035-SLLR-SLLR-1995-V-1-FAIZ-v.-ATTORNEY-GENERAL-AND-OTHERS.pdf
FAIZ
V.
ATTORNEY-GENERAL AND OTHERS
SUPREME COURT.
FERNANDO, J.
GOONEWARDENA, J. ANDPERERA, J.
SC APPLICATION NO. 89/91
AUGUST 23, 24 AND SEPTEMBER 06, 1993.
Fundamental Rights – Refusal to release persons arrested for illicit felling oftimber – Executive and administrative action – Instigation or participation ofpersons not agents of the executive or administration – illegal arrest and unlawfuldetention – Cruel and degrading treatment – Deprivation of equal protection ofthe law – Failure to record complaint – Section 109 (1) to (5) of CriminalProcedure Code-Articles 11, 12, 13(1) and (2) of the Constitution.
On 26 April 1991 about 9.30 a.m. the petitioner along with 4 game guards hadarrested several persons who had been detected illicitly felling timber in theMinneriya – Giritale Native Reserve and taken into custody, a hand tractor andsome carts loaded with logged timber and was bringing them along when the 6threspondent C. S. Sooriyaratchi, a Member of Parliament for the PolonnaruwaDistrict came travelling in a jeep and intercepted the petitioner at a place calledDeke Ela and wanted the men released. The petitioner said he was only doing hisduty and suggested that the 6th respondent speak to the Assistant Director. The6th respondent left the place in a huff. In the jeep the petitioner identified the 7threspondent Keerthiratne who was a Provincial Councillor of the North CentralProvincial Council and several others. The petitioner proceeded a little further andwhen he was approaching the water tank at Deke Ela, he saw the same jeephalted at a distance and several persons standing on the road, When the handtractor which was at the vanguard of the procession reached this spot thepersons standing near the 6th respondent’s jeep, surrounded the tractor andstopped it. The petitioner had his official knife issued to him by his Departmenttucked in his belt and an iron rod for his protection. The 6th respondent grabbedthe iron rod and hit the petitioner with it several times. The petitioner sufferedincised injuries in the region of his left eyebrow and on the left shoulder. The 7threspondent also attacked him joined by the other persons in the crowd. The 6threspondent then ordered the suspects whom petitioner had arrested to take thehand tractor and carts and escape. Some of the suspects were being brought bythe petitioner in his jeep and they escaped. The game guard who had beenentrusted with the hand tractor brought the tractor with its load of timber to theoffice of the Assistant Director. In the meantime the petitioner too reached theoffice of the Assistant Director who however was not in the office. The petitionerinstructed a game guard to keep the tractor with its timber load at the office of the
Assistant Director and to inform the Assistant Director of the incident when hereturned. The petitioner proceeded to the Polonnaruwa Police Station with the restof his staff. Still bleeding from his injuries he arrived at the Police Station and sawthe 6th and 7th respondents and several others already there. The petitionerwanted his statement recorded but the Police Officer on duty said this would bedone after the 6th respondent's statement was recorded. About 6.30 p.m. the 3rdrespondent (Police Constable 18000) directed the petitioner to sit inside thecharge room and not to leave. At this point of time the 3rd respondent arrestedhim giving no reasons or the .charge. Thereafter the 5th respondent H. G. P.Nelson also an MP for Polonnaruwa District and a State Minister came to thePolice Station and along with the 6th and 7th respondents entered the chargeroom where the petitioner was seated. The 5th respondent using the iron rodwhich the 6th respondent had taken from the petitioner, assaulted the petitionerwith it while the 6th and 7th respondents and the 6th respondent’s brotherassaulted the petitioner using their hands and feet. The petitioner began to bleedafresh from the injuries on the left eyebrow and shoulder. The 3rd and 4threspondents (Reserve Police Constable 16640) were present and did notintervene.
Thereafter the 5th, 6th and 7th respondents with the brother of the 6th respondententered the office room of the 2nd respondent A. C. Jayasekera HQIPolonnaruwa. Within a few minutes the 5th and 6th respondents came back to thecharge room and directed the 4th respondent to remove the belt and knife of thepetitioner and the 4th respondent complied. The 4th respondent produced thepetitioner before the 2nd respondent. Several others were present in the room.The 5th respondent asked the petitioner whether he was drunk. The petitionersaid he did not consume liquor as he was a Muslim. The 5th, 6th and 7threspondents and their companions left the Police Station. The petitioner wantedhis complaint recorded but was told it would be recorded later. About8.30 p.m. the petitioner was taken to the medical officer at Welikanda Hospital. Hewas examined by the Doctor and brought back to the Polonnaruwa Police Stationabout 10.30 p.m. The Doctor noted the injuries and did not find him smelling ofliquor. The petitioner requested the 2nd respondent to record his statement. The2nd respondent replied he was leaving station and would record the statement onhis return. The petitioner spent the night of the 26th April at the Police Station. Onthe next day 27th April his statement was recorded with reference to 6threspondent’s complaint but it was backdated to 26th April. On the evening of 27-04-91 the petitioner was produced by Polonnaruwa Police before the ActingMagistrate with an application for remand for two weeks but the Magistrateremanded him till 3 May 1991. He spent the night of 27 April 1991 in thePolonnaruwa lockup. Up to this he received no treatment for his injuries. On 29April 1991 on an application by the Assistant Director of Wild Life the petitionerwas bailed out to appear in Polonnaruwa Courts on 03 May 1991. After he wasreleased he made a detailed complaint on 30-04-1991 at the Police Headquartersrelating to the incident of the assault on him.
On 17 May 1991 he filed plaints against the suspects he had taken into custodyon 26-04-1991 under the provisions of the Fauna and Flora Ordinance and all theaccused pleaded guilty to the charges in the Magistrate’s Court of Polonnaruwa.
The 6th respondent complained that when he asked the petitioner to release themen as they had only collected firewood, the petitioner had attempted to strikehim with the iron rod and later tried to stab him when the crowd wrenched ironrod. A melee ensued. The petitioner was drunk and fell in the melee and theinjuries were attributable to the fall.
The Court however accepted the petitioner’s version.
Held: (Goonewardene J. dissenting on the question of detention under Article13(2) of the Constitution)
Section 109 of the Criminal Procedure Code makes it mandatory for a policeofficer to record any information relating to the commission of an offence in theInformation Book. Subsection 4 of this section requires a police officer whoreceives such information, if he is not the officer-in-charge of the police station toforthwith report such facts to the officer-in-charge of the station. Further in termsof section 109(5) if from the information received the officer-in-charge of the policestation has reason to believe the commission of a cognizable offence he isrequired forthwith to send a report to the Magistrate’s Court having jurisdictionand to proceed in person or to delegate one of his subordinate officers toproceed to the spot to investigate the facts and circumstances of the case and totake such measures as would be necessary for the discovery and arrest of theoffenders.
The second respondent admits that he arrived at the police station by 6.15 p.m.that is within a few minutes of the arrival of the 6th respondent and the petitionerat the police station that day. If the 2nd respondent had on his arrival compliedwith the imperative provisions of the Criminal Procedure Code set out above itwould have been very clear to him that the arrest and detention of the petitionerwas absolutely unwarranted.
The arrest and the subsequent detention of the petitioner from 26.04.91 to27.04.91 by the 2nd and 3rd respondents were unwarranted in law and areviolative of Articles 13(1) and 13(2) of the Constitution by executive oradministrative action.
Having regard to all the pleadings filed in this case the 3rd and 4threspondents by their strange and inexplicable inaction permitted the 5th, 6th and7th respondents to subject the petitioner who was at that stage in the custody ofthe police to cruel and degrading treatment and thereby infringed theFundamental Right of the petitioner guaranteed by Article 11 of the Constitutionby executive or administrative action.
There is substance in the complaint of the petitioner that on the day inquestion he was deprived of the equal protection of the law by executive oradministrative action. No meaningful action whatsoever was taken against the5th, 6th and 7th respondents who had committed such a serious offence insidethe police station itself up to date. The petitioner has established beyond doubtthat his Fundamental Right guaranteed by Article 12(1) of the Constitution hasbeen infringed by the 2nd and 3rd respondents by executive or administrativeaction.
It is true that a denial of equal protection has hitherto been largely confinedto affirmative acts of discrimination. The denial of equal protection has now beenrecognized by the United States Supreme Court as well. It is clear that Article126(4) gives this Court very wide powers in this regard. The responsibility underArticle 126 would extend to any respondent who has no executive status but isproved to be guilty of impropriety, connivance or any such similar conduct withthe executive in wrongful acts violative of fundamental rights.
In the present case the 5th, 6th and 7th respondents were guilty ofimpropriety or connivance with the executive in wrongful acts or omissionsviolative of the petitioner’s Fundamental Rights under Articles 11, 12(1) and 13(2)of the Constitution.
Petitioner^ fundamental rights under Article 11 have been violated by the 5th- 7th respondents. Although not per se executive or administrative action, thatviolation was made possible by executive or administrative action by the 3rd and4th respondents. Therefore, the violation was by “executive or administrativeaction” within the meaning of Article 126 and the 3rd to 7th respondents areresponsible.
Petitioner’s fundamental rights under Article 13(1) and (2) have beenviolated by the 3rd respondent by executive or administrative action. The 3rdrespondent also violated the petitioner’s fundamental rights under Article 12(1),by denying him equal treatment, vis-a-vis the 5th to 7th respondents and theirassociates who were neither arrested nor detained.
The 2nd respondent failed to release the petitioner, and thereby deliberatelyacquiesced in and condoned the arrest and detention of the petitioner in violationof Articles 12(1), 13(1) and 13(2); he is also responsible for the violation.
The violation was induced or instigated by the 5th to 7th respondents, whoare therefore also responsible for the violation.
Per Fernando, J:
“It is not possible to treat the assault as being a transaction entirely distinctand separate from the arrest and detention; it was inextricably linked to theprevious and subsequent events. There is no doubt that immediately after theassault, the 2nd to 4th respondents acted in a manner plainly partial to the 5th to7th respondents, and inexcusably hostile to the petitioner.”
“The acts of the 5th to 7th respondents considered in isolation cannotconsidered to be “executive or administrative action”; the question is whether thenexus between those acts, and the acts and omissions of the 2nd to 4threspondents was sufficient to alter what would otherwise have been purely privateaction into “executive or administrative action.”. That phrase does not seek todraw a distinction between the acts of “high" officials (as being “executive"), andother officials (as being “administrative”). “Executive” is appropriate in aConstitution, and sufficient, to include the (official) acts of all public officers, highand low, and to exclude acts which are plainly legislative or judicial (and ofcourse purely private acts not done under colour of office). The need for including"administrative” is because there are residual acts which do not fit neatly into thisthree-fold classification."
“Article 126 speaks of an infringement by executive or administrative action;it does not impose a further requirement that such action must be by an executiveofficer. It follows that the act of a private individual would render him liable, if inthe circumstances that act is “executive or administrative”. The act of a privateindividual would be executive if such act is done with the authority of theexecutive; such authority, transforms an otherwise purely private act intoexecutive or administrative action; authority may be express, or implied from prioror concurrent acts manifesting approval, instigation, connivance, acquiescence,participation, and the like (including inaction in circumstances where there is aduty to act); and from subsequent acts which manifest ratification or adoption.While I use concepts and terminology of the law relating to agency, and vicariousliability in delict, in my view responsibility under Article 126 would extend to allsituations in which the nexus between the individual and the executive makes itequitable to attribute such responsibility. The executive, and the executive officersfrom whom such authority flows would all be responsible for the infringement.Conversely, when an infringement by an executive officer, by executive oradministrative action, is directly and effectively the consequence of the act of aprivate individual (whether by reason of instigation, connivance, participation orotherwise) such individual is also responsible for the executive or administrativeaction and the infringement caused thereby. In any event this court would havepower under Article 126(4) to make orders and directions against such anindividual in order to afford relief to the victim.”
Cases referred to:
Ramupillai v. Perera (1991) 1 Sri LR 11, 74 – 75.
Jayathevan v. A.G. – S.C. application 192/91 – S.C.M. of 17.09.92.
R v. Uyanage (1962) 64 NLR 313.
Alwis v. Raymond S.C. Application No. 145/87 S.C. Mns. of 21.07.89.
Shaul Hameed v. Ranasinghe (1990) 1 Sri LR 104.
Wimalaguna v. Widanegama S.C. Application No. 11/90 – S.C. Mns. of5.2.1991.
Somawathie v. Weerasinghe (1990) 2 Sri LR 121,128 – 129.
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948)1 KB 223, 229.
Christy v. Leachinsky(1947)AC573,588.
Dumbell v. Roberts (1944) 1 All ER 326,329.
Muthusamy v. Kannangara (1951) 52 NLR 324,330.
Burton v. Wilmington Parking Authority et al (1961) 345 US 715.
Lynch v. USA 189 F 2nd 476 (5th CIR 1951)
APPLICATION for violation of Fundamental Rights under Articles 11, 12, 13(1)and (2) of the Constitution.
R. K. W. Goonasekera with Lalanath de Silva and J. Gunawardena for the
petitioner.
Upawansa Yapa, PC. Additional Solicitor General for the 1-4 Respondents.
L.C. Seneviratne, PC. with Ronald Perera for the 5 and 6 Respondents.
Cur advvult.
November 19,1993.
FERNANDO, J.
I entirely agree with the findings and order of my brother Perera, J.,whose judgment I have had the advantage of reading. In view of theimportance of the questions of law involved I wish to set down myreasons in some detail.
We are faced with two contradictory versions. The petitioner’sversion is that after he had done his duty by arresting personsengaged in illicit felling, the 6th respondent attempted to intimidatehim into releasing them; when he refused, quite properly, the 6th and7th respondents returned, with reinforcements, and again sought therelease of the suspects; when the petitioner refused even to wait tillthe 5th respondent arrived, the 6th respondent assaulted him with aniron rod. The 5th and 6th respondents’ version (the 7th respondentdid not file any objections or affidavit) is that the petitioner unjustlyarrested innocent villagers engaged in gathering firewood; when theyintervened, the petitioner attempted to assault and stab the 6threspondent, who, however, sustained no injuries. The respondents donot deny that when the 6th respondent first confronted the petitioner,there was timber, and not firewood, in the tractor and the carts; thereis no suggestion that the tractor, carts and timber had not beenseized from the suspects, or that the timber had been substituted forthe firewood which they had collected; there is no affidavit from anyof the suspects to that effect. What is more, the suspectssubsequently pleaded guilty to charges of illicit felling of trees andescape from lawful custody. This tends to support the petitioner'sversion: that the 6th respondent, angry that the petitioner hadresisted his improper efforts to secure the release of the suspects,resorted to violence. On the other hand, had there been firewood,instead of timber, in the tractor and carts, I could readily haveaccepted the respondents’ version that the petitioner – resentful atbeing found out – attempted to use force to dissuade the 6threspondent. Further, the 6th respondent gives inconsistentexplanations for the petitioner’s injuries. In his affidavit he suggeststhat these may have been the result of an altercation, near the officeof the Assistant Director, between the petitioner and some of thepersons in the crowd, but in his statement to the Police he hadpreviously suggested that the injuries might have been sustainedwhen the petitioner fell, due to intoxication. Again, the 5th and 6threspondents deny that the petitioner was assaulted at the policestation; indeed, their affidavits make no mention of any incidentwhatsoever, but the 2nd and 3rd respondents substantially confirmthe petitioner’s version. They suggest that the 5th respondent cameto the police station before their complaints were recorded, but the3rd and 4th respondents confirm that the 5th respondent came – andwith a crowd – while the 6th respondent’s complaint was beingrecorded. While the 5th and 6th respondents try to make out that,immediately after their complaints had been recorded, they left thepolice station, the 2nd respondent corroborates the petitioner’sstatement that the 5th, 6th and 7th respondents went into the 2ndrespondent’s room, and that later he too was taken there. I havetherefore no hesitation in holding that the petitioner’s version is moreprobable than that of the 5th and 6th respondents’.
It is clear that the 5th to 7th respondents assaulted the petitionerand thereby subjected him to inhuman and degrading treatment inviolation of Article 11; this was done openly; in the presence of the3rd and 4th respondents. Even if I were to accept their version thatthe petitioner was not in Police custody and had not been subjectedto any restraint upon his freedom to leave the Police station, thePetitioner was lawfully in the Police station for a purpose connectedwith the discharge of his public duties; these respondents owed hima duty of care greater than that owed to members of the public ingeneral in other circumstances. That duty became even moreonerous after they permitted the 5th respondent and an obviouslyunfriendly crowd (which had no legitimate business to transact at thepolice station) to come inside. In view of the mood of the 5th – 7threspondents and the crowd, I cannot accept their version that theassault was quite unexpected.
Surprisingly, the 3rd and 4th respondents did not arrest the 5th to7th respondents or any of the other assailants (using the “minimumforce” which the law permits); nor did the 2nd respondent when hecame to the Police station shortly thereafter. This unprovoked assaultwas a blatant violation of the law committed within the precincts ofthe police station itself, and witnessed by Police officers, who took noaction. However, according to the 2nd to 4th respondents,immediately after this cowardly assault by a crowd upon a loneindividual, the petitioner (who was bleeding because his old woundshad reopened) was arrested allegedly upon a charge of attemptingto cause hurt, without requesting any statement or explanation fromhim. By depriving the petitioner of his liberty for far less seriousreasons, arising from an incident provoked by the improperintervention by the 6th and 7th respondents, while permitting the 5thto 7th respondents and their associates to go free despite clearevidence, the 3rd and 4th respondents denied the petitioner theequal protection of the law. The 2nd respondent, by failing to orderthe release of the petitioner, acquiesced in and condoned this arrestand detention, in denial of equal protection. Detention wasunnecessarily prolonged; no attempt was made to contact thepetitioner’s superiors, or to offer to release him on bail; thus the 3rdrespondent arrested and detained the petitioner in violation of Article13(1) and (2), and the 2nd respondent acquiesced in and condonedthese violations; in the circumstances, all this was also in violation ofArticle 12(1).
Two important questions arise in this case; whether under Article126 the 3rd and 4th respondents had such responsibility for theassault as to make them and/or the 5th to 7th respondents liable inthese proceedings, and whether the 5th to 7th respondents had suchresponsibility for the arrest and detention of the petitioner as to makethem liable in addition to the 2nd and 3rd respondents.
It is necessary first to ascertain the precise relationship betweenthese two groups of respondents in regard to the assault, arrest anddetention of the petitioner. It is not possible to treat the assault asbeing a transaction entirely distinct and separate from the arrest anddetention; it was inextricably linked to the previous and subsequentevents. There is no doubt that immediately after the assault, the 2ndto 4th Respondents acted in a manner plainly partial to the 5th to 7thRespondents, and inexcusably hostile to the petitioner. That thisattitude suddenly came into existence, on the spur of the moment, asit were, immediately after the assault, is only a theoretical possibility;an unprovoked assault by a crowd on a single individual wouldnormally evoke feelings of sympathy for, and not of hostility to, thevictim; and the Police officers would not react differently. The decisionto arrest and detain the petitioner, without taking comparable actionin respect of far more serious offence, is therefore referable to a stateof mind which must necessarily have existed even before the assault.There was partiality going far beyond the courtesy, respect anddeference a public officer may legitimately show to persons holdingpolitical office. Further, while it is possible that the 2nd to 4threspondents might have been motivated by a desire to curry favourwith the 5th to 7th respondents because of their political offices andinfluence, the evidence here does suggest that any such partialitywas self-induced. The 5th to 7th respondents came to the policestation in order to induce action unfavourable to the petitioner; the 6thand 7th respondents undoubtedly knew that their supporters hadbeen arrested for illegally felling trees, and not for gathering firewood,because they would have seen the carts loaded with timber; theyknew they were not intervening on behalf of innocent suspects beingunlawfully harassed. Even if the 5th respondent did not have suchknowledge, it was his duty to have made some attempt to verify thefacts; and in any event he had no justification for bringing a crowd offollowers into the police station. In these circumstances it is areasonable inference that the 5th to 7th respondents came to thePolice station in order to influence the Police; and the denial of equaltreatment to the petitioner shows that they succeeded. Is it likely thatthe 5th to 7th respondents would have dared to attack a publicofficer, at the Polonnaruwa Police Station – with several other officersclose at hand, with ready access to weapons of various kinds -unless they had reason to believe that the Police would beapprovingly acquiescent? I therefore have no hesitation in concludingthat the 2nd to 4th Respondents acted under the influence of the 5thto 7th respondents throughout the transaction – the assault, arrestand detention of the petitioner.
Does that mean that these two questions should be answered inthe affirmative? This requires an analysis of the scope of the phrase“executive or administrative action" in Article 126. The acts of the 5thto 7th respondents considered in isolation cannot be considered tobe “executive or administrative action"; the question is whether thenexus between those acts, and the acts and omissions of the 2nd to4th respondents was sufficient to alter what would otherwise havebeen purely private action into “executive or administrative action”.That phrase does not seek to draw a distinction between the acts of“high” officials (as being “executive”), and other officials (as being"administrative”). “Executive" is appropriate in a Constitution, andsufficient, to include the (official) acts of all public officers, high andlow, and to exclude acts which are plainly legislative or judicial (andof course purely private acts not done under colour of office). Theneed for including “administrative” is because there are residual actswhich do not fit neatly into this three-fold classification. Thus it maybe uncertain whether delegated legislation is “legislative” andtherefore outside the scope of Article 126; however, delegatedlegislation is appropriately termed administrative, although it hasboth legislative and executive features (cf Ramupillai v. Perera ,1 andJayathevan v. AG<2).) Thus “administrative" is intended to enlarge thecategory of acts within the scope of Article 126; it serves toemphasise that what is excluded from Article 126 are only acts whichare legislative or judicial, either intrinsically or upon the application ofa historical test (as in R v. Liyanage)(3); it may well be that the act of acourt or a legislative body in denying a language right guaranteed byArticle 20 or 24 is “administrative” for the purpose of Article 126 eventhough it is done in the course of a judicial or legislative proceeding."Executive or administrative action” includes, but is wider than “theacts of a public [i.e. executive or administrative] officer"; it includesnot only acts done under authority flowing from an employer-employee relationship with the State, but also acts done by virtue ofauthority conferred in any other manner – in writing or orally,expressly or impliedly: see the examples suggested in Alwis v.Raymond w and see also Shaul Hameed v. Ranasinghe (6,andWimalaguna v. Widanegama<6).
Especially in the background of the Constitutional mandate to thisCourt to respect, secure and advance fundamental rights, I do notsee in the Constitution an express provision or an implied intentionthat this Court should either permit the executive to do indirectly whatit is forbidden to do directly, or penalise the humble tool used toviolate a fundamental right without even a slap on the wrist for thehand which directed it. Does the jurisdiction under Article 126 to dealwith an infringement by “executive or administrative action" enablethis Court to reach all those responsible for such infringement, atleast by means of just and equitable orders and directions underArticle 126(4)? That jurisdiction cannot be expanded by twisting,stretching or perverting the Constitutional provisions through apopulist process of activist usurpation of the legislative functionthus creating a judicial despotism under which the courtsassume sovereignty over the Constitution (see Somawathie v.Weerasinghe<7>,) for the Rule of Law binds the Judiciary as well asthe other organs of government. The ambit of that jurisdiction canonly be determined by carefully and patiently analysing andunderstanding the fundamental principles underlying theConstitution, as well as the specific provisions taken in their context,and by applying tried and tested principles of interpretation. Theinvitation to probe the matter in this way, guided by principle and notpassion or prejudice, was extended in Alwis v. Raymond, but wasinexplicably declined; that it was accepted only four years later tendsto suggest inadequacy in the appreciation of Constitutionalprovisions, rather than in the provisions themselves.
Article 126, speaks of an infringement by executive oradministrative action; it does not impose a further requirement thatsuch action must be by an executive officer. It follows that the act of aprivate individual would render him liable, if in the circumstances thatact is “executive or administrative”. The act of a private individualwould be executive if such act is done with the authority of theexecutive: such authority, transforms an otherwise purely private actinto executive or administrative action; such authority may beexpress, or implied from prior or concurrent acts manifestingapproval, instigation, connivance, acquiescence, participation, andthe like (including inaction in circumstances where there is a duty toact); and from subsequent acts which manifest ratification oradoption. While I use concepts and terminology of the law relating toagency, and vicarious liability in delict, in my view responsibilityunder Article 126 would extend to all situations in which the nexusbetween the individual and the executive makes it equitable toattribute such responsibility. The executive, and the executive officersfrom whom such authority flows would all be responsible for theinfringement. Conversely, when an infringement by an executiveofficer, by executive or administrative action, is directly andeffectively the consequence of the act of a private individual (whetherby reason of instigation, connivance, participation or otherwise) suchindividual is also responsible for the executive or administrativeaction and the infringement caused thereby. In any event this Courtwould have power under Article 126(4) to make orders and directionsagainst such an individual in order to afford relief to the victim.
It is for these reasons that I agree that the 3rd – 7th respondentsare liable for the assault on the petitioner, and the 5th to 7threspondents for his arrest and detention.
S. B. Goonewardena, J.
I do not see it as a necessary legal consequence, that every timethere is a violation of Article 13(1) of the Constitution by an arrest thatis not in conformity with its requirements, the detention following uponsuch arrest becomes a violation of Article 13(2). The two provisions,to my mind, deal with two different situations and there is not, as ofnecessity, a link between them. They read thus:-
13(1) No person shall be arrested except according toprocedure 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 the judge ofthe nearest competent court according to procedureestablished by law, and shall not be further held in custody,detained or deprived of personal liberty except upon and interms of the order of such judge made in accordance withprocedure established by law.
Article 13(1) states that no person shall be arrested exceptaccording to procedure established by law. It also states that anyperson arrested (which would in the context contemplate an arrestaccording to procedure established by law) shall be informed of thereason for his arrest. These two statements occurring one after theother in this manner in Article 13(1), may well lead one to think thatsince for the purposes of the Article the person arrested is required todo two things, namely, first to arrest according to procedureestablished by law and next to inform the person arrested of thereason for his arrest, that there could therefore be an arrestaccording to procedure established by law, even if the arrest be notfollowed by the person arrested being informed of the reason forsuch arrest. Indeed the sequence of events contemplated, namely,the arrest first according to procedure established by law and thenthe informing of the reason for the arrest, could, as the language ofthe Article itself suggests, well justify such a view. For myself, I do notthink that these two provisions are used in this Article tautologicallyso as to cover the same ground. It is therefore, as I see it, anunnecessary exercise to characterize any action that does not
conform to the provisions of Article 13(1) as an “illegal arrest”. Rather,the appropriate and indeed cautious thing to do, as it commendsitself to me, would be to merely declare the Court's finding that therehas been no compliance with a provision of Article 13(1) and aconsequent violation thereof and in what respect there has beensuch non compliance.
In like fashion, I venture to think that it is unnecessary and indeedperhaps hazardous, to attempt to characterize a particular action asan "illegal detention”, an expression which carries certain overtoneswhich may tend to colour and confuse and carry one away from anobjective appraisal of a situation, when what we are concerned withis only an exercise of a special jurisdiction relating to a violation offundamental rights, and in the instant application it is the allegation ofan infringement of Article 13(2) that brings about the need to saysomething here, after having read in draft the judgment of Perera, J.
Upon a simple reading of its language uncomplicated byreference to the concept of “illegal detention”, what do the provisionsof Article 13(2) mandate or require to be done? It demands that anyperson held in custody, detained or otherwise deprived of personalliberty shall be brought before the judge of the nearest competentcourt according to procedure established by law. What is intendedby the expression shall be brought before the judge according toprocedure established by law? In my view it is primarily, if not wholly,that such person should be brought before such judge before theexpiration of the period of time allowed by law, which according tothe Code of Criminal Procedure Act No. 15 of 1979, would be aperiod of 24 hours from the time of arrest. The further words in thisArticle “and shall not be further held in custody, detained or deprivedof personal liberty except upon and in terms of the order of suchjudge” supports such a view, the word "further” here assuming asignificance strengthening that view. To my mind the object of Article13(2) is mainly though perhaps not wholly, to secure a transfer ofcontrol of custody, detention etc., from non-judicial authority tojudicial authority before the expiration of the period of time permittedby law. The corollary would then be that when the period of timeallowed by law is exceeded before such person is brought before ajudge, there would be a violation of Article 13(2) whereas if suchperiod has not been exceeded, there would be no such violation andwhether or not there has been an infringement of Article 13(1) isirrelevant to the question, and I would so hold. Stated in somewhatdifferent terms, a violation of Article 13(2) can commence only afterthe expiration of the period of time allowed by law, in circumstanceswhere there being a failure to bring such person before a judgebefore the expiration of that period.
There is no material in the present application upon which to holdthat the petitioner had been detained in police custody beyond theperiod allowed by law prior to his being produced before theMagistrate. I would therefore hold that there has been no violation ofArticle 13(2) of the Constitution.
While so holding in regard to Article 13(2), I would go along withthe conclusions reached by Perera, J. as to the violation of the otherArticle referred to by him. As respects the relief granted to thepetitioner, I would concur with Perera, J. and order as he hasordered, despite there being no violation of Article 13(2).
PERERA, J.
The petitioner who holds office as a Wildlife Ranger in theDepartment of Wild Life Conservation has in the present applicationinvoked the jurisdiction vested in this court by Article 126 of theConstitution to hear and determine a question relating to the allegedinfringement of his Fundamental Rights guaranteed by Articles 11,12, 13(1) and 13(2) of the Constitution by the 2nd to 7th respondentsby executive or administrative action. The 2nd to 4th respondents tothe present application are police officers attached to thePolonnaruwa Police station. The 5th and 6th respondents areMembers of Parliament for the Polonnaruwa District and the 7threspondent is a Provincial Councillor of the North Central ProvinceProvincial Council. The 5th respondent also holds office as a StateMinister.
I shall first narrate the facts as set out by the petitioner. On the 26thof April 1991 around 8.00 a.m. in pursuance of the performance ofhis official duties as a Wild Life Officer he proceeded in the officialjeep with four game guards from Angamedilla in the PolonnaruwaDistrict to the Minneriya Giritale Nature Reserve as he had receivedprior instructions from the Director of Wild Life Conservation thatmuch devastation and environmental damage was being caused byorganised logging and felling operations within the said reserve.[Vide copy of instructions P1 and P1A].
They reached the reserve around 9.30 a.m. and having parked thejeep in an open area the petitioner with the other officers proceededinto the jungle by a footpath. Shortly thereafter the petitioner hadarrested a person engaged in felling trees within the reserve. He hadalso taken into custody certain implements and bullock carts loadedwith timber. The petitioner thereafter arrested four other persons whowere felling trees within the reserve. Here again the petitioner hadtaken charge of three bullock carts loaded with timber. The petitionerhad escorted these suspects together with the productions up to theparked jeep and having entrusted the suspects to a game guard andthe driver of the jeep had set off once again towards the Sudukandaarea of the reserve. In this area he had arrested four persons whowere felling trees and had taken into his custody a hand tractorloaded with timber. Having brought the three suspects to the placewhere the jeep was parked the petitioner had instructed two of theWild Life officials to lead the way to the office of the Assistant Directorof Wild Life in the hand tractor followed by the bullock carts, and thepetitioner followed in the jeep together with 5 of the suspects whohad been arrested. While they were so proceeding at a place calledDeke Ela he observed a jeep approaching the front of thisprocession. This jeep came to a halt and a person who alighted fromthis vehicle walked up to the petitioner’s jeep and stated that the 6threspondent wished to speak to the petitioner. The petitioner had thenwalked up to the jeep in which the 6th respondent travelled. At thisstage the 6th respondent had got off the jeep and asked thepetitioner thus “where are you taking my innocent people? Releasethem. What is this crime you are committing? Release my men”. Thepetitioner had then observed the 7th respondent and several otherpersons inside the 6th respondent’s jeep. The petitioner hadresponded saying “I am doing my duty. Why don’t you speak to theAssistant Director at his office”. Then the 6th respondent had got intohis jeep saying “Ehemada?” (is that so) in a threatening manner andhad driven away.
The petitioner’s procession had then proceeded a little furthertowards the Assistant Director’s office and as they were approachingthe water tank at Deke Ela the petitioner had observed the same jeephalted at a distance with several persons standing on the road. Whenthe hand tractor which was at the head of the procession reached theplace where the jeep was stopped these persons had surroundedthe hand tractor and stopped it. The petitioner had then alighted fromhis jeep and walked up to the hand tractor. The petitioner states thatat this time he had on his belt the official knife issued to him by theDepartment of Wild Life. He also carried a short iron rod which heusually carried in his hand for his protection.
When the petitioner approached the tractor the 6th respondenthad grabbed the iron rod which he had, and hit the petitioner severaltimes with it. As a result the petitioner had suffered incised injuries inthe region of the left eyebrow and on the left shoulder. The petitionerstates that in addition to the 6th respondent he was also attacked bythe 7th respondent and some other persons who were in the crowd.Having attacked him thus, the 6th respondent had ordered thesuspects who were in the petitioner’s custody to take the hand tractorand the carts and escape. The petitioner had then returned to hisjeep to find that the suspects who were in his jeep had also escaped.
The petitioner had then proceeded in his jeep to the office of theAssistant Director of Wild Life. By this time the hand tractor whichwas loaded with timber was brought to this office by the game guardwho was entrusted with it. As the Assistant Director of Wild Life wasnot available in the office at that time the petitioner had instructed thegame guard to be in charge of the tractor with the load of timber andto inform the Assistant Director of this incident and had proceeded tothe Polonnaruwa police station with the rest of his staff.
When he arrived at the Polonnaruwa Police Station with bleedinginjuries the 6th and 7th respondents and several others were alreadythere. The petitioner requested the Police officer on duty to record hiscomplaint but that officer had replied that his complaint will berecorded after the 6th respondent’s statement was recorded. A shortwhile later around 6.30 p.m. the 3rd respondent had instructed thepetitioner “to sit inside the ’charge room’ and not to leave”. Thepetitioner states that at this point of time the 3rd respondent arrestedhim and that he was not informed of the reason or the charge uponwhich he was arrested.
There after the 5th respondent arrived at the Police station and ashort while later the 5th, 6th and 7th respondents together with the6th respondent’s brother had entered the charge room where thepetitioner was seated. The 5th respondent who was armed with thepetitioner’s iron rod which had been taken by the 6th respondentearlier in the day, had assaulted the petitioner with the iron rod whilethe 6th and 7th respondents and the 6th respondent’s brotherassaulted the petitioner with hands and feet.
As a result of this assault the injuries on the petitioner's lefteyebrow and shoulder began to bleed once again. The 3rd and 4threspondents were present in the charge room throughout this assaultand the petitioner appealed to them to stop the assault. The 3rd and4th respondents failed to intervene. Then the 5th, 6th and 7threspondents together with the brother of the 6th respondent enteredthe 2nd respondent’s office room and within a few minutes the 5th
and 6th respondents returned to the charge room and directed the4th respondent to remove the belt and knife issued to the petitioner,by the Department of Wild Life and the 4th respondent complied withthis request. Thereafter the 5th and 6th respondents had once againmoved into the 2nd respondent’s office room and the 4th respondentproduced the petitioner before the 2nd respondent who was then inhis office. The 5th, 6th and 7th respondents and several others werealso present in the 2nd respondent’s office at this time. At this stagethe 5th respondent had questioned the petitioner whether he wasdrunk to which the petitioner had replied that he did not consumeliquor as he was a Muslim. The petitioner had then sought permissionto meet the other officers who had come with him to the policestation. He was allowed to do so and the petitioner having givencertain instructions to the driver of the jeep had returned to thecharge room and remained there. The 5th, 6th and 7th respondentsand the others who accompanied them had then left the Policestation. The petitioner had once again requested the 3rd respondentto record his complaint and had been told that his complaint wouldbe recorded later.
Around 8.30 p.m. that night the petitioner had been taken to themedical officer of the Welikanda Government Hospital. The medicalofficer had examined the petitioner and the petitioner was broughtback to the Polonnaruwa Police station.
Around 10.30 p.m. the petitioner once again requested the 2ndrespondent to record his complaint. The 2nd respondent hadinformed him that he was leaving the station and that he would recordthe petitioner’s complaint on his return. The petitioner had spent therest of the night at the Polonnaruwa Police station.
On the next day (27.04.91) a police officer had recorded hisstatement on the complaint made by the 6th respondent. Thepetitioner states that although this statement is dated 26.04.91 it wasactually recorded on 27.04.91.
Some time in the evening of 27.04.91 the petitioner was procducedby the Police before the Acting Magistrate of Polonnaruwa with a
request that he be remanded for a period of two weeks. TheMagistrate however made an order for remand up to the 3rd of May1991. He had spent the night of the 27th of April 1991 in the PrisonsDepartment lockup at Polonnaruwa. The petitioner states that up tothat time he had received no treatment for his injuries.
On the 29th of April 1991 on an application made by the AssistantDirector of Wild Life the petitioner was released on bail withinstructions to appear in the Polonnaruwa Magistrate’s Court on03.05.91.
The petitioner states that he made a detailed complaint on
relating to the incident of assault on him at PoliceHeadquarters after he was released on bail. (P – 6)
The petitioner avers further that on the 17th of May 1991 he hadfiled plaints against the suspects he had taken into custody on
under the provisions of the Protection of the Fauna andFlora Ordinance and all the accused had pleaded guilty to thecharges in the Magistrate Court of Polonnaruwa. (Vide P – 7 toP-12)
The issues which arise for determination on the pleadings filed bythe petitioner are whether the 2nd, 3rd and 4th respondents byExecutive or Administrative action,
arrested the petitioner on 26.04.91 in violation of Article 13(1)of the constitution;
unlawfully detained the petitioner in custody from 26.04.91 to
in violation of Article 13(2);
subjected the petitioner to cruel and degrading treatment on
in violation of Article 11 of the Constitution;
deprived the petitioner of the equal protection of the law inviolation of Article 12 of the Constitution and
whether this court has the power to declare that the 5th, 6thand 7th respondents were also responsible for suchinfringement by reason of instigation, participation orotherwise and to grant relief to the petitioner as against the5th, 6th and 7th respondents.
It would be relevant at this stage to set out the respective positionstaken up by the respondents to the application. The 2nd respondentwho was the Head Quarters Inspector attached to the PolonnaruwaPolice Station has stated in his affidavit that on the day in questionwhile he was at the Royal College, Polonnaruwa he receivedinformation that two Members of Parliament had come to the Policestation. He had therefore returned to the Police station around6.15 p.m. and found the 5th, 6th and 7th respondents seated in hisoffice. He observed two knives and an iron rod on his table and asthe 7th respondent had identified these weapons as those used bythe Petitioner to attack the 6th respondent he had taken them in to hiscustoday as productions. He had also instructed SI Wijekoon to takethe petitioner to a Medical officer as he had observed an injury on hisleft eyebrow. He had taken over the investigations at that stage. Thepetitioner by then had been, arrested by the 3rd respondent. Whenthe petitioner was brought back to the Police station after the medicalexamination at 21.35 hours 9.35 p.m. he recorded the statement ofthe petitioner having explained the charge against him namely thathe had attempted to cause hurt to the 6th respondent and ensuredthat investigations into the complaint made against the petitionerwere done as expeditiously as possible. He has admitted that thepetitioner was produced before the acting Magistrate on the next dayand that the police moved for the remand of the petitioner as theinvestigations had not been concluded.
According to the 3rd respondent on the 26th of April 1991 that isthe day in question, he was on reserve duty at the PolonnaruwaPolice Station with the 4th respondent. Around 5.50 p.m. the 6threspondent had arrived at the police station and made a complaint ofassault. While he was recording this complaint the petitioner hadwalked into the Police station and the 6th respondent had identifiedthe petitioner as the person who attempted to stab him. The 2ndrespondent was not present at the Police station at that time. He hadarrested the petitioner on the complaint made by the 6th respondenthaving explained the charge to him. While he was so recording the6th respondent’s statement the 5th respondent together with a fewother persons had arrived at the Police station and had proceededup to the petitioner who was seated in the charge room. The 6threspondent had also joined them. According to the 3rd respondentthere had been an exchange of words and a few blows had beendealt on the petitioner by these persons.
This had been an unexpected incident and he together with the 4threspondent had “sent the 5th, 6th and 7th respondents out of thatplace”. He did not allow any one to inflict any harm on the petitionerthereafter. Having sent the crowd away he had completed therecording of the 6th respondent’s complaint. The 3rd respondentstates that the petitioner made no request to record his complaint upto the time he went off duty at 10.00 p.m. The affidavit filed by the 4threspondent is substantially on the same lines as that filed by the 3rdrespondent.
According to the 6th respondent on the day in question some ofhis constituents had informed him that certain persons had beentaken into custody for allegedly felling trees in the Sudkbanda area ofthe Minneriya – Giritale Nature Reserve. His information was thatthese persons had been collecting firewood in this reserve and hewas requested to intervene with the authorities on their behalf. Hehad then met the Wild Life Ranger whom he now knows to be thepetitioner at Deke Ela and told him that the persons in custody hadonly been collecting firewood in the reserve and requested him torelease them if there was a possibility. The petitioner had declined toaccede to this request and had informed him that they should seektheir relief from the court. The 6th respondent had then returnedhome where he found a large number of constituents had gathered athis residence who complained to him about the petitioner’s conductin taking such persons into custody. He therefore sought theassistance of the 7th respondent who was requested to intercedewith the petitioner at the office of the Assistant Director of Wild LifeConservation on behalf of the persons in custody. The 6th respondenthimself proceeded to the Assistant Director’s office around 5.00 p.m.When he arrived at this office he saw about 15 persons at theentrance to the office.
The petitioner also had reached the office of the Assistant Directortogether with the persons whom he had taken into custody, thevehicles and the productions. According to the 6th respondent thepetitioner having seen him had approached him armed with apointed iron rod in his hand saying “I have already told you that Icannot do anything about this matter," to which the 6th respondenthad replied “wait we can discuss this matter after Mr. Nelson theMinister of State arrives.” The petitioner had then said “Even if Nelsonor anyone comes I will not change my mind” and lunged at him withthe iron rod. The 6th respondent had jumped back to avoid the blowand in the process had fallen. Some of the persons in the crowd hadthen grabbed the petitioner and wrestled from him the iron rod. Thenthe petitioner had taken a knife and attempted to stab the 6threspondent who lay fallen on the ground. Some of the persons hadintervened and prevented the petitioner from causing injury to the 6threspondent. Thereafter there had been an altercation between thepetitioner and some of the persons in the crowd which may haveresulted in the petitioner sustaining injuries. The 6th respondentstates further that the petitioner’s speech and conduct revealed thathe was severely under the influence of liquor. Thereafter he togetherwith the 7th respondent had proceeded to the Polonnaruwa Policestation to make a complaint relating to the conduct of the petitioner.While the 6th respondent was at the police station the petitioner hadalso arrived there. A short while later the 5th respondent had alsocalled at the police station. The 6th and 7th respondents after theircomplaints were recorded by the police had left the police station inthe company of the 5th respondent. It must be observed howeverthat the 6th respondent in the complaint made to the police a fewminutes after the incident had sought to attribute the injuriessustained by the petitioner to a fall as the petitioner had been in suchan advanced state of intoxication at that time. The 6th respondenthas specifically denied that the 5th respondent or any one elseabused, threatened or assaulted the petitioner while he was at thepolice station.
The 5th respondent in his affidavit has averred that havingreceived a telephone call from the 6th respondent around 5.00 p.m.regarding certain incidents which happened near the Minneriya -Giritale Nature Reserve, he had arrived at the office of the AssistantDirector of Wild Life in Polonnaruwa. He had reached this officearound 5.00 p.m. and on being informed that the 6th and 7threspondents had gone to the police station he had proceeded to thepolice station himself. There he had met the 6th and 7th respondentswho had informed him of the incidents that had occurred in theearlier part of the day. The petitioner was also at the police station.He had not seen the petitioner prior to that day. After the 6th and 7threspondents complaints were recorded by the police he had left thepolice station in the company of the 6th and 7th respondents. The 5threspondent has specifically denied that he abused, threatened orparticipated in the assault on the petitioner at the police station.
Mr. R.K.W. Goonasekara, Counsel for the petitioner conceded thatthe alleged assault on the petitioner by the 6th and 7th respondentsin the vicinity of the water tank at Deke Ela was not attributable toexecutive or administrative action and that this assault could not formthe basis of an allegation of the violation of the petitioner’sFundamental Rights. The actual complaint related to the incidentswhich occurred after the petitioner arrived at the Polonnaruwa policestation to complain of an assault on him that day.
It was Counsel’s submission that the complicity of the 2nd and 7threspondents was such that they have together and in concert withone another illegally arrested the petitioner, detained him, andinflicted cruel and degrading treatment on him at the police station.Counsel complained that the 2 to 4th respondents manifestly abusedtheir office in order to facilitate the 5th to the 7th respondents whowere admittedly not agents of the executive or administrative to inflictcruel and degrading treatment on the petitioner while he was in thecustody of the 3rd and 4th respondents who were under a legal dutyto ensure the petitioner’s “safe custody”. The 3rd and 4threspondents by deliberate inaction had permitted such treatment tobe meted out to the petitioner.
Additional Solicitor-General, Mr. Yapa submitted that the petitionerwas arrested on the day in question and detained lawfully on acomplaint made by the 6th respondent. It was his contentiontherefore that the 2nd,3rd and 4th respondents have not acted inviolation of any of the petitioner’s fundamental rights guaranteed bythe Constitution. As regards the assault on the petitioner while he wasin the custody of the police by the 5th, 6th and 7th respondents,Mr. Yapa urged that it was an unexpected and unforeseen incidentand the 3rd and 4th respondents had immediately taken preventiveaction. Further the 2nd respondent has recorded the statements of allthe witnesses in regard to this assault on the petitioner and forwardedthe papers to the Attorney General for his advice. Therefore the 2ndrespondent has merely complied with the law. In the circumstances itwas his submission that the 2nd, 3rd, and 4th respondents have notacted in violation of the petitioner’s fundamental rights guaranteed byArticles 11,12, 13(1) and 13(2) of the Constitution. For the reasonsgiven in this judgment I regret that I am unable to accept thissubmission.
Mr. Seneviratne, President’s Counsel on behalf of the 5th and 6threspondents strongly commended the version given by his clients inthe affidavits filed in this case. Counsel submitted that after hisrelease from custody there has been a deliberate endeavour on thepart of the petitioner to implicate the 5th, 6th and 7th respondents.That in point of fact the petitioner does not claim that he sustainedany further injuries as a result of the attack on him at the policestation with an iron rod. Counsel dismissed this story of an attack onthe petitioner while he was in the charge room as “a mere skirmishand nothing more”. There was no evidence to connect the 5th, 6thand 7th respondents with the acts of commission or omission on thepart of the police. Therefore the 5th, 6th and 7th respondents couldnot be held liable for police action or inaction. Counsel, contendedfurther that there was no evidence that the conduct of the policetowards the petitioner was due to anything said or done by the 5th,6th, or the 7th respondents. I have carefully considered thesesubmissions of Mr. Seneviratne but having regard to the totality of theevidence in this case, with this submission of Counsel I am unable toagree. failed to take any meaningful steps to safeguard the rights of thepetitioner and had therefore acted mala fide. This is in accord withthe view expressed by Lord Greene M R in Associated ProvincialPicture Houses Ltd. v. Wednesbury Corporation<8) where his Lordshipobserved that “ mala fide is interchangeable with unreasonablenessand extraneous consideration.” The conduct of the 2nd to the 4threspondents in the present case appears to have necessarily beenmotivated by some extraneous consideration although they may notbe guilty of intentional dishonesty.
It is clear from the events that transpired at the Polonnaruwa policestation on 26.04.91 that the 2nd to the 4th respondents have from theoutset adopted an indifferent if not a hostile attitude towards thepetitioner. There is no reason whatsoever to doubt the statementmade by the petitioner that he had come to the Polonnaruwa policestation with bleeding injuries on the day in question for the purpose oflodging a complaint of an alleged assault on him. The fact that up tothe time the petitioner was produced by the Police before the ActingMagistrate in the evening of the next day, that is on 27.04.91 hiscomplaint had not been recorded is also not in dispute. Admittedlythe petitioner arrived at the police station on that day voluntarily andnot on a request made by any police officer to do so. Having regardto the circumstances of this case I am therefore unable to accept theversion given by the 2nd to the 4th respondents that the petitioner didnot make a request to the police on that day to record his complaint.
Section 109 of the Criminal Procedure Code makes it mandatoryfor a police officer to record any information relating to thecommission of an offence in the Information Book. Subsection 4 ofthis section requires a police officer who receives such information ifhe is not the Officer in charge of the police station to forthwith reportsuch facts to the officer in charge of the station. Further in terms ofSections 109 (5) if from the information received the officer in chargeof the police station has reason to believe the commission of acognisable offence he is required forthwith to send a report to theMagistrate’s Court having jurisdiction and to proceed in person or todelegate one of his subordinate officers to proceed to the spot toinvestigate the facts and circumstances of the case and to take suchmeasures as would be necessary for the discovery and arrest of theoffenders.
The second respondent admits that he arrived at the police stationby 6.15 p.m. that is within a few minutes of the arrival of the 6threspondent and the petitioner at the police station that day. If the 2ndrespondent had on his arrival complied with the imperative provisionsof the Criminal Procedure Code set out above it would have beenvery clear to him that the arrest and detention of the petitioner wasabsolutely unwarranted.
Besides having regard to the material that has been placed beforethis court and the nonchalant manner in which the 2nd and 4threspondents on their own admission have reacted to the assault onthe petitioner while he was in the charge room, I prefer to accept thestatement of the petitioner that no charges were explained to himbefore he was arrested by the police on this day. If the 3rdrespondent who affected his arrest explained the charge upon whichthe petitioner was arrested, I have no doubt whatsoever that thepetitioner would have taken that opportunity to give an explanation asto the correct state of facts which would have enabled the police toconduct further inquiries and save the petitioner from the indignity ofbeing arrested on a false accusation.
The fact that the petitioner was merely discharging his duties as apublic officer on the day in question is amply borne out by the factthat the suspects whom the petitioner had taken into custody forcontravening certain provisions of the Fauna and Flora ProtectionOrdinance had been subsequently charged in the Magistrate’s Courtof Polonnaruwa and had pleaded guilty to the charges. The chargesrelated to —
entering a nature reserve without a permit;
felling trees;
escaping from custody.
The Magistrate in these cases has warned and discharged theaccused having directed them to pay state costs.
Thus had the 2nd respondent complied with the provisions ofSection 109 of the Criminal Procedure Code and recorded thecomplaint of the petitioner it would have been clear to him that therewas no necessity to effect the arrest of the petitioner who was aresponsible public officer. I must also observe that the conduct of the2nd respondent in producing the petitioner before the Magistrate andmoving for his remand can in no way be justified. It is also significantthat up to date no plaint has been filed by the Polonnaruwa police inthis connection against the petitioner, a period of over two and a halfyears after the alleged incident. I am satisfied having regard to theevidence in this case that the arrest of the petitioner by the 3rdrespondent on 26.04.91 was unlawful. Although according to theaffidavits filed by the 2nd, 3rd and 4th respondents the 2ndrespondent was not at the police station at the time of the allegedarrest, it is common ground that the 2nd respondent returned to thestation within a very short time. The fact that he had not forthwithtaken steps to release the petitioner supports the view that he himselfhad deliberately acquiesced and condoned the illegal arrest anddetention of the petitioner.
It would be relevant at this stage to reiterate the observations ofViscount Simon Lord Chancellor in Christy v. Leachinsky{9).
"If the charge or suspicion upon which the man is arrested isthen and there made known to him, he has the opportunity ofgiving an explanation of any misunderstanding or of callingattention to other persons for whom he may have been mistakenwith the result that further inquiries may save him from theconsequences of false accusations.”
Further it would also be appropriate to refer to the observations ofScott, LJ in Dumbell v. Roberts m cited with approval by Gratiaen, Jin Muththusamy v. Kannangara<11) as follows:
“The principle of personal freedom, that every man should bepresumed innocent until he is found guilty applies also to thepolice function of arrest …for that reason it is of importance thatno one should be arrested by the police except on groundswhich the particular circumstances of the arrest really justifiedthe entertainment of a reasonable suspicion.”
It is imperative therefore for a police officer before he affects thearrest of any person without a warrant to be satisfied that thecomplaint or the suspicion, upon which he acts as the case may bemust be reasonable or that the information is credible. Because in thewords of Lord Simonds in Leachinsky’s case (Supra) “It is the right ofevery citizen to be free from arrest unless there is in some otherperson, whether a constable or not, the right to arrest him.”
I therefore hold that the arrest and the subsequent detention of thepetitioner from 26.04.91 to 27.04.91 by the 2nd and 3rd respondentswas unwarranted in law and is violation of Articles 13(1) and 13(2) ofthe Constitution by executive or administrative action.
The allegation of the petitioner that on that day he was subjectedto an assault (cruel and degrading treatment) by the 5th, 6th and 7threspondents and certain other persons while he was in policecustody inside the charge room has also in my view beenestablished. The 3rd and 4th respondents in their affidavits haveadmitted the fact that the 5th, 6th and 7th respondents with certainothers had assaulted the petitioner while he was seated in the chargeroom. Having regard to this admission which supports the petitioner’sallegation on this matter the specific denial of this assault by the 5thand 6th respondents has necessarily to be rejected. I am also unableto accept the submission that the Polonnaruwa Police Station was insuch a hopelessly helpless state that they did not have the necessarymanpower and were not geared to prevent such an eventuality. Theconduct of the 2nd, 3rd and 4th respondents in failing to apprehendthe offenders who had committed such serious offences inside thepolice station under their very eyes and to bring them to book up todate is to any the least most reprehensible. Moreso because whenthe 2nd respondent arrived at the police station shortly after theassault on the petitioner the 5th, 6th and 7th respondents on his ownadmission were seated in his office.
Having regard to all the pleadings filed in this case I hold that the3rd and 4th respondents by their strange and inexplicable inactionpermitted the 5th, 6th and 7th respondents to subject the petitionerwho was at that stage in the custody of the police to cruel anddegrading treatment and thereby infringed the fundamental right ofthe petitioner guaranteed by Article 11 of the Constitution byexecutive or administrative action.
I shall now deal with the complaint of the petitioner that hisfundamental right guaranteed by Article 12(1) has been infringed. Hecomplains that on the day in question he was deprived of the equalprotection of the law by executive or administrative action. I amsatisfied that there is substance in this complaint as well.
As I observed before the material placed before this courtdemonstrates that from the time the petitioner arrived at the policestation to make a complaint of an assault on him by certain personswhile he was performing his official duties the police officers haveacted with some degree of indifference if not hostility towards him.His complaint had not been recorded at the Polonnaruwa PoliceStation. It is in evidence that the petitioner’s complaint had only beenrecorded at Police Headquarters on the 30th of April 1991 [vide p-6]after he was released on bail by the Magistrate.
The second respondent states however that he recorded thePetitioner’s statement having explained the charge to him on thecomplaint made by the 6th respondent. This statement was alsorecorded only at 21.35 hours [9.35 p.m.]. On the directions of the 2ndrespondent the petitioner had been examined by the medical officerin charge of the Welikanda hospital to ascertain whether thepetitioner had consumed liquor or was under the influence of liquorand in regard to the injuries he had sustained. According to themedical officer the petitioner was not even smelling of liquor. It isrelevant to note that in the complaint made by the 6th respondent at5.35 p.m. that day [3R 1] the petitioner was described as, havingbeen in a severe state of intoxication. Admittedly the petitionerarrived at the police station a few minutes after the 6th respondentbut there is no material to show that he was in such a state ofdrunkeness at that stage. Acting on this complaint of the 6threspondent the petitioner was arrested, detained and producedbefore the Magistrate on the next day with a request by the policethat he be remanded for a period of two weeks.
However the action taken by the 2nd and 3rd respondents inregard to the offences committed by the 5th, 6th and 7th respondentsinside the police station is quite in contrast. As I have stated earlierthe, 2nd respondent admits that when he returned to the policestation at 6.15 p.m. the 5th, 6th and 7th respondents were seated inhis office room. This was only a few minutes after the alleged assaulton the petitioner who was seated in the charge room in the custody ofthe police. Admittedly neither the 2nd respondent nor the 3rd and 4threspondents who were eye witnesses to this assault had made anyendeavour to apprehend the suspects or to take any further stepsunder the law. According to the 3rd and 4th respondents the onlyaction taken by them in this connection was “to intervene and takethe 5th, 6th and 7th respondents out of that place”. In this instance itis clear that the 2nd and 3rd respondents deliberately refrained fromapprehending the suspects as they were entitled to do in law. It wasconceded by the Additional Solicitor-General that up to date no plainthad been filed by the police against the 5th, 6th and 7threspondents. While the respondent police officers had taken actionwith such astounding promptitude against the petitioner on thecomplaint of the 6th respondent of an attempt to cause hurt to himand had ensured that the petitioner was remanded, no meaningfulaction whatsoever has been taken against the 5th, 6th and 7threspondent who had committed such serious offences inside thepolice station itself up to date. I hold therefore that the petitioner hasestablished beyond doubt that his fundamental right guaranteed byArticle 12(1) of the Constitution has been infringed by the 2nd and3rd respondents be executive or administrative action.
It is true that a denial of equal protection has hitherto been largelyconfined to affirmative acts of discrimination. The view that culpableofficial state inaction may also constitute a denial of equal protectionhas now been recognized by the United States Supreme Court aswell. In Burton v. Wilmington Parking Authority et alm Justice Clarkdelivering the opinion of the Court, observed thus “by its inaction theAuthority and through it the state, has not only made itself a party to. the refusal of service but has elected to place its power property andprestige behind the admitted discrimination.” In Lynch v. USA<13) theFederal Court of Appeal stated the opinion thus, “there was a timewhen the denial of equal protection of the law was confined toaffirmative acts, but the law now is that culpable official inaction mayalso constitute a denial of equal protection."
Mr. Goonasekera also invited the court to hold that the 5th to the7th respondents although they were not agents of the executive oradministrative had also infringed the fundamental rights of thepetitioner as the 2nd to 7th respondents had acted together and inconcert with one another in illegally arresting the petitioner, detaininghim and inflicting cruel and degrading treatment on him. Havingregard to the evidence in this case I am of the view that there is meritin this submission of counsel.
Although there is no direct evidence of the complicity between the2nd, 3rd and 4th respondents and the 5th, 6th and 7th respondentsin the action which resulted in the violation of the petitioner’sfundamental rights, it is clear from the established facts andcircumstances that the reprehensible and inexplicable conduct of the2nd, 3rd and 4th respondents on this date was heavily influenced bythe overbearing presence and participation of the 5th, 6th and 7threspondents who were powerful political personalities involved in thisentire transaction.
In Shahul Hameed's case(s) it was held that this court has thepower to make an appropriate order even against a respondent whohas no executive status where such respondent is proved to be guiltyof impropriety or connivance with the executive in the wrongful actsviolative of fundamental rights.
It is clear that Article 126(4) gives this Court very wide powers inthis regard. I am of the view that responsibility under Article 126would extend to any respondent who has no executive status but isproved to be guilty of impropriety, connivance or any such similarconduct with the executive in the wrongful acts violative offundamental rights.
In the present case, I am satisfied that the 5th, 6th and 7threspondents were guilty of impropriety or connivance with theexecutive in the wrongful acts or omissions violative of the petitioner’sFundamental Rights under Articles 11, 12(1) and 13(2) of theConstitution.
In the circumstances, I hold that –
petitioner’s fundamental right under Article 11 has been violatedby the 5th – 7th respondents. Although not per se executive oradministrative action, that violation was made possible byexecutive or administrative action by the 3rd and 4threspondents. Therefore, the violation was by “executive oradministrative action within the meaning of Article 126 and the3rd – 7th respondents are responsible.
petitioner’s fundamental rights under Article 13(1) and (2) havebeen violated by the 3rd respondent; by “executive oradministrative’ action. The 3rd respondent also violated thepetitioner’s fundamental rights under Article 12(1), by denyinghim equal treatment, vis-a-vis the 5th to 7th respondents andtheir associates who were neither arrested nor detained.
The 2nd respondent failed to release the petitioner, and therebydeliberately acquiesced in and condoned the arrest and detention ofthe petitioner in violation of Articles 12(1), 13(1) and 13(2); he is alsoresponsible for the violation.
The violation was induced or instigated by the 5th to 7threspondents, who are therefore also responsible for the violation.
In considering the relief to be granted in this case one hasnecessarily to be mindful of the fact that the petitioner’s predicamenton this day was entirely attributable to his endeavour to perform hisofficial functions without fear or favour. This Court would be failing inits duty if public servants are not given every possibleencouragement to perform their functions in an impartial mannerwithout any inhibitions. We also take into account the fact that theviolations did not occur under conditions of war, insurrection oremergency.
I would accordingly grant the petitioner the following reliefs:
In respect of the violation of the petitioner’s rights under Articles11, 12(1), 13(1) and 13(2):
the State is ordered to pay compensation in a sum ofRs. 10,000/- and costs in a sum of Rs. 5,000/- ;
the 5th – 7th respondents are each ordered to paycompensation in a sum of Rs. 10,000/-.
In respect of the violation of the petitioner’s right under Article11, the 3rd and 4th respondents are each ordered to paycompensation in a sum of Rs. 2,000/-;
In respect of the violation of the petitioner’s right under Articles12(1), 13(1), and 13(2), the 2nd respondent is ordered to paycompensation in a sum of Rs. 4,000/-; and the 3rd respondentis ordered to pay compensation in a sum of Rs. 2,000/-.
The petitioner will thus receive a sum of Rs. 50,000/- ascompensation and Rs. 5,000/- as costs.
Relief granted.
Compensation Ordered.
FERNANDO, J.I entirely agree with the findings and order of my brother Perera J,whose judgment I have had the advantage of reading. In view of theimportance of the questions of law involved I wish to set down myreasons in some detail.
I trust that the IGP will give appropriate instructions to officers incharge of police stations as to the care and courtesy which publicofficers and private persons having legitimate business in policestations are entitled to receive, even without a specific direction fromthis court.
GOONAWARDANA, J.There is no material in the present application upon which to holdthat the petitioner had been detained*in police custody beyond theperiod allowed by law prior to his being produced before theMagistrate. I would therefore hold that there has been no violation ofArticle 13(2) of the Constitution.
While so holding in regard to Article 13(2) I would go along withthe conclusions reached by Perera, J as to the violation of the otherArticles referred to by him. As respects the relief granted to thepetitioner, I would concur with Perera, J and order as he has ordered,despite there being no violation of Article 13(2).