002-SLLR-SLLR-1994-V2-JAYASINGHJE-V.-SAMARAWICKREMA-AND-OTHERS.pdf
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Sri Lanka Law Reports
[1994] 2 Sri LR.
JAYASINGHE
v.
SAMARAWICKREMA AND OTHERS
SUPREME COURTG.P.S.DE SILVA C.J.
KULATUNGA J. ANDRAMANATHANJ.
S.C. APPLICATION NO. 157/91.
OCTOBER 18 AND DECEMBER 02.1993.
Fundamental Rights – Unlawful arrest – Illegal detention – Torture – Detentionunder Regulations 19(2) and 17(1) of the Emergency Regulations – ConstitutionArticles 11,13(1) and (2).
The petitioner was arrested on 23.07.91 (though Police gave the date as06.08.91) and taken to the Eheliyagoda Police Station, and questioned aboutsuspected links there until 07.08.91. when he was taken to the DeraniyagalaPolice Station where he was tortured.
The petitioner had disappeared after 23.07.91. On learning he was atEheliyagoda Police Station the petitioners mother and father had visited him dailyat the Police Station, Eheliyagoda between 26.07.81 and 07.08.91 and there hehad not been assaulted. On 29.07.91 the petitioner’s mother had complained tothe International Red Cross. The I.G.P. had informed the petitioners mother thatthe petitioner had been arrested on 23,07.91 for subversive activities by theEheliyagoda Police and handed over to the Deraniyagala Police on 06.08.91 forfurther investigations.
Held:
The Petitioner was arrested on 23.07.91 by Eheliyagoda Police and not on06.08.91.
Having regard to'the conditions of civil disorder prevailing during that periodand the available material it cannot be said that on a balance of probabilities thepetitioner's arrest was unjustified.
The detention of petitioner from 23.07.91 till 06.08.91 (without a validdetention order and without being produced before a Magistrate), was unlawfulfor two reasons.
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The Detention Order under Regulation 19(2) authorises detention atPelawatte Detention Camp, but he had been in the custody of the DeraniyagalaPolice Station though hospitalized. He was moved from one hospital to another byDeraniyagala Police and presumably removed to the Deraniyagala Police Stationon 23.10.91 and remained there until his detention there was regularised by thePreventive Detention Order under Regulation 17(1) dated 02.11.91.
Detention under Regulation 19(2) can be justified only if it is for thepurpose of further investigations and no material was placed before Court toshow there were further investigations.
The detention order was made on the subjective satisfaction of the 7threspondent (Secretary Defence) who had the petitioner's statement and othercircumstances before him. Hence the detention order cannot be said to beunjustified. The said order was lawful.
The 3rd respondent (OIC Eheliyagoda Police) kept petitioner in unlawfuldetention, and obviously was a party to fabricating records with the object ofsuppressing such unlawful detention. The 4th respondent (PC Gunatilake ofDeraniyagala Police) had arranged for the torture of the petitioner and himselfparticipated in it. The 5th respondent (O.I.C. Deraniyagala Police Station) cannotdeny responsibility for the brutal assault of the petitioner and for the prolongeddetention in the very Police Station where he was subjected to such assault. Hedeliberately encouraged, tolerated or acquiesced in the acts which infringed thepetitioner's fundamental rights.
Per Kutatunga, J.
‘I do not think that this Court can endorse blatant violations of fundamental rightsunder the guise of investigating subversive activities.''
Cases referred to:
Nanayakkara v. Henry Perera (1985] 2 Sri LR 375,385.
Chandra Kalyani Perera v. Captain Siriwardena [1992] 1 Sri LR 251,263.
Wimal Wdyamuni v. Col. Jayatilleke S.C. Application No. 852/91 (spl) S.C.Minutes of 22.7.92.
Sirisena v. Perera [1991] 2 Sri LR 97.
Ratnapaia v. Hector Dharmasiri S.C. Application No. 162/91 – S.C. Minutes of
28.4.93.
Amal Sudath Silva v. Kodltuwakku [1987] 2 Sri LR 119, 127.
Prema/a/ de Silva v. Inspector Rodrigo [1991] 2 Sri LR 307.
Senthilnayagam v Seneviratne [1981] 2 Sri LR 187, 208.
Dissanayake v. Superintendent Mahara Prison [1991] 2 Sri LR 247, 263.
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Sri Lanka Law Reports
[1994] 2 Sri LR.
Application for relief for infringement of fundamental rights.
K. Thiranagama with Jaufer A. Hassan, Mrs. Pathirana, N. Swarna and Miss C.MaJawaarachchige for petitioner.
D. P. Kumarasinghe DSG lor respondent.
Cur. adv. vult.
January 12,1994.
KULATUNGA, J.
The petitioner alleges unlawful arrest and detention and torturewhilst he remained in police custody. At the time of his arrest he was29 years of age. He states that he is a mason and has not beeninvolved in any illegal, criminal or subversive activity.
PETITIONER'S VERSIONThe petitioner states that he was arrested on 23.07.91 by the 1stand 2nd respondents (Police Constables) at the Eheliyagoda busstand when he was on his way to his aunt’s place at Godagampolaand was taken to the Eheliyagoda Police Station. He was thereafter inthe custody of the 3rd respondent (Inspector of Police) Officer-in-Charge of the Eheliyagoda Police Station until 07.08.91 during whichperiod he was questioned about his links with the Janatha VimukthiPeramuna.
On 07.08.91 a group of police officers (from the DeraniyagalaPolice Station) including the 4th respondent (Police Constable) tookthe petitioner from the Eheliyagoda Police Station to the DeraniyagalaPolice Station. On 08.08.91 the petitioner was tortured at that PoliceStation by a group of police officers including the 4th respondent.
The petitioner's description of the torture is that the 4th respondentfirst made him to squat on the ground and then twisted his armsbehind his back and pulled them to the front of his body from behindin between his legs. Thereafter, both his hands and feet were tiedtogether at the ankle. A pole was then slipped between his arms andthe legs and the ends of the pole were rested on two tables. In this
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position he was revolved around the pole and he was clubbed whilehis body was in motion.
The petitioner states that in consequence of such torture, hesustained a fracture of his collar bone and was unable to speak. Inthe evening of 08.08.91 he was admitted to the Avissawella BaseHospital and was warded there until 21.08.91 when he wastransferred to the General Hospital Colombo as his conditionworsened. He was there for about five days when a group of policeofficers from the Deraniyagala Police Station got him discharged andadmitted him to the Avissawella Base Hospital; and on 29.08.91 hewas admitted to the Deraniyagala Hospital. He was discharged fromthat hospital on 17.09.91 and taken to the Deraniyagala PoliceStation. As he had difficulty in passing urine he was readmitted to theDeraniyagala Hospital on 21.09.91. On 16.10.91 when he signed hisaffidavit to this application he was an inmate of that hospital.
RESPONDENTS VERSIONThe petitioner alleges infringement of his fundamental rights underArticles 11, 13(1) & (2). An affidavit of objections to this applicationhas been filed by the 7th respondent (Secretary, Ministry of Defence)annexing thereto inter alia, affidavits from the 3rd, 4th and 5threspondents and supporting documents. The case for the State isthat the petitioner was arrested by officers of the Eheliyagoda PoliceStation not on 23.07.91 but on 06.08.91. The police party acting oncertain information, ambushed near a petrol shed. It was led by the3rd respondent. The police party consisted of the 1st and 2ndrespondents who arrested the petitioner at the Eheliyagoda town. Thepetitioner told them that he was proceeding to the house of a relation.After arresting the petitioner, the 1st and the 2nd respondentproduced him to the 3rd respondent. I.B. Extracts P2 and P3 havebeen produced in support of this version.
The 3rd respondent states that the reason for the arrest (which heexplained to the petitioner) was that the petitioner was wanted by theDeraniyagala Police on account of subversive activities and that thepetitioner was handed over to the Deraniyagala Police on 07.08.91.According to the I.B. Extracts P1, the petitioner had no injuries at thetime of his arrest and he was in good health.
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The 4th respondent states that the petitioner was arrested by theEheliyagoda Police on 06.08.91 and was handed over to theDeraniyagala Police on 07.08.91 as he was wanted for subversiveactivities including collection of firearms. Petitioner's statement wasrecorded on the same day at 9.00 p.m. In his statement (P3) thepetitioner confessed to having engaged in subversive activities as amember of the Deshapremi Janatha Vyaparaya. He with othermembers of that organisation, pasted posters and also engaged inthe unauthorised collection of National Identity Cards and firearms.After recording his statement, a police party consisting of the 4threspondent, two other Police Constables and a Sub Inspector ofPolice accompanied the petitioner who volunteered to show the placewhere he had hidden some firearms. The police party was armedand the petitioner was handcuffed during the journey. They left thePolice Station at 9.30 p.m. on 07.08.91. At about 1.15 a.m. on
they were at a place called Gollahinna. They were carryingtorchlights. At that stage the petitioner attempted to escape. Herushed through the scrub jungle and fell on a hillside and wascaptured with the assistance of two villagers who came to the spot.
In his notes (P3) the 4th respondent states that when the petitionerwas captured he was still with handcuffs. He had abrasions of neck,left shoulder and back. There was no bleeding and the petitioner saidthat he falsely volunteered to assist in recovering firearms in order tocreate an opportunity to escape from custody.
The 4th respondent denies the alleged torture of the petitioner.This respondent as well the 5th respondent who also gives the sameversion explain the injuries found on the petitioner and the conditionwhich required his hospitalisation as being attributable to his fall inattempting to escape and to the ensuing scuffle, in the course ofwhich the police had to use "minimum force’ to apprehend him.
In defence of the impugned detention, the 7th respondent hasproduced marked 'X a detention order under Regulation 19(2) of theEmergency Regulations authorising the petitioner's detention at thePelawatte detention camp for 90 days from 06.08.91 and a preventivedetention order marked 'Z1' dated 02.11.91 issued in terms ofRegulation 17(1) of the Emergency Regulations under which the 6th
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respondent (The Inspector General of Police) has directed that thepetitioner be detained at the Deraniyagala Police Station.
PETITIONER’S COUNTER AFFIDAVITThe petitioner in his counter affidavit reiterates the allegation thathe was arrested on 23.07.91 and not on 06.08.91. In support, he hasproduced several documents of which A1, A3, and A5 are veryrelevant. He has also produced an affidavit from his mother MaryNona who states that she found the petitioner missing after 23.07.91and learnt that he had been arrested and detained at theEheliyagoda Police Station. Mary Nona says that between 26.07.91and 07.08.91 she with her husband visited the petitioner daily at theEheliyagoda Police Station and supplied him with food and clothing.During that period the petitioner had not been subjected to anyassault or torture.
Mary Nona further states that on 29.07.91 she complained to theInternational Committee of the Red Cross, Colombo and receivedtheir reply dated 21.08.91 (A1) informing her (with reference to herletter dated 29.07.91 and a subsequent visit to the office of theCommittee) that the petitioner was in the custody of the DeraniyagalaPolice. Mary Nona had also complained on 13.08.91 to thePresidential Commission of Inquiry into Involuntary Removal ofPersons. The Commission by its reply dated 16.08.91 (A3) informedher that the petitioner's case did not come within the Commission'sterms of reference but that her complaint had been referred to theIGP for necessary action; whereupon the IGP by his letter dated■ 31.10.91 informed Mary Nona that the petitioner had been arrestedby the Eheliyagoda Police on 23.07.91 for subversive activities andhanded him over to the Deraniyagala Police on 06.08.91 for furtherinvestigations.
THE TRUE DATE OF PETITIONER'S ARRESTThe above material conclusively establishes that the petitioner hadbeen arrested on 23.07.91 and that the respondent's version is false.The document A5 shows that as on 31.10.91 the police recordssupported the petitioner's version as to the date of his arrest. If so.
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the I.B. Extracts purporting to be the notes of investigation by the 3rdrespondent (P1) and the notes of the 1st and the 2nd respondent(P2) annexed to respondent's affidavits filed on 20.05.92 arefabrications.
MEDICAL EVIDENCE IN RESPECT OF THE PETITIONEROn orders made by this Court, medical records in respect of thepetitioner maintained at the Deraniyagala Hospital, Avissawella BaseHospital and the General Hospital Colombo have been furnished. Wealso have the reports of the District Medical Officer, Avissawelladated 08.10.93 and the report of the District Medical Officer,Deraniyagala dated 15.10.93. The said records and the reportsreveal the following.
On 08.08.91 at 12.05 p.m., the petitioner was admitted tothe Deraniyagala Hospital. He complained of chest painand was unable to speak. He had a swelling over the leftcollar bone area. The left collar bone was "clinicallyfractured." At 1.30 p.m. he was transferred to theAvissawella Base Hospital as his condition wasunsatisfactory.
The Avissawella Base Hospital Bed Head Ticket in respectof the petitioner records a history of police assault; that hewas conscious but restless, did not obey commands andwas unable to speak. He remained in that condition until hewas transferred to the General Hospital, Colombo on
He had abrasions on the back of chest and left *shoulder, contusions over the chest wall and tenderness ofthe chest. His shoulder could not move freely. He had afracture of the collar-bone which was confirmed by an ‘X’ray. His bladder was distended. He was given saline,dextrose, antibiotics and tranquilisers.
On 20.08.91 at his admission to the General HospitalColombo the petitioner was still unable to speak. He hadhealed scars and abrasions on the back and front of chestand infected wounds on the back of chest. On 22.08.91 he
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spoke with difficulty. On 25.08.91 PC 46613, presumablyfrom the Deraniyagala Police, removed the petitioner afterwhich it appears that he was readmitted to the AvissawellaBase Hospital. On 27.08.91 he was transferred to theDeraniyagala Hospital. He had constipation and difficulty inpassing urine. He was discharged from that hospital on
On 21.09.91 he was readmitted to theDeraniyagala Hospital with the same complaints andremained there until 23.10.91 when he was discharged.
CONSIDERATION OF THE CASEARREST AND DETENTION OF THE PETITIONERHaving regard to the conditions of civil disorder prevailing duringthat period and the available material it cannot be said that on abalance of probabilities the petitioner's arrest was unjustified.However, in view of my finding that the petitioner was arrested on
it follows that he was thereafter detained at the EheliyagodaPolice Station until 06.08.91 (without a valid detention order andwithout being produced before a Magistrate) which detention isunlawful.
As regards the detention order under Regulation 19(2), of theEmergency Regulations for 90 days (document Z), I am of the viewthat it is unlawful for two reasons. Firstly, it authorises the petitioner^detention at the Pelawatte detention camp. But he remainedthroughout in custody at the Deraniyagala Police Station. It is true thatuntil 23.10.91, the petitioner was hospitalised. But he was beingmoved from one hospital to another by the Deraniyagala Police andwas presumably removed to the Deraniyagala Police Station on
and remained there until his detention at that Police Stationwas regularised by the Preventive Detention Order under Regulation17(1) dated 02.11.91 (Z1). Secondly, as this Court has held inNanayakkara v. Henry Pereraw; Chandra Kalyani Perera v. CaptainSiriwardenam Wimal Vidyamani v. Lt. Col. Jayatiilekem detentionunder Regulation 19(2) can be justified only if it is for the purpose offurther investigation. In the instant case no material whatever has
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been placed before this Court as to what further investigations werecarried out by the police after the arrest of the petitioner.
The preventive detention order 'Z1‘ is one made on the subjectivesatisfaction of the 7th respondent. It seems to me that when he madethat order, he also had before him the petitioner's statement P3 in thelight of which and the other circumstances, it cannot be said that thesaid order is unjustified. In all the circumstances, I am unable to holdthat the said order is unlawful.
ALLEGED TORTURE OF THE PETITIONERI have no hesitation in rejecting the respondent’s version that thepetitioner's injuries and his condition which required hospitalisationfrom 08.08.91 to 23.10.91 were caused by a fall in the course of anattempt by him to escape from custody. Assuming the truth of thestory that the petitioner was taken by a police party to Gollahinna ashe volunteered to show the place where firearms were hidden, hewas conducted there by an armed police party. He was handcuffed.In that state the injuries found on him could not have been sustainedby a mere fall or in the course of an endeavour by the police toapprehend him. His condition including his inability to speak until
is clearly consistent with the alleged torture at theDeraniyagala Police Station. It is to be noted that at the time thepetitioner was handed over to that Police, he had no injuries and wasin perfect health. But when he was admitted to the hospital on
he was a physical wreck and almost comatose. I, therefore,hold that the allegation of torture has been established.
DETERMINATION AND RELIEFOn the basis of the aforesaid findings, I determine that thepetitioner's fundamental rights under Article 11 and 13(2) have beeninfringed and grant him a declaration accordingly. The State is liablefor such infringement. In the light of the decisions of this Court inSirisena v. Pereram and Ratnapala v. Hector Dharmasiri™ the 3rd, 4thand 5th respondents are also responsible and liable for suchinfringement. The 3rd respondent (OIC Ehetiyagoda Police) led the
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police party who arrested the petitioner, kept him in detention athis Police Station from 23.07.91 to 06.08.91 unlawfully and hasobviously been a party to fabricating records with the objectof suppressing such unlawful detention. I accept the evidencethat the 4th respondent arranged for the torture of the petitionerand himself participated in such conduct as alleged by thepetitioner.
The 5th respondent (OIC Deraniyagala Police Station) cannot denyresponsibility for the brutal assault of the petitioner. He also must takeresponsibility for the prolonged unlawful detention of the petitioner inthe very Police Station where he was subjected to such assault. The6th respondent (The IGP) or the 7th respondent (Secretary, Ministryof Defence) may not have been aware of the fact that the petitionerwas being detained at the very place where he was tortured, and attimes being removed from one hospital to another at the whim andfancy of the offending police officers. They may not have been awareof his medical condition. But the 5th respondent was aware of thefacts. It was his duty to have taken steps to ensure that, in thecircumstances of this case, the petitioner did not remain in custody atthe Deraniyagala Police Station. His failure to do so, shows that hedeliberately encouraged, tolerated or acquiesced in the acts whichinfringed the petitioner's fundamental rights.
This Court has in numerous judgments referred to the dicta ofAtukorala J. in Amal Sudath Silva v. Kodituwakkum where hedescribed torture by the police as “barbaric, savage and inhuman."he also said:
“The petitioner may be a hardcore criminal whose tribedeserves no sympathy. But if constitutional guarantees are tohave any meaning or value in our democratic set-up, it isessential that he be not denied the protection guaranteed byour Constitution"
See also Premalal de Silva v. Inspector Rodrigom. I do not thinkthat this Court can endorse blatent violations of fundamental rights
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committed under the guise of investigating subversive activities. Ingiving relief on account of such violations the dicta of Colin Thome J.in Senthilnayagam v. Seneviratneis also appropriate. He said:
‘The Courts have been jealous of any infringement of personalliberty and care is not to be exercised less vigilantly, becausethe subject whose liberty is in question may not be particularlymeritorious"
See also Dissanayake v. Superintendent Mahara Prisonw.
In all the circumstances, I direct the State to pay the petitioner asum of Rs. 18,500/- (Rupees Eighteen Thousand Five Hundred) andcosts in a sum of Rs. 1,500/- (Rupees One Thousand Five Hundred).The 3rd respondent is directed to pay the petitioner a sum ofRs. 7,000/- (Rupees Seven Thousand). The 4th respondent isdirected to pay the petitioner a sum of Rs. 5,000/- (Rupees FiveThousand) and the 5th respondent is directed to pay the petitioner asum of Rs. 8,000/- (Rupees Eght Thousand). The petitioner will thusbe entitled to a total of Rs. 40,000/- (Rupees Forty Thousand) ascompensation and costs.
The 6th respondent is directed to maintain a record of thesefindings against the 3rd, 4th and 5th respondents for departmentalpurposes and to take such other action as may be appropriate on thebasis of the findings of this Court. He is also directed to ensure thatthe compensation awarded to the petitioner is paid early and to makea report to this Court on or before 15.03.94. The Registrar is directedto forward a copy of this judgment to the 6th respondent.
G. P. S. DE SILVA, C J. -1 agree.RAMANATHAN, J. -1 agree.Relief granted.