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Chand v Narayan [2005] FJHC 523; HBA0010.2003L (9 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0010 OF 2003L

BETWEEN:

POLICE CONSTABLE 1807 SHIRI CHAND
ATTORNEY GENERAL OF FIJI
Appellants

AND:

VISHWA NARAYAN
f/n Latchman
Respondent

Counsel: Ms. M. Ajala for the appellants
Mr. A. Patel for the respondent

Date of Hearing: 22 July 2005
Date of Judgment: 9 September 2005

JUDGMENT

This is an appeal from a judgment of the Learned Magistrate at Lautoka on the 11^th September 2002 wherein the appellants were ordered to pay the respondent the sum of $2,000.00 by way of damages for false imprisonment.

Background

On the 10^th July 1999 at approximately 2.30pm the respondent was sitting on a bench at Tilak High School grounds, Lautoka. The 1^st appellant was patrolling in a police patrol vehicle with others. The 1^st appellant had been informed by Constable Prakash that a bench warrant was in existence for the respondent and he was requested to arrest him and bring him to the station if he was seen. The 1^st appellant saw the respondent at the Tilak High School grounds, arrested him and conveyed him in the police vehicle to the Lautoka Police Station upon the basis that there was a bench warrant inexistence for his arrest. The 1^st appellant having delivered the respondent to the Lautoka Police Station finished his shift at 3.00pm and did not see the respondent again until the following Monday morning.

The respondent filed a statement of claim in the First Class Magistrates Court, Western District at Lautoka and in that statement of claim pleaded that the 2^nd defendant (the present 2^nd appellant) was being sued on behalf of the Government of the Republic of the Fiji Islands, the employer of the 1^st defendant. There is no other pleading against the 2^nd appellant.

The statement of claim pleads as against the 1^st appellant that he is a police officer who arrested the respondent without reasonable or probable cause. The respondent pleads that upon his arrest and subsequently he informed the 1^st appellant that there was no bench warrant pending against him. When the matter came before the Learned Magistrate on Monday the 12^th July 1999, the Learned Magistrate ordered the release of the respondent as the bench warrant had previously been cancelled.

The Magistrate’s Decision

The Learned Magistrate in his judgment of the 11^th September 2002 found that the respondent did inform the 1^st appellant that the bench warrant had been cancelled. He then made more general findings, which appear to have been made against the Police Force as a whole, in not taking reasonable steps to make inquiries which then resulted in the 1^st plaintiff’s action being unreasonable and without just cause. He most relevantly found “if a bona fide mistake led to arrest, the actions taken were not reasonable to keep him over weekend without taking steps to find out if the warrant was cancelled”. The Learned Magistrate later said “consequently, the Plaintiff was kept under arrest, and unlawfully detained when there was no valid warrant against him”.

The Legislation

Section 21 (j) of the Criminal Procedure Code provides:

“In police officer may, without an order from a magistrate and without a warrant, arrest – any person for whom he has reasonable cause to believe a warrant of arrest has been issued.”

Section 26 of the Criminal Procedure Code provides:

“When any person has been taken into custody without a warrant for an offence other than murder or treason, the officer of or above the rank of corporal to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate Magistrates Court within 24 hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his entering into a bond with or without sureties, for a reasonable amount to appear before a Magistrates Court at the time and place to be named in the bond but where any person is retained in custody he shall be brought before a Magistrates Court as soon as practicable:

Provided that an officer of or above the rank of Sergeant may release a person arrested on suspicion on a charge of committing any offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.”

Conclusion

The statement of claim pleads only against the 2^nd appellant as the employer of the 1^st appellant. There is no general pleading against the Attorney General on behalf of the State. The 1^st appellant arrested the respondent and conveyed him to the Lautoka Police and did not have any further contact with him until the 12^th July 1999.

Section 26 of the Criminal Procedure Code clearly gives responsibility to officers of above the rank of corporal. If the 1^st appellant did wrongfully arrest the respondent then his liability ceased on delivery of the respondent to more senior officers at the Lautoka Police Station prior to 3.00pm on the date of arrest. That is within half an hour of the arrest of the respondent.

Section 21 (j) of the Criminal Procedure Code gave to the 1^st appellant the right to arrest the respondent upon the basis that he had reasonable cause to believe a warrant but had been issued. The 1^st appellant was informed by the investigating officer, Constable Prakash, that a warrant was in existence and he was asked by Constable Prakash to arrest the respondent if he was seen. Clearly, the 1^st appellant had reasonable cause to believe a warrant was in existence.

If the respondent had pleaded against the State then it may be that it was negligent for appropriate inquiries not being made by officers at the Lautoka Police Station after the respondent was delivered to that station by the 1^st appellant.

The finding by the Learned Magistrate that the respondent complained on numerous occasions that the bench warrant had been cancelled would appear to be a finding that would cast liability upon the Police Force generally or specifically on those officers at the station to whom the respondent was handed after his arrest. In the light of the information given to the 1st appellant by Constable Prakash, the investigating officer, the 1st appellant undoubtedly had “reasonable cause to believe”.

The Learned Magistrate in his judgment refers to what might be considered negligence on behalf of the State in not taking appropriate steps to remove or cancel bench warrants from the system immediately. This is not a cause of action pleaded by the respondent in the statement of claim.

Due to the nature of the pleadings in the Magistrates Court, the appellants will not get the assistance they may have wished for from this judgment as to the procedure to be adopted generally by members of the Police Force in exercising or in determining whether they in fact have “reasonable cause to believe”. The pleadings are such that it was not possible for the Learned Magistrate to make the findings that he did with respect to the cause of action.

The appeal is allowed. The award and order for costs of the Learned Magistrate are set aside. The respondent is to pay the plaintiffs’ costs of the appeal as agreed or assessed.

JOHN CONNORS
JUDGE

At Lautoka
9 September 2005