Sri Lanka Law Reports
(1998) 2 Sri LR.
v.SUB INSPECTOR OF POLICE, JAYAKODYAND OTHERS
SUPREME COURTG. P. S. DE SILVA. CJ..
PERERA, J. AND
SHIRANI A. BANDARANAYAKE, J.
S.C. APPLICATION NO. 66/97
22ND JANUARY AND 6TH FEBRUARY. 1998.
Fundamental Rights – Unlawful arrest and detention – Torture of a suspect inPolice custody – Articles 11, 13 (1) and 13 (2) of the Constitution.
The petitioner was arrested by a Sub Inspector of Police on 22.12.1996 for allegedattempt to rob a motor bicycle; but the petitioner wee not informed of the reasonfor the arrest. The Sub Inspector threatened the petitioner with a pistol and ordereda police constable to remove him to the Marawila Police Station. At the policestation, the petitioner was handcuffed after which he was slapped by the Officer
Jayasinghe v. Sub Inspector of Police, Jayakody and Others 205
in Charge of the Police Station. Thereafter, the petitioner was stripped, hung ona beam on the orders of the OIC, chillie powder was applied on his nose andprivate parts after which two other police officers assaulted the petitioner with aclub. He was asked whether he knew about a robbery. The petitioner denied theallegation. He was detained at the Police Station until 26.12.1996 when he wasproduced before a Magistrate and remanded. A self serving entry was made inthe police book stating that the petitioner was arrested on 26.12.1996. Whilst onremand the petitioner was admitted to the Base Hospital, Negombo and treatedfor abrasions and contusions all over his body. He was also vomitting and haddifficulty of breathing. He was discharged on 06.01.1997. The respondent policeofficers claimed the injuries to have been caused during the arrest by the useof "minimum force".
The petitioner had been unlawfully arrested on 22.12.1996 and detained illegallyin Police custody. The petitioner had also been subjected to torture whilst in policecustody. The respondents had thereby infringed the petitioner's rights under Articles13 (1), 13 (2) and 11 of the Constitution.
Cases referred to:
Ansalin Fernando v. Sarath Perera and others (1992) 1 Sri LR. 411.
Weerasinghe v. Premaratne and others S.C. Application No. 477/96 S.C.Minutes 31st October, 1997.
APPLICATION for relief lor infringement of fundamental rights.
A. A. de Silva with Jayalath Hissella lor petitioner.
J. C. Weliamuna for 1st to 4th respondents.
S. Rajaratnam, S.C. for 5th respondent.
Cur. adv. vult.
19th March, 1998
SHIRANI A. BANDAR AN AYAKE, J.
The petitioner alleges that his fundamental rights guaranteed underArticles 11, 13 (1) and 13 (2) were violated by the 1st to the 4threspondents. Leave to proceed was granted in respect of the allegedinfringement of Articles 11, 13 (1) and 13 (2).
Sri Lanka Law Reports
(1998) 2 Sri LR.
According to the petitioner, around 10 p.m. on 22.12.1996 he wentto see the carnival held at the Dammissara Maha Vidyalaya, Nattandiya.When the petitioner was close to the said school, the 1st respondenthad arrested him. When the petitioner inquired from him as to thereason, the 1st respondent had informed him that it is in order tomeet a friend. Near the school gate, the 1st respondent had heldhis service pistol to the petitioner's head and had told a PoliceConstable to bring the Police Jeep. The petitioner was taken to theMarawila Police Station, where he was handcuffed and put into a cell.A few minutes later the petitioner was taken before the 2nd respond-ent, who asked the petitioner whether he knows him and whether thepetitioner had heard about him.
When the petitioner answered in the negative for both questions,the 2nd respondent had stood up and had slapped the petitioner 4to 5 times which caused minor injuries to the petitioner's lips and theeye brows. Thereafter the 1st respondent took the petitioner to thepolice barracks and the 2nd respondent followed them. The 1strespondent had asked the petitioner whether he is Lionel to whichthe petitioner answered in the negative. The petitioner was forced toremove his clothes and the 1st respondent, on the orders of the 2ndrespondent, tied the petitioner's hands and hung him on a beam. Whilehe was hanging from the beam, chillie powder was applied on thenose and on his private parts which caused excruciating pain. Whilethis was done, the 3rd and the 4th respondents assaulted the petitionerwith hands and club on the instructions of the 1st and 2nd respondents.
The 2nd respondent inquired from the petitioner whether hepossesses a T56 gun and whether he had any knowledge of therobbery of the Rural Bank at Bingiriya, which allegations the petitionerdenied. Around 11.30 p.m., the 1st respondent came with a man anda woman and the petitioner was shown to them. Later the petitionergot to know that they were Mohamed Iqbal and Kumudini Antonita,respectively.
An hour later, the petitioner was released from the 'hanging position'but a little later it was repeated by the 1st and 2nd respondents whilequestioning the petitioner whether he went to steal the motor cycleowned by Iqbal. The petitioner was thereafter handcuffed to two bedsand was kept naked. The 4th respondent trampled the petitioner'schest and threatened that if the petitioner does not admit the theftof the motor cycle, the petitioner would be killed.
SCJayasinghe v. Sub Inspector of Police,
Jayakody and Others (Shirani A. Bandaranayake, J.)207
On 26.12.1996, the petitioner was shown to the said Iqbal andKumudini and was brought before the DMO, Marawila. In the afternoonof the 26th, he was produced before the Acting Magistrate, Dankotuwaand was remanded until 08.01.1997. On the 08th, he was furtherremanded until 13.01.1997 and was granted bail on 13.01.1997.
According to the respondents, one Mohomed Iqbal had made astatement to the Police stating that on 20.12.1996, there was anattempt to rob a motor bicycle at gun point at Dunkannawa. Thesuspects had used a T56 and had fired a few shots. Iqbal haddescribed the suspect and had said that he could identify him, if hesees him again (1R1). During this period there had been severalrobberies in the area and the Police had been alerted on possiblecrimes (affidavit of the 1st respondent). The investigations hadcontinued thereafter and several statements were recorded. Based onthese investigations there was no doubt that the aforesaid attemptedrobbery had taken place on 20.12.1996. While being on duty on
the 1st respondent had received information from a privateinformant about a suspect to the said robbery. The said informantshowed the suspect to the 1st respondent, and he arrested thepetitioner, who was the suspect.
While the petitioner avers that he was arrested on 22.12.1996, therespondents' position is that the petitioner was arrested only on
According to the respondents, after the arrest, thepetitioner's statement was recorded (1R5) in which he has denied anyinvolvement in the robbery, and he was produced before the Magistrateon 26.12.1996. The Magistrate had ordered an identification paradeand the parade was held on 13.01.1997. Two witnesses had identifiedthe petitioner at the parade as the person who attempted to rob themotor bicycle (1R8). The case is now pending in the Magistrate'sCourt, Marawila.
The petitioner's position is that, while he was in custody, therespondents had forced him to remove his clothes, assaulted him andhad kept him handcufffed on several occasions even when he wasallowed to sleep. While the petitioner was in remand, he was admittedto Prison Hospital in Negombo on 27.12.1996 and was transferredto Base Hospital, Negombo, on 29.12.1996. He was hospitalized until
The respondents aver that the 1st respondent had to useminimum force to arrest the petitioner. In the process, the 1st respond-
Sri Lanka Law Reports
(1998) 2 Sri LR.
ent had to obtain the support of the people who were in the vicinity.According to the notes of the arrest (1R4), in the process the 1strespondent had to hold the petitioner's left hand tightly and the peoplewho were around had done similarly. The 1st respondent further statesthat the petitioner's hand had hit the car and due to this there areexternal wounds and a wound on his knee.
The Diagnosis Ticket issued by the Base Hospital, Negombo (P4)indicates that the petitioner was admitted on 29.12.1996 anddischarged on 06.01.1997. The details given in the Diagnosis Ticketare reproduced below:
Assaulted by police 1/52 agoSoft tissue contusion
Difficulty in breathingL . . . nerve . . .
Difficulty in . . . movementsL upper limp
L upper arm weakness +
Referred to surgery on 10.02.1997Abrasions and contusions all over the bodyTender soft tissue
R/G clinic in 2/52 time to remove back slabBack slab to upper arm
The submission of the learned counsel for the 1st to 4th respond-ents is that there is no evidence to establish any violation of Article11. His position is that the petitioner's version that he was hung orbrutally assaulted is not supported by medical evidence. The learnedcounsel for the 1 st to 4th respondents further submit that the DignosisTicket (P4) is the only medical evidence and that it does not give
SCJayasinghe v. Sub Inspector of Police,
Jayakody and Others (Shirani A. Bandaranayake, J.)209
any conclusion or any medical opinion to the effect that the injuries,if any, were due to the assault by the respondents and no other'.I am unable to agree with this submission. In my view, the medicalevidence could reveal various aspects regarding the injuries, thephysical health of a person, the approximate time of the assault andthe type of violence that had taken place. While agreeing with thesubmission of the learned counsel for the 1st to the 4th respondents,that medical evidence is relevant in proving torture, there are instanceswhere (depending on the circumstances), an allegation of violation ofArticle 11 had been proved even in the absence of medical evidence(Ansalin Fernando v. Sarath Perera and others01, Weerasinghe v.Premaratne and others*z). I am not inclined to accept the position ofthe respondents that the injuries sustained by the petitioner were dueto the ‘minimum force’ used to arrest the petitioner. The injuries setout in the Diagnosis Card are consistent with the details given bythe petitioner as to the inhuman and degrading treatment meted outto him by the respondents. Accordingly I hold that the respondentshave violated the petitioner's rights enshrined in Article 11 of theConstitution.
According to the respondents, the petitioner was taken into custodyon 25.12.1996. While the 1st respondent was on duty, controlling trafficin the area, an informant had told him that one of the 3 suspectswho tried to rob a motor bicycle on 20.12.1996 is in the vicinity. Actingon this information, the 1st respondent had arrested the petitioner,using ‘minimum force’, on the 25.12.1996 at 8.00 p.m. (1R4). Thepetitioner in his petition has averred that he was taken into custodyon 22.12.1996 around 10.00 p.m. while he was proceeding to thecarnival held at Dammissara Maha Vidyalaya, Nattandiya. The peti-tioner has further averred that the 1st respondent who was in uniformstopped his motor bicycle near the school gate and told the petitionerto come with him as there is a friend to meet. The petitioner's versionthat he was taken into custody on 22.12.1996 is supported by affidavitsfrom several persons. R. M. D. U. C. Appuhamy (P5) and W. M.Padmalal (P5A) have averred in their affidavits that they saw thepetitioner being taken into custody on 22.12.1996 around 10.00 p.m.There is no reason to reject this evidence. The respondents havesubmitted the IB extracts relevant to the arrest. The 1st respondenthas made notes on 25.12.1996, that he had taken the petitioner intocustody on that day (1R4). He had made a note on 20.12.1996 onthe attempted robbery of a motor bicycle. However, it appears that,
Sri Lanka Law Reports
(1996) 2 Sri LR.
he has entered this only on 25.12.1996 at 7.15 a.m. (1R2). Thepetitioner's statement was recorded, according to the IB extractssubmitted by the respondents on 26.12.1997 at 8.40 a.m. (1R5). TheIB extracts are documents of a self serving character and little cre-dence could be attached to entries made therein in the circumstancesof this case. The petitioner in his statement has stated that on
around 1.00 p.m. he had gone to Nattandiya and afterreturning home he had slept for a while. Around 9.00 p.m. he cameto Nattandiya and thereafter Police Inspector Jayakody brought himto the Police Station (1R5). I hold that the petitioner has proved thathe was arrested not on 25.12.1996 as stated by the respondents buton 22.12.1996 and he was not informed of the reason for his arrest.The petitioner was produced before the Acting Magistrate on 26.12.1996.Accordingly the 1st to 4th respondents had kept the petitioner illegallyin their custody from 22.12.1996 to 25.12.1996 and I hold that 1stto 4th respondents have violated the petitioner's fundamental rightsguaranteed under Articles 13 (1) and 13 (2).
I direct the 1st and 2nd respondents to pay the petitioner a sumof Rs. 3,500/- each as compensation and Rs. 1,000/- each as costs;the 3rd and 4th respondents to pay a sum of Rs. 1,500/- each ascompensation and Rs. 500/- each as costs; the state will pay thepetitioner Rs. 2,000/- as compensation and Rs. 1,000/- as costs. Inall the petitioner will be entitled to Rs. 12,000/- as compensation andRs. 4,000/- as costs.
The Registrar of the Supreme Court is directed to send a copyof this judgment to the Inspector General of Police.
G. P. S. DE SILVA, CJ. – I agree.
PERERA, J. – I agree.
JAYASINGHE v. SUB INSPECTOR OF POLICE ,JAYAKODY AND OTHERS