence which would warrant the latter’s arrest withouta warrant.
While these are the two possible interpretations of Section 32 of theCriminal Procedure Cpde, the wording of Regulation 19 to my mindpermits only one construction, namely, that the person taking another
>(1951) 62 N. L. R. 324.
(1954) 66 N. L. R. 4tT.
O. P. A. SILVA, S.P.J.—Gunasekera v. De Fonaeka255
into custody must himself have reasonable grounds for suspecting theperson arrested to be concerned in or to be committing or to havecommitted an offence under any Emergency Regulation. In the first placethis is the plain meaning that a Court would have to give to the words
“ Ae has reasonable grounds for suspecting to be concerned”, if the
Regulation stood alone without any historical background. It has tobe remembered however that arrest without a warrant and subsequentdetention was not unknown to our law as would appear from Section 32of the Criminal Procedure Code which I have cited above and whichdates back to 1898. The departure therefore in Regulation 19 of the
Emergency Regulations which says “whom he has reasonable
grounds for suspecting to be concerned in” in place of the words
of the earlier section 32 ”… if a reasonable suspicion exists…”compels the inference that the change has been deliberate. A court istherefore obliged to give to the words of the regulation a meaningdifferent from that which is given to the earlier section, namely, thatwhile the earlier section contains no requirement that the officer arrestingmust be personally satisfied that there are reasonable grounds forsuspecting, Regulation 19 must be given the construction that Buchsatisfaction is an essential condition precedent. If of course one givesthe second meaning to the provision in section 32, which I have referredto above, supported as it is by judicial pronouncements, a fortiori thereis no esoape from construing Regulation 19 to mean that the personarresting must personally have reasonable grounds of suspicion.
The departure from section 32 of the Criminal Procedure Code inRegulation 19 is not without a good reason therefor. Under the regulation,the number of persons who are vested with the.power of arrest wouldbe numerically very large. It includes the entire Police Force, the Army,Navy and Air Force, all Prison Officers and others specially authorizedunder the regulation. It is reasonable to think that when such a largenumber is vested with the power of arresting or detaining a person, thelaw would provide the additional safeguard that the person arrestingshould be personally satisfied that he has reasonable grounds of suspicionand that he should not merely be guided by the satisfaction of a thirdparty with whose judgment in the matter the person who actuallyarrests may not agree if he is apprised of the facts.
There is one view of the matter on which it is possible to argue thatthe reasonable grounds of suspicion can be based either on informationof which he is himself aware or on information available to anotherofficer. This would be1 the situation where, for instance, a superiorofficer makes inquiries himself or examines the available material placedbefore him and is satisfied that there are reasonable grounds for suspectingthe person whose arrest is desired to be concerned in or to be committingor to have committed an offence under the Emergency Regulations;and merely communicated his suspicion to a subordinate officer and. that subordinate officer, on the faith of the suspicion of the superiorofficer, himself forms his own suspicion of the person concerned. In
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ALLES, J,—Gunasekera v. De Fonseka
such a' case, the subordinate officer, if he is detailed to arrest the personconcerned, will even be able to communicate to him the reason for sucharrest and to comply with the principle laid down in the cases referredto earlier. Even though this possible argument was indicated by me tothe learned Deputy Solicitor-General, he did not appear to be enthusiasticto pursue the argument presumably because the facts in this case didnot enable him to do so, or he had some other good reason not to adoptthat argument. The affidavit of the Superintendent of Police howeverBhowed that, so far as he was concerned, he had sufficient material tobase a suspicion that the corpus was concerned in some way in an offencecontemplated in the Emergency Regulations. Had he himself madethe arrest therefore, or communicated even briefly to the AssistantSuperintendent the reasons for the proposed arrest, it would not havebeen difficult to see the justification for the arrest of the corpus by anyone of them.
The argument advanced by the learned Deputy Solicitor-General,which did not find favour with the court, has been dealt with bymy Lord the Chief Justice and there is nothing further which I canusefully add.
Alles, J.—
The petitioner, who was the wife of the corpus made an applicationfor a mandate in the nature of a Writ of Habeas Corpus for an orderpraying that the respondents produce before this Court the body of herhusband P. C. Gunasekera, the brother ofPrinsGunasekera, the Member ofParliament for Habaraduwa, to be dealt with according to law. At theclose of the argument we made order directing the 2nd and 3rd respondentsto have the corpus released from custody and this was done accordingly.
The corpus (hereinafter referred to as the detainee) was arrested bythe 1st respondent, the Assistant Superintendent at Galle, about midnighton 4th December 1971 at his parental home at Ahangama. At thetime several members of the family of P. C. Gunasekera, including PrinsGunasekera, had come to the parental home for a family reunion inconnection with an intended marriage for another brother of P. C.Gunasekera. According to the petitioner, the 1st respondent did notshow any order or warrant but only stated that he “ had orders fromColombo to arrest and remove the said P.C. Gunasekera to the Galle PoliceStation”. The 1st respondent in his affidavit stated that he receivedinstructions from his immediate superior, the Superintendent of Police,Galle, to take the detainee into custody under the Emergency Regulationsmade under the Public Security Ordinance and that, acting on theseinstructions, he arrested him and explained to him that he was beingso taken into custody. The detainee was detained at the Galle PoliceStation until 18th December 1971, when he was produced before theMagistrate, Galle, who directed his detention at the Galle Prison andthereafter at the Mahara PriBon. The Superintendent of Police, Galle,has sworn an affidavit in which he states that the detainee had previously
ALLES, J.—Gunaaekera v. De Fonatka
257
been arrested on 18th March 1971 on suspicion of being concerned in aconspiracy to overthrow, other than by lawful means, the Governmentestablished by law; that he was subsequently released and that hedirected further investigations to be made into the detainee’s activities.It iB now a matter of common knowledge that early in April last yearthere were widespread acts of insurgency all over the Island in an attemptto overthrow the lawfully constituted Government of this country andthat this insurrection had to be suppressed with considerable loss of life.The affidavit of the Superintendent of Police, Galle, further revealed thatas a result of investigations conducted by him, he had reasonablegrounds for suspecting that the detainee was concerned in theseinsurgent activities, details of which he has set out in his affidavit, andthat the detainee became liable for a contravention of Regulation21 (2) of the Emergency Regulations published in Ceylon GovernmentGazette 14,984/7 of 15th November 1971.
The main question that arose for consideration in this application wasthe legality of the arrest and the subsequent detention of the detainee.This is an issue which raiseB questions of considerable importance affectingthe liberty of the subject and the right of the Executive to arrest personswithout a warrant in times of Emergency. The Emergency RegulationsNo. 6 of 1971 made under the Public Security Act in Part 4 gives widepowers to the Executive to supervise, search, arrest and detain persons,and under Regulation 55 the writ of habeas corpus available to the subjectunder Seotion 45 of the Courts Ordinance has been suspended in respect ofany person detained or held in custody under the Emergency Regulations.The scope of Regulation 55 was recently considered by this Court inHirdaramani’s case1 and I have had the advantage of reading the judgmentof My Lord the Chief Justice where he has drawn the distinction betweenRegulation 18 and Regulation 19. I am in agreement with the view of thelearned Chief Justice that when a Detention Order, valid on the face of it,is produced before the Courts, it can only be challenged if it can beestablished that it was made with an ulterior motive or it can be provedthat the stated reason was incorrect or untrue or if the Detention Orderitself is manifestly absurd or perverse. In the case of a valid DetentionOrder it would be immaterial, even if the Permanent Secretary wasmistaken in his opinion, provided it cannot be established that he actedin bad faith. Section 45 of the Courts Ordinance enshrines the valuableright of the citizen to invoke the assistance of the Court “ when anyperson is illegally or improperly detained ”. It is however not necessaryto consider in this application the effect of a valid Detention Order inrelation to tho writ of habeas corpus. This is a matter which has beenfully dealt with by the Judges who heard Hirdaramani’s case.
The Court which delivered the order in Hirdaramani's case agreed—a view with which I- respectfully concur—that the language used inRegulation 19 was intended to enable the Courts to review the validityof an arrest under Regulation 19. If the arrest was illegal it necessarily
1 (1011) 75 N. L. R. 67.
ALLES, J.—Ouna3ekera v. De Fonseka
258
followed that the subsequent detention was unlawful. The languageused in Regulation 19 indicates clearly, inter alia, that the “ reasonablesuspicion of the person arresting ” is a matter for review by the Courts.An examination of the facts in the present case reveal that the 1strespondent did not arrest the detainee because “ he had reasonable groundfor suspecting the detainee to be concerned in or to be committing or tohave committed an offence under any emergency regulation”.
An’ such reasonable ground was within the knowledge of theSuperintendent of Police who directed the 1st respondent to arrest thedetainee but who apparently did not communicate this knowledge to the1st respondent. The 1st respondent only informed the dstai^so the.'; inwas being arrested under the Emergency Regulations. Offences unde,the Emergency Regulations are of a wide and varied character. It mayextend from a breach of a curfew order to the sale of a price controlledarticle above the controlled price. The 1st respondent, not being awareof the actual offence under the Emergency Regulations for which he wasarresting the detainee, the learned Deputy Solicitor-General wasconstrained to argue that knowledge need not be personal to the officereffecting the arrest, provided the superior officer was aware Y)f thegrounds of suspicion, even though such grounds were not conveyed to hissubordinate. The language used in Regulation 19 makes it abundantlyclear that it is the “ objective ” test that has to be applied in decidingwhether the arrest was valid or not. It might have been possible forCounsel to found an argument on the basis, that if the knowledge of thesuperior officer was conveyed to his subordinate, that knowledge might beascribed to the subordinate officer as well, but no submission of such akind was made and there was no evidence to support it. The submissionof the learned Deputy Solicitor-General that the knowledge need not bepersonal to the person effecting the arrest is subject to two infirmities.Firstly, such a view is completely at variance with the plain languagecontained in the Regulation. Secondly, it must be borne in mind that weare here dealing with a penal provision of the law which has the effect ofdepriving the subject of his liberty, and therefore the general principle oflaw stated in numerous decisions of the Court, both here and in England,should be adopted that such a Regulation must be strictly construed.
It is pertinent in this connection to examine the language found inSection 32 (1) (6) of the Criminal Procedure Code. That subsectionempowers a police officer to arrest any person, inter alia, against whoma reasonable suspicion exists of his having been concerned in thecommission of a cognizable offence. It does not necessarily predicatethat the police officer arresting the offender must act on his own personalknowledge. He may obtain the information on which he bases hisreasonable suspicion on information given to him by a third party. Theobjective test being the proper one that is applicable in effecting an arrestunder Regulation 19, I think the observations of Lord Atkin in hisdissenting judgment in Liversidge v. Anderson 1 (1942) A.C. 206 are
1 (1942) A. O. 206.
ALLES, J.—Qunasckcra «. De Fonseka
269
relevant in the context of an arrest effected under Regulation 19.Although Lord Atkin thought that the “ objective ” test may properlybe applied to a Detention Order under Regulation 18B of the DefenceRegulations—a view that was not shared by the other distinguished LawLords who were in the majority—he made the following observations atp. 228 in regard to the powers of arrest:—
“The power of arrest is confided by the common law both toconstables and to private individuals. The constable has powerwithin his district to arrest a person on reasonable suspicion of hishaving committed a felony. The private individual has power ontwo conditions: (1) that a felony has actually been committed;
that there is reasonable and probable cause of suspecting theperson arrested. In these cases the grounds for suspicion must bebrought before the court, the onus is on the person who arrested to provethe reasonable grounds, and the issue whether the cause is reasonableor not is to be determined by the judge.”
and again at p. 231:—
“ Can any person doubt that in respect of these powers given bystatute to arrest for suspicion or belief of offences or intentions tocommit offences other than felonies the constable is in exactly thesame position as in respect of his common law power to arrest onreasonable suspicion of felony, and that there is an ‘objective’ Issue,in case of dispute to be determined by the court ? Xo other meaninghas ever been suggested.”
Learned Counsel for the petitioner relied on two judgments of theSupreme Court in support of the proposition that when a police officerarrests without a warrant on reasonable suspicion the facts disclosedmust be matters within the police officer’s own knowledge or on statementsby other persons in a way which justify him in giving them credit.—Muttusamy v. JKannangara1 52 X. L. R 324 and Corea v. The Queen*£5 X.L.R. 457. In Muttusamy v. Kannangara Gratiaen J. held that ithad not been affirmatively proved that the police officer “ reasonablysuspected ” that the line rooms, he claimed the right to search withouta warrant, did contain stolen property. Therefore the charge of obstructingthe police officer in the lawful discharge of his duties had not been proved.In Corea v. The Queen at p. 463 Gratiaen J. observed that—
“ A police officer acts illegally in Ceylon (as in England) if he arrestsa man without a warrant on a mere ‘ unexpressed suspicion ’ that aparticular cognizable offence has been committed—unless, of course,
‘ the circumstances are such that the man must know the generalnature of the offence for which he is detained ’ or unless the man* himself produces the situation which makes it practically impossible -to inform him
* (1951) 62 N. L. B. 324.
(1964) 55 N. L. B. 467.
260
AIiLES, J.—Gunaaekera v. De Fonseka
It will be noted that in both Mutlusamy v. Kannangara and Corea v.The Quean, it was open to the police officer to arrest on reasonable suspicionif the police officer had knowledge of “statements by other person ina way which justify him in giving them credit ’’ or “ circumstances weresuch that the man must know the general nature of the offence forwhich he is detained’’ or the arrested person“ produce the situationwhich makes it practically impossible to inform him
These observations might postulate that it does not necessarily followthat in the case of an arrest by a police officer under the common law,the police officer must act on his own personal observations in actingon reasonable suspicion but is entitled tp act on information receivedfrom a third party.
The language however, used in Regulation 19 is narrower and leavesno room for any test other than the strictly “ objective ” test. Thetwo cases decided by Gratiaen J. also lay down another fundamentalprinciple which has not been followed in this case and which could nothave been followed having regard to the admitted facts, namely," thata police officer who arrests private citizens with or without a warrantis equally obliged to notify the arrested person of the reason for interferingwith his personal freedom. A recognition of this fundamental rule(which owes its origin to the English common law) is demonstrablyimplicit in the scheme of the Code ”.—per Gratiaen J. in Corea v. TheQueen at page 462. In both these cases Gratiaen J. followed the decisionof the House of Lords in Christie v. Leachinsky (1947) A.C. 673.
I am unable to agree with the learned Deputy Solicitor-General thatthe principles of the English law have no application to the law of Ceylon.In my view the principles laid down in Mutlusamy v. Kannangara andCorea v. The. Queen do no more than affirm the principle stated in Section63 of the Criminal Procedure Code." On the facts in the present casethere was no evidence that the detainee had committed or was committingan offence under the Emergency Regulations and the only ground onwhich he could have been lawfully arrested was the personal knowledgeof the 1st respondent based on reasonable suspicion (which might includeinformation conveyed to him by the Superintendent of Police) that hehad committed or was committing an offence under the Regulations.
A case very much in point and similar to the facts of the present caseis Deshpande v. Emperor1 decided by the High Court of Nagpur andreported in A.I.R. (1945), p. 8. In that case Deshpande was arrested anddetained under Section 129 of the Defence of India Rules by a policeofficer on reasonable grounds of suspicion. Dealing with the suspicionsof the Police Officer who effected the arrest the High Court made thefollowing observations at p. 26 :—
“ The only affidavit we have on the side of the Crown is one whichtells us about the suspicions entertained by the Provincial Government,not by the police officer making the arrest. But what we have to
A. I. R. (1945) Nagpur 8.
ALLES, J.—ffunasetera v. De fronteka
iei
determine here is what were his suspicions, and were they reasonable,and not what the Provincial Government’s suspicions are ; moreover,under R. 129 the Court has to determine whether the suspicions werereasonable and not the Provincial Government.”
The decision of the Nagpur High Court which held that Deshpande’sarrest and detention was unlawful was upheld by the Privy Council1—(1946) A. I.B. Privy Council,p. 123. Adopting the principles in the abovecases to the facts of the present case it is apparent that the arrest of thedetainee and his subsequent detention were unlawful and that he wasentitled to be released from custody.
Before I conolude I wish to make some reference to the case of Wiltshirev. Barrett * (1965) 2 A.E.B. 271 cited by the learned Deputy Solicitor-General, where the words “ committing an offence ” in Section 6 (4) of theRoad Traffic Act 1961 was held to mean “ apparently committing anoffence”, with the result that if any police officer reasonably came tothe conclusion by reason of the conduct and condition of the driver andof other evidence that the driver was unfit to drive through drink, hisarrest was justified and accordingly the arrest was lawful notwithstandingthat the suspected offence was not committed. The observations of theCourt of Appeal would be apposite to the case under considerationbecause in order to make the provision of the law effective the policeofficer had necessarily to .be given the power to arrest a driver whomhe reasonably suspects of being under the influence of liquor. AsDavies L.J. said in the course of his judgment at p. 278—
“ If a policeman who arrests under that, section is to be liable toan action for damages unless he can prove that the arrested personis actually guilty of the offence, the police might well be chary ofexercising the power. Even if a policeman were to find a motoristhardly able to stand, smelling of drink and almost unconscious, hiscondition might subsequently prove to have been due to causes otherthan drink or drugs. If the police were to refrain from exercisingthis power, the results might be serious, indeed. Drunken motoristsmight be permitted to continue on their way, with all the dire possibilitieswhich that would entail; and the chances of a successful prosecutionwould be seriously diminished, for by the time that a warrant badbeen obtained, the man might well have disappeared or become sober.It is obviously essential in the publio interest that in such circumstancesthe power of arrest should be exercisable forthwith without fear of asubsequent action for damages for assault or false imprisonment.”
1A. 1. R. (P. O.) 123.
* (2905) 2 A. B, B. 271.
262
ALL.ES, j.—Chunasekera v. be Fonseka
Similar observations were made by Lord Wright in the House of Lordsin the other case cited by Counsel—Barnard, v. Gorman1 (1941) A. C. 378where the Court held that an “ offender ” under Sections 186 of theCustoms Consolidation Act, 1876, includes a person who is suspected onreasonable grounds to have committed the offence and therefore a person'so suspected, though in fact not guilty, may be detained. The reasonfor such an attitude on the part of the Court was stated by ViscountSimon at p. 387—
“ when the question arises whether a statute which authorizes arrestfor a crime should be construed as authorizing arrest on reasonablesuspicion, that question has to be answered by examining thecontents of the particular statute concerned rather than by referenceto any supposed general rule of construction.”
and Lord Wright at p. 394 stated this :—
“ The legislature may well have thought that when they give thepower to arrest without warrant for particular conduct, the poweshould be limited to the case of particular categories of persons whoseprevious conduct or character or reputation renders them peculiarlyopen to suspicion”
Such arrests have been held to be lawful in the caseof a person suspectedto be a “ common prostitute or night watcher loitering or importuningpersons for the purpose of prostitution”-—Bowdilch v. Baldin2 5 Ex. 378or a person suspected to be. an “ offender ” and to have contravened theprovisions of the Customs Consolidation Act—Barnard v. Gorman or aperson charged under Section 6 (4) of the Hoad Traffic Act who appearedto the police officer to be apparently committing an offence— Wiltshirev. Barrett. These decisions therefore cannot support the submissionsof the learned Deputy Solicitor-General in a case where a person is arrestedwithout a warrant in his parental home at a late hour of the night inthe company of his near relatives on the ground that the police officerarresting reasonably suspects him of committing an offence under theEmergency Regulations, information of which is not known to the officerarresting and consequently cannot be communicated to the personarrested. Unlike the English cases here there is not even evidencethat he was apparently committing an offence.
/
I therefore agree that the arrest was illegal and the subsequent detentionof the corpus unlawful.
Application allowed.
(1941) A. C. 378.
• 6 Ex. 378.