010-SLLR-SLLR-1999-V-2-CHAMINDA-v.-GUNAWARDENA-OIC-POLICE-STATION-KATARAGAMA-AND-OTHERS.pdf
80
Sri Lanka Law Reports
[1999) 2 Sri LR.
CHAMINDA
v.GUNAWARDENA, OIC POLICE STATION, KATARAGAMAAND OTHERS
SUPREME COURTG. P. S. DE SILVA, CJ.,
PERERA, J. ANDBANDARANAYAKE, J.
S.C. (SPECIAL) NO. 106/97JANUARY 28, 1999
Fundamental rights – Unlawful arrest and detention – Torture – Articles 11.13 (1) and 13 (2) of the Constitution.
On 20.02.1997 the Post Master, Central Post Office, Kataragama, made acomplaint to the Kataragama Police regarding a loss of monies from the PostOffice safe. The petitioner was a messenger attached to that Post Office;but there was no complaint against the petitioner. However, on the same daythe 2nd respondent, an Inspector of Police (since dead), arrested the petitionerand took him to the police station. TTie 2nd respondent questioned the petitionerabout the “theft", slapped him on the left ear and knocked his head on a wall.Thereafter the petitioner was locked up in a cell until 10.30 am on 21.02.1997when a Pradeshiya Sabha member intervened and had him released. The petitionerproduced in support an affidavit from the Pradeshiya Sabha member. The 1strespondent (OIC) denied the alleged arrest and detention on the basis that therewere no entries at the police station regarding an arrest or discharge. However,the 1st respondent admitted that he had instructed the 2nd respondent to proceedwith inquiries; that the 2nd respondent questioned the petitioner after which a policeconstable had recorded the petitioner's statement. The medical report on thepetitioner gave a history of assault by police on 20.2.1997. It stated that thepetitioner had pain in the ear and a perforation on left tympanic membrane.
Held :
The petitioner was arrested without reasonable grounds and detained at the policestation for over 18 hours without any criminal proceedings. He was not producedbefore a Magistrate. The 1st respondent had failed in his duty by failing to maintaincorrect records. The medical evidence was consistent with the petitioner'sallegation. As such the petitioner's rights under Articles 11, 13 (1) and 13 (2)were violated.
sc
Chaminda v. Gunawardena, OIC Police Station,
Kataragama and Others (Shirani A. Bandaranayake, J.)
81
APPLICATION for relief for infringement of fundamental rights.
Prince Perera for the petitioner
Harsha Fernando, SC for 1st, 3rd and 4th respondents.
Cur. adv. vult.
February 10, 1999.
SHIRANI A. BANDARANAYAKE, J.
The petitioner was a messenger attached to the Central Post Office,Kataragama, since 01.11.1995. On or about 20.02.1997 the petitionerbecame aware that the money kept in the Post Office safe was lost.On the same day around 4.00 pm the 2nd respondent asked himto accompany him to the Police Station. At the Police Station, the2nd respondent had questioned him about the theft and had hit himhard on the petitioner's left ear and knocked the petitioner's head onthe wall. The 1st respondent had kept him in the police cell until10.30 am on 21.02.1997. According to the petitioner, oneJ. W. Chulasena, a Pradeshiya Sabha member, had intervened andgot him released from the police custody. The petitioner alleged thatby the actions of the 1st and 2nd respondents, his fundamental rightsguaranteed under Articles 11, 13 (1) and 13 (2) were violated.
This Court had granted leave to proceed in respect of the allegedinfringement of Articles 11, 13 (1) and 13 (2) of the Constitution.
The 2nd respondent had died on 01.06.1997. The position of the1st respondent is that he received a complaint from the Post Masterof the Central Post Office, Kataragama, on 19.02.1997 that the moneykept in the Post Office safe was lost. He had made the preliminaryinvestigations and had instructed the 2nd respondent to proceed withthe inquiries. Thereafter he had left the station to attend a conferenceheld at the office of the Assistant Superintendent of Police, Tangalle.He has averred that he left the station at 12.10 pm on 19.02.1997and returned on the same day at 7.15 pm (1R3). The 1st respondentfurther averred that the 2nd respondent had questioned the petitionerand a statement of the petitioner was recorded by a Police Constable(1R1). His position is that no arrest of the petitioner was made. He
82
Sri Lanka Law Reports
[1999] 2 Sri L.R.
relied on the notes made by the 2nd respondent and submitted thatthere are no entries in the relevant books to the effect that thepetitioner was brought to the Police Station or that he was taken intocustody at any time.
According to the material before us, there was no complaint madeagainst the petitioner and no criminal proceedings were institutedagainst him at anytime. Although the 1st respondent has denied thepresence of the petitioner in the Police Station at any time on the20th and 21st February, 1997, the petitioner has produced an affidavitfrom a Pradeshiya Sabha member (P2) which affirms that –
on the morning of 21.02.1997 the mother of the petitioner methim and informed him that the petitioner was taken intocustody on 20.02.1997 and that he had been assaulted. Shehad requested him to get her son released from police custody;
when he went to the Police Station, Kataragama, the petitionerwas seated near the cell. The petitioner was crying whileholding his left ear;
the 2nd respondent handed over the petitioner to him. However,he did not ask for any surety bond for the discharge of thepetitioner.
The affidavit marked as P2 was given by a Pradeshiya Sabhamember who was a disinterested witness as far as this incident isconcerned. The affidavit clearly affirms that the petitioner was takeninto custody on 20.02.1997 and was kept in the Police Station until
If the petitioner was not taken into custody as submittedby the 1st respondent, there was no need for the 1st and 2ndrespondents to keep the petitioner in custody until the morning of
According to the facts of this case, if there was areasonable suspicion that the petitioner was concerned in the theftat the Central Post Office, Kataragama, the police could have takenthe petitioner into custody as it is the duty of the Police Officers tocarry out investigations regarding such complaints. However, it isessential for an arrest to be carried out according to the procedurelaid down in the Code of Criminal Procedure Act.
sc
Chaminda v. Gunawardena, OIC Police Station,
Kataragama and Others (Shirani A. Bandaranayake, J.)
83
The 1st respondent while denying that the petitioner was everarrested, supports his submissions on the basis that there were noentries regarding the petitioner’s arrest and discharge. There is evidence,on the other hand, provided by a disinterested party that the petitionerwas taken into custody on 20.02.1997 and released on 21.02.1997.On a consideration of the different versions given by the petitionerand the 1st respondent, I accept the version given by the petitionerwhich is strongly supported by the affidavit P2.
The 1st respondent was the officer in charge of the Police Station,Kataragama, at the time of this incident. The IB extracts submittedto this Court make no reference to the arrest or the detention of thepetitioner. It is the responsibility of the OIC of the Police station toensure that all records are properly and duly maintained. Accordingto the material placed before us, the 1st respondent has failed in hisduty, by not maintaining correct records.
Section 37 of the Code of Criminal Procedure Act, reads thus:
Any peace officer shall not detain in custody or otherwise confinea person arrested without a warrant for a longer period than underall the circumstances of the case is reasonable, and such periodshall not exceed twenty-four hours exclusive of the time necessaryfor the journey from the place of arrest to the Magistrate.
Admittedly there was no warrant against the petitioner and he wasnot produced before the Magistrate. I wish to reiterate that, no criminalproceedings were instituted against the petitioner at any time. Thepetitioner was kept in police custody for over 18 hours without givingany reasons either for his arrest or for his detention. There were noreasonable grounds at all for his arrest. The petitioner was notproduced before a Magistrate but was handed over to a PradeshiyaSabha member without any surety bond. I
I hold that the 1st respondent has violated the petitioner’s funda-mental rights guaranteed under Articles 13 (1) and 13 (2) of theConstitution.
84
Sri Lanka Law Reports
[1999] 2 Sri LR.
The petitioner was admitted to the Karapitiya Hospital on 22.02.1997and was discharged on 27.02.1997. On an Order made by this Courtthe medical report was sent, which reads as follows:
ADMISSION FORM
Assault by police on 20.02.97Pain in l/ear. . .hearing
A Medical Certificate was issued by the MO/ENT of the KarapitiyaGeneral Hospital, Galle, which stated that the petitioner wassuffering from traumatic perforation of left Ivmpanic membrane(emphasis added).
The petitioner's complaint was that the 2nd respondent hit him hardon his left ear. On the material placed before us, the petitioner wasin custody at the Police Station, Kataragama, from the evening of20.02.1997 to 21.02.1997.1 find that the medical evidence is consistentwith the petitioner's allegation and therefore I declare that thepetitioner's fundamental rights guaranteed by Article 11 was violatedby the 2nd respondent.
I award to the petitioner a total sum of Rs. 25,000 as compensationout of which Rs. 5,000 must be paid personally by the 1st respondentand the balance by the State. The State must also pay Rs. 5,000as costs to the petitioner. These amounts must be paid within 3 monthsfrom today.
The Registrar of the Supreme Court is directed to send a copyof this judgment to the Inspector-General of Police.
G. P. S. DE SILVA, CJ. – I agree.
PERERA, J.- I agree.
Relief granted.