026-SLLR-SLLR-1997-V3-ABEYWICKREMA-v.-GUNARATNA-AND-THREE-OTHERS.pdf
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Abeywickrema v. Gunaratna and Three Others
225
ABEYWICKREMA
v.
GUNARATNA AND THREE OTHERS
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
ANANDACOOMARASWAMY, J. ANDDR. SHIRANI A. 8ANDARANAYAKE, J.
S.C. SPL 93/96.
OCTOBER 9,1997.
Fundamental Rights – Articles 11, 13(1) – Degrading treatment – Lawful arrest -Section 32(1 )b – Code of Criminal Procedure Act.
The petitioner who is a three wheeler driver has taken a passenger on hire; andafter arriving at the Police Station with the passenger as requested by him, hewas assaulted by the Police taken into custody and produced before the A.J.M.O.
Held.
PerBandaranayake, J.
“When a man who made an endeavour to earn his living by carrying on an honestoccupation, is taken into custody, assaulted and locked up in a ceil in my view hehas been subjected to degrading treatment,"
It appears that the arrest was for the reason that the petitioner was under theinfluence of liquor, no sooner the petitioner was arrested he was produced beforethe AJMO and the AJMO had reported that the petitioner was not under theinfluence of alcohol.
Per Bandaranayake, J.
“The arrest has to be lawful and for it to be lawful, the arrest should be carried outaccording to the procedure laid down by law. The MLR shows that the petitionerhad not consumed any liquor, there was no complaint made against the petitionerand there were no reasons at all to suspect the petitioner of having committedany offence, therefore after obtaining the A.J.M.O.'s Report there was no reasonat all for detaining the petitioner."
APPLICATION for relief for infringement of fundamental rights.
Case referred to:
1. Thadchanamoorthi v. Attorney-General 1980 FRD 120 at pg. 140.
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Sri Lanka Law Reports
[1997] 3 Sri LR.
A. S. M. Perera, P.C., with Ms Damayanthi Fernando, P. Wanigasekera andPrassanna da Soysa for the petitioner.
S. Rajaratnam S.C., for respondents.
Cur. adv. vutt.
November 13,1997.
OR. SHIRANI A. BANDARANAYAKE, J.
The petitioner, who is a three wheeier driver, complains that hisfundamental rights guaranteed under Articles 11, 13(1) and 13(2)were violated by the 1st and 2nd respondents. Leave to proceed wasgranted in respect of the alleged infringement of Articles 11, 13(1)and 13(2). The counsel for the petitioner submitted at the hearing thathe is not pursuing the alleged infringement under Article 13(2).
According to the petitioner, on 7th July 1996 he has taken apassenger to Ragama on hire and had returned with the saidpassenger around 7 p.m. The passenger had gone into his place oflodging to bring the money to pay the hire due to the petitioner andthe petitioner had been waiting outside the hotel for the passenger.As the passenger did not return, the petitioner had gone in search ofhim and had seen the passenger involved in an argument with aperson who was inside the said lodge. After a while, some policeofficers had come to the lodge and had directed the passenger to goto the Maradana Police Station. The passenger had decided to go inthe same three wheeler. After arriving at the police station, thepetitioner had stayed outside, when a police officer had called thepetitioner into the police station. When the petitioner went inside, thepetitioner was assaulted and thereafter produced before the AJMO.On his return from the AJMO, the petitioner was locked up in a cell.The petitioner was in the custody of the police until he was releasedon the 8th July 1996 on police bail.
The Chief Inspector of the Police Station, Maradana (1strespondent) in his affidavit avers that, although he is the Officer inCharge of the Maradana Police Station, during the period underreference, on 07th July 1996 at 6.00 p.m. he had left the PoliceStation to check up some information received in Wattala. He hadreturned on 08th July at 6.13 a.m. This is supported by the IB
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Abeywickrema v. Gunaralna and
Three Others (Dr. Shirani A. Bandaranayake, J.)
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extracts (1R1). In the absence of the 1st respondent, Inspector BertyJayakody was the acting Officer in Charge of the Maradana PoliceStation and when the petitioner was detained, Inspector BertyJayakody was in charge of the Maradana Police Station. According tothe 1st respondent, on 07th July 1996, at about 8.10 p.m. a complaintwas lodged by one Palanivelu Jayaseelan, an employee of EliteHotel, Maradana that he was assaulted by one Saman, who accusedhim of stealing Rs. 5,000/- from his room in the hotel (1R2). Followingthis complaint, information was received that there was an imminentbreach of the peace at Elite Hotel. A police party led by P.S. 10688,Dharmasena proceeded to the said hotel and arrested Saman AthulaNissanka and the petitioner who seemed to be under the influence ofalcohol. The reasons for this arrest were explained to them and thepetitioner and the said Saman Athula Nissanka were taken intocustody to conduct further investigations (1R3). The 1st respondentfurther avers that following the medical examination by the AJMO,Colombo, the petitioner and Saman Athula Nissanka were brought tothe Maradana Police Station and detained until further instructionswere given by the Officer in Charge (1R6). The 1st respondentconcedes that the petitioner was released on police bail on 08th Julyaround 11.30 a.m.
Immediately after being released from police custody, thepetitioner got himself admitted to the Colombo General Hospital, ashe was in pain due to the assault by the Police. According to thehospital records, the petitioner was admitted around 1.55 p.m. on the08th July 1996 and was discharged on the 13th July 1996. Onadmission, according to the admission sheet of the General Hospital,the petitioner had complained of abdominal injury. The petitioner inhis petition avers that a police officer, hit him with his hand and feet(paragraph 9 of the petition) and when he was released as there wasa severe pain in the lower segment of his abdomen, he got himselfadmitted to the General Hospital, Colombo (paragraph 10 of thepetition). The statement which was recorded on the 12th July 1996 at
p.m. at the Ward No. 27 of the General Hospital, also mentionsthat a police officer had hit the petitioner on the lower segment of hisabdomen. The Medical Officer, who examined the petitioner, hasmade the following observations:
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[1997] 3 Sri LR.
contusion/Rt/groin
tenderness +
No… or rigidity
small abrasion + (pg. 5 of the Daily States Sheet)
The learned State Counsel for the respondent suggested that asthere are no injuries except tenderness, Article 11 cannot besustained.
Article 11 of the Constitution reads as follows:
"No person shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”
This Court has expressed the view that an 'aggravated form oftreatment or punishment' {Thadchanamoorthi v. Attorney-General0’)could satisfy the requirements under Article 11. 'Something might bedegrading in the relevant sense, if it grossly humiliates an individualbefore others, or drives him to act against his will or conscience'{Justice A, R. B. Amerasinghe, Our Fundamental Rights of PersonalSecurity and Physical Liberty, pg. 28).
The petitioner was a three wheeler driver, who earned his living bytaking hires. When a man, who made an endeavour to earn his livingby carrying on an honest occupation, is taken into custody, assaultedand locked up in a cell, in my view, he has been subjected to"degrading treatment". The medical evidence corroborates thephysical suffering, the petitioner had to undergo owing to the actionsof the police officers. I accordingly hold that the petitioner hassucceeded in establishing the infringement of his fundamental rightsguaranteed under Article 11 of the Constitution.
According to the petitioner, at the time he was taken into custody,he was not informed of the reasons as to why he was taken intocustody. The petitioner avers that he had not committed any offenceand according to his knowledge, no complaint had been made
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Abeywickrema v, Gunaratna and
Three Others (Dr. ShiraniA. Bandaranayake, J.)
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against him to the Maradana Police Station, which warranted hisarrest. He further avers that no statement had been recorded fromhim at the Police Station.
The 1st respondent in his affidavit avers that Saman AthulaNissanka and the petitioner were taken into custody on the complaintlodged by one Palanivelu Jayaseelan (1R2). Jayaseelan's complaintwas made at 8.10 p.m. on 07.07.1996 (1R2). His complaint is againstSaman and there is no mention what so ever about the petitioner.Police Sergeant Dharmasena had taken Saman and the petitionerinto custody around 8.30 p.m, (1R3). In the IB extracts of 07.07.1996,it is recorded at 8.45 p.m. that the two suspects {Saman and thepetitioner) were taken into custody as they were under the influenceof liquor, Both of them had been produced before the AJMO,Colombo at 9.00 p.m. on 07.07.1996, The Medico-Legal ExaminationForm of the petitioner states that the reason for examination was tosee whether he was under the influence of alcohol (1R4). The AJMO’sreport reveals that while Saman had a 'breath smelling of alcohol*(1R5), the petitioner had ‘not taken alcohol’ (1R4).
Document 1R3, suggests that the arrest was for the reason that thepetitioner was under the influence of liquor. No sooner the petitionerwas arrested, he was produced before the AJMO and the AJMO hadreported that the petitioner was not under the influence of alcohol.
Article 13(1) reads as follows:
"No person shall be arrested except according to procedureestablished by law. Any person arrested shall be informed of thereason for his arrest.”
Section 32(1 )b of the Code of Criminal Procedure Act, specifiesthe established procedure for arrest. Section 32(1 )b reads as follows:
"Any peace officer may without an order from a Magistrate andwithout a warrant arrest any person – who has been concerned inany cognizable offence or against whom a reasonable complaint
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(1997] 3 Sri LR.
has been made or credible information has been received or a
reasonable suspicion exists of his having been so concerned."
Accordingly the arrest has to be lawful and for it to be lawful, thearrest should be carried out according to the procedure laid down bylaw. In the present case, there was no complaint made against thepetitioner and there were no reasons at all to suspect the petitioner ofhaving committed any offence. Although 1R3 indicates that thepetitioner was taken into custody for the purpose of conducting aproper inquiry, the reasons were not explained to the petitioner. TheMedico-Legal Report (1R4) shows that the petitioner had notconsumed any liquor. Therefore 1R3 is contradicted by the medicalevidence and the statements made in the IB extracts (1R3) are notcorroborated by the medical evidence. It should be noted that thepetitioner was produced before the AJMO within half an hour of hisarrest. Therefore after obtaining the AJMO's report there was noreason at ail for detaining the petitioner. I hold that the arrest isunlawful.
The petitioner was released on bail only around 11.30 a.m. on the08th July 1996. As stated earlier, there was no basis whatever for hisarrest. On a consideration of the totality of the facts andcircumstances of this case, I direct the State to pay the petitioner asum of Rs. 12,000/- as compensation and Rs. 3000/- as costs.
The Registrar is directed to forward a copy of this judgment toInspector General of Police.
G. P. S. DE SILVA, C.J. -1 agree.ANANDACOOMARASWAMY, J. – I agree.Relief granted.