THE COMMANDANT, R.D.F. CAMP AND OTHERS
COURT OF APPEAL
S.N. SILVA, J. (PRESIDENT) C.A.
C.A. NO. 30/92DECEMBER 14,1994.
Habeas Corpus-Arrested corpus – Disappearance – Exemplary costs.
Where the arrest and detention of the corpus falls into the category of caseswhere a person who has been arrested and detained by the authoritiesdisappears thereafter exemplary costs should be ordered.
Case referred to:
Sebastian, M. Hongrayv. Union of India AIR 1984 SC 1026.
APPLICATION for writ of habeas corpus.
K.Tiranagama with M. V. Goonewardena for petitioner.
V. K. Malalgoda, S.C. for Attorney-General.
Cur. adv. vult.
January 13, 1995.
S. N. SILVA, J.
This is an application for a Writ of Habeas Corpus filed by thePetitioner in respect of Ratnayake Mudiyanselage Jinadasa (thecorpus). The Petitioner is the wife of the corpus who was the father oftwo children making his living by working as a driver. According tothe Petitioner the corpus was arrested by a group of Army officers on07.02.1990 and thereafter detained at the Beragala Army Camp.
Upon this application being filed notice was issued on theRespondents. The 5th Respondent filed an affidavit dated 28.07.1992where he stated that the corpus who was in the custody of LieutenantSt&antha Attanayake of the Beragala Army Camp escaped fromcustody on 12.03.1990. In the circumstances the matter was referredto the Chief Magistrate, Colombo for an inquiry and report in terms ofthe proviso to Article 141 of the Constitution. Learned ChiefMagistrate has held an inquiry with notice to all parties and has madehis report dated 27.04.1994. He has come to specific findings thatthe corpus was arrested and detained by Army officers attached tothe Beragala Camp. He has held that the 2nd and 3rd Respondentsare responsible for the disappearance of the corpus. He has alsoheld that the 4th and 5th Respondents being the superior officersshould take responsibility for the acts of the 2nd and 3rdRespondents. He has specifically disbelieved the evidence adducedby the Respondents that the corpus escaped from the custody. Inview of these findings of the learned Chief Magistrate a rule nisi wasissued by this Court on 12.07.1994 on the 1st Respondent and theCommander of the Sri Lanka Army directing that the corpus beproduced before this Court or that information regarding hiswhereabouts be furnished to this Court on 05.09.1994. In response tothe rule nisi the Commander of the Army has filed an affidavit dated
that he has no information as to the arrest and detentionof the corpus.
In the circumstances stated above, the arrest and detention of thecorpus falls into the category of cases where a person who has beenarrested and detained by the authorities disappears thereafter.
The matter of making an appropriate order in such a case wasconsidered by this Court in H.C.A. 164/89, 171/89 and 166/89decided on 02.12.1992. In those applications it was decided byCourt that the decision of the Indian Supreme Court in the case ofSebastian M. Hongray v. Union of India should be followed andexemplary costs ordered against the Respondents who have failed toaccount for the detention of the corpus. I adopt, in this case thereasons stated in the judgment dated 02.12.1994 referred above anddirect the 1st Respondent to pay a sum of Rs. 100,000/- as costs tothe petitioner. The costs should be paid on or before 31.03.1995. Ifthis amount is not paid as directed further action will be considered inthis matter as to contempt of Court. I also direct the Registrar of ttfis
Court to forward copies of the proceedings recorded in theMagistrate's Court to the Inspector General of Police to peruse theevidence recorded and to direct further investigations in the matter ifthere is evidence as to the commission of a cognizable offence. TheRegistrar is also directed to forward a copy of the proceedings withthis judgment to the Hon’ble The Attorney-General for appropriateaction to be taken by him. The Petition is accordingly allowed withcosts to be paid as stated above by the 1st Respondent.
Petition allowed with costs.