S. I. GUNARATNE & OTHERS
SUPREME COURTAMERASINGHE, J.
S.C. APPLICATION NO. 109/95.
OCTOBER 6, 1995.
Fundamental Rights – Constitution, Articles 13(1), and (2), Article 11 – Code ofCriminal Procedure Act, Sections 32(1) (b), 36 and 37 – Inform reasons for arrest- Unreasonable delay – Torture – United Nations Convention on Torture, Articles2.1,10, 11, 12, 13 and 16- Act, No. 22 of 1994.
The Petitioner alleges that he was arrested at about 6 p.m. on 1, March 1995, forno reason. He was taken to the Hanguranketha Police Station where the 1stRespondent assaulted him with a piece of wood. He was produced before theMagistrate in the morning of 2, March, 1995.
The question to be decided is whether there was “unreasonable delay* andwhether his detention before production was, ‘under all the circumstances of thecase’, “reasonable”, rather than, the question whether the arrest was unlawfularid consequently the subsequent detention was also unlawful.
The infringement of fundamental rights by the police continue unabated evenafter nearly 18 years from the promulgation of the 1978 Constitution and despitethe numerous decisions of this court which have condemned such infringements.As this court had observed in previous judgments, this situation exists becausepolice officers continue to enjoy an immunity from appropriate departmentalsanctions on account of such conduct. It is hoped that the authorities will takeremedial action to end this situation.
The 24 hour limit is the maximum time for production. Where in all thecircumstances of the case it was unreasonable to delay production before theMagistrate, the person making the arrest would be acting in contravention ofArticle 13(2).
There being no grounds for arrest whatsoever, the detention overnight wasunreasonable, and in failing to produce the Petitioner before the Magistrate soonafter the arrest, the 1st Respondent failed to act in accordance with procedureestablished by law.
The award of compensation is useful because it provides an opportunity todemonstrate society’s abhorrence of such conduct. Whereas courts are notobliged to reflect public opinion they must not disregard it, especially where thereis general anger or dismay or fear over transgressions of this nature.
The fact that a transgressor is personally required to pay a part of thecompensation assessed by the court as being just and equitable is useful to theextent that it will to some extent assuage the wounded feelings of the victim.
Cases referred to:
Ratnapala v. Dharmasiri 1 Sri L.R. 224 at 232,233,236.
Garusinghe v. Kaduragamuwa S.C. App 133/87 SCM 1 June 1988.
Chandrasekaram v. Wijetunge S.C. Ref. 1-3/92 SCMN 29 June 1992.
Faiz v. A.G.S.C. App 89/91 SCM 1993.
Wijeratne v. Vijitha Perera S.C. App 379/93 SCM 2 March 1994.
Peiris & Others v. A.G. & Others  1 Sri L.R. 1
Mahinda Rajapakse & Vasudeva Nanayakkara v. Chief InspectorKarunaratne & Others S.C.A. 2 & 4/93 SCM 31 March 1994.
Kumarasena v. Sriyantha & Others S.C. App 257/93 SCM 23 May 1994.
Seivakumar v. Douglas Devananda & Others S.C. App 150/93 SCM 13 July1994.'
Kumara v. Rohan Fernando & Others S.C. App 22/90 S.C.M. 21 July 1994.
Pelwattage (AAL) for Piyasena v. OIC Wadduwa SC App 433/93 SCM 28October 1994.
Jayasena v. Ramanayake & Others S.C. (F/R) 17/94 SCM 28 October 1994.
Weragama v. Indran & Others S.C. App’s 396 and 397/93 SCM 24 February1995.
Saman v. Leeladasa  1 Sri L.R. 1.
Cf. R. v/. Oddy  2 ALL E.R. 666.
APPLICATION alleging Infringement of fundamental rights.
Nimai Hapuarachchi for the Petitioner.
Kanthilal Kumarasiri for the 1st and 2nd Respondents.
V. Puvitharan, S.C. for the 3rd and 4th Respondents.
Cur. adv. vult.
The petitioner alleges that he was arrested by the 1 st respondent(Sub Inspector of Police) on 01.03.95 at about 6.00 p.m. for noreason; he was taken to the Hanguranketha Police Station where the1st respondent assaulted him with a piece of wood. The petitionercomplains that by such acts his rights under Article 11, 13(1) and13(2) have been infringed by executive or administrative action. The2nd respondent (also a Sub Inspector of Police) was the Officer-in-Charge of the Hanguranketha Police Station. In his petition, thepetitioner does not make any allegation against the 2nd respondent.
The Petitioner states that he was waiting for a bus at theRikillagaskada junction to go home, after selling cloth. Then the 1strespondent arrived in a jeep with two Police Constables and arrestedhim. The petitioner was not informed of the reason for his arrest. Onthe 1st respondent’s order the two constables put the petitioner intothe jeep. He was then taken to the Hanguranketha Police Station. Atthe Police Station the 1st respondent told the petitioner “you are theone that I wanted … you are having land cases with my relations youdog”. This has reference to the motive for the petitioner’s arrest,according to the case presented by the petitioner.
The petitioner’s position on the question of motive is that the 1strespondent's sister Bisso Menika is his neighbour. She is married toone Gunaratne who is not on good terms with the petitioner due to aland dispute. Gunaratne had threatened to have the petitionerpunished by his brother-in-law the 1st respondent.
At about 7.30 p.m. the petitioner was taken towards Kandy in ajeep. On the way the jeep was halted. The 1st respondent took abottle of arrack, opened it and forced it into the petitioner’s mouth.Petitioner was thus compelled to swallow a little arrack while some ofit spilt on his shirt. In attempting to get the petitioner to consumearrack, the 1st respondent assaulted the petitioner on his cheek andshoulder. As a result, he fell down and injured his left elbow. He wasthen taken to the Government Hospital Marassana. He was shown toa doctor. The 1st respondent told the doctor that the petitioner wasdrunk. The doctor recorded it in a book.
Thereafter, the petitioner was brought back to the Police Station atabout 10.30 p.m.; and the 1st respondent assaulted the petitionerwith a broken leg of a chair. The petitioner sustained injuries on hisleft knee and the right shoulder. When the petitioner asked for somedrinking water, the 1st respondent gave him a cup of urine.
On 02.03.95 the petitioner was taken to Court. On the way he senta message to his wife through one Seneviratne. In Court he pleaded“not guilty” to the charge and was given bail. On the same day, hegot himself admitted to the General Hospital Kandy and receivedtreatment as an in patient in Ward No. 10. The petitioner hasproduced marked P1 the report of the JMO dated 31.03.95 whichreads:
"This patient was admitted to General Hospital Kandy on
at 2.35 p.m., Ward No. 10 BHT No. 15315. Healleged that he was assaulted with a club by a Police Officer on
around 9.00 p.m. and 11.00 p.m. He had thefollowing injuries.
Scabbed grazed abrasion 2 1/2' x 1/2“ on the upper back ofthe right forearm.
Scabbed grazed abrasion 3/4” diameter on the back of leftelbow.
Swelling of left knee – No fractures found vide X-rayNo. 9591.
Pain in the right buttock.
All injuries are caused by a blunt weapon and were non-grievous in nature”.
The petitioner has annexed to his petition supporting affidavitsfrom several witnesses including the following –
One Ranasinghe Banda who states that on 01.03.95 he toowas waiting for a bus at Rikillagaskada with the petitioner whenthe 1 st respondent came in a jeep and arrested the petitioner.On the 1st respondent’s order two police constables put thepetitioner into the jeep – (P2).
One Gnanapala who says that having heard of the arrest ofthe petitioner he visited the Police Station at about 6.00 a.m. on02.03.95. At the request of the petitioner the witness gave him ashirt. The petitioner appeared to be in pain and the shirt whichhe was wearing was smelling – (P5).
One Seneviratne Banda who says that he saw the petitionerbeing taken along the road by a constable. The petitioner waslimping and said that he was being taken to Court. At therequest of the petitioner the witness carried a message to thepetitioner’s wife. On the way he met the petitioner’ daughter andconveyed the information to her – (P6).
The 1st respondent states that on 01.03.95 he was on Station dutyand never left the Police Station; and that on 02.03.95 he signed aplaiht against the petitioner in his capacity as the Officer-in-Charge ofthe crime branch. He denies that he arrested the petitioner and alsothe alleged assault.
The 2nd respondent (R. M. K. Ranaweera) states that he arrestedthe petitioner at about 9.30 p.m. for drunken and disorderlybehaviour. He states that when he was passing the Rikillagaskadatown, he saw the petitioner on the ground and strongly smelling ofliquor. His sarong had fallen off his body. In support of this version,the 2nd respondent has produced affidavits from the followingwitnesses, obtained in June, 1995.
Ratnayake who claims to be the owner of a shop inRikillagaskada town – (2R2).
Wickremasinghe a labourer who had been to a liquor shopin the town for a drink of arrack – (2R3).
Nimal who is the owner of a private van who used to ply it inthe town – (2R4).
According to these witnesses the petitioner was drunk anddisorderly from about 6.30 p.m. to 8.00 p.m. He was abusing inobscene language. By 8.00 p.m. he was lying on the ground. Theysay that nobody went to his assistance as he was in the habit ofbehaving in that manner after drinks.
As per the 2nd respondent's notes of investigations, at the time the2nd respondent arrived at the scene, the petitioner was still abusive.When the 2nd respondent put him up, the petitioner became moreabusive and used obscene language – (2R6). The 2nd respondentarrested the petitioner and brought him to the Police Station.According to the notes of the police officer who took charge of thepetitioner at the Police Station, he had contusions and abrasions. Hewas also under the influence of liquor – (2R7).
Continuing his version, the 2nd respondent states that thepetitioner was sent for a medical examination and produced marked
2R10 – a copy of the medico-legal examination form from policecustody. 2R10 states that the petitioner was examined at 11.30 p.m.on 01.03.95 by doctor Bentota. However, it is not signed by thatdoctor. According to 2R10 the petitioner had abrasions, which fact isindicated by a tick against the relevant cage. By a similar tick 2R10indicates that the petitioner was under the influence of liquor.
On 02.03.95 the petitioner was produced in Court, charged with anoffence under s. 2 read with s. 12(2) of the Offences committedunder the Influence of Liquor (Special Provisions) Act No. 41 of 1979.The report to Court has been produced marked 2R13.
Finally, the 2nd respondent has produced an affidavit dated20.06.95, marked 2R19 from Ranasinghe Banda, the witness for thepetitioner denying that he gave the affidavit which the petitionerproduced marked P2. However, on a comparison of the signatures on2R19 and P2, it appears plain, having regard to the formation, theshape, the angle and the letters of the two signatures that bothaffidavits have been signed by one and the same person namely
“fpsb. dsnS-so S'SSSo”.
The petitioner has filed a counter affidavit reiterating his version ofthe incidents. He has annexed thereto inter alia, an affidavit markedP9 from one Ratnatilake who had been a school principal for 12 yearsand had held the post of Principal of Hanguranketha Vidyalaya since1993. This witness states that he knows the petitioner. He has fivechildren three of whom studied in his school until they obtainedscholarships and joined other schools. Two children are still studentsin his school. The petitioner is devoted to his children. He is a goodman. He attends the meetings of the School Development Societyand helps the school. To the witness, knowledge, the petitioner is nota man who is prone to drunken and disorderly conduct.
On a careful consideration of the evidence, I am satisfied that thepetitioner’s version is intrinsically credible. It is well supported byother witnesses and the medical report P1. I reject the unsignedmedico-legal examination form 2R10 produced by the
2nd respondent. Even if the petitioner had been shown to a doctor,there has been no proper examination of the petitioner for the doctorhas failed to observe even the contusions which have been noted bythe police constable who took charge of the petitioner.
There is no motive for the petitioner to have falsely implicated the1st respondent. Counsel for the 1st and 2nd respondents submittedthat the motive is the fact that the 1st respondent charged thepetitioner under a special law which provides for a minimumsentence both as regards fine (i.e. Rs. 1000/-) and imprisonment (i.e.one year). This fact tends to show that the 1st respondent has astrong motive to have the petitioner sentenced. The motive allegedby the petitioner has not been seriously rebutted. In all thecircumstances, I am satisfied that the 1st respondent did arrest thepetitioner to penalise the petitioner on account of the existence of aland dispute between the petitioner and the 1st respondent'sbrother-in-law.
I am also satisfied that the 2nd respondent’s version is false whenhe says that it was he who arrested the petitioner at 9.30 p.m. on theday in question. The 2nd respondent's story is a mere cover updesigned to absolve himself (as the OIC of the Police Station) and the1st respondent from liability for the acts complained of by thepetitioner. It is not clear how and in what circumstances the witnesseswho gave the affidavits 2R2, 2R3 and 2R4 were discovered. I rejectthe evidence of those witnesses.
In view of the fact that I have accepted the petitioner’s version, Ihold the arrest of the petitioner to be unlawful. The detention by thepolice which followed such arrest is also unlawful. I am also satisfiedthat the petitioner was assaulted by the 1 st respondent. The 2ndrespondent himself was aware of and deliberately tolerated andacquiesced in such assault. The Police Station where the incidentoccurred appears to be a small Police Station where the 2ndrespondent, as Sub Inspector was the OIC. The 2nd respondentcannot feign ignorance of the assault. The condition of the petitionerby reason of the assault was so bad that even on the morning of thenext day, he was limping, on the way to the Court. The 2ndrespondent who admittedly gave orders in respect of the petitionerhad every opportunity of being aware of his condition. As the OIC hetook no action against his subordinate. On the contrary hesuppressed the occurrence of the alleged acts. It is on these factsthat I hold that the 2nd respondent is also personally responsible. Assuch both respondents are personally responsible for the impugnedacts. Vide Ratnapala v. Dharmasiri<1).
Accordingly, I grant a declaration that the rights of the petitionerunder Articles 11, 13(1) and 13(2) have been infringed by executiveor administrative action. In respect of the infringement of Article 11,1direct the State to pay a compensation in a sum of Rs. 20,000/-; the1st respondent is directed to pay a sum of Rs. 8000/- and the 2ndrespondent (SI Ranaweera) is directed to pay a sum of Rs. 8000/-. Ialso direct the State to pay a sum of Rs. 5000/- for the infringement ofArticles 13(1) and 13(2) and costs in a sum of Rs. 2000/-. In theresult, the petitioner will be entitled to a total sum of Rs. 43,000/- ascompensation and costs.
I wish to add that infringements of fundamental rights by the policecontinue unabated even after nearly 18 years from the promulgationof the 1978 Constitution and despite the numerous decisions of thisCourt which have condemned such infringements. As this Court hadobserved in previous judgments, this situation exists because policeofficers continue to enjoy an immunity from appropriate departmentalsanctions on account of such conduct. It is hoped that the authoritieswill take remedial action to end this situation.
The Registrar is directed to forward a copy of this judgment to the3rd respondent who is directed to ensure expeditious payment of the…sums ordered herein; to maintain a record of this judgment for]departmental purposes; and to take other appropriate action. The 3rdrespondent is also directed to make a report to this Court that thesedirections have been complied with. The report should be forwarded(5 this court on or before 31.12.1995.
I have had the advantage of reading the draft of the judgmentprepared by Kulatunga, J. I agree with his Lordship’s statement of the
facts established by the evidence.
The petitioner was Bisso Menika’s neighbour. Bisso Menika wasthe wife of Gunaratne. Gunaratne had a land dispute with thepetitioner. Gunaratne had threatened to have the petitioner punishedby the first respondent. The first respondent was the brother of BissoMenika. The arrest was in pursuance of that threat. Article 13(1) of theConstitution provides that “No person shall be arrested exceptaccording to procedure established by law. Any person arrested shallbe informed of the reason for his arrest.” The petitioner was notconcerned in any cognizable offence, and there was no reasonablecomplaint made or credible information received or a reasonablesuspicion of his having been so concerned. Therefore in arresting thepetitioner without a warrant, the first respondent was not actingaccording to the applicable procedure, namely the procedureestablished by section 32(1) (b) of the Code of Criminal Procedure. Itherefore declare that the petitioner’s fundamental right guaranteedby Article 13(1) of the Constitution not to be arrested exceptaccording to procedure established by law was violated by the firstrespondent. There were no grounds for arrest, and consequently noreason for his arrest in the relevant sense could have been given. Itherefore declare that the petitioner’s fundamental right guaranteedby Article 13(1) to be informed of the reason for his arrest wasviolated by the first respondent.
Article 13(2) of the Constitution provides, among other things, that“Every person held in custody, detained or otherwise deprived ofpersonal liberty shall be brought before the judge of the nearestcompetent court according to procedure established by law…"According to the applicable procedure in this matter, after taking thepetitioner into custody, the first respondent should have without“unnecessary delay” taken or sent the petitioner before theMagistrate. (Section 36 Code of Criminal Procedure). Section 37 ofthe Code of Criminal Procedure states that a peace officer “shall notdetain in custody or otherwise confine a person arrested without awarrant for a longer period than under all the circumstances of thecase is reasonable, and such period shall not exceed twenty-fourhours exclusive of the time necessary for the journey from the placeof arrest to the Magistrate.” The petitioner was arrested at about6 p.m. on 1st March 1995 and was produced before the Magistrate inthe morning of 2nd March 1995. The question to be decided iswhether there was “unnecessary delay” and whether his detentionbefore production was, “under all the circumstances of the case”,“reasonable", rather than, with all due respect, the question whetherthe arrest was unlawful and consequently the subsequent detentionwas also unlawful. (See per Fernando, J in Garusinghe v.Kadurugamuwa<2>, per Fernando J in Chandrasekeram v.Wijetungei3 per Goonewardene, J. in Faiz v. A.-G.w, perGoonewardene, J in Wijeratne v. Vijitha Perera<5), Pieris and Others v.A.-G. and others<6i, per Bandaranayake, J in Mahinda Rajapakse andVasudeva Nanayakkara v. Chief Inspector Karunaratne andOthers<7)). The twenty-four hour limit is the maximum time forproduction. Where in all the circumstances of the case it wasunreasonable to delay production before the Magistrate, the personmaking the arrest would be acting in contravention of Article 13(2).(See per Fernando, J in Faiz v. A.-G. (supra); Kumarasena v.Shriyantha and Others(8), Selvakumar v. Douglas Devanahda andOthersm, Kumara v. Rohan Fernando and Others<10)). In thecircumstances of this case, there being no grounds for arrestwhatsoever, the detention overnight was unreasonable, and in failingto produce the petitioner before the Magistrate soon after the arrestthe first respondent failed to act in accordance with procedureestablished by law, namely that he should have taken or sent thepetitioner before the Magistrate without unnecessary delay. I thereforedeclare that the first respondent violated the petitioner’s fundamentalright guaranteed by Article 13(2) to be produced before a judge inaccordance with procedure established by law.
The medical evidence is consistent with the petitioner’s allegationthat he was severely assaulted by the first respondent while he was inhis custody. Article 11 of the Constitution provides that “No personshall be subject to torture or to cruel, inhuman or degrading treatmentor punishment”. I therefore declare that the petitioner’s fundamentalright guaranteed by Article 11 was violated by the first respondent.
The second respondent was the officer-in-charge of the PoliceStation at which the petitioner was detained and assaulted. Thepetitioner did not allege that the second respondent was implicatedin the arrest or assault, although, presumably in order to exoneratehimself from possible blame that might have been attached to him asthe officer-in-charge, he made explanation of the arrest which I rejectas being unsupported by the evidence. However, there was noevidence that the second respondent was involved in any of thetransgressions of the petitioner’s fundamental rights. I therefore holdthat the second respondent was not guilty of violating any of thepetitioner’s fundamental rights.
Judicial condemnation and the imposition of sanctions by way ofrequiring transgressors to personally contribute towards thecompensation assessed by the Court as being just and equitable inthe hope that other persons may be deterred from violating Article 11of the Constitution has meant very little. The Court’s sense offrustration has been openly expressed. (E.g. see Pelawattage (AAL)for Piyasena v. O.I.C. Wadduwa, Jayasena v. Ramanayake andOthers, Weragama v. Indran and Others. I had in Saman v. Leeladasaraised doubts about the appropriateness and effectiveness ofawarding compensation as a punitive measure. From my point ofview, the award of compensation is useful because it provides anopportunity to demonstrate society’s abhorrence of such conduct.Whereas Courts are not obliged to reflect public opinion, they mustnot disregard it, especially where there is general anger, or dismay orfear over transgressions of this nature. The principle of retribution isone that is most easily understood by the public. Since the Courtmust have regard to his means when it requires a respondent topersonally contribute to the sum awarded, (Of. R. v. Oddy) there isperhaps not enough awarded to make a person suffer for his actions.The fact that a transgressor is personally required to pay a part of thecompensation assessed by the Court as being just and equitable isuseful to the extent that it will to some extent assuage the woundedfeelings of the victim.
I am of the view that a comprehensive approach must be adoptedif satisfactory results are to be achieved. Article 2.1 of the UnitedNations Convention on Torture, which entered into force for Sri Lankawith effect from 2 February 1994, requires the State to take “effectivelegislative, administrative, judicial or other measures to prevent actsof torture…" Sri Lanka has enacted legislation (Act No. 22 of 1994)making “torture” an offence. Sanctions, whether penal or disciplinary,will no doubt play their part; but a meaningful course of action tominimize violations of Article 11 should include other measures. TheUnited Nations Convention stresses the need for education andcertain procedural steps the State should adopt:
Each State Party shall ensure that education and informationregarding the prohibition against torture are fully included in thetraining of law enforcement personnel, civil or military, medicalpersonnel, public officials and other persons who may be involved inthe custody, interrogation or treatment of any individual subjected toany form of arrest, detention or imprisonment.
Each State Party shall include this prohibition in the rules orinstructions issued in regard to the duties and functions of suchpersons.
Each State Party shall keep under systematic review interrogationrules, instructions, methods and practices as well as arrangementsfor the custody and treatment of persons subjected to any form ofarrest, detention or imprisonment in any territory under its jurisdiction,with a view to preventing any cases of torture.
Each State Party shall ensure that its competent authorities proceedto a prompt and impartial investigation, wherever there is reasonable
ground to believe that an act of torture has been committed in anyterritory under its jurisdiction.
Each State Party shall ensure that any individual who alleges he hasbeen subjected to torture in any territory under its jurisdiction has theright to complain to, and to have his case promptly and impartiallyexamined by its competent authorities. Steps shall be taken to ensurethat the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or anyevidence given.
I should like to add one further observation: Although the U.N.Covenant is primarily concerned with torture, Article 16 providesthat-
“Each State Party shall undertake to prevent in any territory under itsjurisdiction other acts of cruel, inhuman or degrading treatment orpunishment which do not amount to torture… when such acts arecommitted by or at the instigation of or with the consent oracquiescence of a public official or other person acting in an officialcapacity. In particular, the obligations contained in Articles 10, 11,12and 13 shall apply with the substitution of references to torture ofreferences to other forms of cruel, inhuman or degrading treatment orpunishment.”
For the reasons set out in my judgment, I declare that the firstrespondent has violated the petitioner’s fundamental rightsguaranteed by Articles 11, 13(1) and 13(2) of the Constitution.
The State shall pay the petitioner a sum of Rs. 20,000 by way ofcompensation and a sum of Rs. 5000 as costs. The first respondentshall pay the petitioner a sum of Rs. 10,000 by way of compensation.
The Registrar is directed to send a copy of this judgment to theAttorney-General for such action as he may deem to be appropriate.
The Registrar is directed to send a copy of this judgment to theInspector-General of Police. The Inspector-General of Police isdirected to place a copy of this judgment in the personal file of thefirst respondent. The Inspector-General of Police is further directed totake such action as he deems appropriate against the firstrespondent and to report to this Court on or before 31 December1995 as to the action taken by him.
WIJETUNGA, J.I have had the advantage of reading in draft, the judgments of mybrothers Amerasinghe and Kulatunga.
I respectfully agree with my brother Amerasinghe.