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Khan v Commissioner of Police [2012] FJHC 1384; HBC545.2006 (19 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 545 of 2006


BETWEEN:


SAHADAT ATAI KHAN of Suva
PLAINTIFF


AND:


THE COMMISSIONER OF POLICE
1ST DEFENDANT


AND:


THE ATTORNEY GENERAL OF FIJI
2ND DEFENDANT


APPEARANCES: Mr Rajendra Chaudhry/GORDON & CHAUDHRY LAWYERS for the Plaintiff


Mr Raramasi/OFFICE OF THE SOLICITOR GENERAL for the Defendants


JUDGEMENT


Background


  1. The present case was filed by the Plaintiff against the Commissioner of Police and the Attorney General of Fiji claiming damages alleging an unlawful arrest without a warrant in breach of the relevant Sections of the Criminal Procedure Code (Cap 21). Further it was alleged that the Plaintiff was detained unlawfully.
  2. In the Statement of Claim filed on 11th December 2006 the Plaintiff stated interalia:

How the loss was created explained in para 10 of the Statement of Claim and Plaintiff had claimed:


(a) Damages including aggravated and exemplary damages;

(b) Special damages of which provided for at the Trial;

(c) Costs on an indemnity basis.
  1. Defendants in their Statement of Defence dated 15th July 2007 stated:
  2. The Plaintiff filed a motion supported by the Affidavit dated 6th March 2007 to set aside the Statement of Defence on the basis that statement filed was contrary to Order 18 Rule 2(11) and Order was granted to accept the Statement of Defence although it was filed outside the time in contrary to the Order 18 Rule 2(11).
  3. Reply to the Statement of Defence was filed by the Plaintiff on 10th of July 2007 and stated:

(ii) the Plaintiff was arrested without a warrant by the officers of the 1st Defendant on 21st of February 2003 from his office and detained for 9 hours and charged for official corruption; (although in the Statement of Defence, the Defendants had stated detention was 7 hours)


(iii) the Plaintiff was subsequently discharged by the Magistrate Court on 21st February 2003;

(iv) the Plaintiff was charged by the 1st Defendant for the second time, and the Magistrates Court once again acquitted and discharged the Plaintiff.
  1. Now this Court has to determine the following issues:

Analysis of Evidence and Facts


  1. Plaintiff, Mr Atai Khan's evidence he stated:
  2. On the 21st of February 2003, one person by the name of Rajendra Narayan came to see him in the office to make a complaint with regard to non registration of a vehicle. (It is important to note in the evidence of the Plaintiff he stated that although he wanted to settle issue at the counters, Mr Narayan had insisted with the officers at the counters he wanted to see the Plaintiff). Mr Narayan was seated in front of the Plaintiff's table and he made the complaint showing some documents. The Plaintiff having perused the documents informed Mr Narayan one more document is required for the registration, and Mr Narayan agreed to bring the document which was at his home and the Plaintiff advised after getting the document that Mr Narayan to meet the counter staff. Mr Narayan had insisted the Plaintiff to keep the other documents with him until his return which was refused and Mr Narayan left the Plaintiff's office.
  3. I reproduce the evidence given by the Plaintiff with regard to his arrest. After Mr Narayan left Plaintiff's office (from page 7 to page 10 of the Proceedings):

"He then left my office with all the documents. About 2 minutes later a gentleman of ethnic Fijian origin approached my office and mentioned, I am a CID police officer from Nabua Police Station. As normal interaction with Police Officers your worship I had no doubt in my mind of his approach and without pestering him I only mentioned "Yes sir, Can I help you? The Police Officer then said we are here to investigate your office for corrupt practices. I was surprised by the comments of the police officer. When I looked up and in the spur of the moment I looked up 'Hey what are u talking'. This is what I mentioned and I stood up. That officer instructed me to keep sitting down. I did mention to him that I have the right to stand up. Accordingly at that moment 2 other officers who were identified later as police officers entered my cubicle office and they started ransacking my office. I tried to ring my General Manager who happened to be out of the office sir to another General Manager relate the ordeal I was going through. When I lifted my telephone set to ring my General Manager, this police officer who first entered my office snatched my phone and said "You are not allowed to ring anywhere". Next I saw a fourth officer standing in the front door of my cubicle who was later identified as Police Officer Puran Lal.


HIS LORDSHIP : Can you spell the name?


MR KHAN : While they were ransacking my office, one of the police officers only went through a heap of files and pulled out a brown envelope. And he showed to me "Here it is" I asked him what it was; He said this is the money I took for alleged corrupt practices and this is the evidence they were looking for. He mentioned that there was money inside and they were then he mentioned that were $200 dollars in that envelope. The envelope was sealed your worship by way of stapling machine. He passed that envelope to his senior officer who took out the sealing of the envelope.


HIS LORDSHIP : He opened it?


MR KHAN : Yes, sir. And counted the money after taking it out of the envelope which was 4 x $50 notes. I agreed to that your worship. He offered me to also count the money for myself. I became curious as to not handle the money. That was the time I sensed that something wrong was happening to me. I replied to that officer that you have counted the money in my presence. I witnessed it. You can sign the despatch note and you can take the money for further investigation. There was some loose money on the drawer of my table. The police after noticing that money did not seize that money from the drawer of the table. Soon after that your worship the fourth Police Officer which was later identified to be Puran Lal chipped in and mentioned that he was the Investigation Officer in this matter and I mentioned that I was under arrest. The time of that particular instance was about 5 minutes past twelve, sir.


After discussing he did give me time to consult my superior officers and because my General Manager was out of the office, I seek the advice and assistance of our legal officer and our General Manager Administration.


HIS LORDSHIP : You sought their advice?


MR KHAN : Yes advice and directions as how to go about. The Police Officers were always accompanying me during this time when I approached my officers. They came out of their offices downstairs to my office and found the facts out. Police Officers told my superior officers that this was the situation and I was under arrest. My legal officer advised me that there was no other choice but to listen to the Police Officers.


MR CHAUDHARY : Mr Khan when the officer said you were under arrest, did they serve you with an arrest warrant? Did they issue you with a warrant?


MR KHAN : I could not recall your worship because the thing happening so fast.


MR TITOKO : Do you recall receiving any documents from the Police Officers?


MR KHAN : Yes there was one document Police Officer Puran Lal made me sign. I do not know whether it was for money received. I am not sure.


MR CHAUDHARY : Carry on. And then what happened.


MR KHAN : Then I was in the hands of the Police Officers, sir. Despite request that since I was in the hands of the police officers now, they do allow me to perform my religious obligations and after that I will report to them at Nabua Police Station or if they do not trust me officers can wait for me at the door of the mosque to allow me to perform my functions in the religious manner. The Police Officers refused and took me directly to Nabua Police Station. They interviewed me and at about during the course of my interview the investigation officer Mr Puran Lal offered the money for me to count which I refused. Went through the interview. The interview was concluded about 7 o'clock in the evening. I was formerly charged at about 7.15pm. The Police Officers including the investigating officer insisted that I will be put in custody pending the appearance in court following Tuesday. I started getting frustrated and panicking used my mobile phone to ring my General Manager Administration to seek his assistance in order to go home rather than being in police custody. During the time I was in the police investigation, the management carried out its own investigation as to how this thing has happened.


HIS LORDSHIP : Have you been able to contact the General Manager?


MR KHAN : Yes sir.


HIS LORDSHIP : So what did he say at that time now you wanted his assistance to get out from the...


MR KHAN : Yes I am just saying that sir. The management carried out this investigation.


HIS LORDSHIP : The management carried out this investigation after the incident.


MR KHAN : After the incident while I was in police investigation.


HIS LORDSHIP : Same day they carried out investigation?


MR KHAN : Yes sir. Because I was a senior member of the management team was in problem. The management 32 years of my credibility was at stake so the management thought it fit as to investigate whether I was really committing an offence or not. How this thing happened? And by that evening the management came to a conclusion that I was intact. I was intact by Police Officers with false allegation whatever with the other stakeholders. I mentioned the name of the person who appeared. Then my General Manager Administration arranged for the Solicitor who telephone to the investigating officer. They had discussion then the Police Officer said your solicitor has taken over the case and has taken the personal responsibility of your appearance and other things so we will release you on bail. I signed a $500 bail. From there the police took me to the Central Police Station, took my finger prints and my photograph then directed one of the police drivers to drop me at Valelevu premises from where I was arrested. I was dropped off at 9.15 in the evening, sir.


HIS LORDSHIP : You were released to the office premises?


MR KHAN : Yes sir. I appeared in court the following Tuesday. My solicitor was present your worship together with the prosecutor from the DPP's office. My solicitor made a submission to the then Hon. Magistrate that my arrest by the Police Officers was illegal.


HIS LORDSHIP : The magistrate told you?


MR KHAN : My solicitor submitted under the provisions of the criminal procedure code. The learned Magistrate then after getting the submission from the prosecution and the defence adjourned the matter for a short while and upon returning made a ruling that there was a very serious breach of ethical and my rights under the constitution were abused by the Police Officers.


HIS LORDSHIP : The order was made on the same day?


MR KHAN : Yes


MR CHAUDHARY : My lord I do have a copy of the record. I have given a copy to my learned friend here and I would like to tender it through the witness to the court. Could you please Mr Khan tell us the date.


MR KHAN : Yes your worship. This is the Magistrate Case # 488/03.


MR CHAUDHARY : What was the charge? On page 2 is the charge.


MR KHAN : Charge for corruption.


MR CHAUDHARY : Page 3. Who did you appear for?


MR KHAN : I appeared for the Learned Magistrate Mr David Balram, your Worship.


MR CHAUDHARY : Give us the date on that.


MR KHAN : On the 25th of February 2003.


HIS LORDSHIP : What is the date?


MR KHAN : 25th of February 2003


MR CHAUDHARY : Sir I would like to submit that


HIS LORDSHIP : This is not in the Agreed Bundle?


MR CHAUDHARY : It's not in the agreed Bundle?


HIS LORDSHIP : What is the marking on it? Plaintiff Exhibit 2 (PE2) is marked.


MR KHAN : In line with the ruling of the honourable court your worship, I was discharged same day and I reported back to the management for resumption of duties. The management received me with warm heart and directed me to continue my work in the existing position. About 3 weeks later Police officer Puran Lal by that time he was already identified approached me in the office and issued me a summons to appear in court. I received that summons and referred it to my management who by then had concluded through the board that I was indeed entrapped by the Police Officers in the allegations that were made against me were completely baseless and was designed to remove me from my office".


  1. The Plaintiff stated after the Solicitor of his employer spoke to the investigating officer he was informed he will be released on a bail bond for $500 and 'the Solicitor had personally undertaken the personal responsibility of the appearance of the Plaintiff.
  2. Plaintiff in his evidence produced the Record of the Magistrates Court case No. 488/03 which was marked as Plaintiff's Exhibit 2 (PE2) and stated that he was discharged on 25th February 2003 and resumed the duties.
  3. Internal inquiry carried out by the LTA had revealed the Plaintiff was innocent. However, Plaintiff did not produce any document issued by the LTA to such effect although the Plaintiff stated the decision was in writing.
  4. After 3 weeks of the discharge the Police Officer Mr Puran Lal had served summons on the Plaintiff to appear in Courts and after 2 weeks of the summons, LTA had made decision to transfer the Plaintiff to some other section and after 6 weeks Plaintiff was suspended active service on full salary and other benefits would be paid pending outcome of the case and after 6 months Plaintiff's salary was seized. As stated by the Plaintiff it was in September 2003. Case was concluded in 2005. The Magistrate Court Case No. 588 of 2003 was marked as Plaintiff's Exhibit 3 (PE3).
  5. It was stated by the Plaintiff he made representations to LTA for resumption of duties but the Plaintiff was terminated.
  6. Plaintiff claim based on wrongful arrest and detention which resulted in loss of his employment and other damages suffered.
  7. During the Cross Examination by the Counsel for the Defendants, the Plaintiff stated:

"MR RARAMASI : So you were detained for 9 hours?


MR KHAN : Yes, sir.


MR RARAMASI : You were properly treated by the police during custody?


MR KHAN : Yes, sir.


MR RARAMASI : So you have no complain?


MR KHAN : No as to the treatment."


(l) It was also admitted by the Plaintiff that there was a complaint by Mr Rajendra Narayan against the Counsel appeared for the Plaintiff and he heard through media Mr Abhay Singh counsel was disbarred and DPP had caused the Plaintiff to change the Solicitor and Defendant marked "DE2" the Civil Action 0118/0035;

(m) It was also admitted by the Plaintiff that the allegation against Mr Abhay Singh was interfering with the witnesses in the Magistrates Court Case of the Plaintiff.

Evidence by the Defendants


  1. Mr Puran Lal presently the Assistant Superintendant of the Police gave evidence on behalf of the Defendant and stated:

MR LAL : The surveillance team was led by ASP Josese Lako. He was the Officer in Charge of the Surveillance Unit at that time. The surveillance team proceeded to LTA office and were doing surveillance and I joined them. At the scenario at the LTA Office, I preceded into the LTA premises I was able to go and see the accused in his office at LTA in Valelevu. The surveillance team were monitoring from a very close range where the accused office, my lord. The surveillance also witnessed the transaction that was taking place. According to the Police Intelligence witnesses my lord they saw the complainant giving the money in a brown envelope to the accused. They also saw my lord the accused receiving the money and putting inside one attendance register. After few minutes they saw the complainant coming out of the office. The police intelligence team was in close proximity of the accused's office then entered his office with a search warrant. They uplifted the attendance register which was sitting right in front of the accused my lord. They had checked in the register a brown envelope and found Fijian currency in the sum of $200 inside the envelope. The accused was arrested by the intelligence office Corporal Seniloli.


HIS LORDSHIP : Where were you at that time?


MR LAL : I was in the LTA complex. I was outside. The intelligence were inside.


HIS LORDSHIP : You mean to say you were outside the Plaintiff's office.


MR LAL : Yes, I was within the complex but outside his office.


MR RARAMASI : What time did you enter the Plaintiff's office?


MR LAL : I cannot recall exactly the time but this whole scenario may have happened 10 – 15 minutes. When the Plaintiff went inside, he was sitting inside talking to the accused. He came out the intelligence went inside so probably 15 minutes.


HIS LORDSHIP : Did you enter the Plaintiff's office during that incident?


MR LAL : Yes, when he was arrested and the money was recovered he was still in his office when I entered.


HIS LORDSHIP : After the incident was over?


MR LAL : When the incident was over the Police Officers were preparing the search list making a document of what they had recovered from the office then I went inside.


HIS LORDSHIP : Had you spoken to the accused at that time? Have had any discussion or have you..........


MR LAL : Yes, my lord the accused asked me "what was going on"? What was happening? I explained to him that this was a case of corruption being reported against you. I briefly explained to him his rights and he said he wanted to speak to his boss in LTA, my Lord. We allowed him to make 2 calls and I cannot really recall whether we went upstairs with me to speak to his boss or his boss came down. Most likely we went upstairs to talk to his boss.


MR RARAMASI : What happened thereafter?


MR LAL : The Plaintiff was very worried that I could see his demeanour was getting worse I told him not to worry about anything. His rights will be protected. We are investigating one complain and he will be given full rights from here to the police station and he can also contact his counsel if needed.


MR RARAMASI : What happened after that?


MR LAL : After his rights my lord then he was taken to Nabua Police Station for interview.


MR RARAMASI : What happened at Nabua Police Station?


MR LAL : At Nabua Police Station he was caution interviewed and after the interview I took some legal advice from the office of DPP. The officer attending from DPP said that we can proceed with corruption charge.


MR RARAMASI : Then what happened?


MR LAL : I told the accused that I had been given legal advice to charge him for the offence of corruption under Fijian Penal Code and I have to officially tell you that you are now under arrest.


MR RARAMASI : So the Plaintiff was interviewed at the Nabua Police Station and charged?


MR LAL : Yes my Lord, correct.


  1. Mr Lal in his evidence stated the following:

"MR RARAMASI : What did you do within that 9 hours to the detainee?


MR LAL : We had to my Lord conduct investigation, caution interview the Plaintiff, give him necessary breaks. If it was the lunch hour which I believe the interview would have been suspended for lunch. Then my lord, after completing the interview we had to contact Director CID for further direction and advice. We had to go from Nabua to Suva to speak to the Officers from the DPP's Office


HIS LORDSHIP : You had to consult the Director DPP for directions?


MR LAL : Yes my Lord. From Nabua to DPP office in Suva then on the advice we had do the official charge. We had to take him to Suva again after his photograph to take the charge. Taken back to Nabua office to take his fingerprints and on the completion of the process he was released.


HIS LORDSHIP : Was he been released after his Solicitor spoke to you giving an undertaking?


MR LAL : My Lord in 2003 we hardly kept people in custody. This LTA officer we know where his address is. He was a well known person so we just bailed him.


  1. It was also stated by the witness Mr Abhay Singh was arrested and charged for interfering with police witness and he was convicted and against the conviction. Appeal was lodged No. 005/2008S marked "D3" and appeal was not successful.
  2. It was also stated by Mr Puran Lal under cross examination:
  3. Under the re-examination of the Defence Counsel witness stated:

"MR RARAMASI : Can you explain why you do not need a warrant for that arrest?


MR LAL : Yes my Lord, Section 21 of the Criminal Procedure Code says arrest without a warrant. Any police officer may without an order from the Magistrate or without a warrant arrest any person whom they suspects upon reason to having committed an offence or any person who commits an offence in his presence. So the law does empower them my Lord for arresting a person or otherwise crime will be committed. Hands of the police officers will be tied by the time."


Analysis of the Evidence and Law


  1. The main issue to be decided in this matter as stated in paragraph 6 of this judgement is whether there had been an unlawful arrest and detention.
  2. As stated by the Plaintiff and the witness Mr Puran Lal it was established that the Plaintiff was at the Police station for 9 hours.
  3. It was also revealed in the evidence that the Plaintiff was arrested and detained for 9 hours.
  4. In replying to the cross-examination by the Counsel for the Defendants Plaintiff admitted he was properly treated by the Police and no complaint against them. It proves there had been no harassment on the Plaintiff by the Police. (Refer para 16 (k) of this Judgment).
  5. It is also established in the evidence before me surveillance team entered the office of the Plaintiff and found an envelope containing $200 which was identical to the photocopied notes by the Police, which was handed to Mr Narayan who was the complainant in this matter, to be given to the Plaintiff.
  6. Now it is a matter to be decided whether Mr Puran Lal had arrested the Plaintiff and thereby infringed the rights of the Plaintiff in this matter.
  7. Although the Plaintiff was discharged in MC Case No. 488 of 2003, subsequently the Plaintiff was recharged in case no. 588 of 2003 and once again the Plaintiff was discharged and acquitted. It was also revealed that there was a case against Mr Abhay Singh who was indicted on three counts of attempt to pervert the Course of Justice and the conviction was affirmed by the Supreme Court of Fiji (Criminal Appeal No. (A V0005 of 2008S Fiji Court of Appeal NO. AAU0057 of 2006S) (The Judgement was produced marked as "DE3" in the proceedings of this case). It was an established fact that Mr Abhay Singh was barred from practice on the allegation of interfering with the complainant Narayan to change his complaint and persuading him to give evidence to establish a defence for the Plaintiff in this case.
  8. The Plaintiff stated in his evidence that the accused was discharged on 25th of February 2003 in Magistrate Court Criminal Case No. 488 of 2003 on the basis that the police did not follow the correct procedure under 1st Schedule of – Division II of the Criminal Procedure Code on the Charge of Official Corruption under Section 106 of the Penal Code. It states a person who had committed an offence under Section 106 of the Penal Code shall not be arrested without a warrant.
  9. However, the position taken up by the Defendants were the arrest was made under Section 21(b) of the Criminal Procedure Code – Section 21(b) states:

21. Any police officer may, without an order from a magistrate and without a warrant, arrest –


(a) ...............................;
(b) Any person who commits any offence in his presence;
(c) ....................................;
  1. The Plaintiff argues in his submission and stated that Mr Puran Lal who gave evidence on behalf of the Defendant had stated he had overlooked the Procedures. I am inclined to accept this position. What Mr Puran Lal accepted under the cross examination by the counsel was that for an offence committed by a person under Section 106 cannot be arrested without a warrant. I refer the relevant part of Mr Lal's evidence:

MR CHAUDHARY : You are right. I totally agree with you. That's was what Mr Rasiga had said. But it was not surveillance. It was an arrest at the same time. Wasn't it of an alleged offence of official corruption?


MR LAL : That's correct my Lord. We had to arrest the suspect, take him to the police station.


MR CHAUDHARY : And for that the law says you require a warrant?


MR LAL : But not in this case, my Lord.


MR CHAUDHARY : The law says "For official corruption shall not arrest without a warrant". Isn't that what the law says?


MR LAL : That's what it says in section but as I have said .............................


MR CHAUDHARY : No, No answer my question. "Is that not what the law says section 106 "shall not arrest without a warrant".


MR LAL : Yes, 106.


  1. The evidence by the witness was that although to arrest a person under Section 106, warrant is necessary however, in the present case he had acted under Section 21(b) of the Criminal Procedure Code.
  2. The Plaintiff's Counsel had cited the case of Ledwith vs Roberts [1937] 1. K. B. 232 [1936] 3 All E.R. 570 [1936] L.J.K.B. 20; [1936] 155 L.T. 602 II [1936] 53 T.L.R. 21 and stated in this case it was accepted the decision so far of the Learned Lords Justices in Trebech vs. Crondance as establishing that the power of arrest without a warrant with honest belief on reasonable grounds arose only in cases requiring prompt action and submitted this case is similar to the present case and there are no reasonable grounds for prompt action.
  3. I am inclined to accept this position although police didn't see the alleged offence being committed, as there was a complaint made by a third party and a surveillance team entered the office of the Plaintiff and found a brown colour envelope. So, in my view from the point of complaint it was the same incident continuing and the 1st Defendant was in honest belief and had reasonable grounds and had taken prompt action. I conclude the First Defendant had acted bona fide since there was no evidence adduced to the contrary by the Plaintiff in this case. The 1st Defendant was well aware of the offence the Plaintiff alleged to be committed and surveillance was carried out at LTA for a certain period of time with regard to corrupt practices.
  4. Plaintiff's counsel also submitted in the case of State vs Kumar [1993] FJHC 94; HAJ0005j; 1993'S (15th October 1993) it was cited R.V. Mayor of London (1829) 32 R.R. 561 at page 564 Lord Tenderden stated:

".............this principle is, that the jurisdiction of courts, as to matters originally cognizable by them, cannot be taken away except by express words or perhaps, by necessary implication which must be intended of the use of such words as are absolutely inconsistent with the exercise of the jurisdiction by the courts, and to which effect cannot be given but by the exclusion of such jurisdiction.


In the said case the facts and the principles taken into consideration were not similar to the present case and it deals with an appeal against an order made by the Magistrate Court on sentence. I disregard this case and concede the principles considered in the cited case had no relevance to the present case.


  1. Then it comes to the question of discharge of the Plaintiff in M.C. case no. 488 of 2003. It is my task to analyse the Judgement in this case and find whether the Magistrate concluded that the accused was discharged (Plaintiff in this case) on the basis that there was no lawful arrest and detention. I now refer to "P2" Judgement in Case No. 488 of 2003. The Magistrate had only considered the strict interpretation of the procedure to be followed on the offence committed. Clearly i.e. Section 106 of the Penal Code and 1st Schedule of Division II of the Criminal Procedure Code which states for an offence of Official Corruption arrest should not be made without a warrant. However, Magistrate had not considered Section 21(b) of the Criminal Procedure Code which was never brought to the attention of the Magistrate in the said instance.
  2. In the present case Section 21(b) is an issue and that the said issue was not taken into consideration by the Magistrate in the M.C. Case No. 488 of 2003 and the discharge order was made on other issues as stated in the previous paragraph. As a result, I am not considering the Judgement marked "PE2" to arrive at a conclusion in this Judgement.
  3. The Plaintiff was recharged on the same offence for the second time in Magistrate Court Case No. 588 of 2003 marked as "PE3". The Learned Magistrate delivered his Judgement in this case and acquitted the accused (Plaintiff in this case) under Section 210 of the Criminal Procedure Code. Section 210 states:

Section 210 – "If at the close of the evidence in support of the charge, it appears to the court that a case is not made one against the accused person sufficiently require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused."


  1. On page 14 of the "PE3" under the heading "Conclusion", the Learned Magistrate had made the conclusions on the evidence placed before him and benefit of doubts given in favour of the accused. In other words, he had concluded that the prosecution had not proved the case beyond reasonable doubts. There was no finding with regard to unlawful arrest and detention. In such circumstances, I am not considering the Judgement of the Learned Magistrate in Case No. 588 of 2003 to arrive at a decision in this case.
  2. What I have to consider in this matter is as to whether the Plaintiff had established his case, to claim damages from the Defendants, on the issue of unlawful arrest and detention.
  3. I am satisfied that the Plaintiff was detained for the purpose of investigation where he was interviewed at the Police Station without any harassment or ill treatment and this position was admitted by the Plaintiff, in evidence. There was also no violation of Plaintiff's rights under the abrogated constitution.
  4. I need not to consider whether this case being proved beyond reasonable doubt. What should be established as to whether case is proved on balance of probabilities.
  5. The facts of the case clearly establish:

Mr Abhay Singh was found guilty for the charges and Supreme Court dismissed the appeal filed by Mr Abhay Singh. The Defendant marked the Judgement of this case as "DE3" Abhay Kumar Singh vs State Supreme Court of Fiji, Criminal Appeal No. CAV005 of 2008S (Fiji Court of Appeal No. AAU0057 of 2006S).


Why Abhay Singh tried to intervene with the witness for the Prosecution is an important issue and should be considered as to whose benefit such interference was made is a matter to be taken into consideration by this court with other factors of the case.


  1. Under the heading "Investigation and Detention", I am inclined to agree with the submission made by the Defendant's Counsel that the Police acted on powers pursuant to Section 5 of the Police Act (Cap 85). Such powers are vested with the police not to conduct investigations on offences committed under Section 106.
  2. The submissions made by the Defendant's Counsel that the Plaintiff was suspected to be involved in the Corrupted act was arrested under Section 21(b) of the Criminal Procedure Code succeed. In the case of Director of Public Prosecution vs. Singh (1987) SPLR 113 the phrase in Section 21(b) "a person who commits any offence" means "a person who is justifiably suspected of committing an offence". In the present case, it is established by evidence placed before me the said position. I conclude Mr Puran Lal had the authority to arrest the Plaintiff when he had justifiably believed and suspected the Plaintiff had committed or in the process of committing an offence under Section 106(a) of the Penal Code. The evidence led before me well established that any reasonable person would have come to the conclusion that the Plaintiff had committed an offence and he was involved and thereby his arrest was made under Sections 21(b) of the Criminal Procedure Code. To support the argument by the Defendant's Counsel quoted Bernard vs Gorman (1941) AC378 (1941) 3 ALL E.R. 45 (1941) 57 and several other cases.
  3. In the case of Director of Public Prosecution vs Singh, Court of Appeal had stated:

"We adopt this not only out of respect for the persuasive authority of the House, but because we accept it as cogent and compelling and common sense interpretation of statutory intention in a case on all fours with the present. An arrest under Section 21(b) is lawful if done in honest belief on reasonable grounds that the observed conduct constitutes an offence." (emphasis mine)


I conclude the Plaintiff's arrest was made pursuant to Section 21(b) of Criminal Procedure Code.


  1. It is the considered view of the court to investigate an offence of this nature the First Defendant was obligated to interrogate the Plaintiff in order to establish a crime. By keeping the Plaintiff under detention for 9 hours had to be considered as a reasonable time period to investigate into the matter. It is pertinent to mention again the Plaintiff admitted there was no harassment or ill treatment by the First Defendant.
  2. Plaintiff also claimed that his rights under the abrogated constitution were violated by the 1st Defendant. However, in the present case First Defendant was constitutionally authorised pursuant to Section 23 (1) (e) of the abrogated constitution (Amendment) Act 1997.

23 – (1) A person must not be deprived of personal liberty except:


(a) ................................................
(b) ................................................
(c) ................................................
(d) ................................................
(e) If the person is reasonably suspected of having committed an offence.

This section clearly shows Plaintiff's rights under the constitution were not infringed and the Police acted on reasonable suspicion that the Plaintiff had committed an offence.


  1. It is also being noted that by detaining the Plaintiff for 9 hours is within the requirement of the Constitution. Section 23(3) (b) of the abrogated constitution.

"23 – Every person who is arrested for a suspected offence has the right:


(a) .......................................

(b) To be brought before a Court no later than 48 hours after the time of the arrest or if that is not reasonably, as soon as possible thereafter; and

(c) To....................................

In the present case, the Plaintiff was kept under detention only for 9 hours and he was released on bail by the Police itself and I conclude the Plaintiff rights were not violated.


Further Observations


  1. It is also pertinent to state, that the Plaintiff in his evidence in chief stated LTA had found him to be innocent. However, it was revealed under cross examination the Plaintiff had filed a Case No. 275 of 2008 in the High Court which was not proceeded. In the said case LTA clearly stated in its Statement of Defence, the Plaintiff's Contract of Employment (PE1) was not extended and it lapsed on 11th March 2005. And the Plaintiff was not terminated. He was paid full salary up to 24th April 2004. The Plaintiff's in his evidence in chief he pretended that he was unaware of the position of the case whether it was filed and later admitted the case was filed. Case record clearly shows the Plaintiff had clearly instructed his solicitors to take steps. However, by perusing the record of the said case, the inference created in the mind of this court is that the Plaintiff's action was unsuccessful against LTA and he had attempted to use this case to recover the Damages. I am of the view the Plaintiff attempted to suppress the case filed against LTA in his evidence in chief.
  2. The Plaintiff also failed to claim damages from the complainant although he alleged the complaint made to the Police was false. It creates doubts in the mind of the court with regard to genuineness of the Plaintiff when the failure to take action against Mr Narayan specifically with the conviction of Mr Abhay Singh on the charges of interference with Mr Narayan's evidence.

Conclusion


Having concluded as above, I make the following Orders:


(a) Declare that 1st Defendant had not breached the Plaintiff's legal rights when he was arrested and detained on 21st February 2003;

(b) Declare that 1st Defendant had acted under Section 21(b) of the Criminal Procedure Code and the said action by the 1st Defendant is justified;

(c) Declare that the Plaintiff failed to establish a case for damages as claimed in his Statement of Claim against 1st and 2nd Defendants.

Accordingly, I dismiss the Statement of Claim and Parties should bear their own costs.


Delivered this 19th Day of October, 2012


.........................................
C. Kotigalage
JUDGE

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