“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:
Article 10
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.
Article 11
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.
Article 12
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.
Article 13
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.
Relief granted.