''චෙක් පතක්'' මුල් කරගෙන ඇතිවූ හබයක් නඩුවේ වස්තු බීජය වේ.
මුදල් වංචා අති
බහුලව සිදුවන අප රටේ එම වංචාවන් කප්රුක බවට පත් කරගෙන ඉන්නෙ ශ්‍රී ලංකාවේ මහජන මිත්‍රශීලී
පොලිසියයි.
2018 ජූලි 18 වන දින රාගම පොලීසියට යන රේන්බෝ ගාර්මන්ට්
ටෙක්නොලෝජිස් පුද්ගලික සමාගමේ ප්‍රධාන කළමනාකරු චරිත් ඒෂාන්ක හොප්වුඩ් ව අත්අඩංගුට ගන්නා රාගම පොලිසියේ සුළු
පැමිණිලි අංශයේ ස්ථානාධිපති, ඔහුව රඳවා තබාගෙන පසුදින එනම් 2018 ජුලි 19 මීගමුව මහේස්ත්‍රාත්වරයා වෙත ඉදිරිපත්
කරන්නේ රුපියල් 216, 150/- ක් වංචා කිරීම යන චෝදනාව යටතේය.
අත්අඩංගුවට
ගැනීම හා රඳවා
තබා ගැනීම මගින් රාගම පොලිසියේ එවක සුළු පැමිණිලි අංශයේ ස්ථාන භාර නිළධාරී පොලිස්
පරීක්ෂක ගුණවර්ධන පළමු වගඋත්තරකරු කරමින් ශ්‍රේෂ්ඨාධිකරණය හමුවේ කියා සිටියේ තමාට
ආණ්ඩුක්‍රම ව්‍යවස්ථාවෙන් ස්ථාපිත මූලික අයිතිවාසිකම් මෙම පොලිස් නිලධාරියා ප්‍රමුඛ
නිළධාරින් විසින් උල්ලංඝනය කර තිබෙන බවයි.
2021 පෙබරවාරි 23 දින විභාගයට ගන්නා ලද මෙම නඩුවේ තීන්දුව 2021 ජූලි 29 වැනි දින ප්‍රකාශයට පත් කරමින් වගඋත්තරකාර පොලිස් පරික්ෂක ගුණවර්ධන පෙත්සම් කරුගේ මූලික අයිතිවාසිකම් උල්ලංඝනය කර ඇති
බව ප්‍රකාශ කළේය.
ඒ අනුව පොලිස්
පරීක්ෂක ගුණවර්ධන රුපියල් ලක්ෂයක වන්දියක් හා රුපියල් 20,000 ක නඩු ගාස්තුවක් පෙත්සම් කරු ට ගෙවන ලෙසට
නියම කළේය.
විනිසුරු ජ.නි බුවනෙකඅලුවිහාරේ
හා විනිසුරු එෆ්. එ. ජී. ආර් අමරසේකර යන ශ්‍රේෂ්ඨාධිකරණ විනිසුරු වරුන්ගේ එකඟතාවය
ඇතිව විනිසුරු එ. එල්. ශිරාන් ගුණරත්න තීන්දුව ප්‍රකාශයට පත් කරන ලදී.
අත්අඩංගුවට
ගැනීම අදාළ නීති දීර්ඝ ව විග්‍රහ කරන මෙම තීන්දුව පොලිසියේ නීති විරෝධී ක්‍රියාවන්
සම්බන්ධයෙන් දෙන ලද සිය ගණනක් නඩු තීන්දු අතරට එක් වනු ඇත.
මෙම තීන්දු
සියල්ල ඇත්තේ ඉංග්‍රීසි බසින්ය. ඒ නිසා එම තීන්දු ජනතාවට වටහා ගැනිමට හැකියාවක් නැත.
මූලික අයිතිවාසිකම් දිනපතා උල්ලංඝනය වන සිය දහස් ගණනක් සාමාන්‍යය ජනතාවට එම
හිමිකම් වලින් ප්‍රයෝජනයක් වි නැතිත්තේ ඔවුන්ට යුක්තිය ඉටු කරගන්නට ඒ වත්කමක් නැති
බව පොලීසිය හොඳාකාරව දන්නා නිසාය.
නඩු තීන්දුව-
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter of an application under and in terms
of Article 17 and 126 of the Constitution of the
Democratic Socialist Republic of Sri Lanka.
SC. FR. Application No. 257/2018
Charith Eshanka Hopwood,
No. 60/5, Kerawalapitiya Road,
Hendala,
Wattala. - Petitioner
Vs.
1. Inspector of Police Gunawardena,
Officer-in-Charge,
Minor Offences Branch,
Police Station,
Ragama.
2. Chief Inspector of Police Gunasekera,
(Acting Officer-in-Charge),
Police Station,
Ragama.
3. Inspector General of Police,
Police Headquarters,
Colombo 01.
4. Hon. Attorney General,
Attorney General’s Department,
Colombo
Respondents
Before:
Justice Buwaneka Aluwihare, PC
Justice E.A.G.R. Amarasekara
Justice A.L. Shiran Gooneratne
Counsel:
Shyamal A. Collure with Prabath S. Amarasinghe, A.P. Jayaweera
and Ravindra Silva for the Petitioner.
Ms. Induni Punchihewa, SC for the Respondents.
Argued on: 23/02/2021 - Decided on: 29/07/2021
A.L. Shiran Gooneratne J.
The Petitioner, the Chief Manager of Rainbow Garments Technologies (Pvt) Ltd.
contends that his arrest and detention by the 1st Respondent, the Officer-in-Charge of
the Ragama Police Station, on 18/07/2018, and producing him in the Magistrates Court
of Negombo on 19/07/2018, in Case Bearing No. L. 69786, is a violation of his
fundamental rights guaranteed by Article 11, 12(1), 13(1), 13(2) and 14(1)(g) of the
Constitution. This Court granted Leave to Proceed on 04/09/2018 to the Petitioner in
respect of the alleged infringements of Article 12(1), 13(1), 13(2) and 14(1)(g) of the
Constitution.
3
The facts of the case as established from the pleadings and the documents therein are
set out as follows:
Rainbow Garments Technologies (Pvt) Ltd. is a limited liability company dealing in
the purchase and sale of ready-made garments from various suppliers and one such
supplier was M.B. Subani Chathuri. During a business transaction, Dinesh
Wimalachandra, the Managing Partner of the said company issued two cheques to
Subani Chathuri, to the value of Rs. 216,150/- and Rs. 217,775/- for garments supplied
to the company. Having observed that some of the garments supplied were damaged
and/or defective, the company informed the said supplier to replace the said items.
Since there was no response from the supplier, the company advised the respective
banks to stop payment which is reflected in the cheque return notifications marked ‘P8’
and ‘P9’ endorsed as “payment stopped by drawer”.
The cheques marked ‘1R3(a)’ and ‘1R3(b)’ have been issued by the proprietor of
‘Rainbow Fashion World’, Dinesh Wimalachandra and not by the Petitioner. Therefore,
the Petitioner contends that there can be no suspicion that the Petitioner had committed
any offence arising from the complaint made by Subhani Chathuri, marked ‘1R1’.
The Petitioner states that on or about the first week of June 2018, on a complaint lodged
by the said supplier, the 1st Respondent informed the company that a representative be
present at the Ragama Police Station. Accordingly, the Petitioner and another employee
representing the company informed the 1st Respondent about the events leading up to
the “stop payment” of the relevant cheques. The 1st Respondent by a Police message
addressed to the Officer-in-Charge of the Police Station Thalangama, required Dinesh
Wimalachandra, the proprietor of the company to be present at the Ragama Police
Station on 18/07/2018. The Police Message marked ‘1R5(a)’ dated 13/07/2018,
confirms this position. Since Dinesh Wimalachandra was indisposed, the Petitioner
responded to the Police message by presenting himself at the Police Station.
4
The Petitioner states that he was arrested by the 1st Respondent on 18/07/2018 and a
statement was recorded around 8.30 p.m. on the same date and held overnight in the
Police cell.
On 19/07/2018, the Petitioner was taken to the Negombo Magistrates Court and was
produced in Case Bearing No. L. 69786 for misappropriating a sum of Rupees
646,325/- an offence punishable under Section 386 of the Penal Code. The Petitioner
further claims that the 2nd Respondent filed a police report dated 19/07/2018 in the
Magistrates Court and moved that the Petitioner be placed in remand custody until
26/07/2018, pending further investigations. The Petitioner contends that due to
immense pressure being brought about, the Petitioner was forced to pay the amount
alleged to have been misappropriated and settle the case.
The Petitioner’s claim as set out in the Petition is based on the following contentions.
a) that there was no complaint lodged against him by M.B. Subani Chathuri at the
Police Station of Ragama.
b) the arrest and detention of the Petitioner at the Ragama Police Station on
18/07/2018, is contrary to the procedure established by law and therefore is
illegal, unlawful, and arbitrary.
Subani Chathuri in her complaint dated 05/06/2018, marked ‘1R1’, has clearly stated
that Dinesh Wimalachandra of Rainbow Fashion World (Pvt) Ltd. had instructed the
relevant banks to stop payment of cheques bearing his signature issued to her and
therefore, Dinesh Wimalachandra should be summoned and questioned regarding this
transaction.
In the first week of June 2018, a person introducing himself as the 1st Respondent, had
informed the Petitioner that a representative of the company be present at the Ragama
Police Station for an inquiry in connection with the complaint lodged by the
complainant.
5
At the said inquiry, The Petitioner had explained to the 1st Respondent the
circumstances, which led to the present situation. Thereafter, by Police message dated
13/07/2018, the 1st Respondent through the Officer-in-Charge of Thalangama Police
summoned Dinesh Wimalachandra, as the accused in Case bearing No. 69786, to be
present at the Ragama Police Station on 18/07/2018, in order to record a statement on
a charge relating to a cheque fraud. The Officer-in-Charge of the Thalangama Police
Station, by message dated 17/07/2018, marked ‘1R5(b)’, informed the Ragama Police
that Wimalachandra is not to be found in the given address and therefore, a copy of the
message had been handed over to a manager of the company by the name Indika Mano.
Since Wimalachandra was indisposed, the Petitioner voluntarily presented himself at
the Ragama Police on 18/07/2018, around 11 a.m.
The investigation report dated 21/06/2018, filed by the 1st Respondent clearly identified
Wimalachandra as the suspect. According to the Police message dated 13/07/2018,
Wimalachandra was required to be present at the Ragama Police Station for further
investigations. However, when the Petitioner arrived at the police station on
18/07/2018, the 1st Respondent arrested him and kept him overnight in the Police cell
and was produced before the learned Magistrate of Negombo on 19/07/2018. The 1st
Respondent having produced the Petitioner, filed a handwritten charge sheet dated
19/07/2018, marked ‘P7’, and a further report moving Court to remand the Petitioner
until 26/07/2018.
In paragraph 13 of the affidavit, the 1st Respondent clearly states that the person wanted
in connection of the alleged fraud is Wimalachandra and that he deliberately evaded
investigations into the matter with no valid reason. However, relying on purchase orders
marked ‘1R6’ and ‘1R7’, the 1st Respondent alleges that the Petitioner was a person in
authority who should be responsible for the said transaction. In the affidavit tendered
to Court the 1st Respondent has contended that the Petitioner was arrested due to the
“continuous evasion of Dinesh Wimalachandra”.
6
Section 23(1) of the Code of Criminal Procedure Act sets out the procedure in making
an arrest of a person, inter alia, it states,
“in making an arrest the person making the same … shall inform the person to be
arrested of the nature of the charge or allegation upon which he is arrested.”
The Explanation provided in Section 23(1) of the Code of Criminal Procedure Act
states thus;
“Keeping a person in confinement or restraint without formally arresting him or
under the colourable pretension that an arrest has not been made when to all intents
and opposes such person is in custody shall be deemed to be an arrest of such
person”.
In Tuduge Achalanka Srilal Perera Vs. Police Sergeant Ananda & Other S.C. (F/R)
App. No. 198/2011, the Court held that,
“Every arrest by a police officer, attracts Section 23 (1) of the Code of Criminal
Procedure Act and it is mandatory that the person arrested should be informed of
the nature of the charge or allegation upon which he is arrested. A bare assertion
that the arrest is in accordance with the procedure established by law, falls far short
of the standard expected of the applicable legal provision.”
In order to justify the arrest of the Petitioner, the 1st Respondent relied on an affidavit
dated 12/03/2019, marked ‘1R4’ made by the Attorney-at-Law who represented the
complainant at the inquiry held at the Ragama Police. The Attorney in her affidavit
states that the Petitioner in his capacity as a manager of the company had signed the
documents relating to the transaction and accordingly did undertake to pay the monies
due to the complainant. The Attorney further states that the Petitioner who is an
authorized person of the company was represented by an Attorney-at-Law at the said
inquiry, undertook to settle the amount due to the complainant.
7
The Petitioner denies that he was represented by an Attorney-at-Law and also deny that
he had the capacity to settle such disputes.
The arrest and detention of the Petitioner on 18/07/2018 is justified by the 1st
Respondent on the basis that the Petitioner was a person in authority (manager) of the
said company. The 1st Respondent relied on the statement made by the complainant and
the affidavit made by the Attorney-at-Law who is alleged to have accompanied the
complainant to the Ragama Police.
The complaint dated 05/06/2018 was against Wimalachandra.
According to the investigation report dated 21/06/2018, Wimalachandra was the
suspect in Case Bearing No. L.69786, pending before the Magistrates Court of
Negombo. On 19/07/2018, a further investigation report together with a handwritten
charge sheet was filed and the Petitioner was produced in Court as the accused in the
aforesaid case. The 1
st Respondent produced the Petitioner before the learned
Magistrate and made an application to remand the Petitioner pending further
investigations.
The learned State Counsel submitted that the Petitioner was arrested in terms of Section
32(1)(b) of the Code of Criminal Procedure Act and justifies the arrest on the basis
that:
“a reasonable complaint has been made or credible information has been received
or a reasonable suspicion exists”,
to arrest the Petitioner and therefore the arrest and detention of the Petitioner was
according to procedure established by law.
In an application for a Writ of Habeas Corpus, H. N. G. Fernando, C.J. in Gunasekara
vs. De Fonseka, (1972) 75 NLR 246 at p. 250 stated as follows,
“Only if a person is informed of the ground for his arrest, or in other words, of the
offence which he is suspected, that he will have the opportunity to rebut the
8
suspicion or to show that there was some mistake as to identity” ---- “exceptional
cases in which the requirement will not apply, particularly cases in which it is
obvious in the circumstances that a person must necessarily know why he is being
arrested. Examples of such cases are found in paragraphs (a), (c), (e) and (f) of s.
32 (1) of the Criminal Procedure Code.”
Therefore, an arrest made in terms of Section 32 (1) (b) would not be within the said
exception.
In Guneththige Misilin Nona and others vs. P.C. Muthubanda, (10312), Police
Station, Moragahahena and others (S.C. (F/R) No. 429/2003), Shiranee
Thilakawardana J. cited with approval the case of R vs. Howell (1981) 3 All ER 383,
where Watkins LJ, observed on the English Common Law power to arrest for breach
of peace as follows:
“The public expects a Policeman not only to apprehend the criminal but to do his
best to prevent the commission of crime, to keep the peace in other words. To deny
him therefore, the right to arrest a person who he reasonably believes is about to
breach the peace would be to disable him from preventing that of which might cause
serious injury to someone or even to many people or to property. The common law,
we believe, whilst recognizing that a wrongful arrest is a serious invasion of a
person’s liberty, provides the Police with this power in the public interest. In those
instances of the exercise of this power which depend on a belief that a breach of the
peace is imminent it must be established that it is not only an honest, albeit mistaken
belief but a belief founded on reasonable grounds”
The investigation reports filed in Court did not cast any reasonable justification to arrest
the Petitioner as a suspect in the case.
The Petitioner as a manager of the company, on notice, willingly participated at the
inquiry held by the 1st Respondent, in the absence of Wimalachandra, due to ill health.
However, the 1st Respondent without any reasonable suspicion detained the Petitioner
over night at the police cell and produced him before the Magistrate on the following
day.
9
Dicey defines the right to personal liberty as:
“a person’s right not to be subjected to imprisonment, arrest or other physical
coercion in any manner that does not admit of any legal justification” Guneththige
Misilin Nona and others vs. P.C. Muthubanda, (10312), Police Station,
Moragahahena and others (supra)
Rights of an arrested person was discussed in the case of Joginder Kumar vs. State of
UP and others, (AIR 1994 SC 1349) where the Indian Supreme Court observed that:
“a person was not liable to arrest merely on the suspicion of complicity in an
offence and there must be some reasonable justification in the opinion of the
police effecting the arrest that such arrest was necessary and justified”.
In Gamlath vs. Neville Silva and others (1991) 2 SLR 267, having observed that,
“a suspicion is proved to be reasonable if the facts disclosed that it was founded on
matters within the police officer’s own knowledge or on statements made by other
persons in a way which justify him giving them credit”, (Baba Appu vs. Adan
Hamy).
Kulatunga, J. held that;
“The observance of the procedure for arrest without a warrant is now a
constitutional right under Article 13(1) of the Constitution which guarantees
freedom from arrest. The information on which the arrest is based must be credible
by the application of the objective test. An arrest based purely on the subjective
satisfaction of the police officer would be arbitrary and in violation of Article
13(1)”.
The first investigation report dated 21/06/2018, or the subsequent police messages by
the 1st Respondent does not cast an aorta of reasonable suspicion or a reasonable
complaint of the commission of the offence against the Petitioner. To the contrary, the
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police message dated 17/7/2018, states that Wimalachandra is required to be present in
the Negombo Magistrates Court on 18/07/2018. Therefore, there was absolutely no
justification for the 1st Respondent to arrest the Petitioner on 18/07/2018.
In Channa Peiris and Others Vs. Attorney General and Others (1994) 1 SLR 1 at
page 47 the Court held, thus:
“However, the officer making an arrest cannot act on a suspicion founded on mere
conjecture or vague surmise. His information must give rise to a reasonable
suspicion that the suspect was concerned in the commission of an offence for which
he could have arrested a person without a warrant. The suspicion must not be of an
uncertain and vague nature but of a positive and definite character providing
reasonable ground for suspecting that the person arrested was concerned in the
commission of an offence.”
It is the position of the Petitioner that his statement was recorded around 8.30 p.m. on
18/07/2018, and thereafter he was detained in the Police cell. The 1st Respondent admits
that the Petitioner did make a statement to the Police. The statement made by the
Petitioner could have undoubtedly shed more light to the events which culminated in
his arrest. Despite a direction given by court to tender the said statement together with
the investigation notes before the date fixed for hearing, the 1st Respondent has failed
to do so. (vide Journal entry dated 04/09/2018). Therefore, the grounds upon which the
Petitioner was arrested as contended in the affidavit of the 1st Respondent are not
supported by evidence.
The 1st Respondent was better placed to tender such documents to prove his bona fides
and to vindicate himself from the alleged arbitrary arrest, which he failed to do, for
reasons best known to him.
The 1st Respondent does not deny the arrest of the Petitioner nor his detention overnight.
However, there is no formal arrest of the Petitioner on record nor reasons for his arrest
made known to him.
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The allegation upon which the Petitioner was arrested is described by the 1st Respondent
in Paragraph 15 of his Affidavit as:
“all attempts to get Wimalachandra down failed. Wimalachandra purposely evaded
such inquiries. The Petitioner appeared at the Police Station each time when
Wimalachandra was summoned”.
This clearly, “inter alia” shows that the 1st Respondent was aware that the Petitioner
presented himself at the police station on notice to represent the interest of
Wimalachandra.
Sharvananda C.J. in his “Treatise on Fundamental Rights in Sri Lanka” (page 141)
observed as follows;
“The requirement that the person arrested should be informed of the reason for his
arrest is a salutary requirement. It is meant to afford the earliest opportunity to him
to remove any mistake, misapprehension or misunderstanding in the mind of the
arresting authority and to disabuse the latter's mind of the suspicion which
triggered the arrest and also for the arrested person to know exactly what the
allegation or accusation against him is so that he can consult his Attorney-at-Law
and be advised by him......" (Tuduge Achalanka Srilal Perera Vs. Police Sergeant
Ananda & Others (S.C. (F/R) Application No: 198/2011)
In Landage Ishara Anjali & Other Vs. Waruni Bogahawatte & Others (2019), SC
(FR) Application No. 677/2012, the Supreme Court elaborating on the scope of Article
13(1) stated as follows:
“Article 13 (1) of the Sri Lankan Constitution declares the rights relating to
personal liberty and criminal procedure. It reads;
"No person shall be arrested except according to procedure established by law.
Any person arrested shall be informed of the reason for his arrest."
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The Article guarantees freedom from arbitrary arrest and mandates that any
deprivation of liberty should strictly follow the procedure established by law. These
procedural safeguards are set in place to avoid rule by whim or caprice and to
prevent the abuse of judicial process for individual gain and for political purposes.”
This Court in several previous judgments have very clearly held that taking a person
into custody and detaining for the purpose of procuring evidence in the circumstances
of the case, to obtain their assistance to locate another person, as a first step in the
process of bringing criminal suspects to justice or any other deprivation of personal
liberty amounted to be violative of Article 13(1) of the Constitution. (Weragama vs.
Indran and others, SC application 396 and 397/93 SC minutes 24 February 1995, SC
application 27/88 SC minutes 6 April 1990)
This is not a case of mistaken identity. The 1st Respondent was aware that the person
under investigation was not the Petitioner. When all attempts to arrest the person under
investigation failed, the 1st Respondent without any reasonable explanation, arbitrarily
exercised his power to detain and arrest the Petitioner. By not following the procedure
established by law, the 1st Respondent deprived the Petitioner of knowing the nature of
the offence or the reason for his arrest. Therefore, the 1
st Respondent has failed to satisfy
this Court that the arrest and detention of the Petitioner was in accordance with the
procedural and substantive safeguards provided by law. In all probability, the 1
st
Respondent connived with the complainant to arrest and detain the Petitioner to place
him under restraint in order to force a settlement of the money due to the complainant.
The 1st Respondent’s conduct depriving the Petitioner of his personal liberties, as noted
above, cannot be condoned by this Court.
In all the above circumstances, the Court observes that the deprivation of personal
liberty of the Petitioner amounts to a violation of Article 13(1) of the Constitution for
which the 1st Respondent should be personally responsible.
Therefore, the Petitioner is
entitled for an order for relief. Accordingly, the 1st Respondent is directed to pay Rupees 100,000/- to the Petitioner
and Rupees 20,000 as costs.
Judge of the Supreme Court
Buwaneka Aluwihare PC. J.
I agree- Judge of the Supreme Court
E.A.G.R. Amarasekara J.
I agree -Judge of the Supreme Court
