099-NLR-NLR-V-66-W.-S.-KOLUGALA-and-another-Petitioners-and-THE-SUPERINTENDENT-OF-PRISONS-CO.pdf
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Kolugala v. The Superintendent of Prisons
1961Present : T. S. Fernando, J.
W. S. KOLUGALA and another, Petitioners, and THE SUPER-INTENDENT OF PRISONS, COLOMBO, andothers, Respondents
S.G. 339 of 1960 and 117 of 1960—Applications for a Writ of HabeasCorpus for the production of Loku Banda Kolugala and for a Writ of Cer-tiorari on a Tribunal constituted under Section 70 of the Prisons Ordinance.
Suspension of sentence by Governor-General—Subsequent cancellation thereof—Arrestof sentenced person when at large—Requirement thereafter of order of remand byMagistrate—Illegal sentence of imprisonment by a Prisons Tribunal—Liabilityto be quashed by Certiorari—Prisons Ordinance {Cap. 44), s. 70—CriminalProcedure Code, ss. 36, 37, 328 (3).
Where a person who is at large within the meaning of section 328 (3) of theCriminal Procedure Code is arrested by a police officer without a warrant, asubsequent detention of that person in prison without an order of remandby a Magistrate’s Court is not lawful. In such a case, if the arrested personescapes from prison and is subsequently tried and sentenced by a tribunalconstituted under section 70 of the Prisons Ordinance (Cap. 44) on a charge ofescaping from lawful custody, the order of the tribunal is liable to be quashedby a writ of certiorari.
PPLICATIONS for a writ of habeas corpus and a writ of certiorari.
Colvin R. de Silva, with Siva Rajaratnam, B. J. Fernando and H. E. P.Gooray, for the petitioner in each Application.
R.S. Wanasundere, Crown Counsel, for the respondent in ApplicationNo. 339 and as amicus curiae in Application No. 117.
Cur. adv. vult.
T. S. FERNANDO, J.—Kolugala, v. The Superintendent oj Prisons
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January 5, 1961. T. S. Fernando, J.—
Of these two applications, the habeas corpus application was arguedbefore mo on December 7, 1960, and, at the conclusion of that argument,it became apparent to me that no effective order could be made thereonuntil I had heard argument on a connected application, viz., applicationNo. 117 of 1960 which sought a mandate from this Court in the natureof a Writ of Certiorari quashing an order made by a Prison Tribunalwhich had found the petitioner L. B. Kolugala guilty of escaping fromlawful custody and had sentenced him to serve a term of two years’rigorous imprisonment thereon. Accordingly, argument on the certiorariapplication was heard by me on December 16, 1960.
The habeas corpus application has been presented by the wife of L. B.Kolugala referred to above and canvasses the legality of her husband’sdetention in prison. It is necessary to set out the circumstances in whichhe comes to be so detained.
Kolugala was found guilty in D. C. Kandy (Criminal) Case No. 614 ofhaving committed certain offences and was sentenced by that Court toundergo a term of two years’ rigorous imprisonment. An appeal to theSupreme Court having proved unsuccessful he was committed by the DistrictCourt of Kandy on 5th August 1958 to serve the period of two years’imprisonment. A copy of the relevant warrant of commitment has beenproduced in the present proceedings and is marked Rl. He sought toapply to Her Majesty in Council for special leave to appeal against hisconviction and sentence, and for that purpose obtained from His Excel-lency the Governor-General on 8th August 1958 a suspension of theexecution of his sentence on certain conditions which are set out in theorder of suspension of execution of sentence, a copy of which is marked R4This order was effective for five weeks from 8th August 1958, and succes-sive orders of suspension of execution of sentence were made by theGovernor-General, copies of which are marked R5, R6, R7 and R8.It will be sufficient if I refer only to the last of these orders, viz., R8,which was made on 8th December 1958 and which was operative “up toand including 17th December 1958 or until the date on which it is knownwhether special leave to appeal to Her Majesty in Council has beengranted or refused, whichever date is earlier”. Among the conditionssubject to which each order for suspension of execution of sentence hadbeen made was one which required Kolugala to enter into a bond in asum of Rs. 12,000 as security for the due observance by him of theother conditions subject to which the order of suspension of execution ofsentence had been made. It is admitted that Kolugala- failed to performthe condition imposed by order R8 which required him to enter into asecurity bond. It is not disputed that the Privy Council had by 16thDecember 1958 refused to grant Kolugala special leave to appeal fromhis conviction and sentence.
The Governor-General by an order dated 20th December 1958 (copy P2)made a formal cancellation of the order of suspension of execution ofsentence (copy R8) which had been made by him on 8th December 1958.
2*—R 2192 (11/64)
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By letter (copy Pi) of 22nd December 1958, the Permanent Secretaryto the Minister of Justice informed the Inspector-General of Police of theformal cancellation by the Governor-General of the last order of suspen-sion of execution of sentence and directed his attention to the stepsthat could be taken in terms of Section 328 (3) of the Criminal ProcedureCode for the enforcement of the judgment of the court.
One of the conditions subject to which the order B8 had been made was“that if by reason of the cancellation of this order or by reason of anyorder made by Her Majesty in Council or otherwise, the said LokuBandaKolugala becomes liable to undergo the sentences imposed on him inD.C. Kandy (Criminal) Case No. 614 or any other or further penalty, heshould forthwith surrender to the proper authority to be dealt with indue course of law ”. It is not disputed that by 17th December 1958Kolugala had become aware of the refusal by Her Majesty in Councilto grant him special leave to appeal. In accordance with the terms oforder R8, Kolugala should therefore have surrendered forthwith to theproper authority to be dealt with in due course of law. There wasnothing to prevent him from surrendering to the proper officer of theprison when he learnt of his failure to obtain special leave to appeal.He failed, however, to surrender and, in my opinion, was at large withinthe meaning of Section 328 (3) of the Criminal Procedure Code. Being atlarge, he became liable to be arrested by any police officer withoutwarrant. Section 328 (3) of the Criminal Procedure Code whichI reproduce below sets out the procedure to be followed in cases of thisnature :—
“If the person in whose favour a sentence has been suspended orremitted fails to fulfil the conditions prescribed by the Governor-General the Governor-General may cancel such suspension or remis-sion ; whereupon such person may if at large be arrested by any policeofficer without warrant and remanded by a Magistrate’s Court toundergo the unexpired portion of the sentence.”
After PI was received by the Inspector-General of Police, a policeofficer arrested Kolugala on 16th April 1959. The material placedbefore me does not disclose why there was a delay of nearly four monthsbefore the arrest was made, but the question of this delay is not relevantto the issue that arises on the application before me. The arrest havingbeen made, Kolugala was taken by the Police to the prison from whichhe had been released on 8th August 1958, and it would appear thathe thereafter began to serve the unexpired portion of the sentence imposedon him in D. C. Kandy (Criminal) Case No. 614. While so servingthe unexpired portion of his sentence it is admitted that on 17th July1959 he escaped from the custody of the prison authorities and foundhis way out of this country into India. He appears to have been appre-hended in India and brought back to Ceylon whore he was given overagain to the custody of the prison authorities on 18th November 1959.After hia readmission to the prison he was tried by a tribunal con-stituted under Section 70 of the Prisons Ordinance (Cap. 44) on a charge
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of escaping on 17th July 1959 from lawful custody, and was sentencedby that tribunal to undergo a term of two years’ rigorous imprisonment.
It would also appear that on 23rd December 1959 another warrantcommitting Kolugala to prison was issued by another District Court—this time the District Court of Matale—which had convicted him inD. C. Matale (Criminal) Case No. 641 and sentenced him to undergo3 months’ rigorous imprisonment. In ordinary circumstances, thesentence imposed in the latter case (D. C. Matale 641) would commenceto run only from the date on which the service of the sentence imposediD the earlier case (D. C. Kandy 614) is completed.
The decision of the habeas corpus application would appear to meto turn on the meaning of Section 328 (3) of the Criminal ProcedureCode referred to by me earlier in this judgment. The arrest of Kolugalaby a police officer without warrant on 16th April 1959 was entirely inorder. Indeed, there has been no argument to the contrary. Thesubstance of the argument in support of the issue of the writ is that theadmission of Kolugala into the prison following upon his lawful arrestwas, however, without lawful authority. It is contended that to makedetention of a person in the prison lawful after an arrest of that personfollowing upon the cancellation of an order which had suspended theexecution of a sentence imposed on him, it was necessary for the Policeto have obtained an order from a judicial authority who in this casewas the magistrate specified in Section 328 (3) of the Code. Withoutan order for remand issuing from the judicial authority, so the argumentproceeded, the incarceration of Kolugala was unlawful, notwithstandingthe circumstance that the original warrant of commitment remainedunexecuted and was still valid.
Crown Counsel, showing cause against the issue of the writ, contendedin the first place that Section 328 (3) had no application here as Kolugalahad not failed to fulfil the conditions prescribed by the Governor-Generalin order R8. This contention, it appears to me, has no merit, as one ofthe conditions stipulated in the order was that Kolugala should enterinto a bond and it is not denied that he failed to enter into that bond.Apart from that, Kolugala undertook by R8 to surrender to the properauthority on or before 17th December 1958, which undertaking too wasobserved by him only in the breach. Secondly, Crown Counsel contendedthat, assuming Section 328 (3) was applicable in the circumstances of thiscase, that part of the Section which refers to a remanding by aMagistrate’s Court is not a mandatory provision of the law. He appearedto me to suggest that as the Section authorised an arrest without warrantthe consequential provision relating to a remand of the arrested personwas much in the nature of the procedure enacted by law in respect of themanner in which persons arrested by peace officers without warrant areto be dealt with. This procedure is to be discovered in Sections 36 and 37of the Criminal Procedure Code. While the procedure contemplated inSection 328 (3) may be analogous to the procedure outlined in Sections 36and 37, I fail to see how this circumstance can advance the contention of
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Crown Counsel. Where a person has been arrested by a peace officerwithout warrant the law requires the arrested person to be producedbefore a Magistrate within twenty-four hours. The Magistrate willthereupon consider whether such person should be released from custodyor whether he should be remanded to the custody of the Fiscal. Thedetention of a person so arrested by a peace officer beyond the specifiedperiod of twenty-four hours would prima facie be an unlawful detention.Similarly, it seems to me, where a person who was at large within themeaning of Section 328 (3) has been arrested by a police officer withoutwarrant, the detention of that person by that police officer withoutobtaining an order of remand by a Magistrate’s Cotut forthwith wouldprima facie be an unlawful detention. The circumstance that the personso arrested has been handed over by the police officer in question to thecustody of the prison where he must ultimately find himself does notappear to me to have the effect of transforming the character of thedetention to a lawful detention. In other words, in the absence of anorder of remand by a Magistrate’s Court the detention of the arrestedperson in prison would be unauthorised and would have no greatervalidity than a continued detention in the custody of the Police officerhimself. It is not unreasonable to assume that the legislature had goodcause to provide that detention of a citizen in the custody of the policebeyond a specified period, e.g., 24 hours in the case of persons fallingwithin Section 37 of the Criminal Procedure Code, should come underthe surveillance of a judicial authority. There is no room, in my opinion,in the present case for any speculation in regard to the necessity of anorder of a Magistrate’s Court. Section 328 (3) of the Code providesexpressly for the procedure to be followed, and I am not prepared to saythat the requirement of a remand as specified therein is purely formal.I am well aware of the fact that orders of remand where arrested personsare produced before a Magistrate in terms of Section 37 of the Code arejudicially considered, and sometimes refused. When the person arrestedis produced before a Magistrate’s Court on an application for an orderremanding him to undergo the unexpired portion of the sentence, itseems to me that there is a justiciable issue before the Court. It wouldbe open to the person arrested to show cause against a remand. Thecircumstance that in the case before me no good cause could have beenshown by Kolugala against a remand is, in my opinion, irrelevant tothe issue whether he should have been taken before a Magistrate’s Courtafter his arrest without warrant on 16th April 1959 and an order remandinghim to prison obtained from such a Court. In taking him to prisonwithout an order from a Magistrate’s Court and detaining him thereafterin the prison where he has since been undergoing rigorous imprisonment,the officers concerned appear to have acted without legal authority.The detention in prison of Kolugala on and after 16th April 1959 istherefore, in my opinion, not lawful, although the bona fides of the officersconcerned is not questioned.
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A further argument against the granting of the application, even ifthe detention is held to be without authority, was advanced by CrownCounsel who relied upon certain dicta contained in the judgment ofViscount Reading C.J. (with whom were associated six other judgesof the King’s Bench) in the case of R. v. Governor of Lewes Prison,ex parte Doyle1, and particularly on the following observations :—
“ But, even though we had come to the conclusion that the warrantof commitment was bad on the face of it, as this is a case of commitmentafter conviction we are again not only entitled but bound to look atthe conviction in order to see whether there is more than a mere technicaldefect in the commitment. ”
A study of the case satisfies me that the decision has no application toa case like that before me. Here the original warrant of commitment isstill valid and was at no time defective. What is defective is the mannerin which Kolugala was brought back to prison and I have alreadyexpressed the opinion that tha,o defect is not a purely formal one.
Crown Counsel brought to my notice that Kolugala has had the benefitof an amnesty offered to certain prisoners this year and has also earnedcertain remissions of his term of imprisonment available to prisoners whohave been of good conduct while in prison. I was informed that, if theterm of imprisonment imposed on him by the prison tribunal is excluded,Kolugala would ordinarily be due to be discharged from prison early inJanuary 1961. It becomes necessary, therefore, that I should deal withthe certiorari application presented to this Court by Kolugala himself.
The charge tried by the tribunal alleged that on 17th July 1959 Kolugalaescaped from the lawful custody of a prison guard while undergoingtreatment in one of the wards of the General Hospital at Kandy. It maybe noted that there is no right of appeal from an order of a prisontribunal; it is, however, not doubted that such a tribunal is amenableto the jurisdiction of this court exerciseable by way of the issue ofa mandate in the nature of a writ of certiorari. The record of theprisons tribunal relating to the trial of the charge referred to abovehas been examined by me and therein appear the reasons for the orderconvicting Kolugala of the offence of escaping from lawful custody.The President of the tribunal who is the first respondent to applicationNo. 117 of 1960 states in the course of his statement of reasons whichI hold to be part of the order made by the tribunal that the provisionin Section 328 (3) of the Criminal Procedure Code relating to theremanding by a Magistrate’s Court of a person who has been at largeand who has been arrested by a police officer without warrant wasinapplicable in the case of Kolugala as the order R8 made by theGovernor-General on 8th December 1958 did not become operative.The learned President states that the previous order of suspension of
1 (1917) 2 K. B. 254 at 269.
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execution of sentence R7 which had, become operative expired on 3rdDecember 1958, and although another order R8 had been made on 8thDecember 1958 this latter order could have come into effect only onKolugala entering into a fresh security bond as contemplated therein.As Kolugala failed to enter into a fresh bond, the tribunal’s order states,the Governor-General’s order R8 failed to take effect and became inopera-tive, and thereby the provisions of Section 328 (3) did not require to becomplied with in his case. This reasoning leaves out of account, forinstance, the situation that arose in the case of Kolugala during the period3rd December to 8th December, i.e. the period between the expiry oforder R7 and the signing of order R8. The Governor-General by OrderR8, it may be noted, made “ order that the execution of the sente7i.ce ofimprisonment imposed on Loku Banda Kolugala, accused in D. C. Kandy(Criminal) Case No. 614 he farther suspended up to and including 17thDecember 1959 It seems clear that at any rate his order coveredthe suspension of the execution of the sentence on Kolugala from the 3rdDecember to the 8th December and to that extent was not inoperative.
have already stated in dealing with the habeas corpus application thatthe entering by Kolugala into a fresh bond was one of the conditionsprescribed by the Governor-General for the further suspension of theexecution of Kolugala’s sentence. The order R8 in terms recites thatit is such a condition, and I am satisfied that the tribunal erred in law inreaching the conclusion that this order did not at any stage becomeoperative and for that reason Kolugala’s case did not attract to itself theprovisions of Section 328 (3) of the Criminal Procedure Code. There is,therefore, error of law appearing here on the face of the record, in thespeaking order, and that error goes to the root of the matter that is inissue on this application. If he was not lawfully in custody, Kolugalaobviously cannot be said to have escaped from lawful custody when heslipped past the prison guard and made his getaway from the hospitalward- I would for the reason I have stated above quash the order of theprison tribunal made on 18th December 1959 sentencing Kolugala to
years’ rigorous imprisonment.
In the result, Application No. 117 of 1960 is allowed. ApplicationNo. 339 of 1960 is also allowed in the sense that the imprisonment ofKolugala that was resumed on 16th April 1959 is declared to havebeen without lawful authority. He is of course liable to be rearrestedand legally remanded to serve any unexpired portion of a sentence orsentences of imprisonment imposed on him, but in view of the statementmade to me during the course of the argument by learned Crown Counselthat Kolugala is actually due to be discharged from prison early inJanuary 1961, theproper authorities will no doubt consider the desirabilityof rearrest and the consequential action involved.
Having regard to all the circumstances of this case, I make no order inregard to the costs of either application.
Applications allowed.