SRI LANKA INSURANCE CORPORATION

VEN. DHAMARATHANA THERO AND ANOTHER V. SANJEEWA
MAHANAMA AND THREE OTHERS

SUPREME COURT
MARSOOF, P.C., J.
EKANAYAKE, J AND
PRIYASATH DEP, P.C. J.
S.C.F.R. NO. 313/09
NOVEMBER 9TH . 11TH 2011
 

Constitution - Articles 12(1), 13(1) and 13(2) - Violation of fundamental rights - Bail Act No. 30 of 1997 - Section 2 - Grant of bail shall be regarded as the rule and the refusal to grant bail as the exception - Section 6 - Police Officer inquiring into a bailable offence shall not be required to produce the suspect before the Magistrate as a rule - Granting of bail is the guiding principle - Code of Criminal Procedure Act No. 15 of 1979 - Section 32(1)(b) - Any peace officer may without an order from a Magistrate and without a warrant arrest any person against whom there is a reasonable complaint, credible information or a reasonable suspicion.

The 1st Petitioner is the Viharadhikari of the Mihintale Rajamaha Viharaya and the 2nd Petitioner is a samanera bhikku and at the time of the incident was 19 years. On the day of the incident, the 2nd Petitioner had observed the 2nd Respondent and another person meddling with the bags of the pilgrims in the temple. The 2nd Petitioner approached and questioned them. Those two persons abused and pushed him aside.

On the following day a Police Officer came to the temple and informed the 1st Petitioner that there was a complaint against the 1st and the 2nd Petitioners made by the 2nd Respondent and requested them to appear at the police Station. The 1st Petitioner informed the Police Officer that he was not involved in the incident but that he will send the 2nd Petitioner to make a statement.

The next day about 15 armed Police Officers entered the Meda Maluwa and thereafter due to the insistence of the Sub-inspector - in - Charge the 1st Petitioner sent the 2nd Petitioner to the Police Station. Subsequently the 1st Petitioner also went to the Police Station.

82.
 

The 1st Respondent ordered an officer to arrest both 1st and 2nd Petitioners and detain them. The Attorney-at-Law who had accompanied the 2nd, Petitioner moved for police bail. However the Police refused bail and detained the two Petitioners.

The Petitioners alleged that their fundamental rights guaranteed under Articles 12(1), 13(1) were violated. The question to be determined is whether the arrest and detention of the Petitioners are in accordance with the procedure established by the law, in that whether it was in accordance with the provisions of the Code of Criminal Procedure Act No. 15 of 1979. The Petitioners alleged that the arrest and detention were made arbitrarily, mala fide and for collateral purpose. This arrest and detention were made without a warrant issued by the Magistrate.

Held:

In order to arrest a person under Section 32(1)(b) of the Code of Criminal Procedure Act, there should be a reasonable complaint, credible information or a reasonable suspicion. The mere fact of receiving a complaint or information does not permit a peace officer to arrest a person. Police Officer upon receipt of a complaint or information is required to commence investigations and ascertain whether the complaint is a reasonable complaint, the information is credible or the suspicion is reasonable before proceeding to arrest a person.

Per Priyasath Dep P.C. J,

"Granting of bail is the guiding principle of the Bail Act. If this principle is followed it could avoid incarceration of suspect pending trial unless the gravity of the offence or the other circumstances warrants the remanding of suspects. This will reduce congestion in remand prisons. It is the intention of the legislature to minimize the pre-trial detention of suspects."

per Priyasath Dep J.-

The arrest and detention of the Petitioners in these circumstances is a violation of their fundamental rights guaranteed under Article 13(1) of the Constitution.

APPLICATION made under Article

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