023-SLLR-SLLR-1991-V2-GAMLATH-V.-NEVILLE-SILVA-AND-OTHERS.pdf
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Camlath v. Neville Silva and Others (Kulatunga, J.)
267
GAMLATH
V,
NEVILLE SILVA AND OTHERS
SUPREME COURT.
BANDARANAYAKE, J.. KULATUNGE, J. & WADUGODAPITIYA, J.
S. C. APPLICATION NO. 78/90.
JULY 16. 1991.
Fundamental Rights – Arrest – Torture – Reasonable suspicion – Articles11 and 13 (1) of the Constitution – Code of Criminal Procedure Act, section
mmA suspicion is proved to be reasonable if the facts disclose that it wasfounded on matters within the Police Officer’s own knovdedge or on state-ments made by other persons in a way which justify him giving them credit.An arrest under section 32(1) (b) of the Code of Criminal Procedure Act canbe on reasonable suspicion. The observance of the procedure for arrest with-out a warrant is now a constitutional right under Article 13(1) of the Consti-tution which guarantees freedom from arrest. The information on which thearrest is based must be credible by the application of the objective test. Anarrest based purely on the subjective satisfaction of the Police Officer wouldbe arbitrary and in violation of Article 13(1). There was no credible informa-tion giving rise to a reasonable suspicion that the petitioner was concernedin the offence of dishonestly receiving stolen property. It was an arbitraryarrest if regard is had to the background. The lost water pump belonged tothe wife of a senior Police Officer and the initial information which led tothe petitioner's arrest was given by a subordinate police officer. The infor-mation itself did not touch the petitioner. The petitioner had been severelyassaulted when in Police custody and subjected to torture or cruel, inhumanor degrading treatment. This is confirmed by the medical report and sup-ported by the affidavits of witnesses and the prompt statements of the peti-tioner.
There was therefore violation of the petitioner’s fundamental rights underArticles 11 and 13 (1).
Cases referred to:
Muttusamy v. Kannangara 52 NLR 324, 327.
Chandradasa v. Lai Fernando S. C. Application 174-5/87 — S.C. Min-utes of 30 September 1988.
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Amal Sudath Silva v. Kodituwakku [1987] 2 Sri L.R. 119, 127.
Geekiyanage Premalal de Silva v, Rodrigo S. C. Application No. 24/89—S.C. Minutes of 05.09.1990.
Jayaralne v. Tennakoon S. C. Application No. 18/89 & 10/89 — S.C.Minutes of 04.07.1991.
APPLICATION for infringement of fundamental rights guaranteed by Arti-cles 11'and 13(1) of the Constitution.
R.K. IV. Goooesekera with Nimal Punchihewa and C. Swamadhipathi forpetitioner.
S.Dheerasekera with Mervvn Samarajeewa for 1st and 2nd respondents.Upawansa Yapa,D. S. G. for Attorney-General.
Cur.adv.vult.
August 27, 1991.
KULATUNGA, J.
The petitioner was arrested by the Padukka Police in thecourse of investigations into the theft of a water-pump with amotor. He complains that his arrest is unlawful and that whilsthe was in Police custody the 1st respondent (a Sub – Inspec-tor of Police) and the 2nd respondent (a Police Sergeant) sub-jected him to torture or cruel, inhuman or degrading treat-ment. He prays for a declaration that his fundamental rightsguaranteed by Articles 11 and 13(1) of the Constitution havebeen infringed and for compensation. The petitioner’s versionof the relevant events set out in the petition is as follows.-
On 01.12.90 at about 3.30 a.m. the 1st respondent accom-panied by four other Police Officers came to his house in ajeep and arrested him. He saw one Dharmadasa inside the jeepwhich was then driven to the house of one Kirthipala. Thepolice searched for Kirthipala but failed to find him at thattime. At about 4.30 a.m. the petitioner and Dharmadasa were
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brought to the Padukka Police. Dharmadasa was put into acell while the petitioner was ordered to be seated on a benchoutside the cell. At about .8.00 a.m. Kirthipala was alsobrought. Thereafter Dharmadasa was taken out of the cell andremoved to a place inside the Police Station. The petitionerthen heard Dharmadasa shouting. Likewise Kirthipala wasalso removed in the same direction and the petitioner heardhim shouting.
At about 8.30 a.m. the petitioner was taken to a roominside the Police Station where he saw Dharmadasa and Kirth-ipala who appeared to have been assaulted. The petitioner wastaken near them and the 1st respondent threateningly toldthem “«S(30ts5” whereupon they said that they had given thewater-pump to the petitioner. The petitioner denied it. Thenthe 1st respondent assaulted him with a “Kitul club". In thehistory of injuries given to the Assistant Judicial MedicalOfficer, Colombo the petitioner described the weapon as arSt$(3 oSc3 (a piece of flat Kitul wood) which is more consist-ant with the injuries found on him. The petitioner’s handswere tied with a rope and the 1st and 2nd respondents hunghim by passing the other end of the rope over a beam. Whilehe was in that position both respondents assaulted him with"Kitul Clubs”. He was then lowered to the ground and thetwo respondents threw chilli powder dissolved in water on hisface. He was then dragged into a cell.-Owing to the injuriesreceived by him during the assault the police took him to thePadukka Hospital for treatment at about 6.30 p.m. and he waswarded.
The petitioner was discharged from hospital on 03.12.90.Dharmadasa and Kirthipala had been produced before theMagistrate Homagama by the police and they were remanded.In view of the hospitalisation of the petitioner the Magistrateenlarged him on bail. On 03.12.90 he visited the Police Head-quarters and reported the assault. The officers there arrangedfor him to make his statement to Mr. Henry Perera, Senior
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Superintendent of Police, Nugegoda. His efforts to meet the
P. on the same day were unsuccessful. On 04.12.90 also the
P. was not there but S.S.P. Navaratne attended to him andhad his statement recorded by Sergeant Gunadasa. He wasthen given a letter to the Officer-in-Charge, Mirihana PoliceStation on the strength of which Mirihana Police Stationissued a police ticket to him to enter the General Hospital,Colombo. As there was no time that day, he entered the hospi-tal on 05.12.90. That day he was examined by the Asst. J.M.O.whose report has been produced marked PI. On 14.12.90 heappeared before the Magistrate when his case was called andmade a statement regarding the assault on him which wasrecorded.
According to the report PI, the petitioner told the Assist-ant J.M.O. that he had been assaulted on 01.12.90 while hewas detained by Padukka Police with a “Kitul Patiya” andanother long object after tying his wrists and hanging himfrom the roof. He had the following injuries;
Contusion on the medical aspect of the left elbow joint
7 c.m. X 5 c.m. in size.
Pressure abrasion on the back of the left upper arm 2, 1/2c.m. X 2 c.ms. obliquely placed.
Two parallel contusions on the upper part of the left hip 8c.m. long and 1,1/2 c.m. apart from each of the transver-sely placed.
Two curved parallel contusions on the lower part of theleft hip 3 c.m. apart from each other 20 cm$. in lengthobliquely placed.
Two parallel pressure abrasions on the posterio-lateralaspect of the upper part of right hip 1.5 c.m apart fromeach other 23 cms. long transversely placed.
Two parallel pressure abrasions on the posterio-lateralaspect of right hip below injury No. 5 obliquely placed 12c.m. long and 1.5 cms. apart from each other.
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Two parallel pressure abrasions on the posterio-lateralaspect of lower part of right hip 2.5. cms. apart from eachother 15 cms. long obliquely placed.
Contusion on the lower part of the right hip with a scab inthe mid region. The contusion had pressure abrasions onthe upper and lower margins 23 cms. in length, 5 cms,broad on the medical 10 cms. and 2,1/2 cms. broad on thelateral part.
Grazed abrasion 1 cm. X 1 cm. on the anterio-lateralaspect of the left wrist.
Grazed abrasion 1 cm. X 2 cm. in size on the anterio-medical aspect of the left wrist.
Grazed abrasion 1 cm. X 2 cm. on the lateral aspect of theright wrist.
Two parallel contusions on the front aspect of right thigh 5cm. long 3 cm. apart from each other transversely placed.
Two parallel contusions on the front aspect of right thigh 5cm. long transversely placed 2 cm. apart from each other.
Contusion 7 cm. X 2, 1/2 cm. in size on the front aspect oflower part of the left thigh.
Contusion 5 cm. X 3 cm. on the back of the left thigh.
Tenderness in the lower part of left leg.
Tenderness on the right calf.
The Assistant J.M.O. is of the opinion that all injuries wereconsistent with the history of assault with a blunt weapon; andinjuries 9, 10 and 11 are consistent with a history of havingbeen tied at the wrist.
In support of his version the petitioner filed affidavits fromhis wife Vinitha Jayasinghe and two other relations Har-ischandra Welikala and Rohan Gamalath Attorney-at-Law.
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Gama lath speaks to having visited the Police Station at about7.30 a.m. on 01.12.90 on being informed of the petitioner'sarrest. At that time the petitioner had not been harmed; butwhen he visited him again at about 10.00 a.m. on hearing thathe had been assaulted he found the petitioner lying inside thecell hardly able to move or speak. Qn being asked the peti-tioner said that he had been assaulted by the 1st and 2ndrespondents. His attempts to pursuade the O.I.C. of the PoliceStation to send the petitioner to the hospital at that time wereunsuccessful but in the evening at about 6.00 p.m. on hisrequest the O.I.C. dispatched the petitioner to the PadukkaHospital.
The case for the respondents is that the petitioner alongwith two others, Dharmadasa and Kirthipala were arrested inconnection with the loss of a water pump valued at Rs. 4,000/-from a land called Linawatte owned by Mrs. Delgoda wife ofNalin Delgoda, Superintendent of Police. The theft wasreported to the Padukka Police on 20.11.90 by Punchimahat-taya watcher of the estate who said that he could not nameany suspect (Rl); nor did the immediate investigations by thepolice disclose any suspect. On 01.12.90 at 2.00 p.m. SergeantRupasinghe of the Homagama Police called over at thePadukka Police Station and made a statement (R3) wherein hesaid that he knows this estate; that he used to supply labourersand attend to other requirements thereon at the request of theowner; that about a week before the loss of the water pump ona day when coconuts were being plucked he supplied twolabourers Sunil and Nimal to gather nuts on the estate andthat they had brought one Dharmadasa to assist them. Ser-geant Rupasinghe added that he suspects Dharmadasa for thetheft of the water pump as he had been arrested by the policepreviously for theft of similar articles.
The respondents further state that acting on the informa-tion given by Sergeant Rupasinghe a police party consisting of4 officers including the 1st and 2nd respondents left the Sta-
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tion at about 3.40 p.m. is search of Dharmadasa and arrestedhim at 4.10 p.m. at his house after informing him of the alle-gation against him. Thereafter, his statement (R5) wasrecorded at 4.15 p.m. wherein he confessed to stealing thewater pump and selling it to the petitioner through Kirthipalafor Rs. 2000/-. Consequent upon Dharmadasa’s statement theyarrested Kirthipala close to his house at 4.40 p.m. afterinforming him of the allegation against him. His statement(R6) was recorded at 4.45 p.m. wherein he confirmed Dhar-madasa’s version and admitted having sold the water pump tothe petitioner after representing that it belonged to him. Thepolice party next arrested the petitioner at his house at 5.10p.m. after explaining the allegation of receiving stolen pro-perty.
Continuing their version the respondents state that whilethe suspects were being taken in the jeep the petitioner saidthat he had hidden the water pump behind a rock. So theyproceeded in the direction shown by him but could not findthe water pump. At that stage the petitioner slipped and rolleddown the rock. He was lifted and examined for injuries but noinjuries were observed. Thereafter the suspects were brought tothe Police Station and locked up> pending the instructions ofthe O.I.C.. At 6.45 p.m. the petitioner complained of beingunwell and was dispatched to the Padukka Hospital at 6.50p.m. On 02.12.90 the petitioner’s statement was recorded bythe police at the hospital (R12); he denied any knowledge orreceipt of the water pump. R8, the Medico Legal Report of theDistrict Medical Officer, Padukka on the petitioner states thathe had been admitted to the hospital at 7.20 p.m. on 01.12.90with a history of assault by police; and he had six injuries onhis buttock and back of the calf of leg.
Mr. R. K. W. Goonesekera, learned Counsel for the peti-tioner submitted that the petitioner has established the infrin-gement of his fundamental rights both as regards his arrestand the treatment which he has been subjected to whilst inpolice custody. It is alleged that the petitioner was not
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informed of the reason for his arrest; that in any event theimpugned arrest was effected under normal law namely S. 32(l)(b) of the Code of Criminal Procedure Act, No. 15 of 1979;and that the arrest is unjustified because on the basis of thefacts it cannot be said that there was a reasonable suspicion ofthe petitioner having been concerned in any cognizableoffence. The well known test of reasonableness of a suspicionwhich has been often cited is that “a suspicion is proved tobe reasonable if the facts disclose that it was founded on mat-ters within the police officer’s own knowledge or on the state-ments made by other persons in a way which justify him givingthem credit” per Gratiaen J. in Muttusamy v. Kannangara (1).
The decision in Muttusamy v. Kannangara is also authorityfor the principle relied upon by the petitioner’s Counsel thatthe reasonableness of the suspicion is liable to be tested byCourt. On this basis, Counsel submitted that the subjectivesatisfaction of the police officer is not sufficient; the test is anobjective one. He cited in support the decision in Chandradasav. Lai Fernando (2).
The facts relating to the arrest of the petitioner are interest-ing. A water pump is lost from an estate owned by the wife ofa Superintendent of Police. The watcher cannot name a sus-pect. Then a Police Sergeant who is known to the ownercomes in and names Dharmadasa as a suspect because he hadbeen seen working on this estate and had been arrested by thepolice previously for theft of similar articles. It is not knownwhether he had even been charged with theft. On this materialDharmadasa is arrested. Within 15 minutes from his arrest heis said to have confessed to the offence and the disposal of thewater pump. He says that when he obtained Kirthipala’sassistance to sell the water pump he represented that itbelonged to a person living far away and that he did not tellKirthipala how he came by it. On this statement Kirthipala isarrested and within 10 minutes he is said to have admitted thesale of the article to the petitioner. He, however says that on
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being asked by the petitioner he claimed to be the owner ofthe article. It was on this statement that the petitioner wasarrested; however, the stolen article was not recovered.
Whilst there is no objection to the police questioning pos-sible suspects in the course of investigations into an offence, alawful arrest can be made only on reasonable suspicion basedon credible information – Muttusamy v. Kannangara (supra).This is the procedure established by law for an arrest withoutwarrant. The- observance of this procedure is now a constitu-tional right under Article 13(1) of the Constitution which gua-rantees freedom from arbitrary arrest. The information onwhich the arrest is based must be credible by the applicationof the objective test. An arrest based purely on the subjectivesatisfaction of the police officer would be arbitrary and viola-tive of Article 13(1). These rules apply even in rhe case of anarrest for an offence under Emergency Regulations and asAtukorale J. described in Chandradasa’s case (supra) theyconstitute “legal constraints” on the powers of arrest withoutwarrant conferred on a police officer under Regulation 1.8(1).Having referred to the fact that police frequently invoke thisregulation, like S.32(I) of the Code of Criminal Procedure Act,under the normal laws, Atukorale J.. proceeded to state thus —
“It is therefore very essential that they should acquaint them-selves fully with its prepise nature, scope and ambit. It is allthe more so in the context of the present Constitution whichmakes assurance to all persons the dignity and freedom of theindividual by guaranteeing to them, aih'ongst others, the free-dom from arbitrary arrest and detention. Every improperinvocation of this power by a police officer endangers the con-stitutional right and assurance of personal freedom enjoyedand held out to the people of this country”.
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This exortation applies with even greater force to an arrestwithout a warrant under the normal laws invoked against thepetitioner.
If as pointed out above the petitioner was arrested entirelyon the basis of Kirthipala's statement who said that he represented to the petitioner that the water pump belonged to himafter which the petitioner bought it, there is no credible infor-mation giving rise to a reasonable suspicion that the petitioneris concerned in the offence of dishonestly receiving stolenproperty. It is an arbitrary arrest particularly having regard tothe background to the case viz. the water pump which was lostbelongs to the wife of a Senior Police Officer and the initialinformation which led to the petitioner’s arrest was given by asubordinate Police Officer. That information, even if it has anyvalue, does not touch the petitioner. The petitioner complainsthat he was not informed df the reason for his arrest. Even if,as stated by the respondents, he was informed of the reason, Idetermine the arrest to be unlawful for non-conformity withthe requirements of S.32(l,)(b) of the Code of Criminal Proce-dure and hence violative of Article 13(1) of the Constitution.The 1st and 2nd respondents are responsible for this violation.
As regards the alleged violation of Article 11, I am satisfiedthat the petitioner was,, whilst he remained in police custodysubjected to severe assault constituting torture or cruel, inhu-man or degrading treatment. This is supported by the MedicalReport PI which is in turn confirmed by the Medical ReportR8 despite its brevity. The petitioner’s version that he wasassaulted from about 8.30 a.m. on 01.12.90 is supported by theaffidavit of Gamalath Attorney-at-Law and the prompt state-ment of the petitioner to the D.M.O., Padukka, the complaintto the Police Headquarters and the history of injuries given tothe D.M.O. Padukka and the Asst. J.M.O. Colombo. This wasfollowed up with a complaint to the Magistrate. I reject therespondents, version that the petitioner and other suspectswere arrested during the afternoon of that day and their
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statements were recorded so fast and in quick successionbetween 4.10 p.m. and 5.10 p.m. and that by 6.4S p.m. thepetitioner became so ill as to require hospitalization by reasonof a natural cause or by injuries caused by rolling down a rockas the respondents attempt to make out. I accept the petition-er’s version that he was arrested during the early hours of themorning and was later on tortured at the Police Station by the1st and 2nd respondents. Presumably, this was done for thepurpose of extracting a confession from the petitioner whichthey failed to get. Accordingly, I determine that the 1st and2nd respondents have infringed the petitioner’s rights underArticle 11 of the Constitution.
In determining the relief to be granted to the petitioner, Itake into consideration the fact that this is yet another case inwhich the police have nonchalantly indulged in unlawfularrest of a citizen and torture despite so many decisions of thisCourt in which the fundamental rights involved have been dis-cussed over and over again. The strong condemnation of tor-ture in Amal Sudath Siiva v. Kodituwakku (3) to which refer-ence has been made in recent judgments of this Court inGeekiyanage Ptemalal de Silva v. Rodrigo (4) and Jayaratne v.Tennakoon (5) has had no effect on the police. In AmalSudath Silva's case Atukorale J. describes torture by the policeas “barbaric, savage and inhuman” and “most revolting toone’s sense of human decency and dignity”. He also said —“Nothing shocks the conscience of a man so much as thecowardly act of a delinquent police officer who subjects ahelpless suspect in his charge to depraved and barbarousmethods of treatment within the confines of the verypremises in which he is held in custody…….. The peti-tioner may be a hard'-core criminal whose tribe deservesno sympathy. But if constitutional guarantees are tohave any meaning or value in our democratic set-up, itis essential that he be not denied the protection guaran-teed by our Constitution”.
Amal Sudath Silva v. Kodituwakku. (3)
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I am in respectful agreement with the above quoted viewswhich need no improvement for emphasis except to state thatdespite subsequent reminders to the police, violations of Article11 of the Constitution which symbolises man’s inhumanity toman continue. Such infractions make the State primarily lia-ble. In awarding just and equitable relief we are mindful of thefact that the State has to pay compensation out of publicfunds; but this Court cannot on that ground resile from mak-ing an appropriate order. The State has to pay in view of theprinciple of State responsibility for executive and administra-tive action. If payment of compensation in default is a burdenon public funds, it cannot be helped. In any event, compensa-tion ordered is payable to the citizen whose rights are violatedand constitutes a just levy on public funds in favour of thecitizen. In all the circumstances, I direct the State to pay Rs.1000/- (Rupees One Thousand) to the petitioner as compensa-tion on account of the infringement of his rights under Article13(1) and Rs. 14,000/- (Rupees Fourteen Thousand) as com-pensation on account of the infringement of his rights underArticle 11. The 1st and 2nd respondents are personally respon-sible for such infringements and are liable under Article 4(d)read with Article 126(4) to an order for relief. In the circum-stances of this case, I direct the 1st and 2nd respondents topay Rs. 1750/- (Rupees One Thousand Seven Hundred andFifty) to the Petitioner as costs in the proportion of Rs. 875/-(Rupees Eight Hundred and Seventy Five) each but with awarning that a recurrence of such conduct by police officersmay attract heavier sanctions against them including liabilityto pay compensation.
Bandaranayake, J. — I agree.
Wadugodapitiya, J. — I agree.
Application allowed. Compensation ordered.