ABEYRATNE BANDA v. GAJANAYAKE, DIRECTOR, CRIIMINAL INVESTIGATION DEP

039-SLLR-SLLR-2002-V-1-ABEYRATNE-BANDA-v.-GAJANAYAKE-DIRECTOR-CRIIMINAL-INVESTIGATION-DEP.pdf


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Abeyratne Banda v. Gajanayake, Director, Criminal
Investigation Department and Others
365
ABEYRATNE BANDA
v.GAJANAYAKE, DIRECTOR, CRIMINAL INVESTIGATIONDEPARTMENT AND OTHERS
SUPREME COURTFERNANDO, J.,
GUNASEKERA, J. ANDWIGNESWARAN, J.
SC (FR) NO. 653/2000JUNE 11, 2002
Fundamental Rights – Arrest under regulation 18 and detention under regulation19 (2), Emergency Regulations – Lack of reasonable suspicion for arrest -Articles 13 (1) and 13 (2) of the Constitution.
The petitioner was a captain in the Sri Lanka Army. He was in charge of theBindunuwewa Rehabilitation Camp where persons undergoing rehabilitation weredetained. Rehabilitation orders were made by the Minister in terms of EmergencyRegulations or the Prevention of Terrorism (Temporary Provisions) Act, No. 48of 1979, There was a Police post attached to the camp manned by a few Policeofficers. There were 45 inmates at the camp undergoing rehabilitation.
On 19. 10. 2000 the detainees protested violently against their detention. Oneof the three Police constables on duty became excited and fired his gun into theair, another ran to the village seeking help. As a result, the inmates became moreviolent though the petitioner pleaded with them to be calm. Consequently, 80Policemen from the Bandarawela Police and an Army platoon from Diyatalawawere brought. Having made the inmates calm the Army left leaving the Policein charge of the camp.
The next day about 2,000 villagers armed with clubs, axes, swords and firearmsmarched to the camp. Outsiders gathering near the camp shouted slogans againstinmates and the petitioner that he was helping the LTTE. Despite the petitioner’srequest to the Police to take action and his pleas to the invaders, they enteredthe camp and brutally killed 24 inmates and set fire to the place with the bodies.
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The 1st respondent (Director, CID), the 2nd respondent (Inspector of Police) andthe 3rd respondent (SP, CID) arrived at the Bandarawela Police where the petitionerhad gone. The 1 st respondent questioned him and the 2nd respondent arrestedhim (under ER 18) on charges that he had on 26. 10. 2000 acted in such amanner as to create difficulties between the Sinhala and Tamil communities incontravention of ER 24 (1) (a), (b) (d) and (e) and ER 26 (d) and (e). Thereafter,the petitioner was kept on detention on two detention orders issued by the 4threspondent (DIG, CID) for 90 days from 26. 10. 2000. He was discharged on06. 06. 2001 by Court without a prosecution.
Held:
There was no material whatsoever for a reasonable suspicion that thepetitioner was concerned in the offence of creating communal disharmony.On the other hand, the petitioner had endeavoured to establish calm atthe camp and was without power to give orders to the Police to maintainorder.
The Emergency Regulations invoked in support of the arrest containedoffences which were very different from the alleged offences urged forjustifying the arrest.
In the circumstances the petitioner’s arrest under regulation 18 as well ashis detention under regulation 19 (2) were unlawful and violative of thepetitioner’s fundamental rights under Articles 13 (1) and 13 (2) of theConstitution.
Cases referred to:
Sirisena v. Perera – (1991) 2 Sri LR 97, 107.
Padmanathan v. Paranagama – (1999) 2 Sri LR 225, 238.
APPLICATION for relief for infringement of fundamental rights.
Chula Bandara for petitioner.
Shavindra Fernando, Senior State Counsel for respondent.
Cur. adv. vult.
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August 02, 2002FERNANDO, J.
The petitioner claimed that his fundamental rights under Articles 13 1(1) and (2) had been infringed by reason of his arrest on 26. 10.2000 and his detention thereafter, until 19. 01. 2001 when he wasproduced before a Magistrate and remanded. He was later releasedon bail on 21. 03. 2001.
The facts are not seriously in dispute.
The petitioner joined the Sri Lanka Cadet Corps on 08. 11. 1990as a Lieutenant, and was later promoted as Captain. He was mobilizedand attached to the Ministry of Rehabilitation in 1991. Since 1993he was working at the Rehabilitation Camp, Bindunuwewa (the Camp), 1°under the Commissioner-General of Rehabilitation. Later he was putin charge of that camp. He was functioning as a civil officer, and wasnever in uniform and did not carry a firearm. At the relevant time,officers attached to the Bandarawela Police were stationed at a PolicePost, within the camp, which admittedly was responsible for maintainingsecurity at the camp.
Mr. Fernando, SSC, on behalf of the respondents, informed us thatthe 45 inmates of the camp were persons undergoing rehabilitationunder and in terms of the Emergency Regulations (ER’s). ER 20A(1) authorized the Minister of Defence, or the Secretary, to make a 20“Rehabilitation Order”, in respect of any person detained under ER17 or 19, or under section 9 of the Prevention of Terrorism (TemporaryProvisions) Act, No. 48 of 1979 (PTA), “in the interest of the welfareof such person” making him “subject to rehabilitation for such periodas is specified in the Order”; no maximum period was prescribed; andrelease was only upon revocation of the Rehabilitation Order. Uponthe making of such a Rehabilitation Order, the relevant order underER 17 or 19, or section 9 of the PTA, was deemed to have been
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revoked. Thus, a person who could no longer lawfully be detainedunder the ER’s or the PTA could nevertheless be further deprived 30of personal liberty by means of an executive order otherwise thanon any consideration of national sepurity. Further, ER 20C providedthat the Secretary, Defence, shall order rehabilitation, for a periodnot exceeding twelve months in the first instance, of a person who“surrenders” voluntarily to the Police or the Army “in connection with”offences under various laws (including the PTA and ER’s) or even“through fear of terrorist activities”. Thus, even a victim of criminalterrorist activities was liable to mandatory deprivation of personalliberty for an initial period of twelve months even if not required byany consideration of national security. Further, ER 20C (7) restricted 40a surrendee’s family visits to once a fortnight, and that too only withpermission. It is necessary to stress that both ER 20A and ER 20Cdid not exclude persons against whom there was no credible informationor reasonable suspicion of having committed an offence. Mr. Bandara,on behalf of the petitioner, contended that others, too, had been sentto the camp, but there is no evidence of that.
The petitioner was on leave from 19. 10. 2000, and reported forwork on the 24th evening. Some of the inmates demanded that theybe allowed to leave the camp no sooner they finished a three-monthperiod of rehabilitation. Despite the petitioner’s promise to look into sothe matter the next day, the inmates started a protest which turnedviolent. They seized the only telephone in the camp. The threeconstables who were on duty had become over-excited, and one firedhis gun in the air, while the other two had run into the village seekinghelp. Hearing the gunshots, the inmates ran towards the Police Postand tried to grab the firearm from the remaining constable. Thepetitioner intervened and pleaded for calm.
Help came around 7.00 p.m. in the form of about 70 constablesfrom Bandarawela – the respondents say it was less – and an Armyplatoon from Diyatalawa. The Headquarters Inspector of the 6oBandarawela Police and the army officers spoke to the inmates, and
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managed to calm them. The Police then asked the Army to leave,while the Police stayed on, overnight, to maintain security at the camp.The respondents stated that there were two teams of Police Officers,each in charge of an Inspector.
The next morning the petitioner was informed that posters withslogans against him and the inmates had been posted on the wallsin the Bandarawela and Bindunuwewa towns, and along the roadsleading to the camp. (Later, in the afternoon, he saw some of theposters, which had slogans such as “milk for them, mud for us”, and 70The Chief feeds milk to the Tigers”.) By 7.30 a.m. outsiders startedgathering near the camp. They were shouting slogans against theinmates and the petitioner – that he was helping the LTTE. Admittedly,at that time there were over 60 Police Officers at the camp, mostof them armed with automatic weapons. (The respondents stated thatreinforcements had been brought from seven Police Stations.) Thepetitioner informed the Police of the situation and asked them to take“appropriate action". By 8.15 a.m. the mob had swelled to about 2,000,mostly armed with clubs, swords and axes (and some with firearms),and began to march towards the camp. The petitioner pleaded with sothe Police to prevent the advance of the mob. He and his assistanteven went up to the main gate and shouted at the crowd to disperseas there was no trouble inside the camp.
The Police did nothing, and the mob then moved into the camp.Within 15 minutes they attacked and killed about 24 inmates in themost gruesome manner, threw their bodies into the dormitories, andset them on fire. When the petitioner pleaded with the crowd he toowas threatened with death. However, four children, within the agegroup of 12 to 15 years, were spared.
Shortly thereafter Army personnel arrived from Diyatalawa, and the socrowd dispersed. The Army and the Police did not take anyone intocustody. Steps were taken thereafter to collect and identify the bodies,hold inquests, etc.
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On the 26th morning the petitioner went to the Bandarawela PoliceStation, where SSP Seneviratne recorded his statement, and gavehim permission to leave. That averment was specifically admitted bythe 3rd respondent. As he was about to leave, the 1 st, 2nd and 3rdrespondents (respectively, the Director CID, Inspector CID, and SPCID) arrived, and the 1 st respondent asked him whether he was theofficer in charge of the camp, and questioned him about the incident. 100Thereafter, the petitioner and his assistant were asked to get into aCID vehicle and were taken to Colombo, to the 4th floor of the CID,and a further statement was recorded. At the conclusion of the hearingwe asked Mr. Fernando to furnish copies of all statements made bythe petitioner to the Police. Later, Mr. Fernando informed me thataccording to the instructions received from the CID, the petitioner hadmade only two statements to the Police, both recorded by the CID- one recorded on 26. 10. 2000 at 11.00 a.m. at Bandarawela, andthe other recorded on 03. 01. 2001 at the CID office. The failureto produce the petitioner’s statement to SSP Seneviratne is inexcusable, nobecause not only was it admitted in the 3rd respondent’s affidavit, butthe statement recorded on the 26th by the CID commences with areference to the petitioner’s statement to SSP Seneviratne.
On behalf of the respondents only the 3rd respondent filed anaffidavit. He stated that the petitioner was arrested by the 2nd respondentat Bandarawela at 4.00 p.m. on 26. 10. 2000. According to the latter’snotes of arrest, the charges were that he had acted and behavedin such a manner as to create disaffection between the Sinhala andTamil communities, and had thereby contravened ER 24 (1) (a), (b)and (e) and ER 26 (a) and (c). He was not handed over to the 120Bandarawela Police, but sent to Colombo. The 4th respondent (theDIG, CID) issued “AN ORDER FOR PLACE OF DETENTION UNDERER 19 (2) PUBLISHED IN GAZETTE NO. 1130/8 DATED 03. 05. 2000AND NO. 1132/14 DATED 16. 05. 2000” which purported to authorizethe officer-in-charge, CID, to detain the petitioner for 30 days witheffect from 26. 10. 2000 at the CID office. That order alleged thathe had committed, or was reasonably suspected of, offences under
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ER 24 (1) (a), (b), (d) and (e) and ER 26 (d) and (e). That orderwas extended for another 60 days on the same basis on 25. 11. 2000.The petitioner was then remanded to Fiscal custody on 19. 01. 2001, 130and released on bail on 21. 03. 2001. The material on the basis ofwhich the 2nd respondent arrested him, and the 4th respondent issuedorders for his detention, has not been disclosed to the Court. It must,therefore, be assumed that there was none besides the petitioner’sown statement.
I must refer in this connection to the averments in the 3rdrespondent’s affidavit. He said:
“The petitioner, and other police officers present, who weresufficiently armed and equipped, failed and neglected to prevent,the moderately armed villagers from entering the said camp. Even 140while the detainees were being attacked, the petitioner and otherofficers had taken little or no steps to disperse the said mob andbring the situation under control.”
“. . . the situation at or about the time of this incident wasunprecedented and in my opinion had all the markings of turninginto a communal backlash, especially due to all detainees beingethnic Tamils whereas all the assailants were frdm the majoritySinhala community. There was the perceived danger of communalviolence erupting in the neighbouring areas had the situation notbeen brought under control immediately.”150
‘Therefore, to facilitate investigations, it was decided to act interms of powers under the Emergency Regulations in force . . .the petitioner was taken into custody and detained in terms ofthe said regulations.”
“At the conclusion of the investigations … it transpired thatthere was insufficient evidence to institute criminal proceedingsagainst the petitioner . . . [who] was discharged on 6th June2001.” [emphasis added
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ARREST
The offences created by ER 24 (1) may be summarized thus: ieo
destruction/damage to property;
causing death/injury with explosives, etc;
theft from vacant/damaged premises;
removal of goods from such premises and offences undersections 427 – 446, Penal Code;
membership of an unlawful assembly the object of whichis to commit an offence under (a) to (d) above.
ER 26 creates further offences;
bringing the President/Government into hatred, contempt, etc;
bringing the Constitution/administration of justice into hatred, 170contempt, etc;
inciting, otherwise than by lawful means, the alteration of anymatter by law established;
creating disaffection, etc., among the inhabitants of Sri Lankaor any section thereof;
promoting hatred, etc., between different sections, etc.,’ofthe inhabitants of Sri Lanka.
There was, and still is, no material whatsoever objectively justifyinga suspicion that the petitioner had caused disaffection between theSinhala and Tamil communities, or had committed, or was reasonably isosuspected of, any of the five offences specified in the 2nd respondent’snotes of arrest. In the absence of an affidavit from the arresting officer,
I further hold that he did not even subjectively suspect the petitionerof any such offences.The arrest was illegal on both counts, and wasnot bona fide. The arrest notes reveal that the 1st respondent orderedthe arrest, and the 3rd respondent’s affidavit shows that he was aparty to the arrest and made every endeavour to justify it.
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In attempting to justify that arrest, Mr. Fernando first submitted,in effect, (1) that the acts prohibited by the ERs include illegalomissions, (2) that the inaction of the Police officers present that 190morning constituted illegal omissions, (3) that the petitioner knew ofthose illegal omissions, and (4) that the petitioner as the officer-in-charge of the camp was responsible for the illegal omissions, orculpable inaction, of those Police officers. I can readily accept thefirst three propositions, but not the fourth unless two conditions werefulfilled. If the petitioner had lawful authority over the Police officerspresent, in regard to the security of the camp and the safety of theinmates, and if by the exercise of that authority (by giving appropriateorders to restrain the mob) he could have prevented the aforesaidillegal omissions, then I would agree that the petitioner’s failure to 200exercise his authority amounted to culpable inaction, which wouldmake him also liable for the misconduct of his subordinates – at leaston the basis of abetment under section 100 of the Penal Code.However, neither of those conditions was satisfied. The availableevidence overwhelmingly indicates that the petitioner’s responsibilitywas confined to the administration of the camp, and did not extendto the security of the camp or the safety of its inmates (which fellwithin the sole purview of the Bandarawela Police through their PolicePost within the camp). He had no power to give orders to the Police,and cannot be held liable for the failure to exercise an authority which 210he did not have. Despite his lack of authority over the Police, henevertheless asked them, and pleaded with them, to restrain the mob.What is more, despite being unarmed, and at some risk to himself,he even went up to the mob and asked them to disperse and, later,to spare the inmates. In his statement to the CID at Bandarawela- whether it was true or not is another matter – the fact is that heclaimed that on the 24th night he had, by telephone, informed theCommissioner-General of Rehabilitation and others of the situation.There is no evidence that the CID made any effort to verify thosematters before deciding to arrest him or even thereafter. It can fairly 22be said that from the time he returned from leave on thd 24th eveningthe petitioner did whatever he could reasonably have done to maintain
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peace and order in the camp and kept his superiors informed, andthe respondents have not produced a shred of evidence to thecontrary. To say that the petitioner had taken “little or no steps” todisperse the mob was a cruel falsehood.
Had the petitioner been a Police officer having authority over theothers present, the position would have been entirely different. As itis, the petitioner was in no better position to restrain the mob thanany casual civilian visitor who happened to be in the camp that 230morning. He could do nothing more than appealing and pleading.
Mr. Fernando advanced other arguments in an endeavour to justifythe arrest. A grave situation had arisen. All the inmates were Tamil,and the assailants were Sinhala. The CID anticipated a possiblecommunal backlash – presumably from sections of the Tamil community.
The situation had to be brought under control quickly. It was alsonecessary to arrest all those in authority, and to investigate andascertain who were responsible.
These contentions are unacceptable for several reasons. Havingarrested the petitioner for the very specific reasons set out in the 2nd 240respondent’s notes of arrest, the respondents cannot now urge differentreasons. If there is no credible information or reasonable suspicionthat a person has committed an offence, he cannot be arrested forthe purpose of investigation, fishing for evidence against him. Third,in his statement, when questioned at Bandarawela, the petitioner’sposition was made clear, and the respondents have produced nomaterial to the contrary. Finally, the respondents have not producedany material suggesting that the Tamil community might have consideredthe petitioner as responsible for the massacre. On the contrary, theevidence shows that there was a perception among those who had 250put up posters and shouted slogans that the petitioner was too helpfulto the Tamil inmates. His arrest was more likely to displease the Tamilcommunity; and to encourage the perpetrators.
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DETENTION
ER 18 (1) (Gazette No. 1130/8 of 03. 05. 2000) authorizes a Policeofficer to arrest a person who has committed, or is reasonably suspectedof having committed an offence under the ER’s, and ER 18 (2) requiresthat any person detained under ER 18 (1) be handed over to thenearest Police station within twenty-four hours. ER 19 (1) providesthat sections 36, 37 and 38 of the Code of Criminal Procedure shall 26onot apply to such a person, but that he “shall be produced beforeany Magistrate within a reasonable time, having regard to thecircumstances of the case, and in any event not later than thirty daysafter such arrest”. ER 19 (1) further provides that such productionshall not affect detention under 19 (2). ER 19 (2) provided:
“Any person detained in pursuance of [ER 18] in a placeauthorized by the IGP may be so detained for a period notexceeding ninety days reckoned from the date of arrest . . . andshall at the end of that period be released . .
However, by Gazette No. 1132/14 (of 16.05.2000) another provision 270was substituted:
“Any person arrested and detained in pursuance of [ER 18] may,for the purpose of investigating the offence in relation to whichsuch person was arrested, be kept in detention upon an order madeby a police officer not below the rank of [DIG] … for a periodof ninety days reckoned from the date of arrest. Such person shall,at the end of the period of detention, be released unless . . .”
It appears that the CID had failed to follow the procedure prescribedby the ER’s by failing to hand over the petitioner to the BandarawelaPolice. Further, ER 19 (1) prescribes a mandatory upper limit, and 280not an approved minimum; and it is arguable that since the petitionerwas being held in Colombo, insulated from whatever disturbancesthere might have been in Bandarawela, there were no circumstances
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which justified the delay in producing him before a Magistrate inColombo. However, those matters were not raised at the hearing, andI refrain from making any finding thereon.
ER 18 and ER 19 (1) do not authorize the making of DetentionOrders. The later version of ER 19 (2) authorized a DIG to makea detention order, and it is difficult to understand why the 4th respondentcaptioned his order as an “ORDER FOR A PLACE OF DETENTION”. 290
For several reasons, the 4th respondent’s order was not warrantedby ER 19 (2). First, the power conferred by ER 19 (2) extended onlyto “any person detained in pursuance of ER 18”. That does not includea person detained in pretended or purported pursuance of ER 18,or in abuse of that provision, but only one lawfully and properlydetained under that provision (see Sirisena v. PereraP Padmanathanv. Paranagama{Z)). Since, for the reasons I have stated above, thepetitioner had not been lawfully arrested and detained under ER 18,
ER 19 (2) did not apply to him. Second, the only material availableto the 4th respondent was the petitioner’s statement, and that did not 300incriminate him in any way. It is difficult to understand how the 4threspondent included charges under ER 24 (1) (d) and ER 26 (d) and(e) which were not mentioned in the 2nd respondent’s notes of arrest.What is more, serious charges of bringing the President and thegovernment into hatred, contempt, etc., referred to in the notes ofarrest at 4.00 p.m. in the afternoon were unceremoniously droppedby nightfall. Third, ER 19 (2) authorized detention for the purpose ofinvestigating offences, and not just any offences, but the offences forwhich he had been arrested. It is clear that the petitioner was notdetained for the purpose of investigation; no attempt had been made 310to verify the truth of the matters stated in his statement to the CID;the statement which he had admittedly made to SSP Seneviratne on26. 10. 2000 was not available with the CID even after the oral hearingwas concluded; and no further statement was recorded until January,2001. It is clear that his detention was for some other reason. Fourth,when the second detention order was made it was plain that there
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was no reason to detain him further, and any further detention wasan unmitigated abuse of power. Finally, the 4th respondent’s failureto submit an affidavit explaining the basis on which he acted showsthat he did not honestly believe that there was any justification for 320the petitioner’s detention or that he simply acted under dictation.Having failed or neglected to arrest the real culprits, the petitionerwas made a convenient scapegoat, and kept out of circulation untilpublic attention was directed elsewhere.
ORDER
I grant the petitioner a declaration that his fundamental right underArticle 13 (1) was infringed by the 1st, 2nd and 3rd respondents, andthat his fundamental right under Article 13 (2) was infringed by the4th respondent. Having regard to all the circumstances, I award thepetitioner a sum of Rs. 120,000 as compensation for the infringement 333of Article 13 (2) of which one-half shall be paid by the State andthe other half by the 4th respondent personally; a sum of Rs. 30,000as compensation for the infringement of Article 13 (1) which shall bepaid by the 1st, 2nd and 3rd respondents personally in equal shares;and a sum of Rs. 20,000 as costs payable by the State. Thesepayments shall be made on or before 30. 09. 2002. The Registraris directed to forward copies of this judgment and the pleadings anddocuments produced in this case to the Public Service Commissionto consider disciplinary action against those responsible for the arrestand detention of the petitioner.340
GUNASEKERA, J. – I agree.
WIGNESWARAN, J. – I agree
Relief granted.