Fundamental Rights judgment on arbitrary arrest, abuse of criminal process, careless police investigation, private instigation of State power, and the constitutional limits of prosecutorial discretion.
Supreme Court of Sri Lanka, S.C. F/R N 405/2018
Decided on 20 September 2023 - Judgment by B.P. Aluwihare, PC, J.; A.H.M.D. Nawaz, J. and Mahinda Samayawardhena, J. agreeing.
By a private party alleging that the petitioner had cheated him of Rs. 7 millioThis is an important Fundamental Rights judgment on arbitrary arrest, abuse of criminal process, careless police investigation, private instigation of State power, and the constitutional limits of prosecutorial discretion. The case arose from a complaint made n on a supposed promise to import BMW vehicles. The Supreme Court found that the CID had acted without proper verification, that the complaint appeared false, and that the petitioner’s arrest was arbitrary and unlawful.
There is, however, one
important drafting point in the judgment. In the body of the judgment, the
Court holds that Article 13(2) was not established because the petitioner was
produced before the Magistrate within 24 hours. The Court then holds that Article
13(1) and Article 12(1) were violated. But in the conclusion and final
declaration, the judgment refers to Articles 12(1) and 13(2). This appears to
be an internal inconsistency, probably a clerical or drafting slip, because the
actual reasoning supports a violation of Article 13(1), not Article 13(2).
1. Article 13(2):
production before a Judge within 24 hours
Article 13(2) protects
a person who has been arrested or detained by requiring that he be brought
before the nearest competent court according to law. The Court considered
Sections 36 and 37 of the Code of Criminal Procedure Act, which require a
person arrested without warrant to be produced before a Magistrate without
unnecessary delay and within 24 hours, excluding journey time.
The petitioner was
arrested at the airport on 15 November 2018, around 22:30 to 23:30, and was
produced before the Magistrate on 16 November 2018. The Court held that, on the
material before it, the petitioner had been produced within 24 hours. Therefore,
the complaint under Article 13(2) was not proved.
Precedent referred to:
Farook v Raymond and Others [1996] 1 Sri L.R. 217
The Court relied on
Farook v Raymond for the principle that Article 13(2) exists to ensure that a
person deprived of liberty by executive action is placed before a neutral
judicial officer, so that a judicial mind may be applied to the circumstances
of the detention. The purpose is to prevent arbitrary executive detention and
also to ensure that a Magistrate does not mechanically authorise further
detention.
The lesson from this
part is that production before a Magistrate is not a mere formality. It is a
constitutional safeguard. But in this particular case, the Court found no
breach of Article 13(2), because the petitioner was produced within the legally
required time.
2. Article 13(1):
arrest must be according to law
Article 13(1) provides
that no person shall be arrested except according to procedure established by
law, and that any person arrested shall be informed of the reason for his
arrest. This was the central constitutional issue in the case.
The CID sought to
justify the arrest under Section 32(1)(b) of the Code of Criminal Procedure
Act. That section allows a peace officer to arrest without warrant where a
person is concerned in a cognizable offence, or where a reasonable complaint,
credible information, or reasonable suspicion exists.
The Supreme Court made
it clear that the words “reasonable complaint,” “credible information,” and
“reasonable suspicion” are not empty words. A police officer cannot arrest
merely because a complaint has been made. The officer must objectively assess
whether the complaint is credible. The suspicion must be reasonable, not vague,
subjective, or mechanical.
The Court found that
the CID had acted almost entirely on the complaint and bank deposit slips
produced by the 6th respondent. Those slips proved only that money had entered
the petitioner’s account. They did not prove cheating, fraudulent intent, or an
agreement to import vehicles. The petitioner had an explanation: the money had
been received on behalf of Rehana and handed over to her. The CID did not
properly test that explanation before arresting him.
3. Reasonable suspicion
must be objective
The Court held that
reasonable suspicion is not the same as proof beyond reasonable doubt. It is
also not the same as a prima facie case. But there must still be objective
material connecting the suspect to a cognizable offence.
In this case, the
complaint was weak on its face. There was no written agreement to import BMW
vehicles. There was no correspondence showing such an arrangement. There was no
paper trail that one would normally expect in a high value vehicle import transaction.
The telephone conversation between the petitioner and the complainant did not
refer to any BMW import agreement. On the contrary, it suggested a different
story.
The Court therefore
held that the CID did not have reasonable suspicion to arrest the petitioner.
Precedent referred to:
Channa Pieris and Others v Attorney General and Others [1994] 1 Sri L.R. 1
The judgment cites
Channa Pieris for the principle that reasonable suspicion may be based on
matters within the officer’s own knowledge, credible information given to him,
or a combination of both. But the suspicion must still have an objective
foundation.
This precedent is
important because it prevents the police from saying, “I suspected him,” as if
that is enough. The suspicion must be capable of being justified by facts.
Precedent referred to:
Gamlath v Neville Silva and Others [1991] 2 Sri L.R. 267
The Court also cited
Gamlath v Neville Silva, where it was held that suspicion is reasonable only if
it is founded on matters within the police officer’s knowledge or on statements
made by others in circumstances justifying the officer giving credit to them.
The lesson is that a
complainant’s statement is not automatically credible. The police must consider
whether the statement deserves credit. In this case, the complainant’s version
was improbable, unsupported, and contradicted by other material.
4. Arrest should not be
made merely because investigation is incomplete
The Court relied on the
Privy Council decision in Shaaban Bin Hussien v Chong Fook Kam [1969] 3 All ER
1626. Lord Devlin’s principle was that, as a general rule, arrest should not be
made until the case is complete. The law permits arrest before completion of
investigation only because otherwise police work may be hampered. But the
existence of power to arrest does not mean that it should always be exercised.
The Court extracted
several factors relevant to arrest: the strength of the case, possibility of
escape, obstruction of investigation, prevention of further crime, and danger
to the public.
In this case, those
factors did not justify arrest. The petitioner had remained in Sri Lanka for
months. He had not been properly noticed. His telephone number was available.
The CID could have summoned him. There was no convincing material that he was absconding.
The lesson is powerful:
arrest is not a shortcut for investigation. Arrest is not to be used as
pressure. Especially in alleged financial fraud or commercial disputes, the
police must first ask whether the facts disclose a crime at all.
5. Commercial dispute
versus criminal offence
One of the most
important principles in the judgment is the distinction between a failed
commercial transaction and a criminal offence.
The Court observed that
in “white collar” allegations, the investigating agency must carefully
ascertain whether the matter is merely a commercial transaction gone wrong, or
whether there was a criminal intent to defraud. The mere fact that money was
paid and later disputed does not automatically amount to cheating.
This is particularly
important in cases under Section 400 of the Penal Code, where the mental
element of cheating is crucial. The prosecution must consider whether there was
dishonest or fraudulent intention at the inception of the transaction. If a
transaction fails later, that alone does not establish cheating.
In this case, the CID
appears to have treated bank deposits as enough. The Supreme Court rejected
that approach.
6. Duty to inform the
arrested person of the reason for arrest
Article 13(1) also
requires that the arrested person be informed of the reason for his arrest. The
Court held that merely saying that the arrest related to a “financial fraud of
Rs. 7 million” was not enough. The petitioner had to be told the essential legal
and factual grounds of arrest in simple language.
The Court referred to
Justice Sharvananda’s treatise, Fundamental Rights in Sri Lanka, for the
proposition that the purpose of informing the reason for arrest is to give the
arrested person the earliest opportunity to remove any mistake or
misunderstanding, to consult a lawyer, and to know the allegation against him.
The Court also referred
to Section 23(1) of the Code of Criminal Procedure Act, which requires the
person making the arrest to inform the person arrested of the nature of the
charge or allegation.
The Court found that
even the arrest note was vague. It did not state the substance of the
allegation. It merely referred generally to an investigation and a travel ban.
That was insufficient.
Precedent referred to:
Christie and Another v Leachinsky [1947] 1 All ER 567
The Court cited
Christie v Leachinsky for the principle that failure to inform a person, at or
within a reasonable time of arrest, of the offence with which he is charged is
not a mere irregularity. An arrest without warrant on a charge that does not
justify arrest is unlawful and constitutes false imprisonment.
The deeper principle is
this: the arresting officer cannot later justify an arrest by saying that he
had an unexpressed suspicion in his mind. The arrested person must be told the
grounds of arrest. A secret reason is no reason in law.
The lesson is that a
vague formula cannot save an unlawful arrest. “Financial fraud,”
“investigation,” or “complaint” are not enough unless the essential accusation
is made clear.
7. Article 12(1):
arbitrary arrest violates equal protection of the law
Article 12(1)
guarantees equality before the law and equal protection of the law. The Court
held that arbitrary, irrational, unreasonable, capricious, discriminatory, or
vexatious executive action violates Article 12(1).
The arrest was held to
be arbitrary because the CID acted merely on the complaint, failed to verify
the allegation, failed to consider the petitioner’s available explanation,
failed to use ordinary procedures to summon him, and failed to evaluate whether
a criminal offence was disclosed.
Precedent referred to:
Rajapaksha v Rathnayake and Ten Others [2016] 1 Sri L.R. 119
The Court cited
Rajapaksha v Rathnayake, where an arrest without reason and the framing of a
false charge were held to deny equal protection of the law. The principle is
that arbitrary police action is not only a violation of liberty under Article
13, but also a violation of equality under Article 12(1).
This is a significant
constitutional point. Equal protection does not merely mean treating people
alike in a narrow sense. It also means protection from arbitrary State power. A
citizen who is arrested without proper legal basis has been denied equal protection
of law.
8. Duty of police to
investigate before arrest
The Court was
particularly critical of the CID’s failure to take simple investigative steps.
The petitioner’s telephone number was available. The CID could have called him.
The CID could have issued notice under Section 109(6) of the Criminal Procedure
Code. The CID could have verified his version from the earlier police
complaints made to Keselwatte and Narahenpita Police. None of this was done.
The lesson is that
police cannot choose the harshest route first. Where attendance can be secured
by notice, and where the allegation is documentary and commercial in nature,
arrest should be the last resort, not the first weapon.
9. False complaint and
liability of a private party
A striking feature of
this judgment is that the Court imposed liability on the 6th respondent, a
private complainant. The Court found that the complaint appeared false and that
the whole process leading to the petitioner’s arrest was instigated by him.
The Court held that a
private party cannot escape responsibility where he instigates the executive to
use State power unlawfully. If a private individual sets the machinery of the
State in motion by a false complaint, and that leads directly to a violation of
fundamental rights, he too may be held responsible.
Precedent referred to:
Faiz v Attorney General and Others [1995] 1 Sri L.R. 372
The Court relied
strongly on Faiz v Attorney General, where Mark Fernando J. held that Article
126 speaks of infringement by executive or administrative action, but it does
not require that every responsible party must be an executive officer. A
private individual may become liable where his conduct is connected with
executive action by instigation, participation, connivance, acquiescence,
ratification, or adoption.
This is one of the most
important principles in the judgment. A private complainant who abuses police
power cannot hide behind the fact that the arrest was physically carried out by
State officers.
Precedent referred to:
Shaul Hameed and Another v Ranasinghe [1990] 1 SLR 104
The Court also cited
Shaul Hameed v Ranasinghe, where Kulatunga J. observed that the Supreme Court
may make appropriate orders even against a respondent with no executive status
where that respondent is guilty of impropriety or connivance with the executive
in wrongful acts violating fundamental rights.
This confirms the width
of the Supreme Court’s remedial power under Article 126(4). The remedy is not
confined to State officers alone where justice requires relief against a
private wrongdoer connected with executive action.
10. Prosecutorial
discretion of the Attorney General
The judgment contains
an important discussion on the decision to indict the petitioner. During the
hearing, the Court examined whether the telephone conversation between the
petitioner and the complainant had been considered before indictment. The Court
observed that the material relating to the telephone conversation had not been
considered, that little or no material had been considered to establish the
necessary ingredients of cheating, especially the mental element, and that
scant regard had been paid to whether the facts made out an offence.
This is a serious
judicial criticism. The Court did not quash the indictment because no specific
relief had been sought in relation to the indictment. But it made strong
observations on the duty of the Attorney General and State Counsel when
deciding whether to indict.
Precedent referred to:
The Attorney General v Sivapragasam, 60 NLR 468
The Court cited
Attorney General v Sivapragasam for the classic principle that a prosecutor is
a minister of justice. The prosecutor’s duty is not to secure a conviction at
all costs. His attitude must be objective and detached.
This principle is
central to prosecutorial ethics. A prosecutor does not act as a private
litigant. He acts in the public interest. He must be fair not only to the
complainant, but also to the suspect and to the court.
Precedent referred to:
Victor Ivan v Sarath N. Silva, Attorney General and Others [1998] 1 Sri L.R.
340
The Court referred to
Victor Ivan v Sarath N. Silva, where Mark Fernando J. recognised that the
Attorney General’s discretion is broad, but not immune from constitutional
review. A decision to prosecute on plainly insufficient evidence may be prima
facie arbitrary or capricious.
The judgment makes
clear that although the Attorney General has wide discretion whether to indict,
that discretion is not absolute in the constitutional sense. It must be
exercised on constitutionally permissible grounds. The Court will rarely
interfere, but it may intervene where the decision is arbitrary, capricious,
unlawful, or unsupported by sufficient material.
This part of the
judgment is especially useful where an indictment is based on weak material, or
where exculpatory material was ignored.
11. The two-stage
prosecutorial test: evidence and public interest
The Court referred to
the approach in common law jurisdictions, namely that a prosecutor should
consider two broad matters before prosecuting:
First, whether the
evidence is sufficient. This includes admissibility, reliability, credibility,
and whether there is a realistic prospect of conviction.
Second, whether
prosecution is in the public interest.
The Court stated that
the prosecutor should consider the defence material and likely arguments before
deciding whether it is more likely than not that a court would convict. There
must be rigorous examination so that indictments are not made prematurely.
The important lesson is
that indictment is not an administrative rubber stamp. It is a serious act of
public power. It can damage liberty, reputation, employment, family life, and
social standing. Therefore, the indicting authority must consider both inculpatory
and exculpatory material.
12. Compensation and
the nature of the remedy
The Court awarded
compensation as follows:
The 1st respondent was
ordered to pay Rs. 75,000.
The 2nd and 3rd
respondents were each ordered to pay Rs. 25,000.
The 6th respondent, the
private complainant, was ordered to pay Rs. 3 million.
This is significant
because the largest award was made against the private party who instigated the
abuse of criminal process.
Precedent referred to:
Saman v Leeladasa [1989] 1 Sri L.R. 1
The Court cited Saman v
Leeladasa for the principle that compensation for violation of a fundamental
right is not punishment. It is an acknowledgement of regret and a solatium for
the hurt caused by the violation.
However, the Court
distinguished the position of State liability from private-party liability. It
observed that where a private party instigates the executive to violate
fundamental rights, deterrence may be relevant. Private persons must be
discouraged from using State machinery for ulterior purposes.
Precedent referred to:
Dumbell v Roberts [1944] 1 All ER 326 / 330
The Court also referred
to Dumbell v Roberts, an English false imprisonment case, for the principle
that no person should be arrested except on grounds which justify reasonable
suspicion, and that damages should be sufficient to give reality to the protection
afforded by law.
The Court adopted the
idea that the more high-handed and unreasonable the detention, the larger the
damages may be. This principle was applied by analogy to the petitioner’s
unlawful arrest, remand, disruption of travel, and reputational harm.
13. Main legal
principles emerging from the judgment
The judgment
establishes or reaffirms the following principles:
A complaint alone does
not justify arrest. The police must assess whether the complaint is credible.
Reasonable suspicion
must be objective. It must rest on facts or credible information, not on vague
suspicion.
In alleged financial
fraud, police must distinguish between a commercial dispute and a criminal
offence.
Arrest is not to be
used as a means of pressure, punishment, or debt recovery.
A person arrested must
be told the real and essential grounds of arrest in language he understands.
Vague statements such
as “financial fraud” or “investigation” are insufficient if they do not
disclose the substance of the allegation.
Arbitrary arrest
violates both Article 13(1) and Article 12(1).
Equal protection under
Article 12(1) includes protection against arbitrary executive action.
A private person may be
liable in Fundamental Rights proceedings if he instigates or participates in
executive action that violates rights.
The Attorney General’s
discretion to indict is wide, but not constitutionally unreviewable.
A prosecutor is a
minister of justice, not a partisan seeker of conviction.
Before indictment,
State Counsel must consider the whole material, including exculpatory evidence
and the mental element of the offence.
Indictment on plainly
insufficient evidence may be arbitrary or capricious.
Compensation under
Article 126(4) is flexible and may be ordered against private parties where
justice requires.
14. The lesson to be
learned from this judgment
The largest lesson is
that the criminal justice system must not be converted into a private
instrument of coercion. A person who has a money dispute cannot simply dress it
up as cheating, walk into the CID, and cause the arrest of another citizen. The
police must not become the collecting arm of a private complainant. They must
investigate. They must verify. They must ask whether the complaint is probable.
They must look at both sides.
The second lesson is
that liberty is not a matter of administrative convenience. An arrest leaves a
scar. It interrupts life, damages reputation, and places the citizen under the
power of the State. Therefore, before arresting, especially in a white-collar
or financial case, the police must ask: What is the offence? What is the
material? What is the mental element? Is this really criminal, or merely civil?
The third lesson is for
prosecutors. The Attorney General has great power, but that power is held in
trust for justice. The prosecutor must not merely ask whether there is a
complainant and a bank slip. He must ask whether the legal ingredients of the
offence are present. He must consider the defence explanation. He must consider
exculpatory material. He must not indict first and think later.
The fourth lesson is
for private complainants. If a private person knowingly makes a false complaint
and thereby sets the machinery of State oppression in motion, he may personally
pay for it. The award of Rs. 3 million against the 6th respondent is a warning
that abuse of criminal process can have serious civil and constitutional
consequences.
In simple terms, this
judgment says: the power to arrest is not the power to intimidate; the power to
prosecute is not the power to oppress; and the criminal law is not a weapon for
private revenge or debt recovery.
See judgment below
DECIDED ON: 20.09.2023
Aluwihare, PC, J.
The Petitioner, an
employee of George Steuart (Pvt) Limited, complained that his Fundamental
Rights enshrined in Articles 11, 12(1), 13(1) and 13(2) of the Constitution
were violated by the Respondents. The 6th Respondent is a private party, and
the Petitioner alleges that the 6th Respondent lodged a false complaint against
him with the Criminal Investigation Department, which the Petitioner claims,
led to his arrest. On 01.02.2019, this
Court granted Leave to Proceed for the alleged violations of the Fundamental
Rights of the Petitioner under Articles 12(1), 13(1) and 13(2) of the
Constitution.
The Factual Background
According to the
Petitioner, he had been acquainted with a certain Rehana Marian Sebastian
[Hereinafter referred to as Rehana] for a long time. Sometime later, Rehana
introduced the Petitioner to her sister, presently, his wife, Stephanie Sylvia
Sebastian. The Petitioner’s relationship with the 6th Respondent resulted from
his acquaintance with Rehana. The Petitioner states that the 6th Respondent and
Rehana had entered into a loan agreement for a sum of Rupee Fifty-Three Million
whereby Rehana had agreed to pay back the principal with an interest of 12% per
annum, to the 6th Respondent. The Petitioner’s position was that he was totally
oblivious to this transaction between the 6th Respondent and Rehana, at the
time the incident central to the present application took place. At some point
Rehana had approached the Petitioner, stating that she was receiving money from
a friend, namely the 6th Respondent and had requested the Petitioner to
facilitate the said transaction by permitting that money to be credited to his
bank account and provided a letter (Marked P 13) which states that she was to
receive money from a friend as a loan on interest and that she does not have a
bank account with the Sampath Bank PLC. This request, that is to allow her
friend to deposit the said money to the Petitioner’s account, appears to have
been made purely for their convenience. The Petitioner had agreed because of
his close relationship with Rehana and this conduct on the part of the
Petitioner does not appear to be unusual given the fact that Rehana was his
sister -in- law to be.
Sometime after this
request was made, a sum of Rupees seven million Rupees 7,000, 000 /- was
deposited to the Petitioner’s account in several tranches, which the Petitioner
had withdrawn and handed over to Rehana. Rehana’s position was that she repaid
the amount borrowed, with interest, however, the 6th Respondent had threatened
her, which had prompted her to write to the Officer-in-Charge of Keselwatte
Police on 02.05.2018. Her sister, Stephanie also had made statements at the
Narahenpita Police and Keselwatte Police on 04.05.2018 and 18.05.2018
respectively, stating that her sister Rehana had repaid all the monies borrowed
and had submitted documents and bank slips to the police as proof of the
repayment.
On 07.05.2018 the 6th
Respondent had visited the Petitioner’s house in his absence, and had intimated
to his father that he had deposited the money to the bank account of the
Petitioner and that he will be compelled to complain to the Criminal Investigation
Department if the Petitioner fails to repay him. The 6th Respondent also
provided his mobile phone number to the father with instructions for the
Petitioner to phone the 6th Respondent. The Petitioner as requested had phoned
him on the very day itself. The Petitioner’s position was that, as he felt the
conduct of the 6th Respondent was dubious, therefore, he took precautions to
record the conversation he had with the 6th Respondent.
The Petitioner had,
along with the petition, filed a transcript of this conversation. Throughout
the conversation the Petitioner denies knowledge of any transaction between the
6th Respondent and Rehana. Moreover, the 6th Respondent provided several unrelated
and convoluted reasons for depositing the money to the Petitioner’s account and
had threatened to have a complaint lodged at the FCID. Importantly, throughout the conversation,
there is no mention whatsoever by the 6th Respondent regarding any agreement or
an arrangement between the Petitioner, Rehana and himself to import two BMW
vehicles for his use. The significance of this omission will be apparent later.
The very next day i.e., 08.05. 2018, the Petitioner had lodged a complaint
against the 6th Respondent at the Narahenpita police, alleging criminal
intimidation.
On 01.06.2018 the 6th
Respondent had lodged a complaint with the Criminal Investigation Department
[Hereinafter the CID] complaining that the Petitioner and Rehana defrauded the
6th Respondent of seven million rupees [Rs.7.0 million] by agreeing to import two
BMW vehicles on behalf the 6th Respondent. He further claimed that the
Petitioner and Rehana are avoiding the 6th Respondent. No documentation is
available before this Court as proof of the existence of this purported
Agreement or any communications between the Petitioner and the 6th Respondent
to indicate such an arrangement or agreement was negotiated between the
parties. The only documents produced by the 6th Respondent are the bank slips
indicating that seven million Rupees were deposited into the account of the
Petitioner in several transactions. The Petitioner, however, has not denied the
receipt of the money but has explained that the money was received to
facilitate the transaction between the 6th Respondent and Rehana, which was
referred to earlier. It is also important to note that, as referred to earlier,
nowhere during the phone conversation on 07.05.2018, between the 6th Respondent
and the Petitioner, the 6th Respondent refers to any agreement to import
vehicles, although several unrelated accusations had been made by the 6th
Respondent against the Petitioner. Thus, the basis of the complaint to the CID,
which was made three weeks after the telephone conversation, appears to be an
entirely new accusation made by the 6th Respondent.
The objections filed by
the Respondent CID officers, do not give details of the investigations and/or
steps taken by the CID in pursuance of the 6th Respondent’s complaint. What is
more shocking is that, after the complaint was made against the Petitioner, no
attempt appears to have been made by the CID officers to notice the Petitioner
of the complaint made against him nor had independently verified the truth of
the allegation. Instead, the 2nd Respondent claims that the Petitioner was
absconding. In the B Report dated 19.09.2018 (which is more than four and a
half months after the complaint) filed by the CID officers marked “2R 1” it is
stated that there is reliable information that the Petitioner was attempting to
travel abroad to evade justice and on that basis a travel ban under Section 51C
(1) of the Immigrants and Emigrants Act (as amended) was sought from the
Learned Magistrate of the Wattala and it was issued on the same day. No
document was produced as proof of any notice being issued to the Petitioner.
The Petitioner on the other hand had produced taxi bills as evidence of his
travels he made from his residential area as proof that he was very much in the
area where he lived and had made no attempt to abscond.
Oblivious to all these events, the Petitioner
had planned to travel overseas to China and Malaysia on holiday in November
2018, which was five months after the initial complaint. On arrival at the
Bandaranaike International Airport on 15.11.2018 to board a flight scheduled to
depart, he was informed at the Immigration Counter that he was charged with an
offence, and a travel ban is in operation. The Petitioner states that this was
the first time he was informed of any allegation or charge against him by the
authorities. According to the Petitioner, he was arrested by a CID officer. The
arrest notes marked “2R 3” indicate that the Petitioner was arrested at 23:20
hours. According to the Petitioner, despite making several inquiries to
ascertain information about the offence he had allegedly committed, the only
information divulged was that it was related to the financial fraud of seven
million Rupees.
Some officers of the
CID had arrived from Colombo and had taken over the custody of the Petitioner.
Once in Colombo, he was informed that he had misappropriated and/or defrauded
money at the behest of one Rehana. The
Petitioner was further informed that he was arrested on a complaint made by one
Maheepala Saveen Chathuranga Gunaratne, (the 6th Respondent), for defrauding or
misappropriating seven million Rupees. The said complaint alleges that the
Petitioner committed criminal breach of trust by obtaining 7 million rupees on
a promise to import two BMW vehicles on behalf of the 6th Respondent and that
the Petitioner was introduced to the 6th Respondent by Rehana.
Subsequently, the
Petitioner was produced by the 2nd Respondent before the Learned Acting
Magistrate of the Wattala on 16.11.2018 who refused to enlarge him on bail, as
the CID officers informed the court, that further time is required to conduct
investigations. The Petitioner had been remanded until 19.11.2018 and on
19.11.2018, it was submitted that a statement had not yet been taken from the
Petitioner and the Petitioner was further remanded till 23.11.2018, on which
date Bail was finally granted, after having been incarcerated for 8 days.
Petitioner filed the
present petition on 13.12.2018 seeking relief and during the pendency of this
matter, the Hon. Attorney General on 23.07.2019 had forwarded an indictment in
terms of Section 400 of the Penal Code against the Petitioner.
I shall now consider
the alleged violations of the Fundamental rights of the
Petitioner.
Alleged Violation of
Article 13(2) of the Constitution
Article 13 (2) provides
that; “Every person held in custody, detained or otherwise deprived of personal
liberty shall be brought before the judge of the nearest competent court
according to procedure established by law, and shall not be further held in custody,
detained or deprived of personal liberty except upon and in terms of the order
of such judge made in accordance with procedure established by law” As held in
Farook v Raymond and Others [1996] 1 Sri L.R 217,
“the object of Article 13(2) of the
Constitution is to afford a person who has been deprived of his personal
liberty by executive action, to have the benefit of placing his case before a
neutral person ‑
a judge ‑ so that a judicial
mind may be applied to the circumstances and an impartial determination made in
accordance with the applicable law. The provision is designed to eliminate
arbitrariness in depriving a person of his liberty, and this extends to the exclusion
of arbitrariness on the part of a judge who orders that a person brought before
him be further held in custody, detained or deprived of personal liberty. If in
depriving a person of his liberty a judge does not act according to procedure
established by law, there is a contravention of the guarantee enshrined in
Article 13(2) of the Constitution.”
The procedure
established by law in which a detainee is to be produced before a judge is
contained in Section 36 and 37 of the Code of Criminal Procedure Act No. 15 of
1979. Sections 36 and 37 reads as follows;
“A peace officer making
an arrest without warrant shall without unnecessary delay and subject to the
provisions herein contained as to bail take or send the person arrested before
a Magistrate having jurisdiction in the case”
“Any peace officer
shall not detain in custody or otherwise confine a person arrested without a
warrant for a longer period than under all the circumstances of the case is
reasonable, and such period shall not exceed twenty-four hours exclusive of the
time necessary for the journey from the place of arrest to the Magistrate”
It is apparent from the
above Sections that a detainee should be produced within 24 hours before a
Magistrate having jurisdiction in the case. Petitioner states that there was a
deliberate attempt to delay in producing the Petitioner before a Magistrate.
The arrest notes marked “2R 3” indicate that the Petitioner was arrested on
15.11.2018 at approximately 23:30 at the Airport. The Petitioner disputes the
time of the arrest as 22:30, however, given that the Petitioner’s flight was
scheduled to depart at 00:25 hours on 16.11.2018, it is highly likely that the
arrest took place between 22:30 and 23:30.
According to the
Petitioner, he was produced before the Magistrate on 16.11.2018 approximately
at 23:30 hours. If there was a deliberate attempt to delay the production of
the Petitioner, it is highly likely that he would have been produced much
later. The Petitioner was arrested on the 15.11.2018 and was produced before
the Magistrate on 16.11.2018, according to the B Report marked “2R 4”.
Therefore, it appears that he had been produced before the magistrate within 24
hours. Hence, I hold that the Petitioner has failed to establish that the
Respondents had violated his fundamental rights enshrined in Article
13(2).
Alleged Violation of
Article 13(1) of the Constitution
The personal liberties
of a person are protected from arbitrary arrest by Article 13(1) of the
Constitution. Article 13(1) provides that “No person shall be arrested except
according to procedure established by law. Any person arrested shall be
informed of the reason for his arrest.” The procedure established by law for
arresting a person without a Warrant is set out in Chapter IV B (Sections 32‑43) of the Code of
Criminal Procedure.
According to the 2nd
Respondent’s affidavit, it is stated [paragraph 6(c)] that “the Petitioner
could not be found in his usual place of abode when the police visited his
residence in order to record a statement”. Thereafter, the facts were reported
to the Learned Magistrate in the Magistrate Court of Wattala by way of a B
report dated 19.09.2018 marked “2R 1” and a travel ban was sought and was
issued by the Learned Magistrate on the same day. Subsequently, the Petitioner
was arrested on 15.11.2018 at the Airport. Therefore, it is apparent that the
Petitioner was arrested without a warrant.
The Respondents justify
the arrest by resorting to Section 32(1)(b) of the Code of
Criminal Procedure
Code. Section 32(1)(b) provides that;
“(1) Any peace officer
may without an order from a Magistrate and without a warrant, arrest any person-
(a) who in his presence commits any breach of the
peace;
(b) who has been concerned in any cognizable
offence or against whom a reasonable complaint has been made or credible
information has been received or a reasonable suspicion exists of his having
been so concerned;”
Even to make an arrest
under Section 32(1)(b) of the Code of Criminal Procedure, reasonable suspicion
must exist of the suspect having been concerned with a cognizable offence in
the mind of the police officer effecting the arrest. The test is objective, and
an arrest made purely on subjective grounds or on a general or vague suspicion
would be arbitrary. What would amount to a reasonable suspicion? The
requirement is limited and is not equated with prima facie proof of the
commission of the offence. As stated, however, by His Lordship Justice
Amarasinghe in Channa Pieris and Others v. Attorney General and Others [1994] 1
Sri L.R 1 at p. 46
“A reasonable suspicion
may be based either upon matters within the officer’s knowledge or upon
credible information furnished to him, or upon a combination of both
sources.”
Police officers cannot
mechanically make an arrest upon a mere complaint received, without forming the
opinion that the allegation is credible. Thus, a police officer is required to
make necessary investigations, unless the facts are obvious, to verify whether
the complaint is credible or whether the information provided is reliable. An
arrest upon a general or vague suspicion would lead to significantly abridging
the personal liberties guaranteed to a person by the Constitution. Therefore,
an element of prudence is required from police officers before making an arrest
to verify the allegation. This requirement, in my view, applies with greater
force in ‘white collar’ crimes. The reason being, it needs to be ascertained
whether the impugned transaction is purely a commercial transaction which had
gone wrong or whether the suspect had the intent to defraud.
As held in Gamlath v
Neville Silva and Others [1991] 2 Sri L.R 267;
“A suspicion is proved
to be reasonable if the facts disclose 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.”
Moreover, the principle
laid by Lord Devlin in Shaaban Bin Hussien v Chong Fook Kam [1969] 3 All ER
1626 at 1630 is relevant to the instant case. As a general rule, an arrest
should not be made until the investigation is complete. Still, the legislature allows
police officers to affect an arrest before the completion of the investigation
in certain circumstances; this is to avoid the investigation process being
hampered and in order to maintain the law and order in the country. But to give
the power to arrest on a reasonable suspicion does not mean that it should
always be or even ordinarily be exercised. It means that there is executive
discretion. In the exercise of such discretion, many factors must be
considered. Besides the strength of the case, the possibility of escape,
obstruction of the investigation, prevention of further crimes, and the threat
of the accused to the public are some of the factors a police officer may
consider. Thus, it appears the ‘strength of the case’ is a critical factor in making
an arrest. In the words of Lord
Devlin;
“It is indeed desirable
as a general rule that an arrest should not be made until the case is complete.
But if arrest before that were forbidden, it could seriously hamper the police.
To give power to arrest on reasonable suspicion does not mean that it is always
or even ordinarily to be exercised. It means that there is an executive
discretion. In the exercise of it many factors have to be considered besides
the strength of the case. The possibility of escape, the prevention of further
crime and the obstruction of police enquiries are examples of those factors
with which all judges who have had to grant or refuse bail are familiar.”
When one considers the
material that was available at the point of arrest, it cannot be said that the
Respondents had a reasonable suspicion that the Petitioner committed an
offence. The Respondents purely acted on the complaint made by the 6th
Respondent, which is evident by the B report dated 19.09.2018 marked “2R 1”.
There is no material before this court indicating that the CID officers had
conducted any investigations to verify the allegation and only had bank
receipts provided by the 6th Respondent as evidence, which merely indicated
that money was deposited into the Petitioner’s account. It is clear that the
officers of the CID had acted on the complaint without making any attempt to
verify the complaint independently or attempting to verify whether the
complaint of the 6th Respondent was creditworthy.
At best, the CID
officers could have suspected a commercial transaction existed between the 6th
Respondent and the Petitioner to import vehicles, and there is nothing illegal
in engaging in a commercial transaction of that nature. On an objective assessment,
investigating officers would require additional credible information to form
the opinion of a reasonable suspicion of a commission of an offence. Evidence
nor any material to form such a suspicion was placed before this Court.
Moreover, the Court
cannot accept that the CID officers had reasons to believe that the Petitioner
was evading justice. The Petitioner was in the country for a period of more
than five months from the initial date of the complaint, and even after a travel
ban was sought, the Petitioner was in the country for nearly two months. It was
pointed out that, if the Petitioner wished to evade justice, he could easily
have made an attempt to travel to a country with a visa-on-arrival concession
was available, instead of making arrangements to travel to China and Malaysia,
two countries that require prior visa approval. Every person is entitled to
enjoy the freedom of movement within and without the country, a fundamental
right guaranteed under Article 14(1) (h) of the Constitution, and as delineated
by Article 4(d) of the Constitution, it is the duty of the State and its
agencies, not to act in a manner to abridge, restrict or deny such right. This
Constitutional duty cast must be respected and adhered to by all persons
concerned without an exception. In this backdrop, when seeking a judicial order
preventing a person travelling overseas, such an order can only be sought in
situations where the officer concerned is possessed of credible information
that the suspect is likely to flee the country and not otherwise.
Necessity to Inform the
Reason for the Arrest of the Petitioner
Article 13(1) requires
a person to be informed of the reason for the arrest. Justice
Sharvananda states the
purpose of this requirement in his treatise, “Fundamental
Rights in Sri Lanka” on
page 141 as;
“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 allegation or accusation against him is so that he can consult his
attorney-at-law and be advised by him.”
Further, Section 23(1)
of the Code of Criminal Procedure requires that the person making an arrest to
inform the person to be arrested of the nature of the charge or allegation upon
which he is arrested. This requirement aims to ensure that the person arrested
is afforded the opportunity to challenge the arrest at the earliest
opportunity. A particular form is not required for the notification, nor does
it require a complete detailed description of the charges against the suspect.
The requirement is for the arrested person to be told in simple, non-technical
language that he can understand, the essential legal and factual grounds for
his arrest at the earliest reasonable opportunity. Justice Sharvananda in his
treatise (supra), on page
141 in this regard,
went on to state that;
“All the material facts
and particulars which form the foundation of the arrest must be furnished to
the arrested person because they are the reasons or grounds for his arrest to
enable the arrested person to understand why he has been arrested.”
“Further, it is
important that the communication of the reasons should be in a language that
the arrestee understands. The adequacy of the reasons for arrest require that
they are: (a) such as to prima facie warrant arrest and (b) based upon
information which is considered reliable”
The Petitioner contends
that at the time of the arrest, the CID officer that arrested him at the
Airport merely informed him that he was arrested on a charge that was related
to the financial fraud of seven million rupees. Meanwhile, the arrest note marked
“2R 3” produced by the 2nd Respondent states that;
“මෙෙ
ගුවන්
ෙගියාට
අපරාධ
පරීක්ෂණ
මෙපාර්à¶à¶¸ේන්ුමේ
à·€ිම
à·‚ේ
à·€ිෙ
à¶à¶«
අං 11 ෙගින්
à·ƒිදු
කරනු
ලබන
à·€ිෙ
à¶à¶±à¶ºà¶šà¶§
අෙලව
à·€à¶්ර්ල
ෙ/උ
බී
1505/18 අෙලව
ලබාමෙන
ඇà¶ි
ගුවන්
ර්හනේ
නිමයාෙ
ප්රකාරව
කරුණු
පහෙ
දී
පැය
2320ට
මනා
84/90, නාවල
පාර,
නාරාමහ්ේන්ිට
ලිිනමේ
පදංචි
ෙමේෂන්
මරායි
à·ƒේසන්
යන
අය
අà¶්ඩංගුවට
ෙන්නා
ලද.”
It is pertinent to
observe that even the arrest note produced does not state the substance of the
allegation or charge against the Petitioner and only provides a vague statement
that the reasons for the arrest were given. Informing that the Petitioner was arrested
on a complaint related to the financial fraud of seven million Rupees is not
sufficient for the Petitioner to understand the legal and factual grounds for
his arrest. The requirement is to ensure that the arrested person is aware of
the reasons relied on to deprive his liberty. In the present case, the
information divulged was insufficient in our view for the Petitioner to
appreciate the allegation or accusation against him.
On the other hand, even
if the CID officer that arrested the Petitioner stated the allegation or charge
against him, the allegation must be one that is be based on information well
founded. Section 32(1)(b) of the Code of Criminal Procedure provides for the
arrest of a person concerned with a cognizable offence without a warrant if
there is a reasonable complaint, credible information or reasonable suspicion
against such person. Therefore, a person cannot be arrested on a vague
allegation. It must be based on information well-founded, and only if the
allegation or charge against a person is well-founded can the accused be
produced before a Magistrate as per Section 114 of the Code of Criminal
Procedure Code. Otherwise, the accused has to be released on an execution of a
bond.
Parroting a vague
allegation to the Petitioner cannot excuse the Respondent's liability under
Article 13(1) of the Constitution. If the allegation was vague, then there were
no reasons for the arrest. If there were no reasons for the arrest to begin
with, then there was no charge or allegation to inform the Petitioner. The
right to arrest and the duty to submit are correlative. A person having lawful
authority to deprive the liberty of another person must know the reasons for
the arrest, otherwise, it will constitute false imprisonment. As held in
Christie and Another v Leachinsky [1947] 1 All ER 567 at 579
“The omission to tell a person who is
arrested at, or within a reasonable time of, the arrest with what offence he is
charged cannot be regarded as a mere irregularity.
Arrest and
imprisonment, without a warrant, on a charge which does not justify arrest, are
unlawful and, therefore, constitute false imprisonment, whether the person
making the arrest is a policeman or a private individual”
The Court held further
at page 580 that;
“I find it impossible to suppose that the
law will hold the arrest good if it subsequently appears that the officer had
in his own mind an unexpressed suspicion that a felony had been committed.”
Similarly, the
arresting officers could not have arrested the Petitioner if the allegation was
not well founded. Consequently, the arrest was defective from the inception.
Hence, even if reasons are given by the arresting officer, such reasons were
also defective. Therefore, I declare that the Petitioner’s rights under Article
13(1) are infringed.
Alleged Violation of
Article 12(1) of the Constitution
Article 12(1) of the
Constitution guarantees that “All persons are equal before the law and are
entitled to the equal protection of the law”. The essence of Article 12(1) is
to ensure that a person is protected from arbitrary, capricious, irrational,
unreasonable, discriminatory, or vexatious, executive or administrative
actions. Delivering the judgement in the case of Rajapaksha v Rathnayake and
Ten Others Sri
L.R 1 [2016] 119 at p.
130, His Lordship Justice Sisira de Abrew stated that;
“When the 1st Respondent arrested the
petitioner without any reasons and fabricated a false charge against him, can
it be said that he got equal protection of law and that the 1st Respondent
applied the principle that 'all persons are equal before the law' to the
petitioner? This question has to be answered and is answered in the negative.
It is now proved that the petitioner was arrested and detained in the police
station without any reasons and the charge framed against him was a fabricated
charge. Thus, the principle that 'all persons are equal before the law and are
entitled to the equal protection of the law' has not been applied to the
petitioner by the 1st Respondent.”
It is explicit that the
power of arrest cannot be exercised arbitrarily. It would deny the equal
protection of the law to the Petitioner. In the present case, the arrest was
made, merely on the complaint without any verification of the allegation made.
Moreover, the Respondents had ample opportunity to check the veracity of the
allegation since the arrest was made after five months from the initial
complaint. The 6th Respondent had provided the telephone number of the
Petitioner to the CID when the initial complaint was made. In the objections
filed on behalf of the 1st to the 8th Respondents, which are ‘sparse’ to say
the least, it is averred that the ‘Petitioner could not be found in his usual
place of abode when the police visited his residence’. The objections do not disclose the date and
time they visited the residence of the Petitioner and how many such attempts
were made. If he was not at his residence, did they leave the contact number of
the investigating officer with any inmate of his residence, requesting the
Petitioner to contact the CID? What prevented them from acting under Section
109(6) of the Criminal Procedure Code, a provision which all law enforcement
agencies regularly resort to, in order to compel persons to attend the office
of the law enforcement agency, in the instant case the CID. What prevented CID
officers, from calling the Petitioner on his telephone as the number was
available to the CID? If any of these
steps were taken, in all probability they would have secured the presence of
the Petitioner and would have provided the CID officers with an opportunity to
question and verify the complaint and the Petitioner could have directed the
CID officers to the police complaints made to the Keselwatte Police and
Narahenpita Police Station on numerous instances, thereby allowing him the
opportunity to purge any suspicion.
The credibility of the
6th Respondent’s version is also suspect and appears to be low. It is unlikely
for a person to import high-end luxury vehicles without entering into some
agreement, which provides for the particulars of the transaction, before parting
with money. It is common knowledge that unlike any other merchandise, when
placing an order for a vehicle the specifications of the vehicle matters. The
engine configuration, the options the buyer would want the vehicle to be
equipped with, the colour and the list goes on. In addition, the mode of
liability, method of payment are all factors that any reasonable party will
consider before entering into a similar transaction, therefore, parties are
bound to leave behind a paper trail. Whether such a ‘high end’ vehicle can be
imported for a sum of Rs.7.0 million is also questionable. In the complaint of
the Petitioner, he does not disclose the cost it would incur to import each
vehicle.
According to the
‘complaint’ made by the 6th Respondent to the CID, he states that somewhere in
2017, at the residence of Rehana, he had met both Rehana and the Petitioner
regarding the importation of two BMW vehicles, which the petitioner had denied.
The arrangement, according to the 6th Respondent, was for Rehana to import a
BMW X5 and the Petitioner to import a BMW 318i. Accordingly, he had credited
Rs. 23.4 million to Rehana and Rs. 7.0 million to the Petitioner in July and
August 2017, expecting the vehicles to arrive in December 2017. The vehicles,
however, had not arrived according to the 6th Respondent. Going by the version
of the 6th Respondent, it was a joint arrangement of both Rehana and the
Petitioner to source the two vehicles. Strangely, the 6th Respondent had lodged
a complaint only against Rehana leaving out the Petitioner and subsequently
followed it up by lodging a separate complaint against the Petitioner. The
complaint against the Petitioner had been made on the 1st June 2018, however
the date of the complaint against Rehana is not available to the court.
In spite of the fact
that the vehicles had not arrived even by December as alleged, the 6th
Respondent had given a loan of Rupees fifty-three million [RS.53.0 million] to
Rehana in December 2017, at 12% interest payable in three months. The loan
agreement, a notarially attested document has been produced marked “P12”.
According to the
Petitioner, the 6th Respondent had visited his house at a time when he was not
at home and had instilled fear in his father to the effect that he would get
the Petitioner remanded for 3 months as he has lodged a complaint with the CID.
The 6th Respondent also had said that he credited Rs.7.0 million to the
petitioner’s account and had left his telephone number with his father.
The Petitioner states
that, as he has had no previous interactions with the 6th Respondent, he phoned
him up straight away and took the precaution to record the conversation. The
transcript of the conversation has been produced marked “P19”. It is clear from
the transcript that there is no mention whatsoever regarding an arrangement for
importation of vehicles. In the course of the telephone conversation, the 6th
Respondent clearly says that he credited to the Petitioner’s account as
requested by Rehana as she required money to place an order to import
ointments. It is also clear from the transcript that this was the first
conversation between the Petitioner and the 6th Respondent and that they had
not known to each other before.
From the above, along
with other material produced by the respective parties to this application, it
is clear that the version of the 6th Respondent is bereft of any credence, and
his complaint appears to be a concocted one.
After the telephone
conversation, as referred to earlier, the Petitioner had lodged a complaint
against the 6th Respondent at the Narahenpita police on the very next day, i.e.
on 08.05.2018, alleging criminal intimidation. The Respondents, however, in particular
the 1st to the 3rd Respondents, had not considered any of these material facts
and merely acted on the word and on the Bank slips provided by the 6th
Respondent. I wish to reiterate that, especially in cases where financial fraud
is alleged, it is incumbent on the investigating agency to ascertain whether it
is purely a transaction commercial in nature or whether a criminal element is
present. As far as this incident, was concerned, this aspect was an essential
part of the investigation, which the CID officers had to carry out before
proceeding to place the Petitioner in custody. In the circumstances I hold that
the arrest of the Petitioner is arbitrary, irrational, and unreasonable and had
deprived the Petitioner the equal protection of the law guaranteed to him under
the Constitution. Thus, I declare that the 1st to the 3rd Respondents had
infringed the Petitioner’s fundamental right under Article 12(1) of the
Constitution.
Liability of the 6th
Respondent
The 6th Respondent was
absent and unrepresented when this application was supported for leave to
proceed, nor was he represented when this matter was taken up for argument,
although notice was issued to him, on no less than four occasions. After the arguments were concluded, however,
in the interest of justice, the Court took the additional step of issuing
notice on the 6th Respondent for the fifth time, through the Officer-in-Charge
of the Sapugaskanda Police Station. On 23.03.2023 he was represented by Counsel
and sought permission to file objections on behalf of the 6th Respondent, which
was permitted.
As per the statement of
objections filed by the 6th Respondent, he states as per paragraph 5(f) and
5(g) that;
“That the petitioner although has taken
money never took steps to import one BMW 318i car as agreed and just passed
time making various excuses and thereafter never answered the phone. The said
Rehana who also had taken 23 million from the 6th Respondent did not take steps
to import BMW 5 car as agreed and ceased all contacts with the 6th Respondent”
That thereafter the 6th
Respondent made separate complaints against the said Rehana and the Petitioner
at the CID. The 6th Respondent handed over the original deposit slips to the
CID during the investigation regarding the said complains and the Petitioner
has also admitted that he received money”
The complaint made by
the 6th Respondent against the Petitioner is certainly false. This can be
gleaned from the background facts. During the phone conversation between the
Petitioner and the 6th Respondent on 07.05.2018 as said earlier, there is no
mention of any agreement to import vehicles, by the 6th Respondent. Parties are
likely to negotiate in depth any commercial arrangement, but no evidence was
forthcoming from the 6th Respondent as proof of such an agreement. Hence,
considering the material that is available at this point of time, the inference
that can be drawn is that the complaint made by the 6th Respondent is false and
bereft of any truth.
The entire process that
culminated in the arrest of the Petitioner was instigated by the 6th Respondent
and consequently resulted in the breach of the Petitioner’s fundamental rights.
I am of the opinion that this is a fit matter to apply the principle laid down
in the case of Faiz v Attorney General and Others Sri L.R 1 [1995] 372. In the
case of Faiz [supra], his Lordship Justice Mark Fernando stated;
“Article 126 speaks of an infringement by
executive or administrative action; it does not impose a further requirement
this action must be by an executive officer. It follows at the act of a private
individual would render him liable, if in the circumstances that act is
"executive or administrative". The act of a private individual would
be executive if such act is done with the authority of the executive such
authority; transforms an otherwise purely private act into executive or
administrative action; Such authority may be express, or implied from prior or
concurrent acts manifesting approval, instigation, connivance, acquiescence,
participation and the like (including inaction in circumstances where there is
a duty to act); and from subsequent acts which manifest ratification or
adoption. While I use concepts and terminology of the law relating to agency,
and vicarious liability in delict, in my view responsibility under Article 126
would extend to all situations in which the nexus between the individual and
the executive makes it equitable to attribute such responsibility. The
executive, and the executive officers from whom such authority flows would all
be responsible for the infringement. Conversely, when an infringement by an
executive officer, by executive or administrative action, is directly and
effectively the consequence of the act of a private individual (whether by
reason of instigation, connivance, participation or otherwise) such individual
is also responsible for the executive or administrative action and the
infringement caused thereby. In any event this Court would have power under
Article 126(4) to make orders and directions against such an individual in
order to afford relief to the victim.” [emphasis added]
As we have concluded
that the arrest of the Petitioner was arbitrary and unreasonable and that the
arrest was a direct consequence of the instigation on the part the 6th
Respondent by making a complaint which was false, the 6th Respondent cannot
avoid liability. In the process of protecting the Fundamental Rights of the
citizenry, the Court cannot condone private parties instigating the executive
to use its powers to achieve their ulterior motives unreasonably and/or in an
arbitrary manner. Permitting such
conduct would lead to a breakdown of the Rule of Law and erode public
confidence, as such, infractions should be frowned upon by this Court.
The Decision to Indict
the Petitioner.
When this matter was
taken up, on 12.11.2011, the Court inquired from the learned State Counsel
whether the transcript of the telephone conversation dated 07.05.2018, between
the Petitioner and the 6th Respondent was considered before forwarding the indictment.
Requested by the Court, the learned State Counsel produced the file pertaining
to the Petitioner containing the decision to forward the indictment against
him. Upon perusal of the said file by the Court, it was observed that;
1. The material relating to the telephone
conversation between the Petitioner and the 6th Respondent had not been
considered by the Learned State Counsel before deciding to forward the
indictment.
2. Other than the bare statement stating that
the Complainant had deposited a sum of Rupees Seven Million in the Bank Account
of the Petitioner no other material whatsoever had been considered by the
Learned State Counsel to establish the requisite ingredients, in particular the
requisite mental element of the offence of cheating
3. Further, the Learned State Counsel had paid
scant regard as to whether the facts relating to this case makes out an offence
of cheating and whether the material is sufficient to establish the offence.
Neither a declaration
nor any relief was sought in relation to the indictment against the Petitioner.
The Court, however, cannot ignore the scant regard the Learned State Counsel
had paid when forwarding the indictment. I am reminded of the dicta of his Lordship
Justice Sansoni in the case of The Attorney General vs. Sivapragasam et
al, 60 NLR 468 at p.
471,
“The prosecutor is at all times a
minister of justice, though seldom so described. It is not the duty of
prosecuting counsel to secure a conviction, nor should any prosecutor feel
pride or satisfaction in the mere fact of success .... His attitude should be
so objective that he is, so far as is humanly possible, indifferent to the
result”
Similar views were
echoed by His Lordship Justice Mark Fernando in the case of
Victor Ivon vs. Sarath
N. Silva, Attorney General and Others [1998]1 Sri. L.R. 340 at p. 344. The
Attorney General has a statutory discretion and the decision to file an
indictment; however, this discretion is subject to certain limitations. Any
executive discretion should be exercised on constitutionally permissible
factors. If a suspect is indicted by the Attorney General when the evidence was
plainly insufficient, it would be prima facie arbitrary or capricious. In the
words of His Lordship Justice Mark Fernando;
“If a person complains that he was
criminally defamed at a public meeting, at which he was not present, and the
only witness he has, as to the actual words spoken, is a person who is quite
hard of hearing, could sanction be granted, without any further investigation,
and without the statement of the accused having been recorded? A decision to
prosecute in such circumstances would be, prima facie, arbitrary and
capricious, and so would the grant of sanction.”
No doubt, the Attorney
General enjoys unfettered discretion in almost all aspects of criminal
processes; institution of criminal proceedings, conduct of prosecutions as well
as discontinuing of proceedings and is not obliged to explain why a particular
decision was taken either to indict or not to indict an individual.
Prosecutorial discretion is an essential element of our criminal justice system
and is also critical to the fair and efficient administration of criminal
justice. However, the right to a fair administration of justice holds so
prominent a place in a democratic society that it cannot be sacrificed at the
altar of expediency.
The decision to
prosecute is a serious step that affects suspects, victims, witnesses and the
public at large and must be undertaken with the utmost care. Many common law
jurisdictions apply a two- stage test in deciding whether or not to initiate a
prosecution; that is evidential sufficiency and the public interest. In
assessing the sufficiency of evidence, the prosecutor should consider, the
admissibility, the reliability and the credibility of the material. The
evidence of the defence and any argument which might be put forth should be
weighed before asking whether it is more likely than not a court would convict
the accused. There must be a rigorous examination of the case to ensure that
indictments are not made prematurely. Before indictments are filed, the
Attorney General should consider if there are reasonable grounds to suspect
that the person to be indicted has committed the offence, or if further
evidence can be obtained to provide a realistic prospect of conviction, or if
the seriousness or the circumstances of the case justifies the making of an
immediate decision to file indictments or if it is in the public interest to
file indictments against the suspect.
In the instant case,
the indicting State Counsel had only to consider the statement made by the
Petitioner along with the transcript of the telephone conversation to assess
the truthfulness of the complaint, which unfortunately had not happened.
The complaint itself is
fraught with improbabilities. The version of the Petitioner, the telephone
conversation, and the fact that the 6th Respondent had given Rs.53.0 million to
Rehana in December, which was five months after the purported vehicle transaction
as alleged [by the 6th Respondent] that both the Petitioner and Rehana were
jointly involved, negates any criminal intent on the part of the Petitioner.
It is regrettable
neither the indicting State Counsel nor the officer who supervised and
sanctioned the indictment, had failed in their duty to consider the facts
objectively before taking the decision to indict the Petitioner.
The two decisions
[Sivapragasam and Victor Ivan] referred to above and the jurisprudence of this
court has spelt out that the discretion vested in the Attorney General, as a
public prosecutor, is constitutionally protected and this discretion had been
reviewed by this court, thus the jurisprudence permits this court to consider
any challenge to the exercise of the prosecutorial discretion statutorily
vested with the Attorney General.
Although the discretion
of the Attorney General regarding forwarding of indictments is reviewable, the
circumstances in which the Court will intervene are rare. Prosecutorial powers
are entrusted to identified officers and no other authority can exercise them
or make judgments; it is not within the Courts’ constitutional function to
assess the merits of the polycentric character of official decision-making in
such matters. The Court will only intervene when the decision is prima facie,
arbitrary, capricious, or unlawful.
Needless to state that
the mental trauma one must undergo in facing criminal charges and for that
matter an incitement before the High Court would be considerable. The impact of
it would be greater if the person charged was of some social standing.
Conclusions
We are of the opinion
that the Petitioner has been successful in establishing that his Fundamental
Rights enshrined in Article 12(1), and 13(2) of the Constitution had been
violated by the Respondents and the court proceeds to make a declaration to
that effect.
When one considers the
chain of events, it would be reasonable to draw the conclusion that the 6th
Respondent had made a false complaint, as far as the matters impugned in these
proceedings and had taken advantage of the mechanism of the criminal justice
system to achieve his dubious objectives.
I agree with the view
expressed by Justice Mark Fernando in the case Faiz v. The Attorney General
[supra] when his Lordship said; “…..
when an infringement by
an executive officer,
by executive or administrative action, is directly and effectively the
consequence of the act of a private individual (whether by reason of
instigation, connivance, participation or otherwise) such individual is also
responsible for the executive or administrative action and the infringement
caused thereby. In any event this Court would have power under Article 126(4)
to make orders and directions against such an individual in order to afford
relief to the victim” [at page 383].
As stated earlier, the
facts amply demonstrate that the whole process that triggered the action of the
1st to the 3rd Respondents which led to the infringement of the Petitioner’s
fundamental rights was instigated by the 6th Respondent.
Accordingly, this Court
declares that the 1st 2nd and 3rd Respondents had violated the fundamental
rights of the Petitioner under Articles 12(1) and 13(2) of the Constitution.
The violations aforesaid was either induced or instigated by the 6th Respondent,
who therefore is also responsible for the violations.
His Lordship Justice
Kulatunga in the case Shaul Hameed and Another v Ranasinghe
1990 1 SLR 104,
observed; [at page 119]
“This Court has the power to make an
appropriate order even against a respondent who has no executive status where
such respondent is proved to be guilty of impropriety or connivance with the
executive in the wrongful acts violative of fundamental rights or even
otherwise, where in the interest of justice it becomes necessary to deprive a
respondent of the advantages to be derived from executive acts violative of
fundamental rights e. g. an order for the payment of damages or for the
restoration of property to the petitioner. Article 126 (4) provides that The
Supreme Court shall have the power to grant such relief or make such directions
as it may deem just and equitable in the circumstances in respect of any
petition or reference referred to in paragraphs (2) and (3) or this
Article......". The power of this Court to grant relief is thus very wide.
Such power has been expressly conferred to make the remedy under Article 126
(2) meaningful.”
I agree with the
observation made by Justice Kulatunga referred to above and I am of the view
that the Petitioner should be entitled to compensation for the violations
aforesaid.
I am also of the
opinion that we are bestowed with great latitude in terms of granting relief
under Article 126 of the Constitution and when this Court orders compensation
for the violation of a Fundamental Right it is awarded by way of
acknowledgement of regret and a solatium for the hurt caused by the violation.
As held by His Lordship Justice Amarasinghe in Saman v Leeladasa Sri L.R 1
[1989] 1 at p. 42;
“When, in an appropriate case,
compensation is awarded for the violation of a Fundamental Right, it is, I
think, by way of an acknowledgement of regret and a solatium for the hurt
caused by the violation of a fundamental right and not as a punishment for duty
disregarded or authority abused.”
I am also of the view
that the 6th Respondent, being a private party, should also be ordered to pay
compensation. The 6th Respondent’s actions had led to considerable disruption
of the Petitioner’s life; his plans to embark on a holiday came to an abrupt
halt and had to suffer incarceration in remand custody followed by an
indictment on a charge of cheating. All these events, no doubt, would have
impacted adversely on his life and possibly would have tarnished his reputation
as well. This Court would be failing in its bounden duty if we were to ignore
the grievance caused to the Petitioner or condone the conduct of the 6th
Respondent.
I must also add that
although His Lordship Justice Amarasinghe opined in Saman v Leeladasa [supra]
that deterrence should not be considered as a relevant element in the
assessment of compensation, those opinions were limited to State liability, as
the depths of the State coffers is vast, and the burden of large awards will
inevitably pass to the taxpayer. But in my opinion deterrence is a relevant
element when the Fundamental Rights violation is a result of instigation by a
private party. Private parties should be deterred from instigating the
executive to use its powers to achieve their ulterior motives unreasonably
and/or in an arbitrary manner.
In this regard I am
guided by the judgement of Dumbell v Roberts [1944] 1 All ER at pg. 330, where
it was held that no person should be arrested by the police except on grounds
which in the particular circumstances of the arrest justify the entertainment
of a reasonable suspicion. And that, English Law has recognized that is in the
public interest that sufficient damages should be awarded in instances of false
imprisonment in order to give reality to the protection afforded by the law.
The court went on to observe that;
“The more high-handed and less reasonable
the detention is, the larger may be the damages; and, conversely, the more
nearly reasonable the defendant may have acted and the nearer he may have got
to justification on reasonable grounds for the suspicion on which he arrested,
the smaller will be the proper assessment. The whole of the facts will, of
course, be taken into account on the new trial in order to arrive at a proper
figure.”
Although the judgement
was concerned with appeal from an action for false imprisonment, I believe the
instance case is one that is apt to apply the principle enunciated in Dumbell v
Roberts [supra], as the spectrum of unlawful arrests and false imprisonments
are wide, and the compensations should reflect the events and bereavements of
the Petitioner.
However, I am inclined
to include a word of caution. The quantum of compensation reflected by the
final Order of this Court should not be construed as the rule. It is very much
the exception, especially when making an order regarding payment of compensation
against a private party as oppose to the state and it should be done only upon
carefully weighing the facts and circumstances of each case. The Court is
mindful not to unleash a pandora’s box. Hence, the compensation granted by the
Court is reflected by the circumstances of this case.
Taking into account the
facts and circumstance that led to the violation of the
Petitioners'
fundamental rights, this Court makes order as follows;
1. 1st Respondent is directed to pay a sum of
Rs. 75,000.00 as compensation to the Petitioner.
2. Each of the 2nd and 3rd Respondents are
directed to pay a sum of Rs, 25,000/- as compensation to the petitioner.
3. The 6th Respondent is directed to pay a sum
of Rupees three million [Rs.3.0 million] to the Petitioner as compensation.
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