.Punchihewa v. Dayasena (G. P. S. De Silva, J.)
AMAL SUDATH SILVA
v.KODITUWAKKU, INSPECTOR OF POLICE AND OTHERS
SHARVANANDA. C.J. ATUKORALE, J. AND L. H. DE ALWIS, J.
S.C. APPLICATION No. 186/86.
MAY 5. 1987.
Fundamental Rights-Torture and/or cruel, inhuman and degrading treatment-Article11 of the Constitution-Police an organ of the State-Liability of State to paycompensation.
The petitioner has established that he has been subjected to torture and crueltreatment by the Police whoever they be. despite doubts about the exact identificationof the particular Police Officers, when he was under arrest. The police force is an organof the State. The State is liable to pay compensation to the victim.
Per Atukorale, J. 'The report of the M.O. is in my view, valueless and unworthy ofacceptance. On his own showing it is evident that he has not carried out anindependent examination of the petitioner to ascertain whether he had any injuries. Itseems to me to be preposterous for any medical officer before whom a suspect isproduced for a medical examination in the custody of a police officer to expect him totell the officer in the very presence of that police officer that he bears injuries caused tohim as a result of a police assault. I therefore reject the report of the M.O. as beingworthless and unacceptable. The circumstances of this case disclose a gross lack ofresponsibility and a dereliction of duty on the part of the M.O.. Bandaragama.'
Sri Lanka Law Reports
 2 Sri LR.
Per Atukorale, J. 'The facts of this case have revealed disturbing features regardingthird degree methods adopted by certain police officers on suspects held in policecustody. Such methods can only be described as barbaric, savage and inhuman."
APPLICATION under Article 126 of the Constitution for violation of fundamental rights.
H. L. de Silva P C with Anton Fernando, C. J. Fernando and Muss L N. A de Silva forthe petitioner
D S. Wijesmghe with Mis? D Dharmadesa foi the isi 4tn respondentsD. P. Kumarasinghe S S.C to. the 5th and 6th respono • i :
Cur. adv vuIt
July 3, 1987
This is an application under Article 126 of the Constitution alleginginfringements of cenam fundamental rights of the petitioner by the 1 stto the 4th respondents (hereinafter referred to as the 4 respondents)who were at all times material police officers attached to the Panadurapolice station The petitioner pleads that he was arrested by the policeon 9.10.1 3G6 on suspicion of having committed theft of side mirrorsfrom several motor vehicles. He was thereafter taken to the Panadurapolice station and , .upt in custody for 5 nights without being producedbefore a Magistrate During this period of 5 days he states he wasseverely beaten up by the 4 respondents with batons and was alsosubjected to physical torture by them by being hung to a beam at thepolice station by his hands tied to a rope and by his penis beingcrushed as a result of it being put into a drawer and closed causinghim unbearable pain and suffering. He further states that when heasked for water he was given water mixed with chilli powder which hewas forced to drink. In his petition he thus alleges infringements of thefundamental rights guaranteed by Articles 11, 12(1) and 13 of theConstitution. At the hearing before us. however, learned President'sCounsel appearing for him was content with confining his case to thealleged violation of the right guaranteed by Article 11 only. Hecontended that there was sufficient material to establish that thepetitioner had been subjected to torture and/or to cruel, inhuman ordegrading treatment at the hands of the 4 respondents. It was notdisputed that such action, if proved, constituted executive oradministrative action and that the State would be liable to compensatethe petitioner.
SCSudath Silva v Kodituwakku, I. P. (Atukorale, J.j121
The 4 respondents deny that the petitioner was arrested on9.10.1986. Their position is that he was arrested at or about 6.45p.m. on 13.10.1986 near the Panadura bus stand by a police partycomprising the 1 St and the 4th respondents and two other policeofficers; that when the police party arrived at the bus stand thepetitioner dropped his'bicycle and took to his heels but was chasedand arrested; that whilst being questioned he again attempted toescape when a certain amount of force as was reasonably necessaryunder the circumstances was used on him to bring him under controland that after conducting investigations the police party returned tothe police station at 11.35 p.m. when the petitioner was handed overto the reserve officer who put him in the lock-up. The 4 respondentsdeny that they assaulted the petitioner or that they subjected him totorture or such treatment as alleged by him.
I do not think it is necessary for me to embark on a detailed analysisof the conflicting averments with regard to the date of the petitioner'sarrest since learned President's Counsel has frankly conceded thatapart from the petitioner's ipse dixit there is nothing else to supportthe allegation that the petitioner's arrest took place on the 9th asurged by him and not on the 13th as urged by learned counsel for the4 respondents. It is, however, necessary that I should on this aspectof the matter point out that the notes of inquiry (1R5) produced by the1 st respondent appear to support the position of the 4 respondentsthat the arrest took place on the 13th as maintained by them. Be thatas it may, in view of the oral submissions made to us at the hearing thecrucial issue that arises for our determination is the petitioner'sallegation that he was subjected to torture or to cruel, inhuman ordegrading treatment by the 4 respondents. For a proper appreciationof the relevant matters pertaining to this issue, it will be helpful if I setout certain events in their chronological sequence which have notbeen controverted before us. The day after his arrest, namely on the14th (the time is not clear), the petitioner was taken by PoliceConstable Senaratne firstly to the Panadura hospital to be producedbefore the D.M.O. for a medical examination and since the D.M.O.was not available thereafter to the M.O. of the Bandaragama hospital.After the M.O. examined him, he was taken by P. C. Senaratne beforethe acting Magistrate, Panadura, on the same day who made orderremanding the petitioner till the 27th, whereupon P. C. Senaratne tookhim to the Panadura remand prison and entrusted him to the prison •authorities also on the same day. Exhibit 1R9, a certified copy of the
Sri Lanka Law Reports
 2 Sri LR.
Magistrate's Court case, confirms that the petitioner was produced by
P.C. Senaratne before the acting Magistrate on the 14th and that hewas remanded to Fiscal's custody till the 27th. It further establishesthat on the following day (15th) the petitioner's attorney moved courtto call for a report from a government doctor regarding the injuries onthe petitioner. The 1st respondent then informed court that thepetitioner had already been produced before 1 he M.O., Bandaragama.The Magistrate thereupon made order that the petitioner be producedbefore him on the following day (16th). It seems to me very probablethat this order was made because the Magistrate himself wanted tosee the petitioner before ordering a medical examination. On the 16ththe petitioner was produced in. court in fiscal custody. His attorneythen informed court that the petitioner had, inter alia, been hung from• a beam at the police station and beaten up and that his penis had beeninserted into a drawer and closed. He also drew the attention of Courtto the fact that the court itself- observed the manner in which thepetitioner walked up when the case was called. He also referred to thereport of the M.O., Bandaragama, according to which the petitionerhad been examined at 8 p.m. oh the 14th, and pointed out that it onlyspecified that the petitioner had no external injuries as against the'Remarks Column' and nothing else. He requested court for an orderthat the petitioner be produced forthwith before the J.M.O., Colombo,and a report be called from him. The Magistrate made orderaccordingly and directed that the petitioner be again produced in courtOn the 20th. On the 20th the petitioner was not produced in court ashe was stated to be undergoing medical treatment at the Prisonhospital in Colombo. Nor had the petitioner been produced forexamination by the J.M.O., Colombo. The Magistrate then directedthat the case be called on the 22nd and that the petitioner beproduced before him on that day. The petitioner again was notproduced in court on that day. Observing that no steps had been takenby the Superintendent of Prisons, Welikada, to produce the petitionerbefore the J.M.O. on the ground that he was being treated at theremand hospital, the Magistrate directed the Superintendent ofPrisons to compjy with his order forthwith and to report to court on the29th. He also called for a medical-report from the prison doctor whohad treated the petitioner. The petitioner was also ordered to beproduced in court on the 29th.
On the 29th the petitioner was produced in court. All 3 medicalreports, namely those of the Bandaragama M.O., the prison doctor
SCSudeth Silva v. Kodituwakku, I. P. (Atukorale, J.)123
and the A; J. M. 0., Colombo, were also before court. The report ofthe Bandaragama M.O. shows that the petitioner was examined by. him at 8 p.m. on the 14th. All the cages therein are unanswered andare left blank. As against the Remarks Column he states 'No external;injuries'. The report of the prison doctor discloses that the petitionerwas admitted to the prison hospital on the 17th and that on anexamination of him the same evening he was found to be sufferingfrom pyelitis and that he had two abrasions-one just above the right •wrist joint and the other at the back of the left wrist joint. The report of'the A.J.M.O. reveals that the petitioner was examined by him on the24th and that he had three scars-one on the left wrist, one on theright wrist and the other on the lower right forearm-and that he wassuffering from traumatic urethritis due to erauma on the penis causingpain and difficulty in passing urine. The A.J.M.O. further states thatthe petitioner gave a history of having been assaulted by the 4respondents with clubs after being hung and of his penis beingcrushed by putting it into a drawer and locking it on the 13th. He alsoexpresses the opinior iuat the scars are consistent with marks causedby ligatures used for hanging him and that the injuries on him arecompatible with the history given by him. On the 29th the petitioner’sattorney making submissions to the Magistrate in the light of theA.J.M.O."s report requested him to issue a notice on the M.O.,Bandaragama, to explain why he had stated in his report that therewere no external injuries on the petitioner. A notice was issued on himaccordingly. He appeared in court on 26.11.1986 in responsethereto and stated in court that as the petitioner did not complain ofany pain or injuries on being asked by him he reported that thepetitioner had no external injuries.
Placing much reliance on the report of the M.O., Bandaragama, andstressing the fact that the petitioner had made no complaint of tortureor assault to the acting Magistrate or other person in authority prior tothe 15th, learned counsel for the 4 respondents and learned SeniorState Counsel for the 5th and 6th respondents contended that theallegations levelled by the petitioner were false and untenable. I am,however, unable to agree with this submission. One significant featurewhich stands out as being incontrovertible in this case is the presenceof injuries on the petitioner as evidenced by the reports of the prisondoctor and of the A.J.M.O. Thus even on the assumption that thepetitioner bore no injuries at the time of his examination by the M.O.,Bandaragama, and his production before the acting Magistrate, yet it
Sri Lanka Law Reports
 2 Sri L.R.
seems manifest to me that from the moment of his arrest by the policeparty on the 13th up to the time he was examined by the A.J.M.O., 'Colombo, on the 24th in the custody of the fiscal, the petitionerremained during this entire period in the custody of either the police orthe fiscal. Assuming, therefore, that the injuries were not inflictedwhilst the petitioner was in police custody, then it would necessarilyfollow that they were inflicted when he was in fiscal custody. In theabsence of any material to the contrary, then the only reasonableinference is that they were inflicted by the fiscal officers in which eventtoo the State would be liable to compensate the petitioner in terms ofArticle 126 of the Constitution as such action on their part wouldconstitute executive or administrative action.
However a close and careful scrutiny of the salient facts andcircumstances of this case would seem to indicate that the injuries onthe petitioner were inflicted on him at a time when he was held inpolice custody. They are not self-inflicted injuries. Nor is it the positionof the 4 respondents that they were injuries caused at any time priorto or during the course of his arrest. The ponce party arrested him onthe 13th. He remained in their custody till they returned to the stationat about 11.45 p.m. that night. He was then handed over to thereserve officer who took over his custody. He remained in the chargeof the reserve officer until Police Constable Senaratne took him first tothe Panadura D.M.O.'s office, next to the Bandaragama M.O.'s officeand finally before the acting Magistrate and to the remand prison,Panadura, all of which took place on the 14th. According to 1R5(notes of inquiry) Police Constable Senaratne left the station with thepetitioner for this purpose at 6 p.m. and returned at 8.20 p.m. On theVery next date (15th) the petitioner's attorney, alleging that there wereinjuries on the petitioner, moved court to have him examined by agovernment doctor, while on the following day (16th) the attorneyspecifically stated to court who caused them and how they werecaused and also drew the attention of court to the manner in whichthe petitioner walked up when the case was called in court. Assubmitted by learned President's Counsel, it is quite probable that thecourt having directed on the 15th that the petitioner be producedbefore it on the 16th, and having seen him, was satisfied that thepetitioner exhibited some form of discomfort or pain which neededfurther investigation. These representations made by the petitioner'sattorney in court at the very first opportunity that presented itself tohim are of the utmost significance and have to be given dueweightage. True, no doubt, the petitioner himself made no such '
Sudath Silva v. Kodituwakku, I. P. (Atukorale.'J)
"complaint either to the Bandaragama M.O. or to the actingMagistrate. But his failure to do so must be viewed and judgedagainst the backdrop of his being, at that time, held in police custodywith no access to any form of legal representation The report of theM.O., Bandaragama, is, in my view, valueless and unworthy ofacceptance. On his own showing it is evident that he has not carriedout an independent examination of the petitioner to ascertain whetherhe had any injuries It seems to me to be preposterous for any medicalofficer before whom a suspect is produced for a medical examinationin the custody of a police officer to expect him to tell the officer in thevery presence of that police officer that he bears injuries caused to himas a result of a police assault. This seems particularly so when thesuspect is produced at the instance of the police themselves and hotupon an order of court. I therefore reject the report of the M.O. asbeing worthless and unacceptaole. The circumstances of this casedisclose a gross lack of responsibility and a dereliction of duty on thepan of the M.O., Bandaragama I do no' entertain the sfqh'.esi doubtthat the A.J.M.O., O '"bo, sets out in his report the tns • n ore dsnnature of the injuries found by him on the petitioner at n ,e time heexamined him. Although certain insinuations have been made againstthe A.J.M 0 in the written submissions filed on behalf of the 4respondents, at the hearing before us learned counsel, quite properly,made no endeavour to substantiate them or to challenge thedescription of the injuries or the opinion expressed by the A.J M.O. inhis report His opinion materially supports the petitioner's position thatthe injuries on him were inflicted at a time when he was in policecustody ! may add that the injuries found by the prison doctor on thepetitione; when he examined him on the 17th lends support to thefindings of the A.J.M 0 In the circumstances of this case theconclusion is irresistible that the injuries found on the petitioner by theA.J.M.O. have been inflicted on him at a time when he was being heldin police custody and this appears to be the real reason for notcarrying out, until the 24th, the order of the Magisrrate made on the■ 16th to produce the petitioner forthwith before tne A.J.M.O. for a* medical examination. I hold that the petitioner has been subjected totorturous, cruel and inhuman treatment as alleged by him by one ormore police officers of the Panadura police station whilst being hold inpolice custody at the police station The petitioner has Thusestablished an infringement of the fundamental right guaranteed byArticle 11 of the Constitution by virtue of executive or administrativeaction and is entitled to relief under Article 126(2).
Sri Lanka Law Reports[ 1987] 2 Sri L.R.
In view of this finding I do hot think it necessary for me on thematerial placed before this court to arrive at a specific finding as towhether the 4 respondents or any of them perpetrated this crime onthe petitioner. In his affidavit the petitioner incriminates all four ofthem. In the written submissions filed on his behalf it would appearthat the allegations are confined to the 2nd respondent only. Exhibit1R5, a certified extract of the relevant entries in the Information Book,shows that the 2nd and 3rd respondents were not members of thepolice party that arrested the petitioner on the 13th. Exhibit 2R2, anextract from the Routine Information Book, shows that the 2ndrespondent left the Panadura police station at 7 a.m. on the 12th toattend an inquiry at Anuradhapura and returned to the station at 1.50p.m. on the 15th. It is therefore very improbable that the 2ndrespondent had any hand in this sordid episode. This circumstancethrows a certain amount of doubt as to the petitioner's identificationof the police officers who inflicted injuries on him. Further thepetitioner has not set out the material upon which his identificationrests. As such it is unsafe, on the material placed before this court, toreach a finding adverse to the 4 respondents. However as thepetitioner has established that he has been subjected to torture andcruel treatment by the police, whoever they be, when he was underarrest, the State is liable to pay compensation to the victim of suchaction.
Article 11 of our Constitution mandates that no person shall besubjected to torture, or to cruel, inhuman or degrading treatment orpunishment. It prohibits every person from inflicting torturesome, cruelor inhuman treatment on another. It is an absolute fundamental rightsubject to no restrictions or limitations whatsoever. Every person in' this country, be he a criminal or not, is entitled to this right to thefullest content of.its guarantee. Constitutional safeguards are generallydirected against the State and its organs. The police force, being anorgan of the State, is enjoined by the Constitution to secure andadvance this right and not to deny, abridge or restrict the same in anymanner and under any circumstances. Just as much as this right isenjoyed by every member of the police force, so is he prohibited fromdenying the same to others, irrespective of their standing, their beliefsor antecedents. It is therefore the duty of this court to protect anddefend this right jealously to its fullest measure with a view to ensuringthat this right which is declared and intended to be fundamental isalways kept fundamental and that the executive by its action does not
SCSudath Silva v. Kodituwakku, I. P. (Atukorale, J.)127
reduce it to a mere illusion. This court cannot, in the discharge of itsconstitutional duty, countenance any attempt by any police officer.however high or low, to conceal or distort the truth induced, perhaps,by a false sense of police solidarity. The facts of this case haverevealed disturbing features regarding third degree methods adoptedby certain police officers on suspects held in police custody. Suchmethods can only be described as barbaric, savage and inhuman.They are most revolting to one's sense of human decency and dignity,particularly at the present time when every endeavour is being made topromote and protect human rights. Nothing shocks the conscience ofa man so much as the cowardly act of a delinquent police officer whosubjects a helpless suspect in his charge to depraved and barbarousmethods of treatment within the confines of the very premises inwhich he is held in custody. Such action on the part of the police willonly breed contempt for the law and will tend to make the public loseconfidence in the ability of the police to maintain law and order. Thepetitioner may be a hard-core criminal whose tribe deserve nosympathy. But if constitutional guarantees are to have any meaning orvalue in our democractic set-up, it is essential that he be not deniedthe protection guaranteed by our Constitution.
For the reasons set out above I hold that the petitioner hassucceeded in establishing an infringement of the fundamental rightguaranteed by Article 11 by virtue of executive action. In thecircumstances of this case I make order directing the State to pay hima some of Rs. 10,000 (Rupees ten thousand) as compensation and a.further sum of Rs. 1,000 (Rupees one thousand) as costs of thisapplication. In view of the gravity of this incident I further direct theInspector-General of Police, who is the 5th respondent to theseproceedings, to cause a full inquiry to be made as to who were theofficers responsible for inflicting the torture which I have held has beeninflicted on the petitoner and to take disciplinary action against suchofficers. The circumstance that this court cannot, on the materialplaced before it, bring home to the 4 respondents the allegationsmade against them by the petitioner will not, in any way, inhibit afinding of guilt against them at such inquiry if further material points totheir identity as being the offenders.
SHARVANANDA, C. J. – I agree.
L. H. de ALWIS, J.- I agree.
Application granted, compensation ordered.