007-SLLR-SLLR-2000-V-1-WIMALADASA-v.-SOMADASA-POLICE-CONSTABLE-BRIBERY-COMMISSIONERS-DEPARTMENT.pdf
WIMALADASA
v.
SOMADASA, POLICE CONSTABLE. BRIBERY COMMISSIONER'SDEPARTMENT AND OTHERS
SUPREME COURTDHEERARATNE, J.WIJETUNGA, J. AND1SMAJL, J.
SC APPLICATION 577/97 (FR)21s'OCTOBER. 1999
Fundamental rights – Bona fide arrest and detention on a warrant ■Articles 13(1) and 13(2) of the Constitution – Liability of Police Officer.
The petitioner who was a witness in a bribery case before the High Courtfailed to attend court on 12.5.1997: whereupon the High Court issued awarrant for his arrest. On 4.6.1997 he had a motion filed in the HighCourt through an Attomey-at-Law and obtained an order cancelling thewarrant. Being unaware of such cancellation, the Is'respondent a policeofficer attached to the Commission to Investigate Bribery and Corruptionexecuted the warrant, on 14.6.1997. The petitioner told the officer thatthe warrant had been cancelled but could not produce any proof ofcancellation. The petitioner was detained at the police station overnightand produced before the Magistrate on 15.6.1997 when he was re-manded by the Magistrate until 16.6.1997 on which date he wasproduced before the High Court. The petitioner complained of violationof his fundamental rights guaranteed by Articles 13(1) and 13(2) of theConstitution.
Held :
The respondent bona fide believed that the warrant handed over to himwas in force; and no malice was attributed to him. In the circumstances,there was no violation of the fundamental rights of the petitioner.
Cases referred to :
.1. Moramudalige Podiappuhamy u. Diananda Liyanage and others. SCApplication 446/93 SC minutes of 31 May 1994 (distinguished)
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Sri Lanka Law Reports
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APPLICATION for relief for infringement of fundamental rights.P. K. Prince Perera for petitioner.
P. G. Dep. DSG for respondents.
Cur. aclu. unit..
December 06, 1999DHEERARATNE, J.
The petitioner is a retired clerk. He was a witness inbribery case no. 1179/96 pending in the High Court ofColombo. He was also suspect in bribery case no. 8696/97pending at the Magistrate’s Court Colombo. In connectionwith the latter case he was in the remand.jail Colombo from
to 30.5.97. The bribery case in which hewasawitnesswas fixed for trial on 12.5.97. Sometime before that date thepetitioner informed the officials of the remand jail that he hasto be present as a witness in the High Court on 12.5.97.However, the officials informed him that in the absence of aCourt order, they could not make arrangements to take him toCourt on 12.5.97. When the petitioner was released fromcustody on 30.5.97 he went to meet the Registrar of the HighCourt of Colombo to inquire after the case in which he was awitness. The Registrar informed him that as he was absentfrom Court a warrant was issued against him by Court on
On 4.6.97 he filed a motion in the High Court throughan Attorney-at-Law and sought to get the warrant against himcancelled. The High Court judge of Colombo made ordercancelling the warrant.
The petitioner states that when he was at his residence atMahiyangana on 14.6.97. two officers of the Bribery Depart-ment came to his home about 6.20 pm. and wanted to take himinto custody, as a warrant had been issued by the High Courtof Colombo. One of these officers is identified as the 1SIrespondent. The petitioner informed the officers that thewarrant issued against him was already cancelled. Inspite ofwhat he told the officers they arrested him and took him to theTeldeniya police station about 8.00 pm. and he was kept at the
SC Wimaladasa u. Somadasa, Police Constable. Bribery Commissioner’s 55Department and Others (Dheeraratne. J.’j
police station till 10.30 am. of 15.6.97. He was first taken tothe residence of the Magistrate Teldeniya and as he was notthere he was produced before the Magistrate Attanagalle about2 pm. on the same day. The Magistrate Attanagalle remandedthe petitioner till. 16.6.97 although he told him that thewarrant issued against him was cancelled. Ultimately on
he was produced before the High Court about 9.30 am.The petitioner complains that the 1st respondent and the otherunknown person violated his fundamental rights guaranteedunder Articles 13(1) and 13(2).
The position of the first respondent is that an openwarrant issued against the petitioner on 12.5.97 for notappearing in the High Court of Colombo was forwarded on
to the Commission to Investigate Allegations of Brib-ery and Corruption (the Commission) for execution. TheCommission handedover the warrant to the lsl respondent forexecution on 13.6.97. The 1st respondent then proceeded toNo. 408/4, Dutugemunu Mawatha, Thalangama, the addressprovided by the petitioner, as his residence. The lsl respondentdiscovered that the said address has never been the residenceof the petitioner and a boutique was being run at thosepremises. After several inquiries as he could not find thewhereabouts of the petitioner, he found out the address of D.L. Sunil who had stood surety for the petitioner in one of hiscases. The 1st respondent being unable to trace the surety athis address at Bandarawela had to proceed to Mahiyanganawhere the surety was said to be residing. Finally, when the 1strespondent was able to locate the house of the surety atMahiyanagana, he found the petitioner there; the petitionerwas married to the surety’s sister.
When the 1st respondent informed the petitioner that hecame to arrest him on an open warrant issued against him, thepetitioner told him that the warrant was cancelled but he couldnot produce any proof of such cancellation to the satisfactionof the 1st respondent. The 1st respondent further stated thathe genuinely believed that the petitioner was attempting to' avoid arrest and abscond.
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Sri Lanka Law Reports
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Learned counsel for the petitioner drew our attention tothe case of MoramudaligePodiappuhamyv. Diananda Uyanageand others'In that case action had been filed in theMagistrate's Court in Panadura against one Sugath Perera ina complaint made by the petitioner. When the case came upfor trial the petitioner was absent and the police moved for awarrant of arrest against the petitioner. Although the Magis-trate ordered that a summons be issued on the petitionererroneously the police officer entered the letters WT againstthe name of the petitioner in the register maintained by thepolice, suggesting that a warrant had been issued. The policeofficers, on the strength of that entry in the register, proceededto arrest the petitioner in that case. This Court held that thearrest was not in accordance with sections 32 and 33 of theCriminal Procedure Code relating to arrest without warrantand that there was therefore a violation of Article 13(1).
I fail to see an anology between the facts of the present caseand that of Podiappuhamy. In the present case the fact thatthe warrant was recalled was not informed by the High Courtto the Commission. The petitioner was unable to provide anyproof to the 1st respondent of the cancellation of the warrantissued for his arrest by the High Court. The 1st respondent hadno reason to believe that the warrant was recalled. He bonafide believed that the warrant handedover to him was in forceand no malice is attributed to him. I am unable to say in theabove circumstances that there is a violation of the fundamen-tal rights of the petitioner. For the above reasons the petitionis dismissed but without costs.
WIJETUNGA, J. – I agree.ISMAIL, J. – I agree.Application dismissed.