Sirisena and Others v. Earnest Perera and Others
SIRISENA AND OTHERSV.
EARNEST PERERA AND OTHERS
BANDARANAYAKE, J.,FERNANDO, J. ANDKUEATUNCA, J.
S.C. APPLICATION NO. 14/90,
MAY 07 fe 08,1991.
Funditnental Rights, Articles II and 13 of the Constitution —Compensation for infringement — Liability of State and Public Officer
A ’ajero jeep belonging to one Ariapala a businessman collided on 04ApriU990 with a car driven by a lady who died of her injuries sustained inthe collision. The 1st and 2nd Petitioners were engaged in carpentry work atArijapala's residence in Bullers Lane between 02 and 08 April. The 3rd, 4tharc? 5th Petitioners were arrested by the Police when they visited the Coron-c-s Court at the General Hospital Colombo on 21 April 1990 to see the 1staid 2nd Petitioners who had been arrested by the Police and producedlefore the Coroner to give evidence at the inquest. The 3rd to 5tii Petitionersvere detained by the Pojice and so deprived of their liberty from 11.30 a.m.
The 3rd respondent assaulted the first two Petitioners and threatenedthem and wanted them to implicate Ariyapala's son indika as having driventhe jeep. In view of the assaults they made the statement. On 22 April 1990they were released. On the basis of the evidence led at the inquest the Policeobtained an order from the Coroner to arrest the driver Weeraratnc andIndika Ariyapaia. The 2nd and 3rd respondents denied the allegations thatthe 1st and 2nd Petitioners were detained or subjected to torture by thePolice.
The allegation of torture is subject to infirmities but the petitionershad established infringement of their rights by illegal arrest and deten-tion (under Articles 13 (1) and (2) of the Constitution) by the 2nd and3rd respondents.
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Whether or not a person has been arrested depends net on the legalityof the arrest but on whether he has been deprived of his liberty to gowhere he pleases. According to the plain meaning of tie provisions ofArticle 13 (1) and (2) the rights claimed by the Petitioners are notlimited to-persons arrested on suspicion of having comm'tted or beingconcerned with an offence. The protection against arbitnry arrest anddetention is the central feature or the core of these provisons.
Per Fernando J:
"Article 13 (1) thus contains a prohibition on deprivation of liberty— no person shall be arrested. However, there is an exception, thatsuch deprivation of liberty may be effected “according to he proce-dure established by law” (and this is certainly more restrictivtthan thephrase "except in accordance with the law”). Further even if a personis arrested in accordance with the procedure established bylaw, hemust nevertheless be informed of the reason for his arrest’!
In addition to the State, in appropriate cases, the public offic-r con-cerned may also be held concurrently liable in respect of the inringe-ment and he may be ordered to pay compensation where the 'ourtconsiders such an order to be just and equitable.
Cases referred to:
State of Punjab v. Ajaib Singh AIR 1953 S. C. 10
Namasivayam v. Cunawardcna  1 Sri LR 394
Somawathie v. Weerasinghe S. C. Application No. 227/88 SupremCourt Minutes of 20.11.1990
Saman v. Leeladasa  (1) Sri LR 7
Thadchanamoorthi v. Attorney-General 1 FRD 129
Velumurugu v. Attorney-General 1 FRD 180, 212, 213
Ratnasara Thero v. Udugampola 2 FRD 364
Mariadas v. Attorney-General 2 FRD 397
5- Vivienne Goonewardena v. Pcrcra 2 FRD 426, 439
Kapugeekiyana v. Hettiarachchi (1984) 1 Sri LR 153
Piyasiri v. Fernando  1 Sri LR 173
Spicer v. Holt  3 AH ER 71, 77 — 78
Karunaratnc v. Rupasinghe S. C. 71/90, S, C. Minutes of 17.6.1991
APPLICATION for relief against infringement of fundamental rights.
Faiz Mustapha P. C. with A. Panditharatne and Gaston Jayakody for Peti-tioners,
C. R. de Silva D. S. G. with V. Kodagoda S. C. for respondents.
Cur. adv. vult.
Siriseaa and Others v. Earnest Perera and Others (Fernando, J.)
August, 26,1991FERNANDO, J.
On 4.4.90 there was collision between a car driven by ayoung lady and a jeep owned by a businessman named Ariya-pala. There were four persons in the jeep: Ariyapala's minorson, his driver Weeraratne, and the 1st and 2nd Petitioners(carpenters who had been engaged shortly before to effectsome repairs to Ariyapala's residence). The young lady, theother passenger in the car, and others who witnessed the colli-sion were not able to say who was driving the jeep. Weera-ratne drove the jeep to the Bambalapitiya Police Station, whileAriyapala's son went home to inform his family. The 1st and2nd Petitioners say that they too went to the Police Station,but that they were not questioned by the Police. Weeraratne'sstatement and the notes of investigation have not been pro-duced, and hence we do not know whether he (or anyone else)had disclosed the fact that there had been others in the jeep,and their identity. -There was no reason for Weeraratne towithhold the names of the Petitioners. A few days later theyoung lady died in consequence of the injuries sustained in thecollision, and the Police investigations took a drastically dif-ferent turn, giving rise to this application.
According to the 3rd Respondent (the Officer-in-charge ofthe Traffic Branch of the Bambalapitiya Police), investigationsrevealed that the 1st and 2nd Petitioners had been in the jeep,and that they were working under Ariyapala; he also receivedreliable information that it was not Weeraratne but Ariyapa-la's son who had driven the jeep. On 14th, 15th, 17th and 18thApril he visited the Ariyapala residence, but Ariyapala and thePetitioners were not present. On the 18th he asked Mrs.Ariyapala to convey a message to the Petitioners to come tothe Bambalapitiya Police. According to A. S. P. Anthony ofthe Colombo City Traffic Headquarters, several days after theaccident he too received reliable information that it was not
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Weeraratne but Ariyapala's son who had driven the jeep: andthat the latter was a young boy not competent to drive motorvehicles. On the 18th, he says, he “enlightened the 2nd and 3rdRespondents”, and instructed them to conduct investigationsas to the identity of the driver; these instructions were notgiven immediately on receipt of the “reliable information”, butonly after he heard (on the 17th) that the young lady had died.No one mentions any attempt by the Police to question Ariya-pala's son. I assume that as a matter of routine the statementsof the persons who gave this “reliable information” wouldhave been recorded; or, if there was some compelling reasonnot to record their statements, that appropriate entries wouldhave been made in some official record. In any event, notes ofinvestigation should also have been made, regarding the pro-gress of the investigation, the instructions given by A.S.P.Anthony and the several visits to the Ariyapala residence. Nosuch statements, notes or entries have been produced, and thistends to cast grave doubt as to the nature of the informationand investigations.
If by the 18th the Respondents had reason to believe that itwas not Weeraratne but Ariyapala's son who had driven thejeep, both could have been questioned. If they feared that suchquestioning might result in an attempt to influence the twoPetitioners to support the version already given by Weera-ratne, then I would have expected the Respondents to attemptto contact the Petitioners direct, and as soon as possible,instead of asking the Ariyapala's to produce them; if, as theRespondents say, they did not have the addresses, they shouldhave attempted to obtain from Mrs. Ariyapala either theaddresses or the name and address of the person who intro-duced the Petitioners to her. The fact that on the 18th the 3rdRespondent asked Mrs. Ariyapala to inform the Petitioners tocome to the Bambalapitiya Police suggests that there was thenno fear that the Petitioners might be influenced. According toAriyapala's affidavit, when Mrs. Ariyapala had said that shedid not have their addresses, the 3rd Respondent had threa-
•SCSimeua and Others v. Earnest Perera and Others (Fernando, J.)101
tened that if they were not produced, Ariyapala would betaken into custody: this was not denied by the 3rd Respond-ent. Mrs. Ariyapala went in search of the person who hadbrought the Petitioners, obtained their addresses, went to the1st Petitioner's residence and left a message for the two Peti-tioners. The threat made to his wife probably induced Ariya-pala not to be content with merely asking the Petitioners to goto the Police Station; instead, on the 19th he took them him-self so that his compliance with the Police directive could nothave been doubted. He then left the Police Station. The 3rdRespondent states that on questioning the Petitioners he sus-pected that they were suppressing vital information on theadvice and instigation of Ariyapala. Obviously, they main-tained that Weeraratne had driven the jeep. Their statementswere not recorded, and no entry was produced indicating thatthey had been questioned at the Police Station.
The principal complaint of the 1st and 2nd Petitioners isthat they were not' allowed to leave the Police Station on19.4.90 and that they were unlawfully detained till 22.4.90.The Respondents' position is that they were not detained onthe 19th, but were asked to report again at the Police Stationthe next day. According to the Petitioners, they were threa-tened by the 3rd Respondent in an endeavour to induce themto implicate Ariyapala's son; they were detained overnight;since they had not returned home even by 8 p.m., the 3rdPetitioner (the wife of the 1st) and the 4th and 5th Petitioners(the parents of the 2nd) contacted the Ariyapala's, since itwas Mrs. Ariyapala who had conveyed the message the pre-vious evening. Ariyapala came to the Police Station at about9 a.m. on the 20th to inquire about the two Petitioners; hesaw the two Petitioners there; while waiting for the 3rdRespondent, the 2nd Respondent abused and threatened him;when the 3rd Respondent arrived, he directed that Ariyapala'sstatement (as to why he came to the Police Station) berecorded; this was done at 9.40 a.m. and Ariyapala wentaway; this statement too has not been produced. If produced,
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this would have indicated whether the complaint that thePetitioners had been detained from the previous day had beenmade as early as 20.4.90. The Respondents' position is thatthe Petitioners came to the Police Station on the 20th morn-ing; that the 3rd Respondent saw them at about 8.30 a.m.;that the Respondents had reason to believe that Ariyapalawas taking steps to hamper the investigation, and hence wasrequired to make a statement; since the 3rd Respondent wasengaged in special traffic duties, he instructed the Petitionersto come again at 2.30 p.m. The latter reason is contradictedby a contemporaneous note of investigation made by him at9.50 a.m. to the effect that when questioned further, itappeared that the Petitioners were concealing the truth.Further, if the Petitioners had come at about 8.30 a.m., therewas ample time to question them between 8.30 and 9.50 a.m.It is difficult to understand why the 3rd Respondent wastedtime recording Ariyapala's statement at 9.40 a.m., but apartfrom that he had one hour to question the Petitioners. Yetanother possible reason for the failure to question the Peti-tioners emerges from A.S.P. Anthony's affidavit: that on20.4.90 (at what time he does not say) he instructed the 3rdRespondent to inform the Petitioners to meet him or ChiefInspector Ranjit Percra at the Crime Detective Bureau('‘C.D.B.”) Headquarters, but the time is not mentioned. Thiswas because, says A.S.P. Anthony, by this time he had beeninformed by the 2nd and 3rd Respondents that Ariyapala hadcome to the Banbalapitiva Police Station to hamper the inves-tigation. These instructions must have been given after thePetitioners left the Police Station, because otherwise the direc-tion to return to Bambalapitiya at 2.30 p.m. would have beenpointless. The Respondents do not say whether the Petitionersdid return at 2.30 p.m. but say that an officer was instructedto inform the Petitioners to proceed to the C.D.B. (again, thetime is not mentioned). According to A.S.P. Anthony, thePetitioners arrived at 7 p.m. There is no explanation, in theRespondents' version, as to what happened between 2.30 p.m.and 7 p.m.; it is not suggested that the Petitioners came to
Siriaena and Others v. Earnest Peren and Others (Fernando, J.)
Bambalapitiya several hours later than directed, and it is mostunlikely that they would have dared to do this; in any event, Icannot assume that they would deliberately have waited tilllate evening to present themselves for questioning, for it wouldhave been natural to have preferred to return to their homesbefore dark. The 1st and 2nd Respondents claim that the Peti-tioners were not detained on the 20th; that having come to theC.D.B. at 7 p.m. they made voluntary statements; after thesewere recorded they left at 10.30 p.m. Apart from their ownaffidavits, they point to the absence of any entry relating tothe Petitioners in the detention register as proof that the Peti-tioners were not detained.
There arc a number of infirmities in the Respondents' ver-sion. They claim that Ariyapala was attempting to hamper theinvestigation by influencing the Petitioners; even on the 19thmorning. Having directed Ariyapala, under threat of takinghim into custody, to produce the Petitioners, it seems ironicthat his presence at the Police Station should be construed asan attempt to hamper the investigation. However, acceptingthat they did actually entertain such a fear, did they think thatAriyapala's malign influence would cease if the Petitionersremained at liberty? Or would they have sought to excludeAriyapala's influence by keeping the Petitioners in Police cus-tody? The fact that the 3rd Respondent gave contradictoryreasons for not questioning the Petitioners and recording theirstatements on 20.4.90 tends to support the Petitioners positionthat they were being kept in custody until they became moreamenable to disclose what the Respondents considered to bethe truth. The failure to produce all the statements recordedand the notes of investigation adds to the infirmities in theRespondents version. The only entries produced are notes ofinvestigation made by the 3rd Respondent (a) at 8.50 a.m. tothe effect that he met the Petitioners at the entrance to thePolice Station and asked them to wait inside, and (b) at 9.50a.m. that he questioned them further and found that they wereconcealing the truth. Apart from the slight discrepancy of 20
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minutes as to the time at which he saw the Petitioners, these entriesappear to have been a rejoinder to the statement made byAriyapala that he came to inquire about the fate of the twoPetitioners who had not returned home the previous nightafter their visit to the Police Station — an attempt to suggestthat the Petitioners had not been detained overnight, but cameagain on the 20th morning. In view of the failure of theRespondents to place all the material, in the form of state-ments, notes and other entries, before this Court, I am unableto accept these entries as reliable. Next, how did the Petition-ers know at what time they should report to the C.D.B.?According to Chief Inspector Ranjit Perera, A.S.P. Anthonyasked him to be present at 7 p.m. Obviously therefore if theA.S.P. communicated with the Respondents, he would havestipulated the time, and the Respondents should in turn havecaused the Petitioners to be informed that they come to theC.D.B. at 7 p.m.; if not, they may have turned up later, thuskeeping senior officers waiting. But nowhere do the Respond-ents claim that the Petitioners were informed of the time atwhich they should report to the C.D.B. The only situation inwhich it would not have been necessary to inform the Petition-ers was if they were already in custody, and could be takenwherever, and whenever, the Respondents chose. Finally, thePetitioners say they were released only at 9 a.m. on the 22nd,after they had pleaded with Inspector Wijeratne, the Officer-in-Charge of the Bambalapitiya Police. The 2nd and 3rdRespondents deny this, the former adding that none of the Pet-itoners were detained on the 21st, and the latter adding that hedoes not see how they could have met Inspector Wijeratne onthe 22nd since they were not at the Bambalapitiya Police Sta-tion that day. If Inspector Wijeratne did not order their releaseon the 22nd, it would have been perfectly simple to have pro-duced an affidavit from him, but there is no such affidavit. Inthese circumstances, I have no hesitation in rejecting theRespondents' version. The 1st and 2nd Petitioners' version isconsistent, is supported by the affidavits of the other Petition-ers and Ariyapala, and is intrinsically more probable. I hold
SCSirisena and Others k Earnest Perera and Others (Fernando, J.)10!
that they were deprived of their liberty from 9 a.m. on the19th until 9 a.m. on the 22nd.
The Petitioners were kept in custody obviously to persuadethem to make statements different to those made on the 19thand again on the 20th, and implicating Ariyapala’s son. It istheir case that on the 20th in addition to threats and abuse,they were hit, kicked, and dragged by their hair; that the assultwas of such a serious nature that they had wounds on theirelbows and knees, their faces were swollen, and there wasblood all over their bodies. Their clothes would have beenbloodstained, and even the next morning there would havebeen visible signs of the assault. They were produced beforethe Coroner on the 21st, and the 1st Petitioner gave evidenceat the inquest; there is nothing to indicate that the Coronernoticed anything unusual. The affidavit of the Attorney-at-lawwho represented Ariyapala’s son and driver was produced, butI do not take this into consideration as the Petitioners had notserved a copy of this affidavit on the Respondents, whoseCounsel became aware of it only in the course of the hearing.The Petitioners obtained medical treatment on the 22nd, butno medical evidence is forthcoming as to their condition. Inthese circumstances, while I accept that the Petitioners weresubjected to harsh and unlawful treatment, there is not therequired degree of proof that it amounted to torture or cruel,inhuman or degrading treatment.
The 3rd to 5th Petitioners claim that at about 11.30 a.m.on the 21st, after the conclusion of the inquest proceedings,they were arrested by the 2nd Respondent and detained at theBambalapitiya Police Station till 8 p.m. Ariyapala and a hospi-tal employee support this allegation. The 2nd Respondentdenies this. I have set out the reasons why the 2nd Respond-ent’s affidavit cannot be acted upon, and I prefer to act on theaffidavit of the 3rd to 5th Petitioners. I hold that the 3rd to5th Petitioners were deprived of their liberty from 11.30 a.m.to 8 p.m. on the 21st .
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It is clear that the 1st and 2nd Petitioners were deprived oftheir liberty because the Respondents wished to interrogatethem, and not because they were suspected of any offence. Thelearned Deputy Solicitor-General submitted that such a depri-vation of liberty was not an “arrest” within the meaning ofArticle 13(1), and would only be an actionable civil wrong.An arrest, he submitted, is a deprivation of liberty based uponan allegation of the commission of an offence; i.e. as contem-plated by the law relating to criminal procedure. When it waspointed out to him that the law made provision for “arrests”in other cireumstances (e.g. for preventive detention, fordeportation and under section 298 of the Civil ProcedureCode), he modified this definition, submitting that an arrestwas a deprivation of liberty for the purpose of being dealt withunder the law; he gave the example of a Police Officer whocompelled an able-bodied citizen to clean the precincts of aPolice Station, which, he said, would not be an arrest withinthe meaning of Article 13(1). Having in mind the disastrousconsequence of this line of reasoning, I inquired whether aPolice Officer who deprived one candidate of his liberty in thecourse of an election campaign, solely in order to enhance theprospects of a rival candidate, would be infringing Article13(1). His reply was that this would not be an arrest. He reliedon State of Punjab v Ajaib Singh (l),Somawathie v Weera-singhe (3), and extracts from an article by Dr. Glanville Willi-ams entitled “Requisites of a valid arrest”, (1954) CriminalLaw Review 6:
“ obviously it is not every imprisonment or arrest
that constitutes an arrest. To be an arrest, there must be anintention to subject the person arrested to the criminal process- to bring him within the machinery of the criminal law; andthis intention must be known to the person arrested. Arrest isa step in law enforcement, so that the arrestor must intend tobring the accused into what is sometimes called ‘the custody ofthe law”
Struma and Others v. Earnest Perera and Others (Fernando, J )
Since this contention was advanced, and pressed on behalfof the State (despite the decision in Namasivayam v Gunawar-dena, (2), approved in Piyasiri v Fernando, (U))> it is neces-sary to deal with it fully.
Dr. Glanville Williams was not dealing with the concept ofan “arrest” in relation to fundamental rights; he was not evenpurporting to define an “arrest” for the purpose of the crimi-nal law. Rather, he was seeking to clarify the requisites of avalid arrest. Thus the intention of the arrestor, and its com-munication to the arrestee, are not ingredients of an arrest;rather, they are the conditions essential to the validity of anarrest. “Arrest” in Article 13(1) does not refer to a validarrrest, but rather to a defacto arrest; indeed, it is difficult toconceive of situations in which an arrest which is ' alid wouldcontravene Article 13(1). In common usage, “arrest” connotesa' physical act: to stop (growth, motion, moving person orthing) or to seize (person or ship) especially by legal authority(Concise Oxford Dictionary). Some of its synonyms given inRoget’s International Thesaurus (3rd edition, sections 132,144, 269, 728, 758, 759) are stop, stay, detain, confine, res-train, take captive, take prisoner, apprehend, capture, seize. InSpicer v Holt (12), the phrase “arrested under section
5” had to be construed. It was held that if the word
“arrested” had stood alone, then it had to be given its naturalmeaning; but since it was followed by the words “under sec-tion 5”, it meant an arrest authorised by section 5 and
so must mean a lawful arrest. Arrest according to Halsbury’sLaws of England (Vol, II, 4th edition, para 99) “consists inthe seizure or touching of a person’s body with a view to hisrestraint; words, however, amount to an arrest if, in the cir-cumstances of the case, they are calculated to bring, and dobring, to a person’s notice that he is under compulsion and hethereafter submits to the compulsion.” Whether or not a per-son has been arrested depends not on the legality of the arrestbut on whether he has been deprived of his liberty to go wherehe pleases.
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Article 13(1) thus contains a prohibition on deprivation ofliberty -no person shall be arrested. However, there is anexception, that such deprivation of liberty may be effected“according to the procedure established by law", (and this iscertainly more restrictive than the phrase “except in accor-dance with the law”). Further, even if a person is arrested inaccordance with the procedure established by law, he mustnevertheless be informed of the reason for his arrest. ThusArticle 13(1) clearly and unambiguously prohibits the arbitrarydeprivation of liberty, and it is unnecessary to consider thevery different language of the corresponding Indian provisionsand the Ajaib Singb case. Reference to Somawatbie v Weera-singhe (3), is superfluous, since “arrest” does not now appearto my brother Kuiatunga as it appears to have appeared tohim then.
I must add that had there been any ambiguity in regard tothe meaning of Article 13(1) there are two reasons why Iwould have preferred the wider meaning of the word “arrest”.Article 13(1) recognises a basis human right; it is not absoluteor unqualified, as the law may prescribe the “procedure” forarrest; and Article 15(7) permits certain restrictions. In thesecircumstances, any ambiguity must be resolved in favour ofthe liberty of the, citizen, by preferring that interpretationwhich enhances the right rather than another which diminishesit, thereby complying with Article 4(d) which directs the Judi-ciary to “respect, secure and advance"fundamental rights, andnot to “abridge, restrict or deny” them. A consideration ofrelevant international declarations and covenants – althoughthese may not be a source of municipal law -reveals a generaltrend in the protection and advancement of fundamental rightswhich it would be legitimate to consider in dealing with adoubt or difficulty. The Universal Declaration of HumanRights proclaimed that no one shall be subjected to arbitraryarrest, detention or exile; the International Covenant on Civiland Political Rights recognised that everyone has the right to
Siriseaa and Others v. Earnest Peru* and Others (Fernando, J.)
liberty and security of person, and that no one shall be sub-jected to arbitrary arrest or detention. When these, as well asother instruments to which Sri Lanka is not a party, indicatethat the law of nations is progressing towards a general recog-nition as a basic right of the freedom from arbitrary depriva-tion of liberty, it would be a retrograde step to give Article13(1) the restrictive interpretation contended for.
The arbitrary deprivation of the liberty of the Petitionerswas caused by the 2nd and 3rd Respondents, not because theybona fide suspected that the Petitioner was involved in thecommission of an offence, but for the wholly improper andillegal purpose of extracting statements containing what theyconceived to be the truth. They have thereby infringed thefundamental rights of the Petitioner, for which Article 126makes them liable; the circumstances do not warrant thembeing excused or exempted from liability. For the veasons setout in Karunaratne v Rupasinghe, (13), I am of the view thatrelief should be granted against them personally.
Accordingly, I grant the Petitioners the following reliefs:
(a) a declaration that the fundamental rights of the 1st
and 2nd Petitioners under Articles 13(1) and 13(2)were infringed by the 2nd and 3rd Respondents byreason of their arrest on 19.4.90, and their detentionfrom 19.4.90 to 22.4.90;
compensation in a sum of Rs. 3,000/- each to the 1stand 2nd Petitioners, payable by the State;
compensation in a sum of Rfc. 500/- each to the 1stand 2nd Petitioners, payable by the 2nd and 3rdRespondents;
(a) a declaration that the fundamental rights of the 3rd,
4th and 5th Petitioners under Articles 13(1) and 13(2)were infringed by the 2nd Respondent by reason oftheir arrest and detention on 21.4.90;
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compensation in a sum of Rs. 500/- each to the 3rd,4th and 5th Petitioners, payable by the State;
compensation in a sum of Rs. 250/- each to the 3rd,4th and 5th Petitioners, payable by the 2nd Respond-ent; and
one set of costs in a sum of Rs. 2,000/- payable by theState.
I further direct the 1st Respondent, the Inspector Generalof Police to hold a full inquiry into the allegations made bythe 1st and 2nd Petitioners in respect of the treatment metedout to them from 19th to 22nd April 1991, and to submit tothis Court a report in respect of such inquiry within fourmonths of the date of this order; the case will be called on16th January 1992 to consider that report.
I have read the judgements of my brothers Fernando, J.,and Kulatunga, J., and agree with the orders made by them.
Where the fundamental rights of a petitioner are found tohave been infringed by a public officer, acting under colour ofhis office, I agree that in addition to the State, in appropriatecases, such public officer may also be held concurrently liablein respect cf such infringement, and that he may be ordered topay compensation where the Court considers such an order tobe just and equitable.
The 1st and the 2nd Petitioners are carpenters, the 3rdPetitioner is the wife of the 1st Petitioner and the 4th and 5thPetitioners are the parents of the 2nd petitioner. They com-plain of unlawful arrest by the 2nd and 3rd Respondents. The2nd Respondent is an Inspector of Police who functioned asthe Offlcer-in-Charge of the Bambalapitiya Police Station and
SC Siriseaa and Others v. Earnest Perera and Others (Kulatuaga, J.) Ill
the 3rd respondent is a Sub-Inspector of Police who was the
O.I.C. Traffic Branch of that Police Station, during the rele-vant period. The Petitioners also complain of unlawful deten-tion at the Bambalapitiya Police Station and elsewhere subse-quent to their arrest. The 1st and the 2nd Petitioners allegethat during their detention they were subjected to torture orcruel, inhuman or degrading treatment by the Police. Theypray for a declaration that by the said acts their rights underArticles 11 and 13 of the Constitution have been infringed andfor damages totalling Rs. 300,000/-.
The case for the Petitioners which I shall presently refer toin greater detail is that the 1st and the 2nd Petitioners werearrested by the Police in order to. procure their evidenceregarding an accident which had occurred on 04.04.90 when aPajero jeep belonging to one Ariyapala a businessman who iseogftged in the sale of motor vehicles collided with a car caus-ing serious injuries to a lady who drove the car. A few daysthereafter, she succumbed to the injuries and died. The 3rd,4th and 3th Petitioners were arrested by the police when theyvisited the Coroner's Court at the General Hospital Colomboon 21.04.90 to see the 1st and the 2nd Petitioners who hadbeen arrested by the Police and produced before the Coronerto give evidence at the inquest.
The first two Petitioners were engaged in carpentry workrelating to repairs to Ariyapala's residence in Bullers Lanebetween 2nd to 8th April. On the morning of the 4th theywent to Ariyapala's stores in Bambalapitiya in a jeep driven bythe driver one Weeraratne to obtain timber required for theirwork but returned without timber as the Security guard of thestores was not available at the time. They made a second tripwhen Ariyapala's son Indika Ariyapala who is about 16 yearsold accompanied them in the jeep which according to themwas driven by Weeraratne. Indika was seated in the front seat.When they were going along Duplication Road, a black caremerged from Vajira Road when the jeep collided with it. The
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lady driver of the car was thrown out of the car. She andanother passenger were seriously injured and rushed to thehospital.
Two policemen arrived. As required by them Weeraratnedrove the jeep to the Bambalapitiya Police Station while oneof the policemen drove the car involved in the collision to theBambalapitiya Police Station. Indika left for home to informhis parents about the accident. The two Petitioners also claimto have gone to the Police Station and state that they saw thedriver seated on a bench and that after about half an hourthey all returned to the residence of the said Ariyapala.
On 05.04.90 the driver Weeraratne was produced before theMagistrate and was bailed out. Neither the passenger of thecar nor the witness who had been present at the scene andwhose statements had been recorded by the police were pble toidentify the person who drove the jeep at the time of the acci-dent. The statements of the two Petitioners had not beenrecorded though they claim to have, gone to the Police. Itappears from their averments that even if they had gone to thePolice they had not identified themselves as witnesses and thepolice had probably not been aware of fact that they had tra-velled in the jeep.
Subsequently, on the instructions of the police Ariyapalasent for the two Petitioners who lived in Battaramulla andwhen they arrived at his house took them to the BambalapitiyaPolice Station on the morning of 19.04.90 and left them there.At about 10.00 a.m. the 3rd respondent took them in a policejeep to the City Traffic Police, Mihindu Mawatha, PettahThere the 3rd Respondent threatened them to implicate Indikasaying that the police were aware that he drove the jeep at thetime of the collision; however they were not prepared to makea statement to that effect. In the afternoon they were broughtback to the Bambalapitiya Police Station. Whilst they werethus detained the 3rd Respondent again threatened them and
SCSirisena and Others v. Earnest Perera and Others (Kulatunga, J.)113
unsuccessfully attempted to record their statements on thedesired lines after which they were detained at the Bambalapi-tiya Police Station that night.
As the first two Petitioners failed to return home on the19th the 3rd, 4th and 5th Petitioners got a relation of Ariya-pala resident in Battaramulla, to telephone Ariyapala andinform him about their failure to return home. Consequentlyon 20.04.90 Ariyapala visited the Bambalapitiya Police Stationand saw the two Petitioners there. On that occasion the 2ndRespondent abused Ariyapala for visiting the Police Stationand had his statement recorded by the 3rd Respondent beforehe was allowed to leave the Police Station.
At about 10.30 a.m. on the 20t'n the 3rd Respondent tookthe Petitioners in a jeep to the Mihindu Mawatha City TrafficPolice Station. There, the 3rd Respondent had them blindfolded and took them in a jeep in the company of otherswhom they believed were police officers to an unknown desti-nation. Later they came to know it to be the Crime DetectiveBureau, Gregory's Road, Colombo 7. On the way and at theBureau the 3rd Respondent and the other Police Officersabused them; they also threatened the Petitioners with deathby burning on tyres, and assaulted and kicked them. As aresult there was blood all over their bodies; they were bleedingfrom their lips; they had wounds on their elbows and kneesand their faces were swollen. They screamed and pleaded withthe 3rd Respondent and finally agreed to make a statementimplicating Ariyapala's son as required by the 3rd Respondent.Thereafter the 3rd Respondent left. At about 9.30 p.m. threePolice Constables made them to sign two statements whichwere not read over to them or explained. They spent that nightat the Bureau and were asked to sleep on benches.
On 21.04.90 at about 7.30 a.m. they were taken by PoliceOfficers to the Traffic Headquarters at the Secretariat build-ing, Fort and later at about 10.30 a.m. to the Coroner's CourtGeneral Hospital, Colombo. The 2nd and 3rd respondents and
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two Assistant Superintendents of Police were there. One ofthem (A.S.P. Karunaratne) called the 1st Petitioner to testifyat the inquest and led his evidence by a series of leading ques-tions. The 1st Petitioner fainted twice and was sobbing in thewitness box; at about 11.30 a.m. the 2nd Respondent arrestedthe 3rd, 4th and 5th Petitioners at the General Hospital andhanded them over to several Police Constables. At about 12.30p.m. the 1st and 2nd Petitioners were brought to the TrafficHeadquarters, Fort and kept there till about 7.30 p.m. and atabout 8.00 p.m. they were taken to the Bambalapitiya PoliceStation where they saw the 3rd to 5th Petitioners who werereleased at about 8.00 p.m.; however, the 1st and 2nd Petition-ers were detained at the Police Station and they were requiredto lie on benches throughout the night.
On 22.04.90 they met Mr. Wijeratne O.I.C. of the Bamba-lapitiy^ Police Station and pleaded for their release. He per-mitted them to go home but with instructions to report at thePolice Station again at 5.00 p.m. However, they did notcomply with the said instructions. Instead they went to theGovernment Hospital, Thalangama for treatment. But whenthey said that they had received injuries by a police assault theMedical Officer at the O.P.D. refused to examine them forwant of a police report. As such, they obtained treatment froma private medical practitioner without disclosing the fact ofthe police assault.
On the basis of the evidence led at the inquest the policeobtained an order from the Coroner to arrest the driver Wec-raratne and Indika Ariyapala. They were accordingly producedbefore the Magistrate and were remanded until they were sub-sequently enlarged on bail.
In support of their case the Petitioners have produced sev-eral affidavits in particular from Ariyapala senior, a hospitallabourer Kumara Perera and Ananda Malalgoda the Attorney-at-Law who watched the interests of Indika Ariyapala and thedriver Weeraratne at the inquest (PI, P3 and P4). Ariyapala
SifiseaM and Others v. Earnest Perera and Others (Kulatunga, J.)
senior states that on 19.04.90 he accompanied the two Peti-tioners to the Bambalapitiya Police; that they were at thePolice Station on the 20th when he went there; and that on the21st when they were brought to the Coroner's Court by thePolice they appeared to be in pain. He also speaks to thearrest of the 3rd, 4th and 5th petitioners by the 2nd respond-ent at the Coroner's Court on the 21st.
Kumara Perera states that he saw the 1st Petitioner limpingand walking with difficulty when he was being brought to theCoroner's Court by the police. He had also seen the 3rd Peti-tioner and two others weeping and wailing there and that theywere arrested and taken away by Police Officers on the ordersof the 2nd Respondent.
Mr. Malalgoda, Attorney-at-law states that he watched theinterests of Indika Ariyapala and the driver Weeraratne at theinquest; that the 1st Petitioner was helped into the witnessbox; he was crying, appeared to be weak and unsteady on hisfeet and on two occasions assumed a crouching position in thewitness box; and that the proceedings in the Coroner's Court 'ended in confusion.
On behalf of the Respondents affidavits have been made bythe 2nd and 3rd Respondents, A.S.P. Harold Anthony whowas in overall charge of investigations into the fatal accident,Chief Inspector of Police Ranjit Perera who recorded thestatements of the 1st and 2nd Petitioners at the Crime Detec-tive Bureau on the 20th and A.S.P. Karunaratne who led evi-dence at the inquest on the 21st into the death of the deceasedMiss Deepani Premaratne.
The case for the Respondents is that several days after theaccident the driver of the motor car Miss Deepani Premaratnedied of injuries sustained in the collision and it became neces-sary to further investigate to identify the driver who droveAriyapala's Jeep at the time of the accident. Such investiga-tions had become important presumably for the reason that
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neither the other passenger who travelled in Deepani's car northe persons who were at the.scene of the accident had been ina position to identify the driver. In the meantime the policehad information that the 1st and 2nd Petitioners who had beenemployed by Ariyapala were in the jeep at the time of theaccident. Consequently, the 3rd Respondent made severalefforts from about the 14th of April to trace the Petitionersand for this purpose visited Ariyapala's residence and failed tomeet Ariyapala or the Petitioners.
By the 18th A.S.P. Harold Anthony had information that itwas not Weeraratne who drove the jeep at the time of theaccident but Indika Ariyapala although Weeraratne hadreported the accident and admitted to the police to havedriven the jeep. On the 18th the A.S.P. directed the 2nd and3rd Respondents to investigate the matter and the 3rdRespondent visited Ariyapala's residence and as Ariyapala wasagain not present requested his wife to send a message to thePetitioners to attend the Bambalapitiya Police Station. On the19th, Ariyapala brought the Petitioners. On being questionedthey appeared to suppress vital information on the advice ofAriyapala and hence the 3rd Respondent told them to comenext day by themselves. They came on the 20th at about 8.30a.m. but as the 3rd Respondent was on special traffic duty,they were told to come at 2.30 p.m. the same day. On theinstructions of A.S.P. Harold Anthony the Petitioners wereinstructed to proceed to the Crime Detective Bureau, Grego-ry's Road, Colombo 7.
The A.S.P. says that he shifted the place of inquiry as the2nd and 3rd Respondents had reported that Ariyapala wasinterfering with the investigations. At the Bureau he himselfquestioned the Petitioners who admitted Indika Ariyapala hav-ing driven the jeep at the time of the accident. Their state-ments were recorded by Chief Inspector Ranjit Perera, atabout 10.30 p.m. on the 20th after which he instructed themto leave and to attend the Coroner's Court the next day. Onthe 21st when the 1st Petitioner was giving evidence before the
Siriaena and Others v. Earnest Perera and Others (Ku/atunga, J.)
Coroner suspect Indika Ariyapala and his father were seenpointing their fingers at the witness who then appeared to befrightened and confused whereupon the Coroner offered him aseat. A crowd of about 10 (believed to have been instigated byAriyapala senior) created a disturbance in the Coroner'sCourt. After the inquest the Petitioners were permitted toleave with instructions to give evidence when noticed byCourt. Subsequently, both of them left.
The Respondents deny the allegation that the 1st and 2ndPetitioners were detained or subjected to torture by the police;they also deny the allegation that they were at one stage takento the City Traffic Police Quarters, Mihindu Mawatha. It istheir position that this application has been filed at the behestof Ariyapala as the police had taken action against his son.
It is apparent that the interests of the prosecution and ofIndika Ariyapala in the investigations into the death of MissDeepani Premaratne were evenly matched. The investigationsby the police were carred out under the direction of A.S.P.Harold Anthony to establish the complicity of Indika Ariya-pala. The suspect's father would be naturally interested indoing everything to safeguard his son including by assistingthe Petitioners in this application. This is evident from the factthat he has given an affidavit to the Petitioners together with asupporting affidavit from one of His customers (P2); Mr.Malalgoda, Indika's Attomey-at-Law has also given an affi-davit. The Petitioners contend that the accusation against thesuspect Indika is false and engineered by the police withoutjustification. The Respondents contend that it is based on areasonable suspicion and that they were only interested inascertaining the truth.
The police have no record of the information on whichthey suspected Indika. If the police acted on mere conjecturetheir conduct in suspecting Indika would be totally unjust orliable to impeachment on the ground of actual malice. How-ever, their suspicion is also attributable to the fact that
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although Indika had been in the jeep at the time of the acci-dent, he was admittedly not at the scene when the policevisited the scene. It also appears that the 1st and 2nd Petition-ers who were witnesses to the accident and who claim to havegone to the Police Station with the driver Weeraratne had notpresented themselves as witnesses; and the police had not beenaware of their existence immediately after the accident. Assuch, their statements were not recorded and there was nowitness who was in a position to identify the person who drovethe jeep at the time of the accident. It was in this backgroundthat the police decided to interrogate the Petitioners as to thepossible involvement of Indika in the accident and hence I amunable to regard the conduct of the police as being altogetherunjust or affected by actual malice.
The Respondents have produced marked X and Y thestatements of the Petitioners recorded on 20.04.90. Even ifthese statements were made under duress they describe indetail the events on the day of the accident. The Petitionerssay that as they were leaving the house on the 4th of April tobring timber, Indika asked the driver to first go to the placewhere the air-conditioner had been given for repairs. The jeepwas then driven to a place near the railway track in CastleStreet when the driver got down and went up to the gate of ahouse. He spoke to a man. At this stage Indika got into thedriving seat. When the driver returned, he found Indika at thewheel and therefore occupied the front seat and Indika drovethe jeep until it met with the accident. After the accidentIndika went to inform his parents, a shortwhile thereafterAriyapala returned with Indika and said that he would attendto the accident and asked the two Petitioners to go home andattend to the work which they did.
I am satisfied that the above statement (whether they statethe truth or not) have been made under duress through fearof the police in whose custody the Petitioners had been unlaw-fully detained from the 19th to 22nd of April 1990; In the cir-
Sirisen- and Others v. Earnest Perera and Others (Kulatunga, J )
cumstances of this case, I am unable to accept the Respond-ents' version that when the Petitioners were brought to theBambalapitiya Police Station on the 19th they were instructedto call over the next day and that on the 20th they went to theCrime Detective Bureau on their own as instructed by thepolice. The Respondents have not produced any informationbook extracts of the notes of investigation which would givecredence to their version; and I accept the position that thePetitioners were in continuous detention and were taken by thepolice to the several places mentioned by them in order toprocure their statements and were kept in police custody evenafter the conclusion of the inquest on the 21st.
I am also satisfied that the 3rd, 4th and Sth Petitionershave been arrested by the police in the Coroner's Court on the21st and were detained at the Bambalapitiya Police Stationuntil their release the same evening. The evidence shows thatthey were agitated by the detention of the 1st and 2nd Peti-tioners by the police and were weeping and wailing. Theinquest itself ended in confusion. In normal circumstances, thepolice might have arrested any person committing a breach ofthe peace there but here the position is different. These Peti-tioners were the wife of the 1st Petitioner and the parents ofthe 2nd Petitioner respectively. I do not think that their con-duct warranted arrest and detention for a breach of the peace.I therefore hold that their arrest and detention is unlawful.
It must be noted that the over enthusiam of the respond-ents in investigating the offence has been counter productiveand has thwarted the successful prosecution of the offender.What is more it has led to an allegation of the infringement ofrights under Articles 11 and 13 of the Constitution.
For the reasons I shall presently elaborate I am satisfiedthat the Petitioners have established an infringement of theirrights under Articles 13 (1) and (2) of the Constitution. How-ever, the evidence as regards the alleged infringement of Arti-cle 11 is not sufficiently cogent and is affected by certain
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infirmities. Thus the averment that the 1st and 2nd Petitionershad blood all over their bodies and that they were bleedingfrom their lips or the statement that they had wounds on theirelbows and knees and that their faces were heavily swollen bythe police assault is not supported by the evidence of Mr.Malagoda, Attomey-at-Law. If the conditions spoken toexisted in the night of the 20th Mr. Malalgoda should haveobserved them next morning. The Petitioners were producedto the Coroner's Court from police custody and presumably inthe same clothes as they had on them the previous night; butMr. Malalgoda does not refer to any blood stains or injuries.There is also no medical evidence of injuries although the Peti-tioners did obtain treatment from a Medical Practitioner. Hav-ing regard to the competing interests and influences in thecase, exaggeration of the petitioners' case in this respect isprobable. Mr. C. R. de Silva, Senior State Counsel pointed outto the fact that the affidavits are in English and have not beenread out and explained to the Petitioners some of whom havesigned them in Sinhala whilst one has placed his thumbimpression. It would not be safe to act on bare allegationscontained in such affidavits unless they can be regarded asintrinsically true in the circumstances or are corroborated byother evidence. I hold that the alleged infringement of Article11 has not been established.
I now revert to the alleged infringement of rights underArticle 13 (1) and (2) of the Constitution. In response to cer-tain questions by me during the hearing the learned SeniorState Counsel submitted that in the event of this Court hold-ing that the Petitioners had been taken into custody by thepolice he would submit that it would not entitle the Petitionersto relief for an infringement of Article 13 (1) and (2) of theConstitution. On the authority of State of Punjab v. AjaibSingh (1) he submitted that such taking and detention didnot constitute “arrest” and “detention” within the meaning ofthe said article because there was no allegation or accusationof an offence by the Petitioners or an intention on the part of
Siriseoa and Others v. Earnest Perera and Others (Kulatunga, J.)
the respondents to subject the Petitioners to the process oflaw. He contends that the remedy of the Petitioners is limitedto claiming civil damages whilst the officers liable for suchunlawful conduct may also become liable for an offence; butthe Petitioners cannot seek relief for violation of fundamentalrights. Mr. Faiz Musthapha, P.C. for the Petitioners submittedthat there is no justification for such a restrictive interpreta-tion of Article 13. He cited in support the decision of thiscourt in Namasivayam v. Gunawardena (2).
In Ajaib Singh's case (supra) the taking into custody of anabducted person by a Police Officer and the delivery of suchperson by him into the custody ot the Officer-in-Charge of thenearest camp under S.4 of the Abducted Persons (Recoveryand Restoration) Act, 1949 was challenged on the ground ofconflict with certain fundamental rights provisions of theIndian Constitution. It was alleged inter alia, that S.4 was inconflict with and violative of the provisions of Article 22(1)and (2) of the Constitution which provide —
22 (1) — “No person who is arrested and detained in custodyshall be detained in custody without beinginformed, as soon as may be, of the grounds forsuch arrest nor shall he be denied the right to con-sult, and to be defended by, a legal practitioner ofhis choice."
(2) — “Every person who is arrested and detained in cus-tody shall be produced before the nearest Magis-trate within a period of twenty four hours of sucharrest excluding the time necessary for the journeyfrom the place of arrest to the Court of the Magis-trate and no such person shall be detained in cus-tody beyond the said period without the authorityof a Magistrate."
Das J. held (p. 15)-
“The language of Article 22(1) and (2) indicates thatthe fundamental right conferred by it gives protection
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under a warrant issued by a Court on the allegationor accusation that the arrested person has, or is sus-pected to have, committed, or is about or likely tocommit an act of a criminal or quasi criminal natureor some activity prejudicial to the public or the Stateinterest”.
The Court was of the opinion that the protection which hasbeen made a matter of substantive fundamental right (withimprovements) is the protection which is contained in theCriminal Procedure Code. Thus under S.56 an arrested personis entitled to be informed of the grounds for his arrest. Thisright is enshrined in Article 22(1). As regards Article 22(2) DasJ. observed (p.15) —
“It is also perfectly plain that the language of Article22(2) has been practically copied from Sections 60 and61 of the Criminal Procedure Code which admittedlyprescribe the procedure to be followed after a personhas been arrested without warrant”.
The petitioners before us have invoked Article 13(1) and (2)of the Constitution which reads —
13(1) —‘No person shall be arrested except according to theprocedure established by law. Any person arrestedshall be informed of the reason for his arrest”.
(2)-“Every person held in custody, detained or otherwisedeprived of personal liberty shall be brought beforethe Judge of the nearest competent Court accordingto procedure established by law, and shall not befurther held in custody, detained or deprived of per-sonal liberty except upon and in terms of the order ofsuch Judge made in accordance with procedure estab-lished by law”.
According to the plain meaning of these provisions therights claimed by the petitioners are not limited to persons
Siriseaa and Others v. Earnest Perera and Others (Kulatnnga, J.)
with an offence. The protection against arbitrary arrest anddetention is the central feature or the core of these provisions.Under the Indian Constitution such protection is afforded byArticle 21 which reads —
“No person shall be deprived of his life or personal lib-erty except according to the procedure prescribed bylaw”.
Article 22(1) and (2) of that Constitution provides protec-tion to persons arrested without a warrant in the circumstan-ces set out in Ajaib Singh's case (supra). Article 13 of ourConstitution enshrines the rights provided by Articles 21 and22(1) and (2) of the Indian Constitution.
The 1st and 2nd Petitioners complain of arbitrary arrestand detention by the police for the purpose of procuring theirevidence against Indika Ariyapala. The other Petitioners alsocomplain of arbitrary arrest and detention when they came tothe Coroner’s Court. I am of the opinion that such arrest anddetention are violative of Article 13(1) and (2) of ;he Constitu-tion. Neither the facts nor the constitutional provisions whichcame in for consideration in Ajaib Singh’s case (supra) haveany application to this case whilst the decision of this Court inNavasivayam’s case (supra) is exactly in point. I wish to addthat having listened to a full argument on the point I havechanged the view which I expressed (obiter) in my separatejudgment in Somawathie v. Weerasinghe (supra) on the scopeof Article 13. Accordingly I determine that the 2nd and 3rdRespondents have infringed the fundamental rights of the Peti-tioners secured by Article 13(1) and (2) of the Constitution.
The 2nd and 3rd Respondents have by their acts made theState liable to pay compensation to the Petitioners. However,the evidence establishes that these Respondents are personallyresponsible for the impugned acts. I am, therefore, of the viewthat this is an appropriate case to make the order for relief
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against them and the State. Before making my order, I wish toconsider the decision of this Court in Saman v. Lccladasa (4),in which the majority of the Judges ordered compensationonly against the State. After examining the previous decisionsAmerasinghe J. said (p. 38) —
“It is therefore the State that is liable to pay compensa-tion to the Petitioner”.
Fernando J. however, awarded compensation against the 1stRespondent and the State jointly and severally applying thecommon law principle of delictual liability against master andservant. He said (pp.23-24) —
“Article 126 does not define an ingredient of an infrin-gement of fundamental rights; it merely ousts the juris-diction of other Courts and tribunals in respect of onecategory of such infringements namely those committedby ‘executive or administrative action”.
The question is whether the decisions of this Court prior toSaman v. Leeladasa (supra) preclude relief under Article 126being granted against a Respondent who is found personallyresponsible for the infringement of fundamental rights and theState. In Tbadcbanamoortbi v. Attorney General (5), thealleged torture (infringement of Article 11) was held to havebeen not provdd for want of cogent material. Wanasundara J.proceeded to consider the preliminary objection taken onbehalf of the State that an act of a State functionary wouldnot constitute “executive or administrative action” unless it isdone within the scope of the powers given to him, whichmeans that if it is an unlawful or ultra vires act, it would notbe considered State action but only as the individual act of thepersefo concerned. He agreed that such a test would makeArticle 11a dead letter and held that an act of a public officerunder the colour of office would constitute State action exceptwhen it ought to be considered purely as an individual or pri-vate act. This exception is subject to the qualification that«"» ci-n'in nrts wnnlri entail State liability if their excention is
Sirisena and Others v. Earnest Penn and Others (Kulatunga, J.)
subject to the qualification that even such acts would entailState liability if there is an administrative practice sanctioningor tolerating them.
In Velumurugu v. Attorney-General (6), it was held (Shar-vananda J. (as he then was) and Ratwatte J. dissenting) thatthe evidence failed to establish the alleged torture of the Peti-tioner. In this case, the State took up the position that an actof an officer would constitute “executive or administrativeaction”, if it is performed in the course of his duties and undercolour of authority and in support relied on decisions on vicar-ious liability of a master for the acts of his servant in thesphere of the law of tort. Wanasundera J. said (p.210) —
“We are here dealing with the liability of the State underpublic law, which is a new liability imposed directly onthe State by the constitutional provisions.' While thedecisions relating to the vicarious liability of a masterfor the acts of his servant may be useful to the extentthat all cases where a master can be held liable in tortwould undoubtedly fall also within the liability of theState under the constitutional provisions, the converseneed not be true unless we are to give a restrictedinterpretation to the constitutional provisions. TheCommon Law test of tortious liability therefore cannotprovide a sufficient test and we have to look elsewherefor the appropriate principles”.
He expressed the view that all acts done under colour ofoffice including ultra vires acts or acts in disregard of a prohi-bition would raise State liability; and that the concept of“administrative practice” would help to extend such liabilityviz. State liability would arise if the acts complained of areattributable to a general situation created by negligence orindifference of those in authority (pp. 212, 213).
In the above decisions the Court was concerned with defin-ing State liability for infringement of fundamental rights in thewidest possible terms. The Court had no occasion to go into
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the nature of the liability for such infringements by privatepersons not subject to public law e.g. liability arising underArticle 12(3) by exclusion of any person from a shop etc. onthe ground of race, religion, language, caste or sex; nor did theCourt consider whether compensation may be awarded againstboth the offending officer and the State which is a questionrelating to the scope of the redress an applicant would beentitled to under Article 126.
In Ratnasara Thero v. Udugampola (7) a Divisional Benchof this Court ordered the 1st Respondent (a Superintendent ofPolice) to pay the Petitioner a sum of Rs. 10,000/- for infrin-gement of Article 14(l)(a) by the seizure of certain pamphlets.
In Mariadas v. Attorney-General (8), the State was orderedto pay compensation in a sum of Rs. 5,000/- for infringementof the Petitioner’s rights under Article 13(1) whilst the 1stRespondent was ordered to pay the Petitioner the costs of theapplication. The Court said it would not make an orderagainst Sub Inspector Godagama who was also found respon-sible for the infringements as he was not a party to the pro-ceedings.
Sharvananda J. said (p. 404) —
“The protection afforded by Article 126 is againstinfringement of fundamental rights by the State, act-ing by some public authority endowed by it with thenecessary coercive powers. The relief granted is prin-cipally against the State, although the delinquent offi-cial may also be directed to make amends and/orsuffer punishment”.
In Vivienne Gooncwardena v. Perera (9) this Courtadopted the above dicta as to the nature and the scope of theliability for infringement of fundamental rights by the State.The officer who was responsible for the wrongful arrest of thePetitioner was not a party to the application. Accordingly, theCourt awarded Rs. 2,000/- as compensation against the Statefor infringement of Article 13(1).
Siriseaa and Others v. Earnest Perera and Others (Kulatunga, J.)
In Kapugeekiyana v. Hettiaracfichi (10), the 1st and 2ndRespondents were ordered to pay Rs. 10,000/- as compensa-tion for violation of the Petitioner’s rights under Article 13(2)by illegally detaining him on the fourth floor of the CriminalInvestigation Department for three days.
With great respect, there is nothing in these decisionswhich would support the implication of the majority opinionin Saman v. Leeladasa (supra) that a determination underArticle 126 would enable the grant of relief only against theState. In fact relief has been freely granted previously not onlyagainst the State but also against Respondents who were foundto have been personally responsible for infringement of fun-damental rights. Even if the liability is not based on delict butliability sui generis under public law, this Court has the powerunder Article 126(4) read with Article 4(d) to grant reliefagainst the offending public officer and the State. That Articlereads —
“The Supreme Court shall have power to grant suchrelief or make such directions as it may deem just andequitable in the circumstances in respect of any petitionor reference referred to in paragraphs (2) and (3) ofthis Article”
“Executive or administrative action” would make the Stateprimarily liable for such action viz. independently of the stateofficer concerned and as a matter of public law. But Article4(d) which provides that fundamental rights shall be respected,secured and advanced by all organs of government wouldmake the offending public officer being a member of the exec-utive organ also liable for the infringement of such rights; andArticle 126(4) would empower this Court to grant reliefagainst the State and such officer. It is necessary that suchrelief should be just and equitable. Giving relief against indi-vidual officers in addition to the State in appropriate caseswould also help to curb any tendency on the part of Stateofficers to violate fundamental rights in the belief that theState alone is liable for such violation.
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In ordering relief to the Petitioners before us, I wish toemphasize that whilst it is the duty of the police to investigateoffences using all lawful powers, they are not entitled to arrestor detain persons in the course of investigations in the mannerdisclosed in these proceedings. As already pointed out suchoverzealous conduct would only impede the successful prose-cution of offenders and give rise to complaints of violation offundamental rights. In all the circumstances, I think it just andequitable to make order that the 1st and 2nd Petitioners areeach satisfied to compensation in a sum of Rs. 3,000/- (RupeesThree Thousand) payable by the State. The lsl and 2nd Peti-tioners will also be entitled to compensation in a sum of Rs.500/- (Rupee Five Hundred) each payable by the 2nd and 3rdRespondents respectively. The 3rd, 4th and 5th Petitioners willeach be entitled to Rs. 500/- (Rupees Five Hundred) as com-pensation payable by the State. Each of them will also beentitled to compensation in a sum of Rs. 250/- (Rupees TwoHundred and Fifty) payable by the 2nd and 3rd Respondentsrespectively. I direct the payment of these amounts accordinglyby the State and the 2nd and 3rd Respondents together withone set of costs in a sum of Rs. 2,000/- (Rupees Two Thou-sand) payable by the State. I also agree to the making of thefurther direction as stated by my brother Fernando J. in hisjudgement whereby the Inspector General of Police is requiredto inquire and report on the allegations made by the 1st and2nd Petitioners.
Compensation orderedagainst State and PublicOfficers concerned for illegalarrest.
SIRISENA AND OTHERS V. EARNEST SIRISENA AND OTHERS