EKANAYAKE (R. P. C. 9503 ) v. RESERVE SUB-INSPECTOR, HEWAWASAM AND OTHERS

025-SLLR-SLLR-2003-1-EKANAYAKE-R.-P.-C.-9503-v.-RESERVE-SUB-INSPECTOR-HEWAWASAM-AND-OTHERS.pdf


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Ekanayake (R.P.C.) v. Reserve Sub Inspector, Hewawasam and
others (Fernando, J.)
209
EKANAYAKE (R.P.C 9503)
v.RESERVE SUB-INSPECTOR,HEWAWASAM AND OTHERS
SUPREME COURTFERNANDO, J.
ISMAIL, J„ ANDWIGNESWARAN, J.
SC NO.34/2002 (FR)
13th JANUARY, 2003
Fundamental Rights – Torture of petitioner – Test of probablity-Credibility ofpolice version – Complaint under Rule 44(7) of the Supreme Court Rules,1990.
The petitioner, a Reserve Police Constable who was attached to theSettikulam Police Station was five days leave to attend a funeral. The 1 strespondent who was a Reserve Sub Inspector of Police attached to theGalnewa Police Station claimed to have been on duty out of the police stationon 8.11.2001 with a police party removing flags, banners and cutouts etc.According to his “in” entry he had accompanied unidentified army officers insearch of a deserter. The 1 st respondent noted that he saw someone about tothrow something. The respondent arrested him.The man was drunk. So the 1strespondent brought him to the police station and released him next morning.As a police constable said that the man was working at the police station, hewas not charged.
In terms of section 69 of the Police Ordinance a man who is drunk and disor-derly is guilty of an offence and may be arrested without a warrant anddetained in custody until sober. However the petitioner's condition was notmedically examined.
According to the petitioner, when he was passing the police station that day,the 1st respondent alighted from a police jeep and questioned him in obscenelanguage and asked him where he was going. Before he could reply he wasarrested, taken to the police station and severely assaulted by the 1st respon-dent. When a police constable identified him as a Reserve Police Constable,he was chased away from the police station. He was hospitalized for four daysdue to the assault. The Judicial Medical Officer’s report of the examination ofthe petitioner on 12.11.2001 showed that the petitioner had lacerations andabrasions.
The petitioner, instituted proceedings in the Supreme Court by a complaintunder Rule 44 (7) of the Supreme Court Rules, 1990. The State Counsel took
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a preliminary objection that the petitioner’s complaint was bad for lack of ref-erence to Rule 44 (7) or petitioner’s lack of means which makes a person eli-gible to relief under that Rule.
Held:
A complaint under Rule 44 (7) is competent where a Judge of theSupreme Court is satisfied of the petitioner’s apparent lack of meansto pursue a claim. The Rule does not require the petitioner toexpressly plead lack of means or to make specific reference to theRule. As such both objections fail.
Upon a scrutiny of the 1st respondent’s entry and the supporting affi-davits for the 1st respondent, the petitioner’s version is more proba-ble than the respondent’s version; by reason of the alleged arrest andassault the petitioner’s fundamental rights under Articles 11 and 13 (1)have been infringed by the 1st respondent.
APPLICATION for relief for infringement of fundamental rights.
M.R. Sharmila for petitioner
K.R. M Abdul Raheemtor 1st respondent
%
R. Hamza, State Counsel for 4th and 5th respondents.
Cur.adv.vuit
March 17, 2003
FERNANDO, J.
The Petitioner, a resident of Galnewa, is a Reserve PoliceConstable attached to the Settikulam Police station. He complainsthat his fundamental rights under Articles 11 and 13 (1) wereinfringed by the 1st Respondent (a Reserve Sub-Inspectorattached to the Galnewa Police) by reason of his arrest on8.11.2001 and assualt, both at the time of arrest and later at theGalnewa Police station.
On 3.11.2001 the Petitioner obtained five day’s leave toattend a funeral in Galnewa. According to the Petitioner, at about6.45 p.m. on 8!11.2001, as he was passing the Galnewa Police sta-tion, a Police jeep stopped near him. The 1st Respondent got downfrom the jeep and questitioned him, in obscene language, as to
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where he was going, and without waiting for an answer assaultedhim with hands and feet, continuing to do so despite the Petitionerstating that he was a Police officer. He even kicked him in the chest.The Petitioner was then taken in the jeep to the Police station,where the 1st Respondent slapped him and took him through thecharge room to the rear. There were many civilians present whosaw the degrading manner in which he was being treated. TwoPolice officers then identified the Petitioner as being a ReservePolice Constable, whereupon he was chased away from the sta-tion. He was hospitalized for four days, from 10th to 13th, and againfrom 23rd to 29th November. He was not informed of the reason forhis arrrest. The report of the. Judicial Medical Officer who examinedhim on 12.11.2001 disclosed eleven lacerations and abrasions.
The 1st Respondent’s version is set out in the affidavits ofhimself and six others* as well as information book (“IB”) entriesmade at 11.30 a.m. and 8.00 p.m. on 8.11.2001. Other IB extractsrecorded that at 4.45 a.m. Sergeant 90963 Premasiri of the MilitaryPolice handed over two alleged deserters (named Premasiri andPrasanna) to the Galnewa Police to be kept in safe custody; that at4.32 p.m. Sergeant 90963 Premasiri took charge of anotheralleged deserter (Upali) from the Galnewa Police; and that at 7.00p.m., on the orders of the Officer-in-Charge, the alleged deserterPremasiri was handed over to Lance Corporal 90935. The IBextracts relied on by the 1st Respondent contain the “out” entrymade by him at 11.30 a.m. when he and two Police officers left thestation in a Police jeep No. 32 -7136 driven by a Police driver.There was no corresponding “in” entry – at 7.00 p.m. or even later- in regard to the return of that Police party, vehicle and driver. The1 st Respondent made what purported to be his “in” entry at 8.00p.m., which is to the effect that the Police pary had removed flags,banners, cutouts, etc, in various areas; that he had returned to thestation at 7.00 p.m.; that the 1st Respondent then went in civilclothes in an (unspecified) Army van together with (unidentified)Army officers in order to assist them to arrest a deserter namedKarunatilleke; that when returning, at about 7.45 p.m., the 1stRespondent saw someone about to throw something which was inhis hand at their vehicle; that when the vehicle was stopped and the1 st Respondent went up to that person – who was quite drunk – he
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said that he had thought they were People’s Alliance supporters;that the 1st Respondent brought him in the van to the station; thatwhen the 1st Respondent was taking him to the charge room P.S.31533 identified him as a Police officer serving at Settikulam; thatbecause P.S. 31533 and P.C. 7376 had stated that he was workingat that Police station the 1st Respondent refrained from charginghim; and that the 1st Respondent directed P.S. 31533 to keep himuntil he sobered and to send him off the next morning when he wassober. He also directed P.C. 34968 to go on patrol again. That entrydid not record the name, number, rank or address of the personbrought to the station, and he was not sent for examination as tohis sobriety.
Learned State Counsel could not point out any significantinconsistency or intrinsic improbability in the Petitioner’s version. Inorder to ascertain whether his version is more probable than theRespondent’s version, it is necessary to scrutinize the 1stRespondent’s “In” entry as well as the^upporting affidavits.
There are many unsatisfactory features in that “in” entry. Ifthe 1 st Respondent did return at 7.00 p.m., there should have beenan “in” entry at 7.00 p.m., and that should have referred to thereturn of the Police party, which had left the station at 11.30 a.m.,including the jeep and the driver. Indeed, even the “in” entry madeat 8.00 p.m. did not specifically state that the other two Police offi-cers, the driver and the jeep had returned to the station. It neitheridentified the person brought to the station nor stated the basis onwhich he had been brought. Further, that entry suggests that the1st Respondent left the station without obtaining permission from(or even informing) the Officer-in-Charge although it is evident fromthe IB entry made at 7.00 p.m. in relation to the deserter Premasirithat the Officer-in-Charge was present at the station. That entry didnot mention the time at which he left the station after changing intocivil clothes, or the names of any Police officer who accompaniedhim; nor did it disclose the names of the Army officers and the num-ber of the Army vehicle. It is significant that at 7.00 p.m. there wasan Army officer – Lance Corporal 90935 – present at the station butthat was not the officer whom the 1st Respondent claims to haveaccompanied soon after 7.00 p.m.; coincidentally, SergeantPremasiri turned up in another vehicle at the very same time on
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another errand concerning a deserter. Finally, there was no entryregarding the release of the person brought to the station.
The 1st Respondent produced affidavits from four personsalleged to have accompanied him in the Army vehicle, namelySergeant Premasiri, a soldier, the driver and PC. 34968, as well asfrom PS. 31533 and P.C;7376. Although P.C. 34968 (and others)stated that he was in the group, the “in” entry made at 8.00 p.m. didnot state that he left in the Army vehicle. Although that entry madeno mention of the Officer-in-Charge, P.C. 34968 (but not the others)claimed that the trip was on the instructions of the Officer-in-Charge. While that entry stated that the purpose of the trip was toarrest Karunatilleke, none of the affidavits mentioned him, butmerely referred to “arresting deserters”.
Those shortcomings may perhaps be discounted as beingrelatively minor inconsistencies, of a kind which are ofteninevitable even in the case of truthful witnesses. However, there areserious discrepancies in regard to the main incident itself. Althoughin his “in" entry the 1st Respondent only referred to an attempt tothrow something at the Police jeep, yet in his affidavit he claimedthat the Petitioner was throwing stones at passing vehicles, andasserted that that was the reason for arrest given to the Petitioner.But that reason was not mentioned by any of the others. SergeantPremasiri stated that the 1st Respondent said that the Petitionerhad claimed to be a Police officer, and that he was being taken intothe vehicle for his own protection as he was so drunk that he couldnot look after himself. No one claimed that anything had occurredwhich could have caused the injuries which the Petitioner undoubt-edly had, and the 1st Respondent gave no explanation as to howthey might have occurred. Finally, although the “in” entry suggeststhat by 8.00 p.m. P.C. 7376 had already identified the Petitioner,P.C. 7376 stated that in fact he came to the station only later, at8.15 p.m.
Under section 69 of the Police Ordinance a person who isfound drunk and incapable of taking care of himself in any publicplace is guilty of an offence, and a person who is guilty while drunkof disorderly behaviour in any public place may be apprehendedwithout warrant and kept in custody until sober: While the 1stRespondent and the other Police and Army officers unanimously
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state that the Petitioner was quite drunk, it is difficult to accept thatposition, firstly, because no attempt was made to have him med-ically examined, and secondly because of the serious shortcom-ings and inconsistencies in the “in” entry and in the affidavits. Itherefore find it impossible to treat the 1st Respondent as havingacted under section 69 – to which he made no reference – and Iconsider the Petitioner’s account to be much more plausible andprobable than the Respondent’s.
Learned State Counsel took two preliminary objections. Thepetition filed in this case resulted from an informal complaint underRule 44(7) of the Supreme Court Rules, 1990. Such a complaintmay be treated as a petition under Article 126 (2) where a Judge ofthis Court is satisfied that “such person does not, or may not, havethe means to pursue such complaint in accordance with” the Rules,and may be referred to specified persons for the purpose of thepreparation and submission of proper pleadings. Learned StateCounsel submitted that in the pleadirjgs filed there was no refer-ence to Rule 44 (7), and to the Petitioner’s lack of means. Rule44(7) requires a Judge to be satisfied about the petitioner’s appar-ent lack of means, and does not require further that the lack ofmeans be pleaded specifically thereafter. It is reasonable to inferthat a Reserve Police Constable cannot afford the expenses of afundamental rights application. Further, if the initial complaint andthe subsequent pleadings are in fact in conformity with Rule 44 (7),specific reference to that Rule is not required. Both objections fail.
I hold that the Petitioner’s fundamental rights under Articles11 and 13 (1) have been infringed by the 1st Respondent, andaward him a sum of Rs 50,000 as compensation, of which Rs40,000 shall be paid by the State, and Rs 10,000 by the 1stRespondent personally, on or before 30.4.2003
ISMAIL, J.-I agree.
WIGNESWARAN, J. -I agree.
Relief granted.