027-SLLR-SLLR-2009-V-1-BANDULA-SAMARASEKERA-vs-VIJITHA-ALWIS-O.-I.-C.-GINIGATHHENA-POLICE-STATIO.pdf

Thereafter, the 1st respondent had snatched the ignitionkey of the jeep. The petitioner at that stage had stated that hewas going to reverse the jeep and therefore there was no needto create any difficulty. No sooner the petitioner had statedthe above, the 1st respondent had jumped forward and dealtseveral severe blows on the petitioner’s face and had assaultedhim. Thereafter having seen in the jeep the remaining itemsused for the rituals such as incense, camphor etc., the 1strespondent had started shouting stating that,
Having stated that, the 1st respondent had assaultedthe exorcist and Sahan’s friend, who were in the jeep. The1st respondent according to the petitioner was smelling ofliquor and the vehicle he came was driven by a member of aPradeshiya Sabba, whom he could not identify.
Thereafter the 1st respondent had got into the driver’sseat of the jeep, threatened the petitioner and the two others

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Police Station. The officers of the Kandy Police Station hadremanded the petitioner and the two others.
Soon after the petitioner’s wife and the daughter hadarrived at the Kandy Police Station with an Attomey-at-Law (PI, P2 and P3). Around 2.00 a. m. the officers of theKandy Police Station had taken the petitioner and the othertwo persons to the Judicial Medical Officer. However hisinjuries were not attended to by the said Medical Officer.On 01.03.2007 around 9.00 a.m, a Police Officer hadobtained statements from the petitioner and the othertwo persons and thereafter around 12.00 noon theywere taken to Dr. A. B. Seneviratne, who was JudicialMedical Officer; the said Judicial Medical Officer hadrefered them to the E. N. T. clinic of the Kandy Hospital andthereafter necessary X-rays had been taken by them (P4).
Around 5 p.m. on 01.03.2007, all three were producedbefore the Magistrate’s residence and were released on suretyof Rs. 100,000/- for each of them.
The petitioner had made a complaint to the HumanRights Commission of Sri Lanka and to the National PoliceCommission regarding the aforesaid incident (P6 and P7). Hisposition was that he had to undergo continuous treatmentfor the injury caused to his eye and the said incident hadcaused him severe pain of mind.

that they would be killed if they shout and had driven themto the Kandy Police Station. The petitioner, due to the brutalassault, was bleeding from his nose and his face and his righteye was swollen. He had also realized that his gold bracelet andthe chain were missing. He had however managed to call hiswife on his mobile phone and had told her briefly that he wasarrested and being taken to the Kandy Police Station. Whenthey reached the Kandy Police Station, the 1st respondent hastold the petitioner and the two others to follow him and hadmade certain entries in a book at the Police Station. After
he had left the
stating that
Bandula Samarasekera Vs Vijitha Ahvis, O.I.C., Ginigathhena Police Station
SCAnd Others (Dr. Shirani Bandaranayake, J.)219
When this matter came up on 27.07.2007, an application'had been made by the learned Counsel for the 2nd respondentto discharge the 2nd respondent from these proceedings.Learned Counsel for the petitioner on that date had submittedthat the petitioner had not claimed any relief against the 2ndrespondent. In the circumstances, this Court had dischargedthe 2nd respondent from these proceedings.
The 1st respondent in his affidavit had averred that hehad received a message on 24.02.2004 for him to attend theMagistrate’s Court, Kandy on 28.02.2007 to lead evidence inM. C. Case No. 61908 (1R1). On 28.02.2007, after attend-ing the duties in Court, he had returned to his residence inhis private vehicle at 190/4, Pallegama, Ampitiya around10.30 p. m. As he was around 100 meters away from hishouse he had noticed a commotion and there was a gatheringof a big crowd near a jeep, where some were shouting.Referring to the said incident the 1st respondent had averredin his affidavit that,
“I noticed those three people were been man handled bythe crowd. I shouted at them to disperse the mob andasked the crowd to hand them over to me. The peoplethen brought the petitioner and two others to me andinformed that they were suspected as treasure hunters.”
Thereafter he had handed over the suspects to thePolice Sergeant Padmasiri attached to Kandy Police Stationto take necessary action. His contention was that he had notassaulted any body and that he had noticed that thepetitioner had sustained some marks on his left eye.
In support of his contention, the 1st respondent hadannexed a certified copy of the notes entered by him inthe Police Station, Kandy (1R2). The contention of the 1"respondent was that the petitioner with two others had been
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at that particular place on the night of 28.02.2007 for thepurpose of treasure hunting and in support of his contentionhe had referred to the items in the petitioner’s possession atthe time of his arrest.
The petitioner’s position, as stated earlier, had been thathis arrest and detention had been unlawful and that he wasassaulted by the 1st respondent at the time of his arrest.
The 1st respondent’s version was that the civilians of thearea had surrounded the petitioner and the two others andthereafter the 1st respondent had arrested the petitionerand had brought him to the Kandy Police Station. In supportof this position he had filed a copy of his entry made at theKandy Police Station at 11.50 p. m. on 28.02.2007 (1R2)and an affidavit filed by one Jegan Navaratne Raja (1R9), aresident of No. 35A, Wewathena Road, Ampitiya, Kandy. Thesaid Navaratne Raja’s position was that he had been returningfrom the construction site of his house situated at Pallegamaaround 10.30 p.m. on 28.02.2007 and he had witnessed theincident related by the 1st respondent.
Article 13(1) and 13(2) of the Constitution refer tofreedom from arbitrary arrest and detention and read asfollows:
“13(1) No person shall be arrested except according to pro-cedure established by law. Any person arrested shall beinformed of the reason for his arrest.
13(2) Every person held in custody, detained or otherwisedeprived of personal liberty shall be brought before thejudge of the nearest competent Court according to proce-dure established by law, and shall not be further held incustody, detained or deprived of personal liberty exceptupon and in terms of the order of such judge made inaccordance with procedure established by law. ”
Bandula Samarasekera Vs Vijitha Alwis, O.I.C., Ginigathhena Police Station
SCAnd Others (Dr. Shirani Bandaranayake, J.)221
It is to be borne in mind that the 1“ respondent hadcontended that the petitioner and the three others werearrested by the villagers and thereafter they were handed overto him. The procedure for the arrest of any person by privateperson is dealt with in Section 35 of the Code of CriminalProcedure Act, No. 15 of 1979. According to the said Section35, that,
“Any private person may arrest any person who in hispresence commits a cognizable offence or who has beenproclaimed as an offender, or who is running away andwhom he reasonably suspects of having committed acognizable offence, and shall without unnecessary delaymake over the person so arrested to the nearest peaceofficer or in the absence of a peace officer take suchperson to the nearest police station. If there is reason tobelieve that such person comes under the provisions of
Section 32 a peace officer shall re-arrest himIf there
is no reason to believe that he has committed any offencehe shall be at once discharged."
The situation which prevailed at the time the 1strespondent had arrested the petitioner was vividly describedby him in his affidavit, where he had averred that,
"… as I was approaching around one hundred metersclose to my house where there is a small bridge I hearda big noise from a crowd; some were shouting and somewere screaming centering a pajero with three people. Inoticed that those three people were being man handledby the crowd. I shouted at them to disperse the mob andasked the crowd to hand them over to me. The peoplethen brought the petitioner and two others to me andinformed that they were suspected as treasure hunters.”
According to his affidavit, the 1st respondent had arrestedthe petitioner as he was suspected as a treasure hunter.
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When one considers the averment of the 1 st respondentin his affidavit tendered to this Court and the entry enteredby him on 28.02.2007 at 11.50 p.m., it is quite clear thatthere is clear contradiction in the two versions given by the1st respondent.
Learned Counsel for the 1st respondent contended thatthe petitioner was a treasure hunter and therefore the 1strespondent had to arrest him as the petitioner had gotcaught to the people of that area. However, no material wasproduced before this Court to indicate that the area inquestion had any places of archaeological value. A policeofficer of the Kandy Police Station had investigated intothe incident in question and according to his report about200 meters away from the place, where the petitioner wasarrested on the night of 28.02.2007 there had been a placewith a stone stairway leading to a house and the saidstairway, which consisted of 27 stone steps had a historicalvalue. It was further stated in the police officer’s Report thatduring the period of King Rajasinghe, in one of his visits, theKing had rested for a while in the house near the said stonestairway. However, this place is about 200 meters away fromthe place of the incident in question (1R7) and the owner ofthe house to which the stone stairway leads to had categori-cally stated that no one had visited their house on the night ofthe incident. Further the said owner had not referred to any

(emphasis added) (1R2)
However, in his own entry entered at 11.50 p.m. at the Kandypolice Station it had been stated that the 1st respondent hadarrested the petitioner not for any other reason, but for thepetitioner’s own safety.
Bandula Samarasekem Vs Vyitha Ahvis, O.I.C., Ginigathhena Police Station
SCAnd Others (Dr. Shirani Bandaranayake, J.)223
archaeological importance being attributed to the said stonestairway. More importantly, the Deputy Director (Movableand Immovable Property) of the Archaeological Department byhis letter dated 25.04.2007 had informed the Head QuartersInspector of the Police Station, Kandy that on an examinationof the place in question, it is ascertained that the particularplace has no archaeological value.
On the basis of the letter of the Deputy Director ofArchaeological Department the Officer-in-Charge of thePolice Station, Kandy had submitted to the Magistrate’sCourt, Kandy that as there is no material against the peti-tioner and the other two suspects, that they be dischargedfrom the proceedings.
As referred to earlier, Section 32(1 )b of the Code ofCriminal Procedure Act, had clearly stipulated that an arrestcould be made not on vague reasons, but only on a reasonablesuspicion that the person in question has been concerned inany cognizable offence.
In Kushan Indika v Ranjan Wijesekera, Officer-in Charge,Police Station, Pitigala^,the question of arresting a personaccording to the procedure established by law in terms ofArticle 13(1) and Section 32 of the Code of Criminal ProcedureAct, was examined in detail. Considering the rationale indecisions of Pelawattage (A.A.L.) for Piyasena v O.I.C.Wadduwa and other*21, Gamlath v Meville Silva and othersP'Muttusamy v Kannangara,4> and Veeradas v Controller ofImmigration and Emigration and othersfs>, it was clearly statedthat,
“It is therefore abundantly clear that although a person
could be arrested without a warrant in terms of section
32(l)b of the Code of Criminal Procedure Act, for such
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action to be taken it is necessaiy that there should bea reasonable suspicion that such person had committedthe offence in issue” (emphasis added).
Accordingly, the question which arises at this junctureis whether there was a reasonable suspicion against thepetitioner at the time he was arrested by the 1st respondent.
As referred to earlier, the contention of the 1st respon-dent was that he had suspected him to be a treasure hunter.However, as has been already described, the AssistantDirector of the Archaeological Department in his letter hadcategorically stated that according to the report issued onthe basis of the examination of the site in issue, that thearea in question is not a place with any archaeological value.Furthermore the owner of the house, where the stone stairwaywas located has stated that no person had come near their housein that night. In those circumstances it is apparent that thepetitioner could not have committed the alleged offence.
Accordingly I hold that the petitioner’s fundamentalrights guaranteed in terms of Article 13(2) had been violatedby the 1st respondent.
The 3rd respondent, who was the Officer-in-Charge of theDivisional Crime Prevention Unit, Police Station, Kandy hadaverred that at the time the petitioner was brought to theKandy Police Station on 28.02.2007, he was not in the PoliceStation as he had left the Police Station around 4.00 p.m.on 28.02.2007 and reported for duty only on 01.03.2007 at2.00 p. m. and had attended to duties until 10.00 p.m. in themobile duty car (3R2).
The B report dated 01.03.2007 had been prepared by thepolice officer, who. was on duty at the time and not by the 3rdrespondent.
Bandula Samarasekera Vs Vijitha Alivis, O.I.C., Ginigathhena Police Station
SCAnd. Others (Dr. Shimni Bandaranayake, J.)225
The B report clearly stated that the petitioner was broughtto the Kandy Police Station and a complaint was made bythe Is* respondent. The petitioner was brought to the PoliceStation around 11.00 p.m. on 28.02.2007 and he had beenproduced before the learned Magistrate at his residencearound 4.00 p.m. on 01.03.2007, where he was released onsurety bail of Rs. 100,000/- (Ps). It is interesting to note thatthe learned Magistrate after a perusal of the material placedbefore him had recorded that ‘no offence' appears to havebeen committed’.
An arrest take place when a person is either taken intocustody or placed under restraint. In Holgate-Mohammed vDuke*61 Lord Diplock was of the view that when a person isdetained or restrained by a police officer and that he is awarethat he is being detained or restrained, that would amountto an arrest of the person although no formal words of arrestwere spoken by the officer.
Considering the circumstances of this application, aquestion arises as to whether there was a need for the 1strespondent to have brought the petitioner to the KandyPolice Station. In his statement recorded at the Kandy PoliceStation he had stated that the petitioner was arrested forprotection of the petitioner and if that had been the reasonfor his arrest there would not have been any need to havedetained the petitioner until 4.00 p.m. on 01.03.2007.
It is not disputed that the petitioner was arrested around10.00 p.m. on 28.02.2007 and produced before the learnedMagistrate around 4.00 p.m. on 01.03.2007. In effect he hadbeen in police custody for over 18 hours.
Section 327 of the Code of Criminal Procedure Act refersto the procedure that should be adopted when a person isarrested by a peace officer without a warrant. According toSection 37,
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“Any peace officer shall not detain in custody or other-wise confine a person arrested without a warrant for alonger period then under all the circumstances of thecase is reasonable, and such period shall not exceedtwenty-four hours exclusive of the time necessary for thejourney from the place of arrest to the Magistrate, ”
Section 35 of the Code of Criminal Procedure Act statesthat when a person, who had been arrested by a private per-son is produced before a peace officer and there is no reasonto believe that he had committed any offence that he shallbe at once discharged. The peace officer could arrest such aperson only if there is reason to believe that he is a person,who has acted in the circumstances set out in Section 32 ofthe Code of Criminal Procedure Act.
Considering the circumstances of the present applicationit is apparent that there were no reasons for the petitioner tohave been arrested and also there was no necessity for himto have been kept in custody without, being produced beforethe Magistrate for over 18 hours. Although Section 37 of theCriminal Procedure Code refers to a period of 24 hours asthe period a person taken without a warrant could be keptin custody without producing him before the Magistrate, thisdoes not mean that a person could be kept for the maximumperiod of time under arrest without taking necessary stepsto produce him before the learned Magistrate. What Section37 of the Code of Criminal Procedure Act had contemplatedis that, a person who has been taken into custody without awarrant should be produced before the learned Magistrateas early as possible and without any unnecessary delay. Thetime taken for such production should be considered on thecircumstances of each case.
On a consideration of the totality of the circumstances itis clear that the petitioner was taken into custody for his own
Bandula Samarasehera Vs Vijitha Alwis, O.I.C., Oinigathhena Police Station
SCAnd Others (Dr. Shirani Bandaranayake, J.)227
protection and for the protection of his properly and thereforethere was no necessity for any unnecessary delay. I accord-ingly hold that the petitioner’s fundamental rights guaran-teed in terms of Article 13(2) of the Constitution had beenviolated.
The petitioner had complained that his fundamentalrights guaranteed in terms of Article 11 had been violated by •the 1st respondent as he was brutally assaulted by him. Thepetitioner had complained that as a result of the said brutalassault by the 1st respondent, he was bleeding from his nose,his face and his right eye was swollen and reddened and theleft ear drum too had got injured. Article 11 of the Constitu-tion, which deals with the right pertaining to freedom fromtorture, reads as follows:
“No person shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. ”
Torture or cruel, inhuman or degrading treatment orpunishment could take many forms and even the natureof the physical harm may differ from case to case. Whenthere is a complaint against a police officer alleging that thecomplainant had been assaulted, a mere allegation wouldnot be sufficient to prove that there had been a violation ofArticle 11 of the Constitution. As stated in AnsalinFernando v Sarath Perera and others,171 an allegationagainst the police cannot be rejected merely because thepolice deny such allegation or due to the fact that theaggrieved party cannot produce any medical evidence of theinjuries. Whether any allegation is in violation of Article 11 ofthe Constitution would depend on the facts of each case.
However, in order to establish the alleged allegationof torture it would be necessary for an aggrieved party tocorroborate his averments against the respondents and for
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such corroboration it would be necessary to produce evidenceincluding medical evidence.
In Namasivayam v GunawardenaP1 referring to the needfor corroborating the averments of alleged torture, Shar-vananda, C. J., had stated that,
“On the question whether the petitioner was subject tocruel treatment or torture, petitioner’s averments standsuncorroborated by any medical evidence and has beendenied by the respondents. The evidence is not sufficientfor us to hold that there had been any violation of Article11 of the Constitution.”
On many instances, this Court therefore had directed ag-grieved persons to be examined by a Judicial Medical Officer,in order to obtain a Medico-Legal Report. In this instance,however, after the petitioner was arrested and taken to thePolice Station, a police officer had taken the petitioner to theJudicial Medical Officer, Dr. A. B. Seneviratne of the GeneralHospital, Kandy around 12.00 noon on 01.03.2007.
The consultant Judicial Medical Officer, Dr.
. A.B.Senevirathne, who was attached to the General Hospi-tal, Kandy had tendered the Medico-Legal Report pertainingto the petitioner to this Court. The relevant parts of the Ju-dicial Medical Report are re-produced below to indicate thekind of injuries the petitioner had sustained on the night of28.02.2007.
“ Injuries
Sub conjunctival haemorrhage in left eye,
Traumatic performation of the ear drum in the left earNo evidence of nerve damage.
Pain and swelling in the nose with fracture of the nasalbone,
Bandula Samamsekera Vs Vijitha Alwis, O.I.C., Ginigathhena Police Station
SCAnd Others (Dr. Shirani Bandaranayake, J.)229
Multiple small abrasions over the malar prominence ofthe left cheek
Abrasion 4.0 x 2.0 cm. over upper third front right sideof the chest.
Non -grievous injuries – (1),(3),(4)
Injuries caused by – blunt weapon.”
An examination of the Medico – Legal Report clearlyindicated that the petitioner had suffered several grievousand non – grievous injuries. The question that arises atthis juncture is as to who had been responsible for suchinjuries. As stated earlier the petitioner’s contention was thatthe 1st respondent, in his anger that the petitioner’s vehicle hadobstructed his vehicle from moving , had assaulted him andthe 1st respondent had taken up the position that since thepetitioner and his friends were treasure hunters, the villagershad assaulted him.
Although the 1st respondent had stated that since thepetitioner was a treasure hunter the villagers had assaultedhim, he had not tendered any evidence in support of thiscontention. Moreover as pointed out earlier, the place where
Grievous
Injuries
(2) Limb underSection 311of Penal Code
C Explanatoryremarksif any
Permanent privation orimpairment of the hear-ing of either ear
(3) G Cut or fracture of bonecartilage or tooth dislo-cation or subluxation ofbone, joint or tooth
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the incident took place or the surrounding area had notbeen either declared or known as an area, where there is anyarchaeological value. In such circumstances the contentionof the 1“ respondent fails and on a careful examinationof the two versions and the findings of the consultantJudicial Medical Officer referred to in the Medico-Legal Report,it is apparent that the contention of the petitioner is moreprobable and has to be accepted.
I accordingly hold that the 1st respondent had violatedthe petitioner’s fundamental rights guaranteed in terms ofArticle 11 of the Constitution.
The petitioner had clearly stated that the 1st respondenthad become annoyed with the petitioner since the Is’respondent could not move his vehicle as the petitioner’svehicle had come from the opposite direction, at a place wherethe road was too narrow for two vehicles to pass.
Although the 1st respondent had contended that thepetitioner had been on that road on an expedition in searchof treasure, it is apparent that the petitioner’s contention ismore probable and that the 1st respondent had been simplydisplaying his authority as the Officer – in – Charge of thePolice Station Ginigathhena.
It is the duty of a police officer to use his best endeavourand ability to prevent all crimes, offences and publicnuisances and more importantly to preserve the peace. Inorder to carry out his duties efficiently and effectively, itwould be necessary to have the trust and respect of thepublic. It is not easy to command that from the publicand in order to earn such trust and respect, the policeofficers must possess a higher standard of moral and ethicalvalues than that is expected from an average person.
The facts and circumstances of this application clearlydemonstrate the lack of such higher standards of ethical and
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SCAnd Others (Dr. Shirani Bandaranayake, J.)231
moral value that is expected from a police officer. As stated byAtukorale, J. In Amal Sudath Silva v Kodituwakku.Pl
"Nothing shocks the conscience of a man so much asthe cowardly act of a delinquent police officer who subjectshelpless suspect in his charge to depraved and barbarous
methods of treatmentSuch action on the part of the
police will only breed contempt for the law and will tendto make the public lose confidence in the ability of thepolice to maintain law and order ” (emphasis added)”
For the. reasons aforesaid I hold that the petitioner’sfundamental rights guaranteed in terms of Articles 11, 13(1)and 13(2) of the Constitution had been violated and the 1strespondent is responsible for the said violation of Article11 and 13(1) of the Constitution. I accordingly direct the 1strespondent to pay personally to the petitioner a sum ofRs. 50,000/- as compensation and costs. Since the violationof Article 13(2) had occurred whilst the petitioner was inthe custody of the police station,Kandy and no particularofficer was responsible for such violation I hold that the saidviolation would be the responsibility of the State andtherefore I direct that a sum of Rs. 15,000/- be paid to thepetitioner by the State as compensation and costs. Altogetherthe petitioner would be entitled to a sum of Rs.- 65,000/-.These amount to be paid within three(3) months from today.
The Registrar of the Supreme Court is directed to send acopy of this judgment to the Inspector – General of Police.
EKANAYAKE, J.- I agree.IMAM, J. – I agree.Application allowed