SARATH PERERA, OFFICER-IN-CHARGE, POLICE STATION,CHILAW AND OTHERS
SUPREME COURTFERNANDO, J.
AMERASINGHE, J. ANDKULATUNGA, J.
S.C. APPLICATION NO. 18/8719 AND 30 MARCH 1990
Fundamental Rights – Arrest and detention – Torture – Articles 11, 13(1), 13(2),13(4) of the Constitution – Emergency Regulations 18, 19 and 45.
Regulation 18 of the Emergency Regulations only empowers an arrest on accountof an offence under Emergency Regulations. Murder as such is not such anoffence. If (murder) Is an offence in respect of which an arrest can only be madeunder Section 23 of the Code of Criminal Procedure Act, in which event thesuspect has to be produced before a Magistrate in terms of Section 36 and withinthe period prescribed by section 37 of the Code. Where such arrest is claimed tohave been made under Regulation 18(1) on a suspicion of the arrestee beingconcerned in committing an offence under Emergency Regulations, it would notbe possible to defend the arrest even on the ground that it is referable to section23 of the Code of Criminal Procedure Act. The arrest and the detention on thatbasis are violative of Article 13(1) of the Constitution.
Even if the arrest for murder was lawfully made in terms of Section 23 of the Codeof Criminal Procedure Act and it became necessary on the basis of materialdisclosed during the investigation to detain the arrestee under EmergencyRegulation 19(2), he was entitled to be informed of the reason for the deprivationof his personal liberty. Failure to do so would make the detention illegal.
Regulation 45 does not create an offence. Hence detention on an allegation ofbeing concerned in committing an offence under Regulation 45 would beunlawful.
An arrest under Regulation 18(1) to be lawful has to be reasonable by applicationof the objective test; it should be effected on credible information.
An unlawful custody for 49 days, and detention for fifteen days without asemblance of authority for such detention and assaults and humiliations and pain(by being blindfolded and chained to a bench) inflicted during this period would
amount to degrading treatment or punishment and are violative of Article 11 ofthe Constitution.: "
Cases referred to:
Nanayakkara v. Henry Perera (1985) 1 Sri LR 375,385,388,399.
Wijewardena v. Zain and Others S.C. Application No. 202/87 S.C. Minutes of24.07.1989
Joseph Perera v. Attorney-General S.C. No. 107-109/86 S.C. Minutes of 25May 1987
Gunasekera v. De Fonseka 75 NLR 246.
Muttusamy v. Kannangara 52 NLR 324
Yapa v. Bandaranayake (1988) 1 Sri LR 63
APPLICATION for infringement of fundamental rights.
Sanath Jayatilleke with Jayantha Nandalaltor the petitioner.
C. R. de Silva, S.S.C. for 1 to 5 respondents.
Cur, adv. vult
21st May, 1990.
By her petition dated 18.02.87 the petitioner complains that herson the 6th respondent (a University student) was arrested at theirhouse in Chilaw on 02.01.87 at about 3.30 p.m. by a police party whoassaulted him with fists and took him away in a jeep without givingany reason for the arrest; that thereafter the 6th respondent wasdetained at the Bandaragama Police Station where he was subjectedto assaults and other ill-treatment; that the 6th respondent was lastseen on the evening of 04.02.87 after which she was informed that hehad been transferred to the Kalutara Police Station; that although on
and 10.02.87 she visited the Kalutara Police Station she wasnot ajlowed by the H.Q.I. Kalutara Police to see the 6th respondentand the H.Q.I. even refused to talk to her.
The petitioner alleges that the detention and incarceration of the6th respondent since 02.01.87 is illegal and violative of Articles11,12, 13 and 14 of the Constitution. The petition is accompanied byan affidavit of one Raymond Fernando, an uricle of the 6threspondent, who had helped the petitioner in obtaining information
regarding the whereabouts of the 6th respondent and by visiting himwhilst he was in police custody.
When the 6th respondent was taken away by the police, thepetitioner believed that he had been taken to the Chilaw Police.Consequently, Raymond went to make inquiries at the Chilaw Policeand was informed that the 6th respondent had been taken to theBandaragama Police.
On the 3rd and 4th, Raymond Fernando visited the BandaragamaPolice where he was informed that the Police team had not yetarrived with the 6th respondent. He had gone there again on the 5thwhen he saw the 6th respondent crying in pain having beenassaulted on the knees and legs. He visited the 6th respondent nexton 6th, 7th, 14th, 19th and 23rd but was not allowed to speak to himfor more than 10 minutes on any day and a police officer waslistening to the conversation throughout. The petitioner visited thedetenu on 10th, 18th and 24th. On the 18th she had seen himchained to a bench with much pain. On her visit on the 31st sheheard from another University student who was chained to a benchthat the 6th respondent had been taken to the Criminal InvestigationDepartment, but the police officers said that his whereabouts are notknown.
On 04.02.87 the petitioner and Raymond Fernando went to theCID to be told that the 6th respondent had not been brought there.They were informed by the Police Headquarters that the 6threspondent was at the Bandaragama Police where they met him thatevening. In the absence of a police officer he told them that he hadbeen taken blindfolded to a lonely house where he was assaultedand kept for two days and bought back to the Kalutara Police Station;that he had been produced before the Magistrate Horana by theKalutara Police that morning; and the Magistrate ordered him to beremanded for a further period of one month. In his affidavit dated
the 6th respondent states that on 04.02.87 he wasproduced before a lady Magistrate at her bungalow when she“remanded'1 him and two other detainees Rupasinghe and Jayasuriyafor a further period and thereafter he was “remanded" at the KalutaraPolice from 05.02.87 to 20.02.87.
The'1st respondent (O.i.C. Chilaw Police) states that the 6threspondent was not arrested by the Chilaw Polibe and further statesthat he is unaware of the arrest of the 6th respondent by the police.The 2nd respondent (O.I.C. Bandaragama Police) states that the 6threspondent was arrested by S.l. Manamperi on 05.01.87 and wasproduced at the Bandaragama Police Station on 06.01.87; that on“further investigations” there was evidence that the 6th respondentwas concerned in committing offences under EmergencyRegulations. He therefore obtained from Mr. Rajaguru, DeputyInspector General of Police, a detention order under EmergencyRegulations to detain the 6th respondent. The detention order 2RIdated 07.01.87 authorises the detention of the 6th respondent andtwo others Asoka Rupasinghe and Bandula Jayasuriya for a period of30 days from 06.01.87 at the Bandaragama Police Station underRegulation 19(2) of the Emergency Regulations. The order states thatit had been reported that they had been arrested on 05.01.87 underRegulation 18(1) for an offence in contravention of Section 45 of theEmergency Regulations.
Manamperi in his affidavit (2R2) states that in January, ’87 hewas attached to the Horana Police; that he was detailed toinvestigate the murder of University student Daya Pathirana; that oninformation received he had reason to suspect that the 6threspondent was involved in that murder and it was necessary toarrest him for the purpose of investigation. He accordingly arrested .him on 05.01.87 having explained the purpose for his arrest. He thenproceeded to Medawachchiya and Badulla to check on othersuspects and returned to the Bandaragama Police on 06.01.87 andproduced the 6th respondent. He also recorded the 6th respondent’sstatement a certified copy of which is produced marked ‘X’.
Manamperi claims that on the basis of the material thattranspired during his investigations including the statement of the 6threspondent it became necessary to detain him under EmergencyRegulations on the ground of a reasonable suspicion that he hadbeen concerned in committing offences under EmergencyRegulations and as such steps were taken to obtain a detention orderfrom Mr. Rajaguru, Deputy Inspector General of Police.
It is clear from the affidavit of SJ.Manamperi that the 6threspondent had been arrested on a suspicion that he was involvedwith the murder of Daya Pathirana. The murder had been committedin mid December, 1986. No material has been placed before us as towhat investigations were carried out during the two weeks precedingthe arrest of the 6th respondent or what information led to his arrest.Even assuming the existence of credible information against him, thepolice had no power to have arrested the 6th respondent underRegulation 18(1) as stated in the detention order (2R1). Thatregulation only empowers an arrest on account of an offence underEmergency Regulations. Murder as such is not such an offence. It isan offence in respect of which an arrest can only be made underSection 23 of the Code of Criminal Procedure in which event thesuspect has to be produced before a Magistrate in terms of Section36 and within the period prescribed by Section 37 of the Code. Assuch, the impugned arrest is illegal for failure to effect it according toprocedure prescribed by law and is therefore violative of Article 13(1)of the Constitution, in view of the affirmative stand taken by the 2ndrespondent that the 6th respondent was arrested under Regulation18(1) on a suspicion of being concerned in committing an offenceunder Emergency Regulations it would not be possible to defend thearrest even on the ground that it is referable to Section 23 of theCode of Criminal Procedure. Consequently, the impugned detentionis also illegal and is violative of Article 13(2) of the Constitution.
It is then claimed that “on further investigations" there wasevidence against the 6th respondent including his statement that hehad been concerned in committing offences under. EmergencyRegulations and hence a detention order under Regulation 19(2) wasobtained. The only material placed before us in regard to furtherinvestigations is the statement of the 6th respondent recorded on14.01.87 which is subsequent to the date on which the detentionorder was made. No material obtained between the date of the 6threspondent’s^ arrest and the date of the detention order has beenproduced. I shall, however, consider the validity of the detentionorder on the assumption that the material appearing in the 6threspondent’s statement had transpired during the interrogation of the6th respondent after his arrest and prior to the making of thedetention order.
The 6th respondent states that he isva student of the SriJavewardenepura University. He is also the representative of thatUniversity on the Inter University Students Union. A meeting of theUnion had been scheduled for 13.12.86 at the Kelaniya Universitywhich he attended but it could not be held due to poor attendance.He admits that it was not lawful to hold such meetings as studentbodies had been proscribed. On 17.12.86 he read a newspaperreport about the killing of a student of the Colombo University. Hecollected funds from students and put up a banner condoling thedeath. Thereafter he left for his home in Chilaw where he stayed untilhis arrest.
The statement of the'6th respondent disclo§es no offence underEmergency Regulations except perhaps the reference to hisparticipation in the activities of a proscribed student organization.However, the police have not sought to justify the impugneddetention on that ground. Even if he was lawfully arrested in the firstinstance for murder in terms of Section 23 of the Code of CriminalProcedure and it became necessary on the basis of materialdisclosed during investigations to detain him under EmergencyRegulation 19(2) he was entitled to be informed of such reason forthe deprivation of his personal liberty. The failure to so inform him isfurther ground for holding that the impugned detention is illegal.
The detention order itself has been made on the basis that the 6threspondent is concerned in committing an offence under Regulation45 of the Emergency Regulations; but that regulation does not createan offence. It only makes provision to the effect that any attempt,abetment of or a conspiracy to commit an offence under anyEmergency Regulation should be punished with the samepunishment prescribed for such offence. However, no such specificoffence has been alleged. In Nanayakkara v. Henry Perera 01 thisCourt expressed the opinion that it would be unlawful to detain aperson for an unspecified and unknown purpose as this would be aninfringement of Article 13(4). Colin-Thome, J. said (p. 388) –
"Although Regulation 19(2) does not state that the order ofthe Inspector General of Police nominating a place of detentionshould state the reason for the detention we think that it is in theinterest of natural justice that the reason should be
communicated to the detainee in the written order and that heshould be supplied with a copy of the order".
As explained by Colin-Thome, J. (p. 389) the rationale* of thisrequirement is that the arrest and detention are inextricably linked.
This view was followed in my judgment in Wijewardena v. Zain andOthers <2>. Accordingly, I hold that the detention order 2R1 is illegal. Ishall now proceed to consider the validity of the 6th respondent’sdetention from 05.02.87 until his release.
The 3rd respondent (O.I.C. Kalutara Police Station) admits theproduction of the 6th respondent before the Acting Magistrate,Horana, Mrs. Gunatilake on 04.02.87. He states that he did so interms of Regulation 19 of the Emergency Regulations on instructionsfrom the O.I.C. Counter Subversive Division. He disclaims, inter alia,any knowledge of the fact that the 6th respondent was thereafterdetained at the Kalutara Police but fails to explain the whereabouts ofthe detenu after 04.02.87. It is not the position of the 3rd respondentthat he was remanded to fiscal custody or that he was released. Aftercarefully considering the evidence, I am satisfied that the 6threspondent was detained at the Kalutara Police from 05.02.87 to20.02.87. No detention order covering that period has beenproduced; as such the continued detention of the 6th respondentduring that period is also unlawful.
The total denial by the 1st – 5th respondents of almost every factmaterial to the case for the petitioner including date of the impugnedarrest was countered with an affidavit dated 18.01.88 from the 6threspondent supported by other affidavits X1 – X7. The material, sofurnished, if accepted, would corroborate the petitioner's version thatthe 6th respondent was arrested at about 3.30 p.m. on 02.01.87. Theaffidavits of Lionel Appuhamy who showed the 6th respondent’shouse to the police, Anthony Fernando, Principal of a school who hadseen the 6th respondent being taken away by the police, NicholasFernando, Chairman, Gramodaya Mandalaya and Maxima FernandoDepot Manager, Regional Transport Board, Chilaw to whom thepetitioner and the 6th respondent’s uncle Raymond Fernando hadspoken about the impugned arrest and Asoka Rupasinghe anotherUniversity student who was arrested by the Bandaragama Police at
about 7.00 p.m. on the same day are particularly relevant. It is truethat these are belated affidavits; but there is an explanation for thedelay, namely that, it was only after the respondents filed affidavitsstating that the 6th respondent was arrested on 05.01.87 it becamenecessary for the petitioner to furnish further material to contradictthat version.
Asoka Rupasinghe says that he was arrested when he was in theofficial quarters of his sister, a doctor attached to the MedawachchiyaGovernment Hospital. The police party detained him and the 6threspondent at the Kekirawa Police Station on the night of 02.01.87.On the 3rd morning they were taken via Dambulla, Laggala andMahiyangana to the Passara Police at which poPnt the studentBandula Jayasuriya was brought into the jeep. They were then takenvia Badulla and Bandarawela to the Haputale Police where they weredetained at night. On the 4th they, were taken via Balangoda andRatnapura and reached Horana Police by about 2.30 p.m. where theywere detained for the night; on the morning of the 5th they werebrought to the Bandaragama Police by about 8.00 a.m. The policethen took the 6th respondent, assaulting him, to the rear of the PoliceStation from which direction the witness heard the sound of cries.
On a careful consideration of the available evidence including theaverments contained in the petition itself, I am satisfied that the 6threspondent was arrested on 02.01.87 and not on 05.01.87 as spokento by S.l. Manamperi; this officer admits that after arresting the 6threspondent he visited Medawachchiya and Badulla to check othersuspects wanted in the same case and returned to the BandaragamaPolice on 06.01.87. He gives no further particulars of hisinvestigations; nor has he produced any notes of investigations. Hisstory does not have the ring of truth; it is unlikely that he could havecarried out the entire investigations at Chilaw, Medawachchiya andBadulla and returned to Bandaragama with three suspects betweenthe 5th and 6th. On the other hand, Asoka Rupasinghe and the 6threspondent have supplied the details of investigations covering 5days from 02.01.87 to 06.01.87 which I accept. Even if the petitionerhad not filed further affidavits, I accept the petitioner’s version as tothe arrest of the 6th respondent which appears to me to beintrinsically true.
Turning to the alleged violation of Article 11, the 6th respondentstates that the police assaulted him and on 06.01.87; he was offeredfor interrogation by K. L. Dharmasiri, Vice President of theIndependent Students’ Union who visited the Bandaragama PoliceStation; that Dharmasiri humiliated him in the presence of the policeand said “if you come out not a piece of yours would be spared”. Healso confirms the allegation in the petition that prior to his productionbefpre the Magistrate on 04.02.87 he had been taken blindfolded to alonely house where he was subjected to assault and interrogation. Hestates that after such treatment he was taken to the Kalutara PoliceStation. Events thus averred to also have the ring of truth and can berelied upon by this Court. Whilst I shall not accept each and everyallegation of assault/ill-treatment against the police unless it issupported by cogent evidence I do not consider it proper to rejectsuch an allegation merely because the police deny it-or because theaggrieved party cannot produce medical evidence of injuries.Whether any particular treatment is violative of Article 11 of theConstitution would depend on the facts of each case. The allegationcan be established even in the absence of medically supportedinjuries.
The 6th respondent was arrested for alleged involvement in themurder of Daya Pathirana. As pointed out earlier, no evidence of hiscomplicity in the alleged murder and no material warranting asuspicion that he is concerned in committing an offence underEmergency Regulations has been produced. An arrest underRegulation 18(1), to be lawful has to be reasonable by the applicationof the objective test; it should be effected on credible information.Joseph Perera v. Attorney-General<3); Gunasekera v. de Fonsekawsee also Muttusamy v. Kannangarawand Yapa v. Bandaranayake(6).The arrest of the 6th respondent cannot satisfy this- test; as such thearrest is illegal. If he was arrested for an offence under EmergencyRegulations, he was not informed of such reason, in breach of hisrights under Article 13(1) of the Constitution.
Having arrested the 6th respondent on speculation the police kepthim in unlawful custody for 49 days as a subversive. He Was at timeschained to a beach causing severe pain. He was assaulted. He wassubmitted for interrogation by a hostile student unionist who
humiliated him. He was blindfolded and taken to a lonely house forinterrogation. He was detained at the Kalutara Police Station from05.02.87 to 20.02.87 without a semblance of authority for suchdetention, tn my view deprivation of personal liberty, in suchconditions is degrading treatment or punishment violative of Article11 of the Constitution.
Accordingly, I determine that the arrest and detention of the 6threspondent are violative of his rights guaranteed by Articles 13(1),13(2), 13(4) and 11 of the Constitution. There is no material to warrantthe allegation that his rights under Articles 12 and 14 have beenviolated. On the question of relief, l have taken into consideration thefact that the 6th respondent had been illegally-arrested and detainedfor 49 days and subjected to grave humiliation. The thought that thearrest made in the background of a killing which may have beenpolitically motivated is irrelevant and should not stand in the way ofgranting just and equitable relief to the petitioner. I direct the State topay the petitioner on behalf of the 6th respondent a sum ofRs. 25,000/- and costs which I fix at Rs. 2500/-.
FERNANDO J. – / agree.
AMERASINGHE, J. – / agree.