WICKRAMASINGHE v. COORE

018-NLR-NLR-V-19-WICKRAMASINGHE-v.-COORE.pdf


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Present : Shaw A.C.J. and De Sampayo J.WICKRAMASINGHE v. COORE.175—D. C. Kandy, 24,211.
Ceylon Indemnity Order in Council, 1915—Martial law—Streetblocking
drill practised by police on orders ' of the military—Trespass onprivategrounds—Obstructiontopolice—Arrest—Actionagainst
Police Inspector for wrongful imprisonment and * malicious prosecu-tion—Criminal Procedure Code, s. 82.
– Dolingthe period of martial lawinstructions were given bythe
Officer Commending the Troops to the Superintendent of Police,Central Province, to practise his men in the drill prescribed for streetblocking.The appellant, anInspector in charge of about fifty
constables,was engaged incarryingout the prescribed drillat a
spot where it was anticipated that trouble might occur, and for thepurpose of the manoeuvre two wing men of the company crossedthe drain on to the respondent’s compound.
The respondent ordered them off, but they refused to go. Astruggle ensued. The respondent was. taken to the police station,and subsequently charged withobstructingthe policein the
executionoftheir duty, butwasacquitted. He thereuponbrought
the presentaction for damagesforfalse imprisonment andmalicious
prosecution.
Held, that the police were justified in entering on the respondent'scompoundby the directionof themilitary authorities, and-were
not trespassers, and the respondent had no right to eject them, andthat the actof obstructionof the police inthe exercise of theirduty
justifiedimmediate arrestwithoutwarrant, and. entitledthe
appellant to prosecute respondent before the Magistrate.
Db Sampayo J..—Article 2 of the Order in .Council of August 12,1915, wouldexonerate thedefendant as well as the constablesfrom
liability to plaintiff for such entry even if the entry was not lawful.But the protection cannot be carried further.
The arrestand detentionreferred to inArticle 5 must, I think,
be takentocontemplate personswhotook part in the riots,or were
charged with offences connected with their repression. The arrestof the. plaintiff in this instance was not for such an offence, but forobstructing Constable Mudiyanse in the performance of the drill onthis particular occasion, and was thereforeoutside the scope ofthe
protection afforded by Article 5.
fjl HE facts are set out in the judgment.
Garvin, S.-G. (with him V. M. Fernando), for appellant.
Bawa, K. C. (with him Bartholomeuaz^ for respondent.
1910.
Cur. adv. vult.
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1916. July 3, 1916. Shaw A.O.J.—
Wickrama- The plaintiff, respondent to this appeal, has been awardedMytghev. Rs. 1,000 damages against the .ppellant, an Inspector of PoliceCoon. stationed at Kandy, for false imprisonment and malicious prosecution.under the following circumstances.
On August 5, 1914, this Island, together with the rest of theEmpire, being in an actual state of war with another country. HisExcellency the Governor issued a Proclamation bringing intooperation an Imperial Order in Council of Act 24 of 1896, wherebyall persons in the Colony became subject to military law, as if theywere actually accompanying His Majesty’s Forces.
On June 3, 1915, serious disturbances having broken out in theIsland, His Excellency by another Proclamation declared certainProvinces of the Island subject to martial law, and committed tothe Offieer Commanding the Troops the maintenance of order anddefence of life and property, and authorized him to take all stepsof whatever nature he might deem necessary for those purposes.
Upon the proclamation of martial law instructions were given thatthe Police Force was to be placed at the disposal of the Officer Com-manding the Troops, and was to take its orders from him, and that theForce was to be considered as a military unit while martial law existed.
On July 28 a departmental order waB issued in the Police Gazettegiving instructions to the police as to their duties in actual andanticipated disturbances. Paragraph 9 of this order prescribed thedrill to be practised for the purpose, inter alia, of effectually blockinga road where rioting was anticipated. Sub-paragraph (c) directedthat the company should ‘ ‘ extend from one side of the road to theother, and completely block the road from wall to wall, or door todoor, so that no person can [get past.”
The Kandy perahera was to commence on August 16, aud it wasanticipated that there might be a recurrence of rioting at Kandyon the occasion, an anticipation that was’ fortunately not realized.
In consequence of this anticipation, the Superintendent of Policeof the Central Province was given instructions by the OfficerCommanding the Troops to practise his men in the drill prescribedfor street blocking. It does not appear from the evidence whetherthe departmental order dealing with the matter was issued by themilitary authoi’ities, but it is ei^ar from the evidence of the Superin-tendent. of Police that he was given instructions by the OfficerCommanding tc carry out drills in the manner directed in the order.
On August 13 the appellant, in charge of about fifty constables,was, in accordance with the instructions, engaged in carrying outthe prescribed drill in the Peradeniya road, Kandy, a road alongwhich the perahera would pass, and where it was anticipated thattrouble might occur.
The appellant gave orders to his men to block the road at a spotopposite to which the respondent happened to reside. His house
1916.
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is separated from the road by the public drain, about 8 feet wide,
tod a compound of about 5 feet, in which were some flower beds, sbaw A.OJ.there being no wall between the compound and the mad.Wickn&na-
For the purpose of carrying out the drill in. accordance with the ringhfo.instructions, the two wing men of the company crossed the drain Coonon to the respondent’s compound, the end man, Mudiyanse, beingclose against the verandah of the respondent’s house, which wasscreened from the compound by bamboo tats. The respondentordered them off, but they refused to go, thereupon he either kickedor pushed the tat against Police Constable Mudiyanse, with theresult that the bottom of the tat struck Mudiyanse’s hand, cuttinghis finger. The appellant then came up and held the respondent,,and a struggle ensued, in the course of which the sleeve of therespondent’s banian came off. The appellant then went back into-the road and sent two constables to arrest the respondent, whichthey did, and he was taken to the police station and was subse-quently taken before the Police Magistrate and charged, on theinformation of the appellant, authorized so to do by the Superin-tendent of Police, with obstructing the police in the execution ^oftheir duty. The Magistrate upon an Adjourned hearing dismissedthe charge against him.
The District Judge has come to the exclusion that the policewere trespassers upon the respondent’s eoznpound, and that he wasentitled to eject them, and that his arrest was therefore illegal andhis prosecution unfounded, and he thinks that the respondent wassubjected to unduly humiliating treatment by the appellant, because-the latter was angry at his dignity as a police officer being offended,and that the proceedings against the respondent were not bona fide„but .actuated by malicious motives.
I find myself entirely unable to agree with the learned Judge ^
At the time of the incident the police were acting directly under:the instructions of the Officer Commanding the Troops, to whomTfis Excellency had by the Proclamation of June 3 entrusted themaintenance of order and the defence of life and property in theCentral Province in a time of serious local disturbances. For thesepurposes instructions had been given by him to the police to carryout a certain drill for the purpose of preparing for anticipateddisturbances, which, instructions necessitated to some extent a.trespass on private property.
It is contended that neither the Proclamation nor the actual,state of war existing in the Islahd at the time would justify acts lifeexcess of what the necessity of the Situation required, tod that thedirections to drill in a manner involving the necessity of trespass on-private property, and in particular the actual drill undertaken bythe appellant and his men, involving as it did an entry on therespondent’s compound, were unnecessary and in excess of theneeds of the occasion.
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1916. So far as the first part of this proposition is concerned it isSttaw A.C.J. perfectly correct, and an excessive and unnecessary interference
with the persons or properly of individuals would be illegal and
justiciable by the tribunals of the country after martial law hadCoore been 'removed, unless the acts came within the protection of theProclamation or Act of Indemnity then issued or passed. I amquite unable, however, to accept the contention that the orders ofthe Officer Commanding as to the drills to be undertaken, or theconduct of the police in carrying them out as they did in thisparticular instance, were unnecessary or in excess of the requirementsof the circumstances.
The directions were thought to be necessary by the officer’ towhom had been entrusted the safety of the Province, and it wouldcertainly appear to me to be a most reasonable and proper precautionto prepare the Police Force to cope with the anticipated disturbancesbefore it actually occurred, even if doing so involved a slight trespasson private property. The place where the drill was carried out bythe appellant. and his company also appear to me to have been amost proper one, it being at a spot where the anticipated disturbancewas likely to occur.
The police were therefore, in my opinion, justified in enteringon the respondent’s compound by the direction' of the militaryauthorities, and were therefore not trespassers, and the respondenthad no right to eject them* and the act which he himself admits hecommitted in pushing the tat against the Constable Mudiyanse wasboth a breach of the peace and an act of obstruction of tbe policein the exercise of their duty, which justified his immediate arrestwithout warrant under section 32 (1) of the Criminal Procedure Code,and entitled the appellant to prosecute him before the Magistrate.
This disposes of the whole of the respondent's cause of action,for, if the appellant was legally entitled to arrest him, and if he hadcommitted an offence for which he could be legally brought beforethe Magistrate, it matters not what the appellant’s motive mayhave been. If the respondent had been unnecessarily roughlytreated, he could, of course, have made a claim against, or prosecutedthe appellant for assault, but no such allegation was made by theplaint in this case,- and no such cause of action was before tbe Court.
In justification, however, of the conduct of appellant, I must saythat I think the learned Judge has taken a somewhat prejudicedview against him that is hardly justified by the evidence, and itseems to me that the respondent has mainly himself to thank forany humiliation to which he has been put.
Acting under annoyance at the invasion of his property, he madean ill-advised, and it now turns out unjustified, assault on the police,and the struggle that took place on the verandah when the appellantcame up and seized his hand was, according to his own evidence,the result of his trying to push, the appellant out of the verandah.
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Tjbe fact that- he was not allowed to change from his cloth and banianinto the European clothes, in which he usually appeared in the streets,when he was taken to the police station, is no doubt truthfullyexplained by the police sergeant who arrested him, and who saysthat the reason the respondent was not permitted to stop and changehis clothes was that he was behaving in a very violent manner atthe time. It is obvious from the respondent’s own evidence thathe was very excited, and had violently resisted the appellant himselfwhen he had attempted to effect the arrest.
—The Judge draws a somewhat graphic picture of the appellantbreaking off the di.iii, only a few minutes after he and his men hadstarted out, for the purpose of marching back in triumph with his.captive, from which he draws an inference that the appellant wasin a temper and wished to humiliate the respondent. 1 think, the.Judge has misapprehended the evidence on the point. There is noevidence whatever that the appellant and his company had onlystarted out a few minutes before the incident; on the contary, theEvidence shows that they had been out since 6 a.m., and the entrymade in the Station Information Book shows that the respondentwas brought considerably after 7. It seems probable that the police. were just returning to the station at the time of the incident, forthe order for the drill prescribes that it shall take place from 6 to7 a.m. It is also apparent that the appellant did not march hackin triumph with his captive, for the entry in the Information Book,made by the sergeant at the time the respondent was brought in,shows that the appellant had not arrived at the station, and eventhe statement of the respondent that the appellant and his menarrived one minute after him does not justify the allegation, foreven that time would at ordinary walking pace allow a space ofabout hundred yards between the respondent and the appellantwith his company of police.
With regard to the other complaint that the respondent was takenhandcuffed to the Police Court, it appears, rightly or wrongly, tohave been a precaution commonly taken during the time of martiallaw, and 1 do not see why the blame of it, if blame there is, should"lie attributed to the appellant personally, as it appears that the.Superintendent of Police was himself at the station when therespondent was taken to the Court.
Apart from the absolute defence that I think the appellant has,I think there can be no doubt that he bona fide believed that thepolice were entitled to enter on the strip of land between therespondent’s house and the road, and, that the conduct of therespondent- in opposing them rendered him liable to arrest andprosecution.
. The judgment of the District Court should, in my opinion, be set-^tside, and judgment entered for the appellant, with costs here and
below.
12-
1916.
Shaw A.C.J.
Wickrama~eingbe v.Coore.
( 102 )
1916. De Sampayo J.—
Wicierama-singhe v.Coore.
I am of the same opinion. I wish, however, to add a few wordson one of the arguments of the Solicitor-General on behalf of thedefendant. It was contended that His Majesty’s Order in Gounciiof August 12,1915, entitled the Ceylon Indemnity Order in
Council, 1915, protected the defendant from liability on the causesof action upon which the plaintiff sued the defendant for damages.By that Order in Council, which was to take effect on August 80,1915, when martial law itself was by Proclamation terminated, itwas enacted that—-
No action,prosecution, orlegal proceeding whatever shallbe
brought,instituted, or maintainedagainst the 'Governor ofCeylon,or
the person for the time being or at any time commanding the troops inthe Colony, or against any person or persons acting. under them or anyof them respectively ' in any command or capacity, civil or military, orin pursuance of any orders, general or special, given by them or any ofthem in that behalf -for or on account of or in respect of any acts, mat-ters, orthings whatsoeveringoodfaithadvised,comnianded,ordered,
directed, or done for the maintenance of good order and government orfor the public safety of the Colony between the date ^ of the commence-ment of martial law and the date of the taking effect of this Order.
Every such person aforesaid by whom any such acts, matters; or
things shall have been advised, commanded, ordered, directed, or donefor thepurposes aforesaidshallbefreed,acquitted,discharged,released,
or indemnified against all and every person and persons whomsoever inrespect thereof.
Every v;cb • act, matter., or thing referred toin the preceding
articlesshall be presumedtohavebeenadvised,commanded,ordered,
directed, or dons, as the case may be, in good faith, until the contraryshall have been proved by the party complaining.
4f*****
5. All persons who have been in good faith under proper military ■ orpolice authority arrested or detained daring the existence of mania 1law shall be. deemed to have been lawfully arrested or detained.
Not only must it be presumed, in the absence of anything to thecontrary in this case, but it is obvious, that the military authoritiesin good faith ordered the instructions as to practise drill to hecarried out for the purpose of securing good order and governmentand the public safety in view of the forthcoming concourse of people .at Kandy -for the perahera, and that the defendant likewise acted ingood faith in carrying out those instructions and getting his men toexecute the particular manoeuvre, though it necessitated two of thementering the plaintiff’s front compound. That being so, even if theentry was not lawful, Article 2 of the above Order in Council wouldexonerate the defendant as well as the constables from liability toplaintiff for such entry. But I do not think that the protection can•be carried further. The arrest and detention referred to in Article 5must, I think, be taken to contemplate persons who took part
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A the riots or were charged with offences connected with their 1916.repression. The arrest of the plaintiff in this instance was not for De■ such an offence, but for obstructing Constable Mudiyanse in theJ.
performance of the drill on this particular occasion, and was therefore ifr^^rama-outside the scope of the protection afforded by Article 5. The ainghev.plaintiff's second cause of action has reference to his subsequent Coore.j prosecution in the Police Court, and the defendant is equally'unprotected by the Order in Council in that respect.
The defence to the plaintiff’s action must, therefore, be based ou—grounds ordinarily -available to persons who are sued for illegalarrest and malicious prosecution. As the entry of- the police upon* the plaintiff’s compound was, in mv opinion, lawful, it follows• that plaintiff’s act in thrusting out Constable Mudiyanse andInjuring him was an offence for which he was liable to be arrested-and prosecuted. The plaintiff’s case fails on this ground, quiteapart from any question of intention on the part of the defendant,further, what are in the English law called trespass to person and'hialicious prosecution come under the generic term injuria of theRoman-Dutch law, and in an action for injury the burden is uponthe plaintiff of proving that the act complained of was done animninjuriandi, that is to sav, with actual intention to injure or with suchconsciousness of wrong as amounts in law to that state of mind.
The circumstances of this case have been fully examiner* and com-mented on by my lord the Acting Chief Justice, and Ionly say
that they negative the existence of animus injuriandi. The view ofthe District Judge is that the defendant lost his temper ar-.i felt hisdignity hurt by. what happened between plaintiff and ConstableMudiyanse, and that he arrested and humiliated the plaintiff forthat reason only. But this is in the teeth of the plaintiff’s ownevidence, for he says, “ I admit that the police were drilling that dayand seemed to be on duty. I do not suggest that the Inspector losthis temper when he behaved in the way he did. ” The parties were'entire strangers, and did not know each other even by sight. It'may, perhaps, be said that the incident which led to the plaintiff'sarrest, and prosecution was trivial, and might well have been leftunnoticed, but I think it is impossible to hold that the defendantacted as he did otherwise than 'in. pursuance of what he conceivedto be his duty.
I agree that- this appeal should be allowed, with costs.
Set aside.