DISSANAYAKE ,ATTONEY-AT-LAW ON BEHALF OF K. M. LAL v. SUJEEWA ,SUB INSPECT

044-SLLR-SLLR-1998-V-2-DISSANAYAKE-ATTONEY-AT-LAW-ON-BEHALF-OF-K.-M.-LAL-v.-SUJEEWA-SUB-INSPECT.pdf


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Dissanayake, Attomey-at-Law on Behalf of K.M. Lai
v. Sujeewa, Sub Inspector of Police, Meetiyagoda Police Station
and Others'
413
DISSANAYAKE, ATTORNEY-AT-LAWON BEHALF OF K. M. LALv.
SUJEEWA, SUB INSPECTOR OF POLICE,MEETIYAGODA POLICE STATION AND OTHERS
SUPREME COURTG.P.S. DE SILVA, C.J.
WIJETUNGA, J. ANDBANDARANAYAKE, J.
S.C. APPLICATION NO. 524/96
OCTOBER 1ST AND DECEMBER 17TH 1998
Fundamental Rights – Violation of rights by the Police – Articles 11, 13(1) and13(2) of the Constitution.
At the time this application was filed the victim Lai was unconscious. Subsequentlyhe tendered an affidavit. It was alleged that close to midnight on 02. 06. 1996when he was sleeping in his house, the 1st respondent and other police officersarrived and arrested him. He was taken to the Meetiyagoda Police station. Inthe early hours 03. 06. 1996 the 1st respondent assaulted him with hands andfeet and a club when he lost consciousness. Later that day the police admittedthe victim to Batapola hospital. As per hospital record, the patient was unconscious.On 04! 06. 1996 he was transferred to the National Hospital Colombo at whichstage also he was unconscious, with paralysis of the right side of the body. ACT scan disclosed an extra-dural haemorrage in the left parietal area of the victim'shead. That injury was fatal in the ordinary course of nature but he recoveredafter surgery and the removal of the extra-dural haemorrage. Even thereafter hehad a weakness of the right side of the body. The respondents averred that thevictim was arrested at 12. 15. p.m. on 03. 06. 1996 on a complaint that he withothers had threatened to cause bodily harm to one Yasawathie and that afterthe arrest, he told the police that one Tillakaratne had struck him on the headwith a club.
Held:
The respondents' version was incredible and the injury sustained by thevictim had been caused by the police in violation of the victim's rightsunder Article 11 of the Constitution. The victim's version that he had been
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(1998) 2 Sri L.R.
arrested whilst he was sleeping in his house was credible. In the circum-stance, the arrest and detention of the victim violated his rights underArticles 13 (1) and 13 (2) of the Constitution.
APPLICATION for relief for infringement of fundamental rights.
A. A. de Silva, PC with Kithsiri Jayalath for the petitioner.
Mohan Peiris with Nuwathi Dias lor 1st, 2nd and 3rd respondents.
P. D. Ratnayake SC for 4th and 5th respondent.
Cur. adv. vult.
December 16, 1998.
SHIRANI BANDARANAYAKE, J.
This application was filed by Neetha Dissanayake, an Attorney-at-Lawon behalf of the petitioner who was unconscious at the time of thefiling of this application. The petitioner alleges that his fundamentalrights guaranteed under Articles 11, 13 (1) and 13 (2) were violatedby the respondents.
According to the petitioner, on 02. 06. 1996, while the petitionerwas asleep, the 1st responent along with some other police officersfrom the Police Station, Meetiyagoda had entered the petitioners'shouse. The 1st respondent had assaulted the petitioner who wassleeping. Thereafter the respondents had brought the petitioner in athree wheeler to the Meetiyagoda Police Station. The following morning,the petitioner's mother had taken breakfast for the petitioner, but shewas not allowed to see him. When the petitioner's lunch was sentthrough his brother-in-law, he was informed that the petitioner wasnot in the Police Station, but had been taken to Batapola Hospitaland from there to Karapitiya Hospital. From Karapitiya the petitionerwas transferred to the National Hospital, Colombo, on 04. 06. 1996and he was sent back to Karapitiya Hospital on 09. 06. 1996.
This court granted leave to proceed in respect of the allegedinfringement of Articles 11, 13 (1) and 13 (2) of the Constitution.
SCDissanayake, Attorney-at-Law on Behalf of K.M. Lai
v. Sujeewa, Sub Inspector of Police, Meetiyagoda Police Station
and Others (Shirani Bandaranayake, J.)415
According to the respondents, on 02. 06. 1996, one KariyawasamVidanage Yasawathie had come to the Meetiyagoda Police Stationaround 11.15. p.m. and complained that the petitioner and severalothers who were armed were threatning the said Yasawathie andher family with serious bodily harm (1R1). On the said complaint, the1st and 2nd respondents with several other police officers proceededto the complainant's house where an unlawful assembly was said tohave gathered. On arrival, the 1st and 2nd respondents observed acrowd of about 25-30 people gathered near the complainant's housearmed with swords and blunt weapons. On seeing the police party,the crowed had dispersed and the 1 st and 2nd respondents had givenchase. One of the persons threw some object which he had in hishand to a nearby shrub and started running. He fell several timesin the process of running towards his house and the 1st and 2ndrespondents were able to apprehend him as he entered the house.Upon inquiry, the person revealed that his name was M. G. Lai (thepetitioner). The respondents had observed that he was under theinfluence of liquor. The petitioner had told the respondents that oneKariyawasam Vithanage Tillakaratne had hit him on the head with aclub. The respondents thereafter arrested the petitioner after informinghim as to why he was being arrested. A statement was recorded fromthe petitioner on 03. 06. 1996 around 1.30 a.m. wherein he categori-cally stated that he was hit on the head with a club by Tillakaratne.He had further stated that the two parties, viz, the complainant's familyand the persons who were together with him, came to blows beforethe arrival of the police at the scene (1R2). According to the respond-ents the petitioner was taken to the Batapola Hospital on the 3rdaround 9.45 a.m. and since his condition was serious he was warded.On the same day, on the instructions of the Officer in Charge, thepetitioner was released on bail.
The respondents further submit that on the information suppliedby the petitioner, the respondents arrested Tillakaratne for assault on
06. 1996 and in his statement to the Police he had admitted thathe hit the petitioner on the head (1R4). On this statement, therespondents were able to recover the club with which the petitioner
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(1998) 2 Sri L R
was hit, as evidenced by the notes of the 1st respondent (1R5).Tillakaratne was prosecuted in the Magistrate's Court for “assault".
The Judicial Medical Officer, Colombo in his reoport has classifiedthe injury the petitioner had sustained as "fatal in the ordinary courseof nature". He has given the history, clinical findings and the medico-legal opinion, which are as follows:
History
Transferred to ward No 72 (Accident Service) of the NationalHospital, Sri Lanka, Colombo from ward No. 12 of the TeachingHospital, Karapitiya on 04. 06. 1996 for investigation and treatmentof a head injury following an assault on 04. 06. 1996 (details of theassailant/s, weapons and time of assault not available in the bed headticket notes).
Clinical findings, investigations and treatment
Patient unconscious with paralysis of the right side of the bodyat the time of transfer from the Teaching Hospital, Karapitiyato the Accident Service of the National Hospital, Sri Lanka,Colombo;
patient unconscious with weakness of the right side of the bodyat the time of admission to ward 72 (Accident Service) of theNational Hospital, Sri Lanka at 4.10 p.m. on 04.06.1996;
no external injuries have been observed by the medical officerstreating the patient at the Accident Service (ward 72);
a CT scan done on 04. 06. 1996 (same day) has indicatedan extra-dural-haemorrhage in the left parietal area of the headintracranially;
patient was subjected to neuro-surgery under general anaes-thesia on the same day. A left parietal craniotomy was per-formed for the removal of the extra-dural haemorrhage;
SCDissanayake, Attorhey-at-Law on Behalf of K.M. Lai
v. Sujeewa, Sub Inspector of Police, Meetiyagoda Police Station
and Others (Shirani Bandaranayake, Jl)417
the patient had an uneventful recovery from the surgery andanaesthesia and regained consciousness;
on 05. 06. 1996, the next day, the patient was transferred toward No. 64 of the Neurology Unit of the National Hospital, SriLanka. At the time of transfer to ward 64, the patient wasconscious but confused with a weakness of the right side ofthe body;
On 06. 06. 1996 and 07. 06. 1996 the patient was conscious,rational, obeying commands but with a weakness of the rightside of the body;
on 08. 06. 1996, the patient was still in ward 64;
no entries available in the bed head ticket after 08. 06. 1996.
D. Medico-legal opinion (based on the notes available on the bedhead ticket)
The extra-durel haemorrhage is due to rupture of the middlemeningeal vessels on the inner table of the skull following blunttrauma to the left side of the head;
blunt trauma to the skull may at times not leave any visibleexternal injury as the head is covered by the hair which willconceal injuries like contusions;
an extra-dural haemorrhage will definitely result in death if notevacuated surgically. Therefore it is classified as an injury "fatalin the ordinary course of nature".
Admittedly the petitioner walked with the 1 st and 2nd respondentsto the private vehicle which was parked some distance away andtravelled to the Police Station with them (1R3, pg. 4). The 1strespondent in his notes had noted that there were no wounds to beseen on the petitioner but that there was an abrasion on his headflR31.
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Sri Lanka Law Reports
(1998) 2 Sri LR.
There are 7 affidavits filed on behalf of the petitioner. Out of these,3 affidavits (P1, P3 and P4) refer to an incident where the affirmantshad seen the petitioner walking with the 1st respondent, the 1strespondent carrying a club in his hand and assaulting the petitionerwith that club, from time to time. One affirmant (P2) averred that, whiletaking the petitioner towards the parked vehicle, the 2nd respondentwas assaulting the petitioner. There is no denial from the respondentsthat the petitioner had no difficulty in walking on his own to the vehiclein the early hours of 03. 06. 1996. The 1st respondent in his noteshas stated that a statement of the petitioner was recorded at 1.30a.m. on 03. 06. 1996 (1R2). He further states that the petitioner wastaken to the District Medical Officer, Batapola at 9.45 a.m. on03. 06. 1996. On his instructions the petitioner was admitted to theGovernment Hospital, Batapola, around noon on 03. 06. 1996.
The petitioner's mother went to the Police Station around 8.00 a.m.on 03. 06. 1996, but could not meet the petitioner. On her way tothe Police Station she has met one Sarath, who was a relation ofhers, who had said that, although the petitioner was inside the cell,he did not speak (P1). In his affidavit, the said Sarath averred in thefollowing terms:
'SScmgcdsQ eaoQQsd S®g§) doomed 85 eosQd rMafeoOza&cnzrfeod cdS@g SO 'z^geS <gzs?zn©3, Sezsfzn" zSos zSOd. ®o s$gOeraO 8cs SO ®g z^gO e® S>@ ©j£5d QScso. ®g SsscdO zSdjOsfOQ5o3. ®3 zsgeOzs? ffz>) q®3 ®gecrf cad® eoBcoefos 'escf zScsozsO3 zagD. ©g zaOo zs>e^ zsdjZdj. ®0Osf Cfzasf ®qzsf eaQOOo ®ca23)03 25>s^®3 SznsS 1523? o@*& ®gO 08zrf Od 23)S)3 sdSzyf
025)23l 85c33*(P5)
Subsequently, the petitioner tendered an affidavit. In that, he hasaverred that, after taking him to the Police Station in the early hourson 03. 06. 1996, the 1st and 2nd respondents assaulted him withtheir hands and feet and a club. At that point he had lost consciouness.
The Admission Form of the District Hospital, Batapola stated thatat the time of admission, the petitioner was unconscious. It is signifi-cant to note that at the time of admission the hospital authorities had
SCDissanayake, Attorney-at-Law on Behalf of K.M. Lai
v. Sujeewa, Sub Inspector of Police, Meetiyagoda Police Station
and Others (Shirani Bandaranayake, J:j419
noted that there were no external injuries on the petitioner, whereas,as mentioned earlier, the 1st respondent in his notes had stated thathe had noticed an abrasion on the petitioner's head (1 R3). Further-more, on the Form on Transfer of Patients from one institution toanother, the officer transferring patient at the Government Hospital,Batapola had made the following remarks:
admitted at 12.30 p.m. (03. 06. 1996)no proper history availablebrought by the police. . .? assaultpt. unconscious
no external injuries
It is conceded that the Police Officers admitted the petitioner tothe Government Hospital, Batapola. The position of the 1st and 2ndrespondents is that one Tillakaratne assaulted the petitioner with aclub and that the petitioner had an abrasion on his head. If this wasthe situation, it is difficult to comprehend as to why the Police Officersrefrained from informing the hospital authorities as to the backgroundof the petitioner's injuries. Furthermore, it is to be noted that boththe Batapola Hospital as well as the National Hospital, Colombo hadnoted that there were no external injuries whereas the Police Officers,in the early hours on 03. 06. 1996, had noted that the petitioner hadan abrasion on the head.
On a consideration of all the material placed before us, I rejectthe version of the respondents. I hold that the 1st respondent hadviolated the petitioner's fundamental right guaranteed under Article 11of the Constitution.
The respondent averred that one Kariyawasam Vithanage Yasawathiehad made a complaint against the petitioner (1R1) and the petitionerwas arrested on that complaint. Further it was averred that thepetitioner was released on bail on 03. 06. 1996 around 12.45 p.m..
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Sri Lanka Law Reports
(1998) 2 Sri LR.
soon after admitting the petitioner to the Government Hospital, Batapola.According to the respondents, the petitioner was taken into custodyon the complaint made by one Yasawathie on 02. 06. 1996 at11.15 p.m. (1R1). The notes produced by the 1st respondent disclosethat within 15 minutes, he had left the police station and had takenthe petitioner into custody by 12.15 a.m. on 03. 06. 1996, while hewas in the premises of the complainant (1R3). The petitioner on theother hand, has averred that the 1st respondent took him into custodyon 02. 06. 1996, close to midnight, while he was sleeping in his house.This position is supported by the affidavit of the petitioner's mother(P1). On a consideration of the material placed before us, I am satisfiedthat the petitioner's version is credible and therefore I hold that thearrest and the detention of the petitioner by the 1st respondent areunlawful and violative of the petitioner's fundamental rights guaranteedunder Articles 13 (1) and 13 (2) of the Constitution.
I award the petitioner compensation in a sum of Rs. 50,000 payableby the State. The petitioner will also be entitled to a sum of Rs. 5,000as costs from the State. The 1st respondent will pay Rs. 5,000personally, as compensation to the petitioner. In all the petitioner willbe entitled to Rs. 60,000 as compensation and costs. This amountmust be paid within three months from 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, C.J. – I agree.WIJETUNGA, J. – I agree.
Relief granted.