D. H. R. A. COREA et al., Appellants, and THE QUEEN, Respondent

132-NLR-NLR-V-55-D.-H.-R.-A.-COREA-et-al.-Appellants-and-THE-QUEEN-Respondent.pdf

Corea v. The Queen
467
119541‘Present: Gratiaen J. and Fernando A.J.IX H. R. A. COREA et al., Appellants, and THE QUEEN,Respondent
S. C. 33—35—D. C. (Criminal) Nnwara Eliya, 279
Arrest without warrant—Cognizable offence—Duly to inform suspect of the chargeagainst Mm—Criminal Procedure Code, ss. 23 (1), 32 (1) (6), 35, 53—PenalCode, ss. 69, 333, 348.-
A police officer acts illegally in Ceylon (as in England) if he arrests a manwithout a warrant on a mere * unexpressed suspicion ’ that a particular cog-nizable offence has been committed—unless ‘ the circumstances are such thatthe man must know the general nature of the offence for which he is detained ’or unless the man * himself produces the situation which makes it practicallyimpossible to inform him In such a case the police officer is liable to beconvicted under the Penal Code for assault and wrongful confinement.
Held further, that a poljce constable who bona fide arrests a person on an'orderwrongly given Ry his senior officer is in certain circumstances entitled to claimthe benefit of the exception to criminal liability set out in section 69 of thePenal Code.
j/^LpPEAL from a judgment of the District Court, Nuwara Eliya.
The 1st appellant, an Inspector of Police, and the 2nd and 3rd appellants,■who were police constables, were convicted of using criminal force on, andattempting wrongfully to confine, one M. The evidence showed that theappellants went to the house of M. in order to inquire into a complaint ofa cognizable offence. Originally M. was “ asked ” or “ invited ” by the1st appellant to accompany the police party to the police station and M.agreed to do so. Later, however, M. changed his mind and refused to gowith the police officers, whereupon the 1st appellant, in the trial Judge’sopinion, “ took exception to the manner in which M. spoke or behaved ”and ordered M’s arrest in order to “ teach him a lesson ”. The subsequentattempts to remove M. forcibly were made without any further intima-t’on to him of the reasons for his proposed compulsory detention or arrest.
Q. E. Chitty, with O. J/. de A hois, for the 1st accused appellant.
G. E. Chitty, with A. S. Vanigasooriar, for the 2nd and 3rd accusedappellants. *.
A. E. Ketunevnan, Crown Counsel, for the Crown.
Cur. adv. vult.
20lv
2J. W. B 36079-1,692 <7/54)
458
GRATIAEN J.—Corea v. The Queen,
May 28, 1954. Gbatiaen J.—
The 1st appellant was at the relevant time an Inspector of Police incharge of the Nuwara Eliya Police Station, while the 2nd and 3rd appel-lants were police constables attached to the same station. They werejointly indicted in the District Court of Nuwara Eliya for the followingoffences :‘
committing house-trespass by entering the residence of F. D. Muna-
weera on 30th August 1949 with intent (a) to use criminal forceon him, (6) wrongfully to confine him and (c) to annoy him ;
using criminal force on him in attempting wrongfully to coiffine
him ;
attempting wrongfully to confine him.
The 1st appellant was in addition charged in the 4th count of the indict-ment with having caused grievous hurt to Munaweera in the course of thesame transaction by shooting him. They were all convicted on the 2ndand 3rd counts, but orders of"acquittal were entered in respect (sf counts 1and 4.
A particularly unsatisfactory feature of this case was that, althoughsuch serious offences were alleged to have been committed in August1949, and Munaweera’s complaint was brought to the immediate noticeof an Assistant Superintendent of Police, non-summary proceedingsagainst the appellants were not commenced until 1st June 1951, and thattoo at the instance of Munaweera in the exercise of his rights as a privatecitizen ; the indictment was presented on 10th September 1952 ; the trialwas concluded on 25th March 1953 ; and the present appeal listed forhearing only on 19th May 1954. These delays speak for themselves.
In Muttusamy v. Kannangara 11 pointed out that “ the actions of policeofficers who seek to search private houses or to arrest private citizens withouta warrant should be jealously scrutinised by their senior officers ” andthat, in cases of this nature, “ it seems preferable that the facts should inthe first instance be reported to the Law Officers of the Crown so that,after an impartial examination of all the available material, the realtransgressors, whoever they might be, could be brought to justice ”. I re-emphasise these observations in connection with the present case.Learned Crown Counsel who appeared before us in support of the convic-tions under appeal stated .that the earliest communication received byhis Department with regard to this case was dated 15th February 1952,
e. 2-and-a-half years after the incident took place. And even thatcommunication was a request by the 1st appellant’s lawyers for an inter-view with a view to having the Magistrate’s order of committal quashed bythe Attorney General.
The leanled District Judge gave the 1st appellant the benefit of thedoubt on the charge of grievous hint, although he was perfectly satisfiedthat the 1st appellant, did (as Munaweera alleged) take a double-barrelled
1 (1951) 52 N. L. R. 324.
OR ATT A F, NT J.—Oorea v. The Queen
459
gun into hi* hands when Munaweera was resisting an illegal attempt toremove him^foreibly from his house to the police station. The learnedjudge was not convinced, however, that the 1st appellant knew that thegun was loaded, and, though confidently rejecting the defence version ofthis part of the incident, he did not rule out the possibility that the grievousgunshot injuries sustained hy Munaweera in the course of his illegal arresthad been accidentally inflicted by the 1st appellant.
The basis of the convictions on the 2nd and 3rd counts—namely, the"harges of using criminal force on Munaweera (section 348 of the PenalCode) and attempting unlawfully to confine him (section 333 read withsection 490)—was that the 2nd and 3rd appellants, acting on the ordersof the 1st appellant, had attempted to arrest Munaweera and to removehim forcibly to the police station in circumstances which made it illegalto arrest a private citizen without the authority of a warrant.
As to the validity of these convictions, I accept as correct the findingsof fact recorded by the learned judge who had. the advantage (which welack) of assessing the oral testimony of the witnesses in the light of certaindocuments almost contemporaneously recording their respective versionsof what took plf ce on the^oight of 30th August 1949. The appellants arewithout doubt entitled to the benefit of every finding in their favourwhich formed the basis of the orders acquitting them on the 1st and 4thcounts (against which the Crown has not appealed). At the same time,after an independent examination of the evidence on record, I agree withlearned Crown Counsel that there is no valid ground for rejecting thefindings of fact which were unfavourable to them, on the other counts.In the result, the question for our decision resolves itself into a questionof law—whether, on the facts as found by the learned judge, the arrest(or attempted arrest) of Munaweera at the instance of the 1st appellanton the night in question was illegal.
On the afternoon of 30th August 1949, a Sanitary Assistant named.Viswalingam arrived at the Nuwara Eliya police station and made an oralcomplaint to the 1st appellant who directed the reserve-sergeant toreduce it to waiting. The gist of the complaint (1)2) was that, afterViswalingam and Dr. Mendis (the Medical Officer of Health) had com-pleted an official inspection of the premises ofE.D. Munaweera’s brotherin connection with a pending case, Munaweera and his brother “ obstruc-ted thei" passage and threatened bodily harm to them Viswalingam“felt greatly humiliated and disgraced”. (Dr. Mendis, according to bisevidence at the trial, did not take the incident so seriously as Viswalingamhad done.)
The 1st appellant was satisfied that this complaint called for policeinvestigation. His purpose in visiting Munaweera’s house at about 7.30p.m. is best explained in his own written statement D9 recorded at 8.40p.m. on the same night—•
“ On a complaint made by Mr. Viswalingam the Sanitary Assistantand supported by Mr. Bowen Sanitary Inspector that thtey had beenintimidated and obstructed when on duty at Mahagastota by Munaweeraand his brother Thomas, I went for inquiry with Police Constables 29and 418 (the 2nd .pnd 3rd appellants). ”
4=60
GRATIAEN J.—Gorea- v. The Queen
Munaweera was at home, wearing a sarong and “ pyjama cpat ”, whenthe appellants arrived. The precise nature of the discussion? which tookplace is in dispute, but admittedly some reference was made to the earlierincident in which Dr. Mendis and Viswalingam had been involved. Itis also common ground that at a certain stage Munaweera was “ asked ”or “ invited ” by the 1st appellant to accompany the police party to thepolice station, and that originally he agreed to do so. Later, however, heexpressed a wish (which was granted) to change into more suitable clothesbefore leaving his house. The 1st appellant then left the scene for ashort while, one of the constables remaining behind with MunSweera.Munaweera also considered it prudent, before leaving for the policestation, to write two letters asking a friend and a lawyer to protect'-hisinterests in the situation which had arisen. One of these letters (P3b)was addressed to a personal friend in the following terms :
“ Dear Aiyah,
I am being called by the Inspector of Police to the police station. Ido not know why. They say that there was a complaint made bythis M. O. H. I am going to the station at his (i.e. 1st Appellant’s)request' Please look after my interests. ”
The subsequent events prevented this letter from being sent to Muna-weera’s friend. When the 1st appellant returned to the scene, Muna-weera had commenced to write another letter (P3c) to a senior Proctorwho was also an Unofficial Magistrate. It reads as follows :
** Dear Mr. Modder,'
Over the instance I told you today about the M. O. H., I am nowbeing called by the Inspector of Police to the police station. I am pro-ceeding with him. Please see about this matter and kindly—”
It will be observed that the last sentence of P3o is incomplete.
The explanation is that Munaweera was not permitted to conclude hisletter to Mr. Modder, nor was he allowed an opportunity to sand it toMr. Modder even in its incomplete form. His evidence at the trial was tothe following effect:
“ The Inspector said, ‘ Come, let us go 5. I said, ‘ I am just writingthese letters ; I will get down somebody to look after my interestsand then come ’. Even at this stage I did not refuse to gov The Inspectorsaid, ‘ You must come immediately ; otherwise I am going to dragyou out ’. Then I refused ….”
This version is substantially supported by his dying deposition which wasrecorded on the same night (after the shooting incident) by the Magistrateof Nuwara Eliya.
i
GRATTAEN J.—Corea v. The Queen
401
The 1st appellant’s written statement D9 (previously referred to)is to the efljbct that, when Munaweera ultimately refused to go to the-police station, “ I told him he would have to come … and to do so•
without a fuss and he said that he would not. I told him, that he must andtold P. G. 418 to bring him out
I shall now quote a passage from the 1st appellant’s oral evidence as to*the events immediately preceding Munaweera’s refusal to accompanyhim to the police station :
“ He wanted time to complete the letters. I said he could completerthem. He continued to write. I asked him not to waste time andto come because he was delaying. As he kept on delaying I saidI would give him two minutes more and if he did not come we would haveto take him . I told the two constables to give him two minutes moreand if he did not come, to bring him. ”
The 1st appellant falsely claimed that he had left the room before the 2nd!and 3rd appellants carried out his orders to remove Munaweera from theroom, and, whep. ^they proceeded to “ drag ” him away by force on his-refnsal to accompany them “ without a fuss ”.
I accept the learned judge’s findings as to the circumstances in which.Munaweera was (perhaps accidentally) shot during the scuffle whichensued. Nor do I see the slightest reason for rejecting the conclusion thatMunaweera was not informed “ on what charge or suspicion of what crimehe was seized ”. Indeed even if the 1st appellant’s intention at that stagehad been only to have Munaweera removed by force to the policestation in order to have his statement recorded under section 122 ofthe Criminal Procedure Code, such action would have been equally-illegal.
It is not, perhaps, completely impossible to construe Viswalingam’scomplaint as having alleged facts constituting an offence punishableunder section of the Penal Code and for which a police officer, reason-ably suspecting the truth of that complaint, may arrest the allegedoffender without a warrant under section 32 (1) (b) of the CriminalProcedure Code. At the same time, the 1st appellant’s written state-ment 1)9 strongly supports the learned judge’s conclusion that “ whenhe went to inquire into this complaint, he did not suspect anything morethan a case of intimidation or obstruction ” (both non-cognizable offences).The learned judge’s impression was that, when Munaweera ultimatelychanged his mind and refused to accompany the police officers to thepolice station, the 1st appellant “ took exception to the manner in whichMunaweera spoke or behaved ” and accordingly ordered Munaweera’s.arrest in order to “ teach him a lesson ”.-
Chapter 12 of the Criminal Procedure Code affords many safeguards-to a private citizen against whom an allegation of having committedcognizable offence is made to the officer-in-charge of a police station. Forinstance, before the officer proceeds to investigate the facts and, if'necessary, to arrest’ the suspect, he must “forthwith ” send a report
2*J. 2T. B 36679 (7/U)
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GRATIAEN J.—Gorea v. The Queen
to his own immediate superior—section 121 (2). This w£-s not done.In one sense, the omission is favourable to the 1st appellant, becauseit exonerates him of an intention to act illegally from the very outset.But in another sense, it supports the view that at a later stage he actedfrom improper motives.
Even on the view which is more favourable to the 1st appellant (namely,■that he believed that he was entitled to have Munaweera arrested withouta warrant on a reasonable suspicion that an offence under section 344of the Code had been committed) the arrest or attempted arrest <ofMunaweera in the particular circumstances of this case was'illegal.The charges of criminal force and attempted wrongful confinementwere therefore equally established against the 1st appellant on eitherhypothesis. Let me explain why.
The Crown strongly relied in both Courts on Muttusamy v. Kannangara{supra). I there held, following the decision of the House of Lords inChristie v. Leachinsky1, that a police officer who would otherwise bejustified in arresting a man without a warrant under section 32 (1) never-theless acts illegally if (subject to certain exceptions which do not hereapply) he does so without informing the suspeci of the ypture of the charge■upon which he is arrested.
Mr. Chitty has invited us to reconsider this ruling. He argued that,■whereas section 53 of the Criminal Procedure Code in terms requires apolice officer arresting a man on the authority of a warrant “ to notifythe substance of the warrant to-the person arrested ” no such duty is•expressly imposed on a police officer who acts without a warrant under•section 32. The submission is that in Ceylon the powers of police officersare regulated by statute, and cannot further be circumscribed by anygeneral principles of the English law (on which the greater part of our'Code is substantially based).
I have given most anxious consideration to Mr. Chitty’s argument, andam very glad to re-affirm my conviction that in this country (as in England)a police officer who arrests private citizens with or without the authority■of a warrant is equally obliged to notify the arrested person of the reasonLor interfering with his personal freedom. A recognition of this funda-mental rule (which owes its origin to the English common law) is demons-trably implicit in the scheme of our Code.o
It is sufficient to refer only to section 23 (1). “ In making an arrest theperson making the same shall actually touch or confine the body of aperson to be arrested unless there he a submission to the custody by word or-actionThe law does not require a man to consent or “ submit ” to his
-detention or arrest unless he knows “the reason why ”. As Lord Simonobserved in Christie’s case (supra), “ the matter is one oi substance, andturns on the elementary proposition that in this country a person is,prima facie, entitled to his freedom and is only required to submit to res-traints on hip freedom if he knows in substance the reason why it is claimedthat this restraint should be imposed ”. It follows as a necessary corollary
(1947) A. G. 573.
GRATIAEN J.—Corea v. The Queen
463
■that “ in noAnal circumstances an arrest without warrant by a policemanor by a private citizen can only be justified if it is an arrest on a charge■made known to the, person arrested ”.
How else can he arrive at a decision whether to “ submit ” of not? Howelse can he satisfy himself that his proposed detention is authorised bylaw?
The judgment of Lord Simonds in Christie’s case (supra) is equallyinstructive. Having observed that “ every citizen is entitled to resistarrest-unless that arrest is lawful ”, he asks, “ Sow can these rights bereconciled with the proposition that he may be arrested without knowing whyhe 4s arrested 1 ”, Similarly, Lord du Parcq points out that “ the right toarrest and the duty to submit are correlative. A man is entitled to hisliberty, and may, if necessary, defend his own freedom by force. Ifanother person has a lawful reason for seeking to deprive him of thatliberty, the person must, as a general rule, tell him what the reason is,far unless he is told, he cannot be expected to submit to arrest, or blamed forresisting ”.
A police officer acts illegally in Ceylon (as in England) if he arrests a manwithout a warraht on a mere “ unexpressed suspicion ” that a parti-cular cognizable offence has been committed—unless, of course, “ thecircumstances are such that the man must know the general nature of theoffence for which he is detained” or unless the man ” himself produces thesituation which makes it practically impossible to inform him ”. Irefuse to believe that the legislature intended police officers or privateindividuals making arrests in this country on their own initiative toenjoy the right to greater reticence than persons who execute warrantsissued by a Magistrate after a judicial decision that the evidence beforehim justified interference with the liberty of the subject before trial.Mr. Chitty’s argument, if sound, would equally apply to any private citizenpurporting to make an arrest under section 35. That cannot be the law ofany civilized country.
In Christie’stcqse (supra) the House of Lords unanimously approved thefollowing propositions laid down by Scott L.J. in the Court of Appealin (1946) 1 K.B. 124:
“ (1) Arrest on a criminal charge always was and still is a mere stepon the procedural road to committal, trial, verdict, judgment,punishment or acquittal.
(2) The power of arrest conferred by the law is limited to the purposeof the particular proceeding, namely the specific charge formulated.
-(3) The arrest must be made on that charge only, and the person
arrested must be told by the constable, at the time of the arrest, whatthe charge is. ”
These rules are equally applicable in Ceylon. “ The law does not allowan arrest in vacuo, or without reason assigned, and the rfeason assignedmust be that the arrest is for the purpose of a prosecution on the self-samecharge as is the justification for the arrest ”.
464
GRATJ AEN J.—Corea v. The Queen
Police officers must also realise that before they arrest without awarrant, “ they must he persuaded of the guilt of the accused. r(*They cannotbolster up their assurance or the strength of the case by seeking furtherevidence and detaining the man meanwhile, or taking him to some spotwhere they can or may find further evidence ”—per Lord Porter in JohnLewis & Go. Ltd. v. Tims 1. In the present ease, the 1st appellant as-serted (and the learned judge believed) that he had not finally decided toarrest Munaweera at the time that he first entered Munaweera’shouse.
Munaweera had agreed in the first instance to accompany the policeofficers for a reason which was not made clear to him (P3b), but he wasperfectly justified before leaving his house, in deciding to notify a lawyerof his own selection of what was taking place. The exercise of thatelementary right was denied him, and he accordingly refused the “ politeinvitation ” to go to the police station. The subsequent attempts toremove him forcibly without any further intimation of the reasons for hisproposed compulsory detention or arrest were quite illegal. For these reasons,
I would affirm the conviction of the 1st appellant on the 2nd and 3rd countsin the indictment. He was the senior officer present, and he was res-ponsible for the actions of the 2nd and 3rd appellants wfio‘were admittedlyacting on his orders. The sentences passed on the 1st appellant mustalso be affirmed. In my opinion, they err on the side of leniency.
As to the convictions of the 2nd and 3rd appellants, however, I takethe view, and learned Grown Counsel very fairly conceded, that theiracquittal on the 1st count (involving as it did a rejection of the suggestedinference that they had entered Munaweera’s house in pursuance of aprior conspiracy to commit the offences alleged in the other counts)should as a necessary corollary have led to their acquittal on the chargeeof criminal force and wrongful confinement as well. It is not improbablsthat, when the senior police officer present eventually ordered Muna weera’sarrest at a later stage, they reasonably and in good faith entertained thebelief that the order was one which they ought to obey. In these cir-cumstances, they were entitled to claim the benefit ofitjie exception to-criminal liability set out in section 69 of the Penal Code. Their case canbe differentiated from one where obedience of an order known to beillegal is relevant only to the question of punishment, but not to the issueof guilt. See Chaman Lai’s case 2. I would therefore allow the appeals ofthe 2nd and 3rd appellants and make order acquitting them. Theirapplications in revision should for the same reason be granted.
Fernando A.J.—I agree.
Appeal of 1st appellant dismissed.
(1952) A. C. 676 at 691.
Appeals of 2nd and 3rd appellants allowed»2 A. I. R. (1940) Lah. 210 at 216,