IN THE SUPREME COURT OF THE
DEMOCRATIC SOCIALIST REPUBLIC OF
SRI LANKA
In the
matter of an Application filed under Article 126 of the Constitution
of the
Republic of Sri Lanka
S.C (FR)
No. 121/2011
Jayanetti Koralalage Rajitha Prasanna
Jayanetti
Of No. 237,
Thimbirigasyaya Road,
Colombo 5.
PETITIONER
Vs.
1. H.H.
Harischandra (PS 28312)
Police
Sergeant
Police
Station,
Matugama.
2. Anura Samaraweera
Sub Inspector
of Police,
Special
Criminal Investigation Unit
Police
Station,
Matugama
3. Neville
Priyantha (PS 10967)
Sub
Inspector of Police
Special
Criminal Investigation Unit
Police
Station,
Matugama.
4. K. Udaya
Kumara
Chief
Inspector of Police
Head
Quarter Inspector
Police
Station, Matugama.
5. Dr. M.
Balasooriya
Inspector
General of Police
Police
Headquarters,
Colombo.
6.
Pinnawalage Chandrasena
Pahala
Uragala
Ingiriya.
7. Hon.
Attorney General
Attorney
General’s Department
Colombo 12.
RESPONDENTS
BEFORE: Priyasath Dep P.C., C.J
Upaly Abeyrathne J. &
Anil Gooneratne J.
COUNSEL: Shantha Jayawardena with Chamara
Nanayakkarawasam For the Petitioner
Madhawa Thennakoon S.S.C. for the 1st – 5th
and 7th Respondents
6th Respondent absent and unrepresented
ARGUED ON: 17.02.2017
DECIDED ON: 06.06.2017
GOONERATNE
J.
The Petitioner is a businessman who allege
that his fundamental
rights have
been infringed under Articles 12(1) and 13(1) of the Constitution. The 6th
Respondent is a supplier of scrap rubber with whom the Petitioner had certain
business dealings. It is submitted by the learned counsel for the Petitioner
that the 6th Respondent maliciously aided and abetted and or instigated the 1st
to 4th Respondents, all of whom have acted together maliciously and violated
the Petitioner’s fundamental rights.
On or about 19.01.2011 the 6th Respondent
delivered a quantity of about 5379 kg of scrap rubber to the factory of the
Petitioner. Thereafter the 6th Respondent informed the Petitioner and in fact
met him regarding the quantity of scrap rubber delivered to the Petitioner at
his factory and informed that a total sum of Rs. 1,522,257/- is due for same
from the Petitioner. The Petitioner paid the 6th Respondent a sum of Rs.
600,000/- in cash and having agreed to
deduct the
same of Rs. 42,528/- as against the part of excess money paid as advance,
issued a cash cheque in a sum of Rs. 879,729/- dated 20.01.2011. Thereafter 6th
Respondent left the Petitioner’s premises. After the 6th Respondent left the
premises, an employee of the Petitioner informed him that part of the scrap
rubber delivered by the 6th Respondent was not satisfactory and the proper
rubber content could be 57% and that the balance rubber
contained a
lot of extraneous contents. As such the Petitioner promptly telephone the 6th
Respondent and informed the 6th Respondent of the unsuitability of the supplied
scrap rubber, and requested him to see the Petitioner. The 6th Respondent
informed the Petitioner that he is unable to come and see the Petitioner but
told the Petitioner that 61 bags of scrap rubber had
been
purchased by one Kodituwakku and that quality was not inspected by him. 6th
Respondent also informed the Petitioner that he would meet him on a subsequent
date. In these circumstances the Petitioner requested the 6th Respondent not to
present the cheque for payment until the accounts are examined and settled, on
the sums payable to him is correctly ascertained to which 6th Respondent
agreed. On this arrangement with the 6th Respondent, the Petitioner informed
and instructed his bank on 20.01.2011 in writing to stop
payment
(letter ‘H’). It is submitted that
despite the request and undertaking obtained
by the
Petitioner from the 6th Respondent not to present the cheque as stated above,
the 6th Respondent surreptitiously tendered the said cheque to the bank
on20.01.2011 and the bank had not made any payment to the 6th Respondent, on
the cheque. Petitioner also take up the
position that the 6th Respondent had no right to present the said cheque for
payment and it is in breach of the undertaking to do so, before accounts were
settled between parties. The 6th
Respondent
had also over the phone inquired about the stop payment of cheque and
Petitioner replied stating it was so, as agreed between them. It is pleaded that the 6th Respondent met the
Petitioner to discuss the matter and the Petitioner gave him a statement ‘E’
showing several transactions between the parties, but the 6th Respondent did
not go through the
statement
and left the factory. On perusing the
Petition I find that thereafter a different turn had taken to this transaction
as described in paragraph 19 to 30, where the police involvement is stated. The
said averments up to the point of, Petitioner being remanded could be
summarised as follows:
(a) 6th
Respondent on 25.01.2011 requested the Petitioner to be present at the Weligama
police. Petitioner went to the police but the 6th Respondent was not present.
Petitioner spoke to the 6th Respondent on the mobile phone. Then a person who
identified himself as Officer In Charge, Matugama Police spoke to the
Petitioner on the mobile phone and Petitioner told him he would come the next
day.
(b) On
26.01.2011 the Petitioner went to the office of the Assistant Superintendent of
Police and the 6th Respondent was in conversation with the A.S.P. (c) The A.S.P
(paragraph 21) inquired from the Petitioner about the payment of the cheque and
the Petitioner explained the transaction he had with the 6th Respondent. The
said A.S.P. observed that this is a civil transaction and directed the officers
to record statement.
(d) On
02.03.2011 Petitioner received a call from the 1st Respondent who identified
himself as a Court Sergeant requested the Petitioner to come to the police and
make a statement.
(e) As
described in paragraph 24 of the petition the Petitioner was arrested by the
police and placed in the police cell.
(f)
Petitioner’s employees contacted Attorney-at-Law Seneviratne and he attended
the police and saw the Petitioner in the cell with other inmates.
(g) The said
Attorney-at-Law questioned the 1st Respondent about the illegal arrest. 1st
Respondent told them about recording a statement and Petitioner to be produced
before the Magistrate.
(h)
Petitioner under arrest was produced before the Magistrate in case No.
70641/11. Police moved to remand the Petitioner without disclosing to court the
contents of the statement.
(i) In the
Report to court made by the 2nd Respondent, it had been revealed that the
Petitioner had committed the offence of cheating and criminal breach of trust.
(j) An application
made on behalf of the Petitioner for bail on 02.03.2011 was objected by the
police without any reasonable cause. Petitioner was accordingly remanded and
kept in the remand prison till 03.03.2011. On the said date on an application
made by the Petitioner’s Attorney-at-Law, the Petitioner was released on bail,
upon two sureties executing two surety bonds for Rs. 1,000,000/-.
In paragraph
35 of the petition it is averred that 1st to 4th Respondents acted together
with the 6th Respondent maliciously without any reasonable cause for the
reasons set out in paragraphs 35 (a) to 35 (d) of the petition.
Further a
letter marked ‘J’ is annexed from the Bank of Ceylon to indicate that the
Petitioner had sufficient credit facilities on his account, at the time of
issuing the cash cheque to the 6th Respondent. Supreme Court on 06.05.2011 granted Leave to Proceed for the alleged
violation of Articles 12 (1) & 13 (1) of the Constitution by the 1st to 4th
Respondents.
I have also perused the affidavit of one Samson
an employee of the Petitioner who took delivery of scrap rubber delivered by
the 6th Respondent. He also examined the scrap rubber so delivered to be
unsatisfactory containing extraneous particles than normal scrap rubber. This
employee immediately informed the Petitioner of above. The said employee also
states that he was present with the Petitioner on 26.01.2011 at the Assistant
Superintendent of Police office, at Matugama, and the A.S.P. observed that the
transaction to be a civil matter. The
1st Respondent a Police Sergeant and the other three Respondents have filed
objections to this application. 1st Respondent deny that he acted in a
malicious manner towards the Petitioner or breached the Petitioner’s
fundamental rights. He also pleads that the 6th Respondent is not personally
known to him and 6th Respondent complaint was recorded as a civilian. Copy of
the complaint is annexed marked 1R1 (a) and 1R1 (b). On such complaint
Petitioner was requested to attend the police station and he was kept in police
custody and arrested having informed the Petitioner of the reason for arrest.
The arrest notes are annexed marked 1R3. He states he acted according to law.
He produced the Petitioner before the Magistrate and note pertaining to
Petitioner being taken to the Magistrate is annexed marked 1R4. The 2nd Respondent is the Officer-In-Charge
of the Special Crimes Investigation Branch A.S.P’s office, Matugama. He Plead
inter alia that at the material time he was attending a training programme at
the Katana Police Academy, during the period 28.10.2012 to 02.03.2012. On his
return to the police station after the training period he became aware whilst
inspecting the books in the branch, that a statement of the Petitioner was
recorded, and that the Petitioner was produced before the Magistrate on a ‘B’
Report. He denies any malicious act on his part towards the Petitioner. Further
the 2nd Respondent never acted in a manner to humiliate the Petitioner nor did
the 2nd Respondent act in collusion with the 6th Respondent. The 3rd Respondent is the Court Sergeant who
recorded the statement of the Petitioner. His affidavit is supportive of the
facts pleaded by the 1st and 2nd Respondents. The 4th Respondent is the Head
Quarters Inspector of Weligama Police. It is his position that he was not
involved in the investigation of the complaint against the Petitioner. Officer
of the Special Crimes Investigations Branch conducted the investigation against
the Petitioner. Any malice alleged against him is denied by the 4th Respondent. The 6th Respondent has never participated in
these proceedings, before this court. At the hearing before this court the
learned counsel for Petitioner no doubt supported his case. Learned Senior
State Counsel who appeared for 1st to 5th and 7th Respondents very correctly
submitted to this court that the transaction in question was a civil
transaction. I have to hold that the 6th Respondent who was responsible to
initiate criminal proceedings, breached the fundamental rights of the
Petitioner along with the 1st, 2nd and 4th Respondents. Whatever it may be the Petitioner could not have been arrested and
produced before court on the available material as the facts are supportive of
a civil transaction. This is a very unfortunate incident, for the authorities concerned
to have deprived the Petitioner of his personnel liberty, by attaching criminal
liability to the transaction in question. However law cannot permit this sort
of lapses to take place either knowingly or unknowingly and deprive a persons’
freedom and personnel liberty.
It is apparent that the Petitioner and the 6th
Respondent had been dealing with each other for some time and had transactions
on scrap rubber. Petitioner purchased scrap rubber from the 6th Respondent and
even made part payment in cash. In that type of business transactions,
sometimes parties withhold payment for various reasons. Every such transaction
would not amount to cheating. In the instant case the Petitioner in fact
tendered a statement of accounts to the 6th Respondent to verify the accounts.
It appears that the 6th Respondent had not taken the trouble to check the
accounts, instead thought it fit to change the complexion of the transaction
from civil transaction to be an act of cheating. The police should have not
been so hasty especially where part payment had been made to the 6th Respondent
in cash, by the Petitioner. The hurry in which a prosecution was launched by
the police is rather suspicious.
This appears
to be a simple case of goods sold and delivered, where a buyer would have an
option to reject the goods for want of quality. As such the Petitioner is
entitled to a declaration that his constitutional rights are violated. Even if the police had a wrong appreciation
of the law, yet the infringement would remain. It is essential to comply with
the statutory provisions established by law designed to protect the liberty of
the subject. State is liable and has to be held responsible for the acts of the
police, which appears to have been influenced by the 6th Respondent. An arrest must be supported by a clear
provisions of the law – Gunawardena Vs. Perera (1983) 1 SLR 305. It was held in
Piyasiri Vs. Fernando 1988 (1) SLR 173 that a police officer has no right to
arrest a person on vague general suspicion, not knowing the precise crime
suspected but hoping to obtain evidence of the commission of some crime for
which he has the power to arrest. I hold
that Petitioner’s fundamental rights guaranteed by Articles 12(1) and 13(1)
have been violated, and the 1st, 2nd, and 4th Respondents are liable. It
appears to me that 1st, 2nd and 4th Respondents have acted with the 6th
Respondent who instigated them, maliciously.
There was no legal basis to arrest the Petitioner, this being a pure civil
transaction. In these circumstances, I direct the 1st, 2nd and 4th
Respondents to pay the Petitioner as compensation a sum of Rs. 25,000/- each as
these Respondents are responsible for arresting and producing the Petitioner in
Court.
In this entire episode the 6th Respondent
initiated and instigated the above Respondents to violate the fundamental
rights of the Petitioners. As such this court Orders the 6th Respondent to pay
a sum of Rs.75,000/- as compensation.
Application allowed with costs.
JUDGE OF THE SUPREME COURT
Priyasath
Dep P.C. I agree. Chief Justice
Upaly
Abeyrathne J. I agree.
JUDGE OF THE SUPREME COURT
