028-SLLR-SLLR-1995-V-1-SENARATNE-v.-PUNYA-DE-SILVA-AND-OTHERS.pdf
SENARATNE
V.
PUNYA DE SILVA AND OTHERS
SUPREME COURT.
FERNANDO, J.
AMERASINGHE, J.
DHEERARATNE, J.
S.C. APPLICATION NO : 18/95.
OCTOBER 9,1995.
Fundamental Rights – Constitution, Articles 13(1), and 13(2) – Right to freedomfrom arbitrary arrest – Communicating reasons and grounds for arrest – Detention- Code of Criminal Procedure Act, No. 15 of 1979, Sections 2, 32, 36 and 37 -Cognizable offence – Compensation and costs.
The petitioner was the President of the Nidahas Sevake Sangamaya, a RegisteredTrade Union. In November 1994, the Secretary of the Prima Bakery, Rajagiriyabranch of the Sangamaya was interdicted as a result of which a protest campaignwas staged by the members of the Union at the Prima Bakery.
On 7th December 1994 some of the employees took two executives of PrimaCeylon Limited as hostages and detained them on the roQf top of the Bakerywhere the water storage tanks were located. The workers threatened to push thehostages off the roof top if the police attempted to move into the Bakery.
The petitioner received a message from the S. P., Nugegoda about the aboveincident and was requested to intervene in his capacity as the President of theSangamaya to secure the release of the hostages.
Thereafter the petitioner played a vital role in securing the release of the hostagesand signed an agreement in his capcity as President of the Trade Union.
The petitioner was informed by the Director, C.I.D. to call over at the departmenton 14.12.1994 to make a statement regarding the dispute at the Prima Bakery.When the Petitioner arrived at the Department he was directed by the 1strespondent to an A.S.P. who interrogated him from about 10.20 a.m. till 6.15 p.m.
On 23rd December 1994 at about 9 a.m.- the 1st respondent, accompanied byother police officers, went to the residence of the petitioner and the 1strespondent informed the petitioner that he had come there to arrest him.
The petitioner’s case is that
His right to freedom from arbitrary arrest guaranteed to him by Article 13(1)of the Constitution was violated because the 1st Respondent had noreasonable cause to arrest him.
His fundamental right to be informed of the reason for his arrest had beenviolated because he had not been informed the reasons for his arrest.
The 1st respondent by keeping the petitioner in illegal custody on 23.12.1994violated the Petitioner’s fundamental right to freedom from arbitrary detentionguaranteed to him by Articles 13(1) and/or 13(2) of the Constitution.
Held:
Although the 1st respondent was not required to have proof of thecommission of the offences and could have made the arrest on the basis ofsuspicion, the suspicion must not have been of an uncertain and vaguenature, but of a positive and definite character providing reasonable groundsfor concluding that the petitioner was concerned in the commission of theoffences.
The petitioner was not implicated in any cognizable offence. There was noreasonable complaint or reasonable information that he had commited or hadconspired to commit or abetted the commission of such an offence. Therewere no grounds for reasonable suspicion that he had been “concerned” inany of the specified cognizable offences in a sense that he was one of thegroup of persons responsible for the criminal activities committed at theBakery on 7 December 1994.
The petitioner could not have been arrested in accordance with theprovisions of Section 32(1 )(b) of the Code of Criminal Procedure and hisarrest was not in accordance with the applicable procedure established bylaw and therefore the 1st respondent violated Article 13(1) of the Constitution.
It is the person arrested and not others, even his wife or lawyer, who must begiven the reasons for the arrest.
There had to be reasons for supposing him to be ‘concerned’ in the relevantway in the commission of cognizable offences to enable the 1st respondentto arrest the petitioner and the petitioner had a right to be given thosereasons.
The Constitutional right to be given the reasons for arrest is not satisfied bygiving any kind of explanation. A reason for depriving a person of hispersonal liberty within the meaning of Article 13(1) of the Constitution mustbe a ground for arrest. There can be no such ground other than the violationof the law or a reasonable suspicion of the violation of the law.
A citizen has a right to resist an unlawful arrest, but he can exercise that rightif he is informed of the “grounds upon which he is to be arrested”.
The petitioner should have been informed of the offences of which he wassuspected. It would not have been possible otherwise for the petitioner tohave explained away the mistaken notions which the 1st respondent mayhave held and thereby regained his liberty. The underlying purpose of givingthe reasons for the arrest was thwarted.
A person who is detained in the custody of the law beyond a specifiedprescribed maximum permissible time or beyond a reasonable time cannotbe said to be a person arrested in accordance with procedure establishedby law and such a detention “for whatever the period may be”, subject to theprincipal of de minimis, would violate Article 13(1) of the Constitution.
The delay in producing the petitioner was in the circumstances unnecessaryand unreasonable and that his production at 2.45 p.m. was not in compliancewith the provisions of Sections 36 and 37 of the Code of Criminal Procedure.Admittedly he was detained only a few hours. Nevertheless such a detentionbeing unnecessary and unreasonable was not according to procedureestablished by law and it was therefore a violation of the petitioner'sFundamental Right guaranteed by Article 13(2) of the Constitution.
Faiz v. A.G. SCApp. 89/91 SCM 19th Nov. 1993.
Wijeratne v. Vijitha Perera SC App. 379/93 SCM 2 March 1994.
Kumarasena v, Shriyantha & Others SC App 257/93 SCM 23 May 1994.
Kumara v. Rohan Fernando & Others SC App 22/90 SCM 21 July 1994.
Nallanayagam v. Gunatilleke [1987] 1 Sri L. R. 293.
APPLICATION for infringement of Fundamental Rights.
Tilak Marapana, PC. with Dulinda Weerasuriya and Lakshman Ranasinghe for thepetitioner.
C.R. de Silva, D.S.G. with B. Aiuvihare, S.C. for the respondents.
Cur. adv. vult.
November 03, 1995AMERASINGHE, J.
THE TAKING AND RELEASE OF HOSTAGES ON 7 DECEMBER1994.The Nidahas Sevaka Sangamaya is a registered Trade Union. InNovember 1994, the Secretary of the Prima Bakery, Rajagiriya,branch of the Sangamaya, was interdicted. This led to a protestcampaign by the members of his Trade Union at the Bakery. On 7December 1994 some of the employees took the General Manager ofthe Bakery, Mr. Lin (in some documents he is referred to as Lyn) SinHui, an J the Assistant Bakery Manager, Mr. Jayantha de Silva, ashostages and detained them on the roof top, sixth floor level of theBakery where the water storage tanks were located.
The petitioner, who is a Member of Parliament and the President ofthe Nidahas Sevaka Sangamaya, received a message from theSuperintendent of Police, Nugegoda, (conveyed through the officer-in-charge of the Parliament Police Post) that workers at the Bakeryhad taken two hostages and were threatening to push them off theroof top where they were being held if the police attempted to moveinto the Bakery. The petitioner was requested to intervene in hiscapacity as the President of the Nidahas Sevaka Sangamaya tosecure the release of the hostages. The petitioner was unable toimmediately accede to the request, for he was scheduled to speak inParliament. However, after Parliament adjourned for the day, thepetitioner spoke to the Minister of Labour about the incident at theBakery. The petitioner had, a few days prior to the incident, met theMinister of Labour regarding the dispute at the Bakery. The petitionerinformed the Minister that he was proceeding to the Bakery with theSuperintendent of Police, Nugegoda, and requested the Minister tohelp him resolve the dispute. The Minister of Labour agreed andrequested the Petitioner to keep him informed of any developments.
The facts stated above, are based on the averments of thepetitioner; There is no contrary evidence at all except that the firstrespondent in paragraph 7 of his affidavit states: “I only admit that amessage was conveyed to the Petitioner by the Superintendent ofPolice, Mr. Navaratnam through the officer-in-charge of the ParliamentPolice. By way of further answer, I state that the investigationsrevealed that Mr. Navaratnam had taken the above step as theworkers, who were holding the executives of Prima Ceylon Limited ashostages, had demanded that the petitioner be summoned to thescene." Are not Police messages received and recorded in aprescribed manner in prescribed forms? They have been producedbefore this Court in other cases. (E.g. see the record in Pieris v. A. G.(,)).If what the petitioner said about the appeal to him to intervene in hiscapacity as the President of Nidahas Sevaka Sangamaya to securethe release of the hostages was not true, why were the copies of thePolice messages not filed?
According to the petitioner, having arrived at the Bakery, thepetitioner met the Secretary of the Nidahas Sevaka Sangamaya,Mr. D. A. Punchihetti and went to the place where Mr. Lin Sin Hui andMr. Jayantha de Silva were being detained and spoken to them andto the workers “with a view to settling the dispute and the release ofthe two hostages. The petitioner, however, was not successful.”
The First respondent however, states that “investigations revealed”that “according to both Ms. Lin and Jayantha de Silva the petitionerhad made no attempt whatsoever to settle the dispute, but [on] thecontrary had demanded from Mr. Lyn that he acceded to thedemands put forward by the workers if they want themselvesreleased." In support of this, the First respondent filed the statementsof Mr. Lin Sin Hui (1R1) and Mr. Jayantha de Silva, (1R2) recorded bythe Police.
What Mr. Lin Sin Hui said was as follows “Mr. Rajitha Senaratnetold me if you give (sic.) to their demands you will be released. Then Itold (sic.) I do not know what are their demands and I cannot justagree on their demands. In response for my reply (sic.) he said thathe cannot do anything to release me… After about 30 to 40 minutesDr. Rajitha Senaratne…and others…left the roof top.”
Mr. Lin Sin Hui had said in his statement that he did notunderstand the Sinhala Language. His was, therefore, not in aposition to understand the discussion between the petitioner and theworkers. Understandably, therefore, there is nothing in Mr. Lin SinHui’s statement suggesting that that the petitioner “had made noattempt whatsoever to settle the dispute.” Nor is there anything in hisstatement to suggest that the petitioner “demanded" or coerced himto accept the conditions laid down by the workers. All that thepetitioner did was to convey what he had gathered after hisdiscussions with the workers, namely that they would release him ifhe agreed to give into their demands. Mr. Lin Sin Hui could not agreebecause he did not know what the demands were. The petitioner atthis stage could be of no further assistance in the matter of securingthe release of the hostages since the workers were not prepared torelease them unless their demands were granted, and the petitionerso informed Mr. Lin Sin Hui.
Nor does the statement, of Mr. Jayantha de Silva support the Firstrespondent’s averment that the petitioner “made no attemptwhatsoever to settle the dispute” or that he “demanded” anythingfrom Mr. Lin Sin Hui. In describing the events of the day Mr. de Silvastates that certain workers told him that they would have their neckscut if their demands were not granted. When this was communicatedto Mr. Lin Sin Hui, he had said that he did not know what their
demands were. Then one Vijitha had said that Dr. Rajitha Senaratne(petitioner) would be coming with their demands later in the day. Atabout 4.30 p.m. Dr. Senaratne accompanied by 20-30 people,including certain Members of Parliament, arrived. Dr. Senaratnespoke to him and said “Take a decision.” However, Dr. Senaratne andthose accompanying him did not inform him of the demands of theworkers. Dr. Senaratne spoke to Mr. Lin Sin Hui but Mr. de Silva statesthat he is unable to say what Dr. Senaratne told him. How does Mr. deSilva’s statement support the First respondent’s statement that thepetitioner “demanded” certain things from Mr. Lin?
Having failed in his attempt to settle the dispute, the petitionerwent down and was about to get into his vehicle to leave the Bakerypremises when Mr. Wickrema Perera, Assistant Superintendent ofPolice, Nugegoda, and Inspector Gunawardena, officer-in-charge ofthe Welikada Police Station, spoke to the petitioner and inquiredwhether he would meet Mr. Amaradasa Gunawardene, theAdministrative Manager of Prima (Ceylon) Ltd., who was at the time ina police vehicle nearby. The petitioner agreed and walked up to thatvehicle and spoke to Mr. Gunawardene. Mr. Gunawardene and thepetitioner agreed to a suggestion made by Mr. Wickrema Perera thatthey should discuss the matter at the Welikada Police Station.
At the Welikada Police Station, Mr. A. Gunawardene had beenunable to agree to two of the demands of the workers. The petitionerthen informed Mr. A. Gunawardene and Mr. Lucien Wijekoon, DeputyInspector-General of Police who was present, that he was going backto the Bakery to discuss the matter with the workers. Having spokento them and ascertained their minimum demands for the release ofthe hostages, the petitioner returned to the Police Station along withofficers of the Trade Union and indicated what the demands were.Mr. A. 'Gunawardene said that in respect of some of the matters inissue he needed instructions from Mr. Primus who was in Singaporeand that he was unable to contact him. The officials of the TradeUnion stated that the Personnel Manager, Mr. T. Samarasinghe, andthe Accountant would be able to contact Mr. Primus. The PoliceOfficers present there requested the Petitioner and the officials of the
Trade Union to bring Mr. Samarasinghe and the Accountant from theBakery. The petitioner went to the Bakery and returned to the PoliceStation with Mr. Samarasinghe and the Accountant. On his return, thepetitioner found Mr. R. Nash, Deputy High Commissioner of theBritish High Commission and two Executives of a sister company ofPrima (Ceylon) Ltd. Mr. A. Gunawardene, Mr. Samarasinghe and theAccountant discussed the matter with the two Executives of the sistercompany who then contacted Mr. Primus using a cellular telephone.Mr. A. Gunawardene thereafter informed the petitioner that theminimum demands of the workers were acceptable.
The First respondent in his affidavit (paragraph 12) stated :“Mr. Amaradasa Gunawardene had categorically stated that hegranted the demands of the workers put forward by the petitionerbecause of the danger to the lives of the hostages." In his affidavit(paragraph 10) he states that Mr. A. Gunawardene “had refused toaccept 2 of the demands”. He does not deny the Petitioner’saverment that Mr. Gunawardene had stated that on some of thematters in issue he required instructions from Mr. Primus. The Firstrespondent admits in paragraph 17 of his affidavit that the Executivesspoke to Mr. Primus and that thereafter Mr. Gunawardene had agreedto the demands. It was Mr. Primus, for whatever his reasons were -there is no evidence with regard to that who agreed to the demands.Mr. Gunawardene was his mouthpiece. It is incorrect for the Firstrespondent to state that it was Mr. Gunawardene who granted thedemands and that he had done so because of the danger to the livesof the hostages. Where is Mr. Gunawardene’s evidence on thatmatter? Had he been in a position to agree to the demands becauseof the danger to the lives of the hostages, he could and shouldhave done so before Mr. Primus was contacted. In any event itwas not the First respondent’s case that the petitioner coercedMr. Gunawardene.
When the Honourable Minister of Labour telephoned the petitionerat the Police Station the petitioner informed him that the managementhad agreed to accept the minimum demands of the workers and thatthe workers had assured him that the hostages would be released iftheir minimum demands would be met. The petitioner requested the
Honourable Minister to send the Commissioner of Labour to thePolice Station. These matters are not denied by the First respondent.
Mr. A. Gunawardene prepared a draft agreement which was typedby a Police Constable. Obviously, this was the management's view ofthe matter. When it was shown to the petitioner, who as we haveobserved was the President of the Trade Union, and the officials ofthe Prima Bakery Branch of that Union, the petitioner and the officialssuggested that the agreement should include two additional clauses:One of them was that those persons who were involved in thehostage incident should not be subjected to victimisation ordisciplinary or legal action. The other was that the Bakery wouldresume normal functions from 8 December 1994. These matters wereadded by the petitioner, as he himself states in Paragraph 20 of hisaffidavit and confirmed by the First respondent in paragraph 10 of hisaffidavit, in the handwriting of the petitioner (see P1). They wereagreed to by Mr. Gunawardene. Evidently, unlike the two clauses onwhich he required directions, he had sufficient authority to decidesuch matters without consulting anyone else. The agreement wassigned on behalf of the workers by the petitioner in his capacity asPresident of the Trade Union and by Mr. T. Samarasinghe on behalf ofPrima Lanka Ltd. The Commissioner of Labour, Mr. R. P. Wimalasena,and the Assistant Commissioner of Labour, Mr. MahindaMadihahewa, certified that the agreement was signed in theirpresence, (see P1). The First respondent’s averment that hisinvestigations revealed that “the arrival of the officials of theDepartment of Labour had taken place only after the agreement wassigned by the parties” is contradicted by the agreement. (P1).
After the agreement was signed, the petitioner along with theTrade Union officials and Mr. T. Samarasinghe, Mr. Nash, the DeputyHigh Commissioner, and the two Executives went to the bakery wherethe petitioner handed over the original of the agreement to theworker’s who were on the ground floor and proceeded to the fifthfloor. The workers took the agreement to the sixth floor. Some of themshouted down to the fifth floor for clarifications from the petitioner andthen brought Mr. Lin and Mr. de Silva down to the fifth floor, wherethey shook hands with the petitioner and thanked him. Thereafterthey all came down to the ground floor and the petitioner advised theworkers to leave the premises peacefully.
The First respondent in his affidavit states that his investigationsrevealed that the release of the hostages “preceded the signing ofthe agreement between the petitioner and M»T. Samarasinghe”.What are the investigations that revealed that position? No evidencehas been produced in support of that position. The agreement wouldhave been of little or no use if the hostages had in fact been alreadyreleased. In fact the statement of one of the hostages, Mr. Jayantha■ de Silva, which was produced by the First respondent (IR2), at folio919682, supports the position that the petitioner returned with theagreement at about 9.30 p.m. and that he and Mr. Lin were releasedthereafter. The statement of the other hostage, Mr. Lin which wasproduced by the First respondent (IR1 at p. 5) also supports the viewthat the hostages were released after the signing of the agreement.Mr. Lin stated that at about 9.30 p.m. he heard something being readin Sinhala and he saw the workers clapping their hands. ‘Thereafter Iwith Mr. T. J. de Silva were unlocked and brought to the 4th floor…”where he says he met the Deputy High Commissioner, the petitionerand others. Nor is the First respondent’s denial that the freedhostages thanked the petitioner and shook hands with him borne outby any of the documents filed by him. Although as we have seen theFirst respondent in several averments in his affidavit on the allegedbasis that “investigations revealed” it, seeks to make out that thepetitioner's role was other than that of a peacemaker, he has failed toadduce evidence in support of his position. The evidence available,including evidence furnished by him, points in the opposite direction.One ought to assume that the evidence the First respondent didchoose to file, if he did have other evidence also, was the bestevidence he had. Or was the other evidence he had unfavourable tohis case in some way?
In a statement to the Police (IR1) V. N. Selvaratnam – presumablyan officer of the Bakery, for he refers to "Mr. A. Gunawardene ourAdministrative Manager" – clearly acknowledges the petitioner’s realrole, namely that of a peacemaker. He states : “In the meantimenegotiations were proceeding to obtain the release [of the] officerslocked up inside [the] Prima premises with the assistance ofDr. Rajitha Senaratne, the Chairman of the Workers Union”.
In discharging the petitioner on 27 December 1994, the Magistratehad found that all that the petitioner had done was to have broughtabout a settlement in his capacity as the president of the TradeUnion. (See P3D and E). And that is a finding that is justified by theevidence placed before this Court.
THE INTERROGATION OF THE PETITIONER BY THE POLICE ON13.12.94On 13 December 1994, the petitioner received a telephone call athis residence from the Director of the Criminal InvestigationDepartment, Mr. O. K. Hemachandra, requesting him to call over atthe Department on the next day to make a statement regarding thedispute at the Prima Bakery. When the petitioner arrived at theDepartment on 14 December 1994, he was directed by the Firstrespondent to Mr. Mahesh Perera, Assistant Superintendent of Police,who interrogated him from about 10.20 a.m. till 6.15 p.m., about hisfamily background, his political career and about the dispute at thePrima Bakery and the incidents of 7 December 1994. The statementrecorded was filed in these proceedings (1R7) and will be referred tolater in my judgment.
THE ARREST OF THE PETITIONEROn 23rd December 1994 at about 9 a.m. the First respondent,accompanied by other Police Officers, went to the residence of thepetitioner and the First respondent informed the Petitioner that he hadcome there to arrest him. The petitioner was arrested and taken to theC.I.D. Office where he was interrogated about the dispute at theBakery and the incidents of 7 December 1994. In his petition, thepetitioner alleges that his arrest by the First respondent on 23December 1994 was “a violation of his fundamental right to freedomfrom arbitrary arrest guaranteed to him by Article 13(1) of theConstitution inasmuch as the 1st respondent had no reasonablecause to arrest the petitioner.” The petitioner prayed, inter alia, thatthe Court should declare that his fundamental right guaranteed to himby Article 13(1) of the Constitution had been infringed.
THE ALLEGED ABSENCE OF REASONABLE CAUSE FORARREST BY THE FIRST RESPONDENT:The petitioner’s case is that his right to freedom from arbitraryarrest guaranteed to him by Article 13(1) of the Constitution wasviolated because the First respondent had no reasonable cause toarrest him. Article 13(1) neither refers to "arbitrary arrest” nor toabsence of “reasonable cause” for arrest. What it does say is that “noperson shall be arrested except according to procedure establishedby law …” The First respondent in his affidavit does not explain howor why the arrest should be regarded as being in accordance withprocedure established by law. Having admitted that he arrested thepetitioner on 23 December 1994, the First respondent states that “thepetitioner was arrested as the statements recorded in the course ofthe investigations indicated that the petitioner was involved in thecommission of offences" punishable under certain sections of thePenal Code. The sections are section 140, (being a member of anunlawful assembly), 300 (attempt to murder), 332 (wrongful restraint),333 (wrongful confinement), 315 (voluntarily causing grievous hurt bydangerous weapons or means) 113(b) (conspiracy for thecommission or abetment of an offence) and 102 (abetment).
Section 32(1) of the Code of Criminal Procedure provides that “Anypeace officer may without an order from a Magistrate and without awarrant arrest any person” in the circumstances set out in thatprovision. It is provided in section 32(1) (b) that a person may bearrested “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 exists of hishaving been so concerned.”
"Cognizable offence” is defined in section 2 of the Code ofCriminal Procedure to mean an offence for which a peace officer(which phrase includes a Police Officer) may in accordance with theFirst Schedule arrest without a warrant. In terms of the First Schedule,an arrest may be made without a warrant for abetment (section 102)or conspiracy or abetment (section 113) of the Penal Code “if arrest
for the offence abetted may be made without a warrant but nototherwise”. The Schedule provides that offences specified in thiscase, namely, those punishable under sections 140, 300, 315, 332and 333 of the Penal Code, are matters in respect of which an arrestmay be made without a warrant. They are therefore “cognizable"offences.
The question then is whether the petitioner was concerned in, oragainst whom a reasonable complaint had been made or credibleinformation had been received or a reasonable suspicion existed ofhis having been concerned in, the commission of the offencesreferred to. The First respondent alleged that the petitioner was"involved" in the commission of the specified offences. The learnedDeputy Solicitor-General who represented him explained that thearrest was made because the petitioner was a person “concerned”.Were there circumstances, objectively regarded – the subjectivesatisfaction of the officer making the arrest is not enough – thatshould have induced the First respondent to suspect that thepetitioner was concerned in the commission of those offences? (SeeMalinda Channa Pieris and Others v. A.G. and Others(,); Elasinghe v.Wijewickreme <2); Kumara v. Rohan Fernando and Others (3);Wijenayake v. Chandrasiri and Others m). In other words, althoughthe First respondent was not required to have proof of thecommission of the offences and could have made the arrest on thebasis of suspicion, the suspicion must not have been of an uncertainand vague nature, but of a positive and definite character providingreasonable grounds for concluding that the petitioner was concernedin the commission of the offences. As Scott C.J. observed in Dumbellv. Roberts<5> (followed in Muttusamy v. Kannangara(6); Faiz v. A. G. mand in Faurdeen v. Jayatilleke<8)). “The principle of personal freedomthat every man should be presumed innocent until he is found guiltyapplies also to the police function of arrest… For that reason it is ofimportance that no one should be arrested by the Police except ongrounds which the particular circumstances of the arrest justifiedentertainment of a reasonable suspicion.”
Although the First respondent states that the ‘‘statements’’ (theemphasis is mine) “recorded in the course of investigations indicated
that the petitioner was involved in the commission” of the offences hementioned, there is only one statement referred to or filed by him,namely, that of Mr. S. Wijeratne (1R5). At Folio 926373 of thatstatement Mr. Wijeratne states that at a meeting held on 15November 1994 Dr. Rajitha Senaratne said: “Parliament would besitting on December 7th and after that let us go near the premisesand carry out a protest demonstration.” Dr. Senaratne also said thaton the 7th, Managers would be taken up to the top floor near thewater storage tanks. “We were so advised by Dr. Rajitha Senaratneand by Mr. Punchihetti.”
Learned Counsel for the First respondent submitted thatMr. Wijeratne was a member of the Trade Union of which thepetitioner was the President and that an allegation of that naturewould not have been lightly made. It is not without significance thatthe First respondent himself did not state in his affidavit that heconsidered the statement of Mr. Wijeratne to be credible because ofthese reasons. Was it because it was supposed that the question whyMr. D. A. Punchihetti, the Secretary of the Trade Union who was alsosaid in Mr. Wijeratne’s statement to have advised the taking of thepersons to the top floor, was not arrested might have been averted?That question was nevertheless raised by the petitioner’s Counsel.Would such an allegation be lightly made against the Secretary of hisUnion? Not a word of explanation was offered by learned Counsel forthe First respondent on the failure to deal with Mr. Punchihetti in asimilar manner. The petitioner in his affidavit dated 7 September 1995states that Mr. Wijeratne’s statement was a “fabricated statement”and filed an affidavit from Mr. Wijeratne to the effect that he wasmade to sign the statement 1R5 under duress; and that the contentsof the statement were not read out to him. Mr. Wijeratne denieshaving said that either the petitioner or Mr. Punchihetti advised themto take the Managers up to the water tank area as hostages.
The First respondent did not have the benefit of reading eitherMr. Wijeratne’s affidavit or that of the petitioner at the time of makingthe arrest, and what is relevant for our purposes are thecircumstances at the time of the arrest. At that time the Firstrespondent did have access to the statement of the petitionerrecorded on 14th December 1994. In paragraph 17A of his affidavit,the First respondent states that “on 14.12.1994 the petitioner wasquestioned in detail about his involvement in the hostage crisis at thePrima Bakery and in the course of the statement his attention wasdrawn to the fact that the suspects who were already in custody inconnection with the said incident had stated that he had advised themembers of the Trade Union to wrongly confine the executives of thePrima Bakery. (A copy of the statement of the petitioner recorded on14.12.94 is annexed hereto marked IR7 and the same is pleaded aspart and parcel of this affidavit)." In paragraph 23 of his affidavit theFirst respondent admits he was “aware that a statement of thepetitioner had been recorded by Assistant Superintendent of PoliceMr. Mahesh Perera." This is to be expected, for as we have seen,when the petitioner went to the C.I.D. office on 14 December, it wasthe First respondent who directed him to Mr. Mahesh Perera forinterrogation. Knowing that the petitioner’s version was available,what would a reasonable man have done? He would have perusedthe statement or at least have asked Mr. Mahesh Perera what thepetitioner had said in order to make up his mind as to whether therewere reasonable grounds. However, the First respondent did neitherof these things before he arrested the petitioner. He considered thepetitioner’s version only after he had arrested him and taken to theC.I.D. building in the Fort. The petitioner states in paragraph 37 of hisaffidavit that at that place he was interrogated by the First respondentabout the dispute at the Bakery and the incidents of 7 December. Thepetitioner states: “I stated that I had already answered the samequestions put to me by A.S.P. Mahesh Perera on 14.12.1994. The 1strespondent asked A.S.P. Mahesh Perera whether it was so and A.S.P.Perera replied in the affirmative. The 1st respondent then perused thestatement made by me to A.S.P. Perera. The 1st respondentquestioned me further. My statement was typed in my presence. Ithen signed the statement after having read it.” (The emphasis ismine).
In reply, the First respondent in paragraph 23 of his affidavit statesthat he was “aware that a statement of the petitioner had beenrecorded by the Assistant Superintendent of Police Mr. MaheshPerera.” By way of "further answer” he states: “I did not questionA.S.P. Mr. Mahesh Perera in regard to the said statement recordedfrom the petitioner.” Whether he did question Mr. Mahesh Perera ornot, it seems to me that the First respondent was considering whatthe petitioner had said earlier on 14 December for the first time afterhe had arrested the petitioner.
The statement recorded by Mr. Mahesh Perera on 14 December1994 was available to the First respondent, but he did not informhimself of what had been stated therein before he arrested thepetitioner nine days later. Had he read that statement, he would havebeen put on his guard and required to investigate the matter furtherbefore coming to the conclusion that the statement of Mr. Wijeratnewas credible or that there were reasonable grounds for suspectingthe petitioner to have been concerned in the offences alleged.
Was there any evidence other than the statement of Mr. Wijeratnethat could reasonably have persuaded the First respondent to cometo the conclusion that the petitioner was concerned in the offencesalleged? In Paragraph 17A of his affidavit the First respondent statesthat when the petitioner was interrogated on 14 December 1994 “hisattention was drawn to the fact that the suspects who were already incustody in connection with the said incident had stated that he hadadvised the members of the Trade Union to wrongly confine theexecutives of the Prima Bakery.” The First respondent filed thestatement made by the petitioner to the Police in support of hisaverment that persons in custody had said that he had advised themto confine the Executives of Prima Bakery. That statement shows thatthe First respondent’s averment is factually incorrect. According tofolio 929347 of that statement the petitioner was asked whether (andnot told that certain persons, whether in custody or not had said so)he had advised the taking of the hostages and holding them near thewater storage tanks at a meeting held on 15 November 1994. Thepetitioner had denied attending any such meeting. Moreover, thestatement made by the petitioner on 14 December 1994 wassupposed to have been read by him only after the arrest. One beginsto wonder whether he did in fact read that statement on that occasionor whether he had read that statement even by 18 March 1995 whenhe filed his affidavit in these proceedings. If there were statementsfrom persons other than Mr. Wijeratne, implicating the petitioner, whywas the petitioner not questioned about them, and why have they notbeen produced?
In paragraph 23 (b) of his affidavit the First respondent explainsthe need for a "further statement of the petitioner” by reference to“the availability of fresh material implicating the petitioner at the timeof his arrest.” What is the “fresh material”? The Fjrst respondent hasnot filed any statements from any person or persons supporting theview that the petitioner was concerned in the offences alleged.However, our attention was drawn to the Police Report filed beforethe Magistrate (IR9) when the petitioner was produced before him on23 December 1994.
What does document IR9 contain? It contains a paraphrase of thestatements of Mr. P. Amaradasa Gunawardene and Mr. T.Samarasinghe (officials of Prima), and Mr. Lucien Wijekoon and Mr.C. Navaratnam (Police Officers) stating that the release of thehostages was obtained upon the signing of an agreement on behalfof the workers by the petitioner. We have seen that the petitioner didplay a vital role in securing the release of the suspects and signedthe agreement in his capacity as President of the Trade Union. Whatwas it that transformed the peacemaker into a villain? One possibleexplanation is that there was a failure to ascertain the facts. Anotheris that there was a misinterpretation of the facts. There might alsohave been a misunderstanding of the law on the part of the Firstrespondent. (See also paragraph 20 of the First respondent’s affidavitread with paragraph 17 of the Petition which I shall discuss laterbelow under the caption “Were Reasons For Arrest Given?”).
In paragraph 17 (a) of his affidavit the First respondent claims thathe arrested the petitioner because he was “involved" in thecommission of certain offences. He was, learned Counsel for the 1strespondent submitted, therefore “concerned." Learned Counsel forthe First respondent, over and over again stressed the fact that thePetitioner was “concerned" and therefore arrested in accordancewith procedure prescribed by law. If “concerned” in section 32 of theCode of Criminal Procedure is to be given that meaning, some quiteextra-ordinary and unexpected consequences must follow. Every“interested" person could have been arrested, including especiallythe hostages for they were more “involved" in that sense than anyothers. Every Police Officer who investigated the matter, including theFirst respondent, the Police Officers, the Commissioner of Labour, theAssistant Commissioner of Labour and officials of the Bakery who,like the petitioner, attempted to settle the matter, could have beenarrested. The petitioner was "concerned", as we have seen, in thesense that he, as the President of the Trade Union, was instrumentalin bringing about an end to the hostage crisis. He went to the scenein response to an appeal from the Police to assist in the matter.Having failed, he was about to leave when he acceded to the requestof the Police to play an intercessory role. He agreed because,admittedly, he was “concerned" in the sense that he was troubledby the events and showed concern in and was anxious to bringthe crisis to an end. However, the fact that the crisis was broughtto an end by the petitioner’s intervention did not entangle himwith and bring him into connection with the decisions of otherpersonsto take hostages and to deal with them in variousreprehensible ways.
The petitioner was not implicated in any cognizable offence. Therewas no reasonable complaint or credible information that he hadcommitted or had conspired to commit or abetted the commission ofsuch an offence. There were no grounds for reasonable suspicionthat he had been “concerned” in any of the specified cognizableoffences in the sense that he was one of the group of personsresponsible for the criminal activities committed at the Bakery on 7December 1994. I therefore hold the petitioner could not have beenarrested in accordance with the provisions of Section 32(1) (b) of theCode of Criminal Procedure and that his arrest was not inaccordance with the applicable procedure established by law andtherefore that the First respondent violated Article 13(1) of theConstitution.
WERE REASONS FOR ARREST GIVEN?Article 13(1) of the Constitution provides that “Any person arrestedshall be informed of the reason for his arrest.” The petitioner inparagraph 45 of his petition and paragraph 46 of his affidavitmaintains that his fundamental right to be informed of the reason forhis arrest had been violated because he had not been informed ofthe reasons for his arrest.
In paragraph 28 of his affidavit the petitioner states that the Firstrespondent informed him that he had come to arrest him. “Ithereupon inquired from the 1st respondent what the charges againstme were. The 1st respondent replied that I would be informed of thecharges against me at the C.I.D. I then inquired whether the Hon.Speaker’s permission had been obtained for my arrest and the 1strespondent replied that such permission was not necessary.” Inparagraph 30 of his affidavit the petitioner states that he contactedMr. Paul Perera, President’s Counsel, over the telephone andinformed him of what had happened. “Mr. Perera wanted me to findout from the 1st respondent what the charges against me were.Mr. Perera also told me that it was my constitutional right to beinformed of the charges against me. Mr. Perera advised me not toleave my house without being informed of the charges against me. Irequested Mr, Perera to hold the line and informed the 1st respondentof what Mr. Perera had told me. The 1st respondent howeverinformed me that the charges would be made known to me at theC.I.D. Thereupon, I informed Mr. Perera that the 1st respondent hadtold him that the charges would be made known to him at the C.I.D.Mr. Perera then asked me to inquire whether the Hon. Speaker’spermission had been obtained. I informed Mr. Perera thatthe 1st respondent had told me that such permission was notnecessary.”
The petitioner’s wife who had gone to work, had been informed bythe petitioner’s surgery assistant – the petitioner was a DentalSurgeon – of what was taking place. She returned home. Inparagraph 33 of his affidavit the petitioner states: “My wife demandedfrom the 1st respondent to know why I was to be taken away. The 1strespondent replied that my statement would be recorded and that Iwould be produced before the Magistrate without delay.” Inparagraph 35 of his affidavit the petitioner states as follows:"… as Iwas getting into the 1st respondent’s vehicle, … Mr. Lakshman
Ranasinghe, Attorney-at-Law, contacted me on my mobile telephone…. I informed Mr. Ranasinghe that I was being taken to the C.I.D. bythe 1st respondent. Mr. Ranasinghe then wished to speak to the 1strespondent and I handed over the mobile telephone to the 1strespondent. The 1st respondent spoke to Mr. Ranasinghe and statedthat I would be produced before the Magistrate after recording mystatement.” The averments contained in paragraphs 33 and 35 areconfirmed by the petitioner’s wife, Dr. Sujatha Senaratne, in heraffidavit (P5).
The petitioner’s statement was recorded at the C.I.D. However,despite the assurances he and his wife were given, the petitionerstates in paragraph 37 of his affidavit that he “was never informed bythe 1st respondent or by any other officer of the reason for my arrest.”
With regard to the averments in paragraph 30 of the petitioner’saffidavit concerning his conversation with Mr. Paul Perera, President’sCounsel, the First respondent states in paragraph 18 (a) of hisaffidavit that he did not listen to the conversation. In paragraph 17(c)of his affidavit the First respondent states that he informed thepetitioner that the Speaker’s permission was “not necessary to arresta Member of Parliament concerned in the commission of a criminaloffence.” If when Mr. Paul Perera had inquired whether the Speaker’spermission had been obtained, the petitioner straight away informedhim about what the First respondent had told him about the matter, itis difficult to understand why, if as the First respondent states inparagraph 23(c) of his affidavit that the petitioner had been alsoinformed of the reasons for the arrest prior to being placed underarrest, the petitioner did not tell Mr. Perera what the reasons were orthat he had been given reasons. It seems more probable than notthat because he had not been given reasons for the arrest, thepetitioner conveyed Mr. Perera’s view that reasons for the arrest mustbe given and that the First respondent said that the charges wouldbe made known to the petitioner at the C.I.D.
In paragraphs 20 and 21 of his affidavit the First respondent statesas follows:
“20. With reference to the averments contained in paragraph 32of the affidavit of the petitioner I state that I informed the wife ofthe petitioner the reasons for his arrest which are set out byparagraph 17 of the petition. I requested her to accompany thepetitioner to the C.I.D.
21. With reference to the averments contained in paragraph 25of the affidavit of the petitioner, I only admit having spoken toMr. Ranasinghe, Attorney-at-Law over the cellular phone of thepetitioner. By way of further answer I state that I informedMr. Ranasinghe the reasons for the arrest of the petitioner andrequested him to come to the C.I.D. if he wishes to meet thepetitioner."
The First respondent’s position is not that he gave the Petitionerreasons for arrest within a reasonable time thereafter for example, atthe C.I.D., (which in certain circumstances might have been justified)but that he did so “prior to him being placed under arrest.” (Seeparagraph 23(1) of the First respondent’s affidavit). There was nodispute that the petitioner had been arrested before the arrival of hiswife and before the telephone conversation with Mr. Ranasinghe.Giving them reasons for arrest in the presence of the petitioner was ofno avail. There is no evidence with regard to reasons for arrest whichthe First respondent was supposed to have given the petitioner’s wifeor his lawyer. I will assume that what he told the wife andMr. Ranasinghe were what he told the petitioner himself was too late.Moreover, it is the person arrested and not others even his wife orlawyer who must be given reasons for the arrest, but I will assumethat what the petitioner overheard was a sufficient communication.
The First respondent states as follows in paragraph 20 of hisaffidavit: “I informed the wife of the petitioner the reasons for hisarrest which are set out by para. 17 of the Petition, I requested her toaccompany the petitioner to the C.I.D." Paragraph 17 of the petitionstates as follows: “Thereafter, Mr. Amaradasa Gunawardena informedthe petitioner that the minimum demands of the workers wereacceptable to the management. Meanwhile, the Hon. Minister ofLabour telephoned the Police Station and inquired from the petitionerabout the situation. The petitioner informed the Hon. Minister ofLabour that the management was agreeable to the minimumdemands of the workers. He also informed the Hon. Minister that theworkers had assured him that the hostages would be released if theirminimum demands were met. The petitioner requested theHon. Minister to send the Commissioner of Labour to the PoliceStation.”
It will be observed that the First respondent did not suggest thaton the basis of Mr. Wijeratne’s statement (IR5), the petitioner wasimplicated in the events that took place at the Bakery as aconspirator or abettor. There was no reason for the petitioner tosuppose that he was being arrested as a conspirator or abettor, forhe had denied participation at the meeting referred to byMr. Wijeratne and had no reason to believe that that was the way inwhich he had come to be implicated and arrested. All that he wastold was that he was “being taken into custody for offencescommitted during the hostage crisis” on 7th December 1994 and notbecause of what he is supposed to have said or done, according toMr. Wijeratne, on 15th November 1994. The-conspiracy-abetmentangle did not seem to have entered the First respondent’s mind.
Assuming that it would have been sufficient for the purpose ofArticle 13(1) for the reasons to have been given soon after the arrest,and that the First respondent stated everything in paragraph 17, werethey “reasons” for arrest? The events referred to in paragraph 17recalled some of the steps taken by the petitioner in his role as afacilitator in the process of bringing about the peaceful settlement ofan industrial dispute, which a group of persons had attempted toresolve by criminal means. The First respondent at that time, andindeed as we have seen even at the time of the hearing of the matterbefore us, seems to have been of the opinion that because thepetitioner had played an active role in the settlement of the dispute,he was “involved” and liable to arrest. However, as we have seen,there had to be reasons for supposing him to be “concerned” in therelevant way in the commission of cognizable offences to enable the
First respondent to arrest the petitioner and the petitioner had a rightto be given those reasons. The so called “fresh material” he hadgathered too, as we have seen, related to the part played by thepetitioner on 7 December 1994 relating to the settlement of thehostage crisis and the industrial dispute which was the underlyingcause of the crisis. The constitutional right only to be given thereasons for arrest is not satisfied by giving any kind of explanation. Areason for depriving a person of his personal liberty within themeaning of Article 13 (1) of the Constitution must be a ground forarrest. There can be no such ground other than the violation of thelaw or a reasonable suspicion of the violation of the law. (See Pieris v.A.G. and Others (8); Selvakumar v. Douglas Devananda) <9). InGunasekera v. De Fonseka <,0), H.N.G. Fernando, C.J. said that acitizen has a right to resist an unlawful arrest, but he can exercisethat right if he is informed of the “grounds upon which he is beingarrested.” It is, the Chief Justice said, “Only if a person is informed ofthe ground for his arrest, or in other words, of the offence of which heis suspected, that he will have the opportunity to rebut the suspicionor to show that there was some mistake as to identity.”
In paragraph 17 (b) of his affidavit the First respondent states asfollows: “I informed the petitioner that he was being taken intocustody for offences committed during the hostage crisis at the PrimaBakery and that the petitioner was well aware at the time of arrestthat he was being taken into custody in connection with theunlawful confinement of Ms. Lin and Jayantha de Silva who were heldhostage at the Prima Bakery”. (Notes of arrest are annexed heretomarked X.)
The relevant part of the notes of arrest marked X are as follows:“Dr, Senaratne is present and I explained the arrest, (sic.) Hedemanded for detailed reasons for the arrest and said that he shouldcontact his lawyer. I explained to him that he is wanted for the crimescommitted during the hostage crisis at the Prima Bakery on 7.12.94.His lawyer Mr. Lakshman Ranasinghe too spoke to me over the CellTel Telephone of Dr. Senaratne and he was informed of the reasonsfor the arrest and also told him (sic.) that the suspect would be takento the C.I.D. and thereafter will be produced in Court.”
Even if the petitioner had been told that he was “wanted for thecrimes committed during the hostage crisis at the Prima Bakery on7/1*2/94”, how was he know the “grounds” upon which he wasarrested? The petitioner may have known of certain circumstancesrelating to the crimes others may have committed on that occasionand may have been asked to assist as a witness, but how was he to-know that he was himself suspected of being an offender? The factthat he was “well aware at the time of arrest that he was being takeninto custody in connection with the unlawful confinement” of certainpersons was not enough. The petitioner should have been informedof the offences of which he was suspected. It would not have beenpossible otherwise for the petitioner to have explained away themistaken notions which the First respondent may have held andthereby regained his liberty. The underlying purpose of givingreasons for the arrest was thwarted by his reticence.
The petitioner was not informed of reasons for his arrest and Itherefore hold that his fundamental right guaranteed by Article 13(1)of the Constitution in that regard was violated by the First respondent.
ALLEGED UNREASONABLE DETENTION PRIOR TOPRODUCTION:Paragraph 46 of his petition states as follows: “The petitionerstates that the 1st respondent, by keeping the petitioner in illegalcustody on 23.02.1994 as aforesaid violated the petitioner’sfundamental right to freedom from arbitrary detention guaranteed tohim by Articles 13(1) and/or 13(2) of the Constitution.”
“Merely describing an arrest or detention as being illegal does notamount to an allegation of an infringement of Article 13(1) or 13(2)."(Per Fernando J. in Garusinghe v. Kadurugamuwa<11)).
However, a person who is detained in the custody of the lawbeyonqfca specified prescribed maximum permissible time or beyonda reasonable time cannot be said to be a person arrested inaccordance with procedure established by law and such a detentionin the words of H.A.G. de Silva, J. in Piyasiri v. Fernando (12) "forwhatever the period may be” (See Selvakumar v. DouglasDevananda and Others (9) following Pieris v. A.-G.m) subject to theprinciple of de minimis, would violate Article 13(1) of the Constitution.In order to avoid repetition a decision on the question whether Article13(1) was violated by reason of detention beyond a prescribed orreasonable time will be made after a consideration of the avermentsin paragraph 46 of the petition in relation to Article 13(2) of theConstitution.
As far as Article 13(2) of the Constitution too is concerned, thequestion of the “legality” or “lawfulness” of the detention, which asBandaranayake, J. pointed out in Mahinda Rajapakse and VasudewaNanayakkara v. Chief Inspector Karunaratne and Others (,3) is“integral to the act of arrest”, does not enter into the picture. In Faiz v.A-G.(14> followed in Pieris v. A-G.(1); (see also per Goonewardene, J.in Wijeratne v. Vijitha Perera) m Goonewardene, J. observed that it isnot only “unnecessary" to characterize any action that does notconform to the provisions of Article 13(1) as an “illegal arrest”, it isperhaps hazardous to characterize a particular action as an 'illegaldetention’, an expression which carries certain overtones which maytend to colour and confuse and carry one away from an objectiveappraisal of a situation … Upon a simple reading of its languageuncomplicated by reference to the concept of “illegal detention” whatdo the provisions of Article 13(2) mandate or require to be done? Itdemands that any person held in custody, detained or otherwisedeprived of personal liberty shall be brought before the judge of thenearest competent court according to procedure established by law….When the period of time is exceeded before such person isbrought before a judge, there would be a violation of Article 13(2),whereas if such period has not been exceeded, there would be nosuch violation and whether or not there has been an infringement ofArticle 13(1) is irrelevant.
In Mahinda Rajapakse and Vasudeva Nanayakkara v. ChiefInspector Karunaratne and Others (supra), Bandaranayake, J. saidtPiat Article 13(2) is not concerned with the lawfulness of the arrestbut with the question of ensuring the “containment of executivepower”. His Lordship said that in considering Article 13(2), “Nodistinction ought to be drawn between lawful and unlawful custody,detention or deprivation of liberty in considering this Article … Theneed for such an enquiry should not be read into this Article. ThisArticle is not concerned with this. The Article is plain enough andprovides that executive detention cannot extend beyond 24 hourswithout judicial intervention.”
The twenty-four hour period is the maximum period (exclusive ofthe time necessary for the journey from place of arrest to theMagistrate) permitted by section 37 of the Code of CriminalProcedure in the case of an arrest without a warrant. It cannot, asBandaranayake, J. said “extend beyond 24 hours without judicialintervention.” However, the fact that a person is in such a caseproduced before a Magistrate within twenty-four hours does notnecessarily satisfy the constitutional requirement prescribed in Article13(2). Article 13(2) of the Constitution provides, among other things,that “Every person held in custody, detained or otherwise deprived ofpersonal liberty shall be brought before the judge of the nearestcompetent court according to procedure established by law…”
In the matter before us, the petitioner was arrested without awarrant. The relevant procedure established by law was set out insections 36 and 37 of the Code of Criminal Procedure. Section 36requires a police officer making an arrest without a warrant to “withoutunnecessary delay and subject to the provisions contained as to bailto take or send the person arrested before a Magistrate havingjurisdiction in the case.” It was agreed by learned Counsel for thepetitioner and respondents that once the arrest was made, the Policecould hot have released the petitioner on bail because the petitionerwas arrested in connection with Bnon-bailable” offences. However,the requirement that the First respondent should, without“unnecessary delay”, have sent the petitioner after his arrest before aMagistrate having jurisdiction in the case remained. Section 37 of theCode of Criminal Procedure provides that “Any peace officer shall not
detain in custody or otherwise confine a person arrested without awarrant for a longer period than under all the circumstances of thecase is reasonable, and such period shall not exceed twenty-fourhours exclusive of the time necessary for the journey from the placeof arrest to the Magistrate.”
The petitioner was arrested at about 9 a.m. on 23 December 1994.He was taken to the C.I.D. He was produced before the Magistrate atabout 2.45 p.m. and released on bail. He was produced as a suspectagainst whom further investigations were pending. It was notexplained why the petitioner was not produced soon after his arrest.The interrogation was one that could have taken place after he wasproduced before the Magistrate. I am of the view that the delay inproducing the petitioner was in the circumstances unnecessary andunreasonable and that his production at 2.45 p.m. was not incompliance with the provisions of sections 36 and 37 of the Code ofCriminal Procedure. Admittedly, he was detained for only a few hours.Nevertheless such a detention being unnecessary and unreasonablewas not according to procedure established by law and it wastherefore in violation of the petitioner’s fundamental right guaranteedby Article 13(2) of the Constitution. (See per Fernando J. Faiz v. A.-G.(supra); Selvakumar v. Douglas Devananda (supra); Kumarasena v.Shriyantha and Others)<,6). In Kumara v. Rohan Fernando andOthers}'1'1 where, as in the matter before us, there were no groundsfor arrest, Perera J. said that “the time for production was limited tothe time for travel between the home of the petitioner and the nearestMagistrate of the nearest competent court.”
Attention is drawn to Nallanayagam v. Gunatilleka<18>. In that caseColin-Thome, J. observed that “Article 13(2) embodies a salutaryprinciple safeguarding the life and liberty of the subject and must beexactly complied with by the executive. In our view this provisioncannot be overlooked or dismissed as of little consequence or as a *minor matter.” In Selvakumar (supra) Fernando J. observed that“what is a 'reasonable time' for production before a Magistrate mustnecessarily be given a strict interpretation.”
ORDERFor the reasons set out in my judgment, I declare that the Firstrespondent violated the Fundamental Rights of the Petitionerguaranteed by Article 13(1) and 13(2) of the Constitution.
^ The petitioner has claimed a sum of Rs. 5,000,000/- ascompensation and costs. Article 126 (4) of the Constitutionempowers the Court to grant such relief or make such directions as itmay deem just and equitable in the circumstances in respect of anypetition for relief or redress relating to the infringement of afundamental right. The award of compensation or costs is notautomatic but a matter for the Court's discretion. I am of the view thatno useful purpose would be served by awarding compensation in thiscase. Since I am of the view that it is not an appropriate case forholding the First respondent personally liable, punitive considerationsdo not have to be met by the award of compensation. As far as theexpression of the disapproval of the Court is concerned, this isimplicit in the declaration I have made of the violation of thepetitioner’s Constitutional rights. Nor is an award of any sum of moneynecessary to rehabilitate the petitioner. The sum of Rs. 5,000,000/- nodoubt conveys the fact that the petitioner deemed the transgressionof his fundamental rights of personal liberty to be of a gross andoutrageous nature, but it should not be taken as an indication of asolatium that would assuage his wounded feelings. My finding of theviolations of Articles 13(1) and 13(2) of the Constitution constitutesjust satisfaction in that regard. However, I do not perceive anycircumstances to warrant a departure from the general practice ofthis Court of recognizing claims in respect of costs incurred by asuccessful applicant for relief or redress in matters of this nature. Iorder the State to pay the petitioner a sum of Rs. 15,000/- as costs.
FERNANDO, J. -1 agree
DHEERARATNE, J. -1 agree
Relief ordered.