DISSANAYAKE v. PREMARATNE ,INSPECTOR OF POLICE ,NUWARA-ELIYA

024-SLLR-SLLR-1998-V-2-DISSANAYAKE-v.-PREMARATNE-INSPECTOR-OF-POLICE-NUWARA-ELIYA.pdf


SC Dissanayake v. Premaratne, Inspector of Police, Nuwara-Eliya
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DISSANAYAKE
v.PREMARATNE, INSPECTOR OF POLICE, NUWARA-ELIYA
SUPREME COURTG. P. S. DE SILVA, C.J.,
ANANDACOOMARASWAMY, J„
SHIRANI A. BANDARANAYAKE, J.
S.C. (SPECIAL) NO. 117/97
WITH S.C. APPLICATION NO. 858/97
16TH AND 30TH MARCH, 1998
Fundamental Rights – Unlawful arrest and detention – Torture of suspects whilstin police custody – Articles 11, 13 (1) and 13 (2) of the Constitution.
On a message sent by the Police, the petitioner called over at the Nuwara-EliyaPolice Station at about 3 p.m. on 8.5.1997 with his wife, petitioner in S.C.Application No. 858/97. They were detained at the Police Station until 5.30 p.m.on 9.5.1997 without being produced before a Magistrate when they were releasedon Police bail. The 1st respondent Inspector of Police and the 2nd, 4th and 5threspondents who were subordinate officers subjected the petitioner to torture onboth days. His hands and feet were tied together. A pole was inserted throughhis hands and legs after which he was assaulted with a club whilst he remainedin that position. He was also hung up and assaulted with batons. Water waspoured on him; and he was kicked by two officers. In between the petitioner'shouse was searched and he was questioned about an alleged theft of goods whichhe denied. He was admitted to the Base Hospital, Nuwara-Eliya, for treatment.According to the medical report, the petitioner vomitted twice. He was bloodstained. He had chest pain and had abrasions and contusions all over his body.
Held:
The petitioner had been subjected to torture at the Police Station by the 1st, 2nd,4th and 5th respondents in breach of his rights under article II of the Constitution.The respondents had also violated the petitioner's rights under Articles 13 (1) and13 (2) by reason of the impugned arrest and detention at the Police Station fora period exceeding 24 hours.
APPLICATION for relief for infringement of fundamental rights.
Trimi Gorden Rayen for petitioners.
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Dr. Jayampathy Wickramaratne for 1st, 2nd, 4th and 5th respondents.
Ms. Priyanthi Gunaratne for 3rd respondent.
Ms. N. M. S. Fernando, S.S.C. for 6th, 7th and 8th respondents.
Cur. adv. vult.
4th May, 1998
SHIRANI A. BANDARANAYAKE, J.
When SC (Special) No. 117/97 was taken for hearing the counselinformed us that SC (Application) No. 858/97 was filed by the wifeof the petitioner with special permission granted by this Court. As bothapplications relate to the same incident, it was agreed that both casescould be heard together. Accordingly both applications were so heard.
The petitioner in SC (Special) No. 117/97 is a small-time vegetablecultivator and sells his vegetables at Top Pass. He had gone toColombo on the 04.05.1997 and he received a call from his wife on07.05.1997 asking him to come immediately to Nuwara-Eliya as thePolice had wanted him to report to the Police Station. The petitionerarrived in Nuwara-Eliya around 11. a.m. on 08.05.1997 and went tothe Police Station with his wife (the petitioner in SC (Application)No. 858/97). When they arrived at the Police Station around 3.00 p.m.,the 1st respondent scolded him in obscene language and askedwhether he was Gamini Dissanayake. The 1st respondent requestedanother officer to take the petitioner and he had dragged the petitionerto the Crime Detection Branch and using obscene language askedhim whether he had stolen anything from the 3rd respondent's home.When the petitioner answered in the negative, he had asked thepetitioner as to why he had closed his hut and gone to Colombo.The petitioner had given him the reason for his visit to Colombo.Thereafter the 1 st respondent started assaulting the petitioner all overhis body with a piece of wood of about 2 feet long and 1 1/2 inchin diameter. Then the 1st and 2nd respondents tied the petitioner'shands and legs and put a piece of wood between his hands and knees.The 1st respondent assaulted him all over the body, till about 5.00p.m. Around 6.00 p.m. the 1st and 2nd respondents untied the knotsand took the petitioner and his wife in the 3rd respondent's van tothe petitioner's house. While travelling in the van they used obscenelanguage and accused the petitioner and his wife of theft. When they
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went to the petitioner's house at Shanthipura, the 1st respondentthreatened the petitioner's father, mother and his 5 year old daughterand asked them as to where the stolen goods were kept. When thepetitioner's father denied any knowledge of stolen goods, they usedobscene language and damaged the ceiling of the house. The 3rdrespondent threatened the 5 year old daughter of the petitioner andasked her for the cap with the hair at the back. The child had saidthat there was no such cap the father had given her and had shownan ordinary cap the petitioner had given her earlier. The petitionerand his wife were taken back to the Police Station and the 1st and2nd respondents took the petitioner back to the Crime DetectionBranch inside the Police Station and the 1st and 2nd respondentsremoved his clothes and tied his hands and hung him up and assaultedhim with batons. Then they put him down and he could not evenstand up on his own. Thereafter the 1st respondent had threatenedby saying that if the petitioner does not accept that he had committedtheft that they will assault him again and send his wife to the BadullaRemand Prison and get her raped by the prisoners. In the night theyhad put the petitioner in the cell but had kept his wife's cell open.Two policeman had been discussing whether they should take thepetitioner's wife in a three-wheeler to find out the stolen goods. Thepetitioner got scared and had begged another policeman to close hiswife's cell. This he had done when the other two officers had left.On 09.05.1997 the 1st and 2nd respondents took the petitioner towardsthe Crime Detection Branch and asked him as to the place wherehe has hidden the stolen goods. When the petitioner had denied anyknowledge of it, the 1st and 2nd respondents had tied the petitioner'shands and legs and put a pole between his knees and hands andassaulted him. After the 1st respondent left the 2nd respondent againhit the petitioner all over the body and the petitioner was feelingfaintish. Then the 4th and 5th respondents poured buckets of wateron to his body. Then they untied the petitioner and asked him to standbefore a table and the 4th and 5th respondents were holding his handswhich were on the table while the 2nd respondent assaulted him witha piece of wood. Again the petitioner was feeling faintish. The 4thand 5th respondents again threw water on him. The petitioner sawthe 1st respondent standing inside the room and the 4th and 5threspondents kicked the petitioner and he fell down. The 1st respondentkicked the petitioner asking him to accept that he had stolen the goodsthreatening him that he would be assaulted again but the petitionerrefused to accept the allegation. Around 12 noon they took the
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petitioner to the cell. Around 3.30 p.m. the petitioner saw his wifebeing brought back to her cell by the 1st, 2nd and 3rd respondents.Around 5.30 p.m. the 2nd respondent wanted the petitioner to puthis signature on something he had written and the petitioner did so.Later they had taken the petitioner's fingerprints and his photograph.At that time the petitioner's father-in-law had come and the 1strespondent had told the petitioner and his wife that if they had donesomething wrong, to pardon them. The 1st respondent had given thepetitioner, his wife and the father-in-law, pieces of fruit cake and teaand they were released on Police bail.
This Court granted leave to proceed in respect of the allegedinfringement of Articles 11, 13 (1) and 13 (2) in SC (Special)No. 117/97 and Articles 13 (1) and 13 (2) in SC (Application)No. 858/97.
The 1st respondent in his affidavit avers that when he was onhis way to Labukelle along with the 2nd and 5th respondents andother Police Officers, the 3rd respondent had met him at the OldBazaar, Nuwara-Eliya and complained to him that his house at TopPass had been broken into and that certain items valued atRs. 4,900/- were missing. He had arrived at the scene of crime at3.10 p.m. on 03.05.1997 and the 3rd respondent was present. On
the 3rd respondent had informed him that he had receivedinformation that the petitioner and his wife had been seen goingthrough a thicket in the vicinity of his house on the day of the crimeand that the petitioner had suddenly left the area having closed hisboutique. He had arrested the petitioner and his wife who were pointedout by the 3rd respondent at 6.40 p.m. on 08.05.1997 having informedthem that they were arrested as suspects for the aforesaid house-breaking and theft. He had taken them to the Police Station and hadthem fingerprinted. The petitioner was taken to his house at Shanthipura,leaving his wife at the Police Station and the house was searched.No stolen items were found. The petitioner had wanted to use thetoilet and as he was taking him, the petitioner had started to run awayand had fallen down in the process. He had caught him and broughthim under control. Upon making inquiries in the area he had cometo know that the petitioner had been earlier charged for housebreakingand theft but was acquitted. The petitioner, according to the 1strespondent, was known in the area as a person who often stolevegetables. The 1st respondent had also received information that the
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petitioner and his wife were planning to go abroad. At 10.10 p.m.on 08.05.1997, the 1st respondent had arrived at Top Pass and hasmade further inquiries. He became aware that the information regard-ing the petitioner was given by a person known in the area as'Malakadaya'. Further information was received that on the day of thealleged crime, the petitioner had sold the vegetables in his boutiqueand had left through a thicket. The 1st respondent had returned tothe Police Station and had questioned the petitioner regarding severalcases of housebreaking and theft in the area. On being questionedwhether he was planning to go abroad, the petitioner stated thatapplications for Passports would be at his house. The 1st respondentthen took the petitioner's wife to the house and searched the houseand he found 4 Passport size photographs and an application for aPassport. The statements of the petitioner and his wife were recordedand they were released on Police bail on the instructions of the 6threspondent at 4.30 p.m. on 09.05.1997.
On 10.05.1997, the petitioner was admitted to the Nuwara EliyaBase Hospital. On a direction of this Court the Medico-Legal Reportand the Admission Form relating to the petitioner were received. TheAdmission Form gives the following details:
Assaulted by Police on 08.05.1997
Pain in the backVomited twice blood stainHeadache +
Small abrasions +
Contusion
Chest pain
General body ache
Small abrasions all over the body
The Medico-Legal Report gives the following details:
INJURIES
Abrasion Circular 0.5 x 0.5 cm at L elbow
Linear abrasion 9 cm at R side buttock
Contusion3x3cmat1side back loinregion
Contusion3x3cmatside abdomen
Contusion1x1cmatLTibial region (Anterior leg)
Contusion3x4cmatLbuttock region
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OPINION
Non-grievous injuries (Nos.) – 1, 2, 3, 4, 5 and 6
GRIEVOUS INJURIES
No
INJURIES CAUSED BY
Blunt Weapon (Nos.) – 1, 3. 4, 5 and 6
The position of the 1st, 2nd, 4th and 5th respondents is that ifthe respondents assaulted and tortured the petitioner as alleged, thepetitioner would have informed the Medical Officer of such assaultand torture. It is submitted that the petitioner should have complainedof the assault to a superior Police Officer. The respondents’ positionis that there is no such material before this Court that the petitionerhas done any of these and therefore it is unsafe to find the respond-ents liable for assault and torture. I am not inclined to accept theposition set out by the respondents. According to the Admission Formit is clear that the petitioner had informed the hospital authoritiesat the time of his admission to the hospital that he was assaultedby the Police Officers. Moreover and most importantly, the injuriesset out in the Medico-Legal Report are consistent with the details givenby the petitioner as to the inhuman and degrading treatment metedout by the respondents. I do not think that it is either necessary oralways possible for a person to complain to superior Police Officersof the treatment meted out to him/her by fellow police officers. I acceptthe version given by the petitioner as it is consistent with the medicalevidence. I hold that the respondents have violated the petitioner'srights enshrined under Article II of the Constitution.
The position of the petitioner is that on 07.05.1997, when he wasin Colombo his wife telephoned him and informed him that the Policehad come in search of him and left a message asking him to cometo the Police Station (P1). The message, which is undated, was forD. M. Gamini to be present at the Crime Investigation Branch of thePolice Station, Nuwara-Eliya, as soon as possible. The note is signedby Police Constable 18138. According to the petitioner he had goneto the Police Station with his wife around 3.00 p.m. on 08.05.1997and both were kept in the Police Station until about 5.30 p.m. on
09.05.1997.
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Dissanayake v. Premaratne, Inspector of Police,
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The position of the 1st, 2nd, 4th and 5th respondents is that the1st respondent had arrested the petitioner and his wife who werepointed out to him by the 3rd respondent at 6.40 p.m. on 08.05.1997.In fact this has been averred by the 1st respondent in his affidavittendered for the .SC (Special) No. 117/97. The 1 st, 2nd, 4th and 5threspondents are of the view that the 1st respondent had a reasonablesuspicion that the petitioner and his wife had committed the crimesin question. The complaint of the 3rd respondent according to themwas clearly a genuine complaint and the 1st respondent himself hadproceeded to the scene of the crime and made inquiries. As thecircumstances gave rise to a reasonable suspicion, the 1st, 2nd, 4thand 5th respondents were of the view that the 1st respondent wasentitled to arrest the petitioner and his wife. Their position is that thepetitioner and his wife were kept in detention pending investigationsand were released within 24 hours of the arrest. Therefore, the positionof the 1st, 2nd, 4th and 5th respondents is that the arrest and detentionwere lawful. I hold that the petitioner has proved that he and his wifewere arrested not at 6.40 p.m. as stated by the respondents but at3.00 p.m. as averred by the petitioner. The respondents have notproduced the petitioners before the Magistrate but released them onPolice bail. Therefore, there was no reason for the respondents tokeep the petitioners over 24 hours in the Police Station. I hold thatthe 1st, 2nd, 4th and 5th respondents have violated the petitioner'sfundamental rights guaranteed under Articles 13 (1) and 13 (2).
There is no evidence to show that what took place at the PoliceStation between the Police Officers and the petitioners were with theconnivance of the 3rd respondent. Also there is nothing to show thatthe 3rd respondent had derived any benefit from the actions takenby the respondents. Accordingly I make no order against the 3rdrespondent. I
I direct the 1st and 2nd respondents to pay Rs. 7,500/- each ascompensation and Rs. 2,500/- each as costs; the 4th and 5threspondents to pay Rs. 2,500/- each as compensation and Rs. 1,000/-each as costs to the petitioner in SC (Special) No. 117/97.The State will pay him Rs. 3,500/- as compensation and Rs. 2,000/
– as costs. In all he will be entitled to Rs. 23,500/- as compen-sation and Rs. 9,000/- as costs. I also direct the 1st respondent
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to pay Rs. 5,000/- as compensation and Rs. 1,500/- as costs to thepetitioner in SC (Application) No. 858/97. The State will pay her Rs.2,000/- as compensation and Rs. 1,000/- as costs. In all she willbe entitled to Rs. 7,000/- as compensation and Rs. 2,500/- as costs.
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.
ANANDACOOMARASWAMY, J. – I agree.
Relief granted.