011-SLLR-SLLR-1984-2-KAPUGEEKIYANA-v.-HETTIARACHCHI-AND-OTHERS.pdf
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Visuvalingam v. Liyanage (Rodrigo, J.)
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KAPUGEEKIYANA
v.HETTIARACHCHI AND TWO OTHERS
SUPREME COURT.
SAMARAKOON. C.J.. WIMALARATNE. J. AND COLIN-THOME. J.
S.C. No. 80/84.
AUGUST 2. 3. 6. 7 AND 8. 1984.
Fundamental rights – Violation – Illegal arrest and illegal detention – Torture, cruel,inhuman and degrading treatment – Right to be defended by an attorney-at-law -Freedom to engage in lawful occupation, profession and business – Articles 11. 12(1)13(1). (2) and (3) and 14(1) (g) of the Constitution – Sections 32(1) (b), 36. 37.115(4) of the Code of Criminal Procedure Act No. 15 of 1979 – Section 41(1) of theJudicature Act No. 2 of 1978.
The petitioner, a suspect in a murder case complained that about 6.00 a.m. on13.6.1984 the 1st and 2nd respondents entered his house, searched it and took intocustody documents and files belonging to him without a search warrant. Thereafterwithout a warrant of arrest they arrested him and took him to the 4th Floor of the C.I.D.Office. Colombo 1. There they subjected him to harassment, assault, torture, duress,
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humiliation and cruel, inhuman, degrading and barbaric treatment. He was not given ameal until the afternoon of 14th June and he was held incommunicado until theafternoon of 17th June when he was permitted to speak to his brother over thetelephone in the presence of the C.I.D. officers. About 2.00 p.m. on 17th June he wastaken in a police vehicle to the residence of the Acting Magistrate who remanded himuntil the 19th of June. On 19th June the petitioner was produced before the JointMagistrate's Court in Case No. 1767 on a B report filed by the 2nd respondent. Whilein the dock the petitioner handed his Counsel a written note of instructions. The 1 strespondent demanded that he be shown this note but Counsel refused to show it. TheMagistrate ordered him to be remanded till 22nd June 1984.
The petitioner filed the present application complaining of infringement of hisfundamental rights guaranteed by Articles 11. 13(1), 13(2). 13(3) and 14( 1) (g) of theConstitution in that he was –
subjected to torture and/or cruel and/or inhuman and/or degrading treatment.
arrested contrary to procedure established by law and not informed of the reason ofhis arrest.
held in custody, detained or otherwise deprived of his personal liberty contrary tolaw and not produced before the Judge of the nearest competent Court within 24 hoursas required by the procedure established by law.
subjected to an attempt to deny him his unfettered right to be freely defended by anattorney-at-law.
denied the freedom to engage in his lawful occupation, profession and business.Held-
Even a person on the blackest of criminal charges is entitled to his fundamentalrights.
No violation of the provisions of Article 13(1) of the Constitution in the matter ofthe arrest itself has been established.
The petitioner was arrested on the 13th June at about 9.00 a.m. and illegallydetained on the 4th Floor of the C.I.D. for three days till 17th June in violation of Article13(2) of the Constitution.
The allegation of torture, cruel, inhuman and degrading treatment has not beenestablished.
The conduct of the 1st respondent in demanding to see a written communicationof the petitioner to his Counsel was reprehensible but as the 1st respondent's attemptdid not succeed it did not impede a fair trial.
(Samarakoon. C. J. dissenting): The allegation that there has been a violation of theright conferred by Article 14 (1) (g) has not been established.
Per Samarakoon, C. J.-
"Communications between Counsel and client are privileged and no person has a rightto pry into them."
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Kapugeekiyana v. Hettiarachchi
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Per Wimalaratne, J.-
"In deciding whether any particular fundamental right has been infringed I would applythe test laid down in Velmurugu that the civil, and not the criminal standard ofpersuasion applies, with this observation, that the nature and gravity of an issue mustnecessarily determine the manner of attaining reasonable satisfaction of the truth ofthat issue'
Cases referred to:
(1) A. K. Velmurugu v. The Attorney-General S.C. Application No. 74/81Minutes of 9.11.81.
APPLICATION under Article 126 of the Constitution for violation of fundamental rights.
Dr. Colvin R. de Silva, with Mrs. M. Muththetuwegama. Ananda Malalgoda. MahindaRatnayake, Rohan Ratnapala, Daniel Philips and Miss Saumya de Silva for petitioner.
E. D. Wickremanayake with C. P. Jayaweera Bandara. for 1st and 2nd respondents.
Upawansa Yapa. D. S. G. with Asoka de Silva. S. S. C.. and Mrs. ShiraniThilakawardene. S.C for A.G.
Cur. adv. vult.
August 31, 1984.
SAMARAKOON, C. J.
The Petitioner is this case complains of a violation of his fundamentalrights by the 1st and 2nd Respondents (hereinafter referred to asRespondents). He is a suspect in a case of murder of one ShyamaDedigama of Kegalle. The Magistrate of Kegalle has assumedjurisdiction in the matter in case No. 49789. The Petitioner ispresently on remand. The Petitioner states that on the 13th June1984 at about 6.00 a.m. the Respondents entered his residence atNagolle Road, Kegalle, searched his house and took into their custodydocuments and files belonging to the Petitioner. Thereafter they tookthe Petitioner into custody at about 9.00 a.m. and brought him to the4th floor of the C.I.D. office at Colombo 1. They had neither a searchwarrant nor a warrant for arrest. He complains that he was held on the4th floor of the C.I.D. office incommunicado until the 17th June andsubjected to harassment, assault, torture, duress, humiliation andcruel, inhuman, degrading and barbaric treatment by theRespondents. He was not given a meal after his arrest until theafternoon of the 14th June. He states that it was only in the afternoonof the 17th that he was permitted to speak to his brother over thetelephone in the presence of the C.I.D. officers. At about 2.00 p.m.
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on the 17th June he was taken in a police vehicle to the residence ofthe Acting Magistrate. The Acting Magistrate remanded him andordered him to be produced before the Joint Magistrate's Court on the19th June. He was produced before the Joint Magistrate in case No.1767 on the 19th June on a B Report filed by the 2nd Respondent(Copy marked P5). While in the dock the Petitioner handed to hisCounsel a written note of instructions (P 6). The 1st Respondentthereupon demanded that he be shown the note but Counsel refusedto show him the note. The Joint Magistrate ordered the Petitioner tobe produced before him on the 22nd June. The Petitioner pleads thatin contravention and violation of his fundamental rights guaranteed byArticles 11 and/or 13(1) and/or 13 (2) and/or 13 (3) and/or14(1 )(g)of the Constitution he was-
subjected to torture and/or to cruel and/or to inhumanand/or to degrading treatment ;
arrested in contravention and violation of the procedureestablished by law and not informed of the reason for hisarrest ;
held in custody, detained or otherwise deprived of hispersonal liberty in contravention of the procedureestablished by Law and without being brought before theJudge of the nearest competent Court according to theprocedure established by Law ;
“subject to an attempt to deny the Petitioner the unfetteredright to be freely defended by an Attorney-at-Law' ; (sic)
denied the freedom to engage in his lawful occupation,profession and business ;
He prays for an award of compensation and/or a direction that theRespondents furnish him with a list of documents taken from him andreturn to him his documents that are not necessary for the purpose ofcase No. 49787 of the Magistrate's Court of Kegalle.
The first Respondent has filed an affidavit denying these allegations.Briefly his position is that by the 15th June “it was publicly known byreason of newspaper items etc. that the murder of Miss ShyamaDedigama was suspected to be a 'contract' killing and that the policewere looking for the person behind the said murder". He states that asa result of investigations and interrogations he was able to take into
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custody on the 15th June 1984 a man named M. D. Jayasena alias'Captain' who is now the second accused in M.C.Kegalle Case No.49789. His interrogation revealed the complicity of the Petitioner inthe murder. Captain who had been paid a sum of Rs. 15,000/- out ofa sum of Rs. 20,000/- had offered to meet the Petitioner and ask forthe balance money due to him. Para 13 of the affidavit then statesthus-
"Accordingly, on the night of 15th June, 1984, Captainaccompanied by a C.I.D. officer in disguise, met the petitioner inthe garden of his residence on the night of 15th June, 1984,and engaged the petitioner in a conversation relating to thepayment of the said money. This conversation was recorded onthe mini tape recorder and I state that it unequivocally reveals thecomplicity of the petitioner in the commission of the saidoffences".
On the material available it was decided to take the Petitioner intocustody. He states that he and his party of C.I.D. officers reached thehouse of the Petitioner at 6.00 a.m. on the 16th June and explainedthe nature of his visit to the Petitioner. He searched the office of thePetitioner (which was only one room) and took some documents intohis charge. Thereafter the Petitioner was taken into custody. ThePetitioner's wife was present throughout and was aware of what wasbeing done. The Petitioner was brought to Colombo where thedocuments brought were inventorised. Interrogation of the Petitionercommenced at about 12 noon after the Petitioner had the lunchprovided him and continued till about 2.30 p.m. when the taperecording of the meeting between him and Captain was played to him.The recording of his statement commenced at 3.00 p.m. andcontinued up to 6.30 p.m. The Respondent states that the statementwas a voluntary one and the Petitioner himself made numerouscorrections in the typescript in his own hand and initialled them. Hefurther states that the Petitioner was remanded to Fiscal custody onthe morning of the 17th. The 2nd Respondent has filed an affidavit. Inpara 3 he states – "I associate myself with and adopt in their entiretythe contents" of the 1st Respondent's affidavit. The above is thebroad picture. I will deal with the facts in detail later when I come toconsider each of the fundamental rights alleged to have been violated.
This is a case in which a suspect in a murder case, who is onremand, is making a complaint of violation of his fundamental rights bythe police officers who took him into custody. It is perhaps the first of
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its kind in our Courts. Counsel for the Respondents submitted that ifthis Court holds that the arrest was on the 13th June (as stated by thePetitioner) and not on the 16th June (as stated by the Respondents)then the case against the Petitioner 'cannot even be opened againstthe Petitioner at the criminal trial'. He stated that this application wasthe result of a plan cleverly conceived to upset the criminal chargeagainst the Petitioner. Such a possibility cannot be ruled out. Ittherefore behoves this Court to make a strict examination of theevidence while at the same time steering clear of facts and mattersthat do not concern this case and are only germane to the criminalcharge. On the other hand Counsel for the Petitioner submitted thateven a suspect on the blackest of criminal charges is entitled to hisfundamental rights. This is no doubt true. In judging the facts of thiscase I will bear in mind both contentions of Counsel.
I will deal with the second and third allegations first. They state thatthe Petitioner without first being informed of the reason for his arrestwas arrested, held in custody, detained or otherwise deprived of hispersonal liberty in contravention of the procedure established by lawand without being brought before the Judge of the nearest competentCourt according to the procedure established by law. This pleads acontravention and a violation of the fundamental rights guaranteed byArticles 13(1) and 13(2) of the Constitution. The dispute between theparties is as to the precise date of arrest and subsequent detention.Was the Petitioner arrested on the 13th June at about 9.00 a.m. anddetained till the 17th June or was he arrested on the 16th andproduced before the Magistrate on the 17th June ? If the latter therehas been no violation of a fundamental right (provided however that noprocedural law has been violated). If the former then there has been anillegal detention of the Petitioner on the 4th floor of the C.I.D. office fora period of three days constituting a violation of the fundamental rightconferred by Article 13 (2) of the Constitution.
A convenient point to start a consideration of the facts would be thecomplaint made by the wife of the Petitioner to the Police at Kegalle onthe 15th June at 15.15 hrs. A certified copy of it has been producedmarked P4. Counsel for the Respondent characterised this as a"suspicious document’. The English translation of it filed with P4 readsthat the C.I.D. officers arrived at the residence of the Petitioner at6.00 a.m. whereas the Petitioner in his affidavit states that theyarrived at 6.00 p.m. The certified copy is not very clear. We thereforesent for the Information Book and the Criminal Investigation Book
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Volume II of the Kegalle Police Station was produced for ourinspection. The original clearly reads 6.00 a.m. («o. o. 6.00 3) Ourexamination further reveals that it is a contemperaneous record andthere is no reason to doubt the fact that the statement P4 wasrecorded in the Information Book at 15.15 hrs. on the 15th June onpage 13 of the Book and now appears as para 255. In paragraph 30of his affidavit the 1 st Respondent states that he is unaware of thetruth of the contents of paragraph 10 of the Petitioner's affidavitwhich thereby includes the contents of P4. However in paragraph 36he states that the contents of P4 are not true. In her complaint P4 thewife of the Petitioner states that her husband (the Petitioner) had beentaken away to Colombo on the 13th June by the C.I.D. officers whocame to the residence that day at 6.00 a.m., and that thereafter shehad no information of him up to the time of making the complaint. Thetruth of her statement can be checked from other evidence bothdocumentary and oral. The Member of Parliament for the electorate ofMawenella Chandra Ranatunga, who is also an Attorney-at-Law, hasfiled an affidavit in which he states that the wife of the Petitioner, whohas been known to him for many years, came to his house on the 14thJune and complained inter alia that her husband had been forciblytaken away at about 9.30 a.m. on the 13th June by persons claimingto be C.I.D. officers. Mr. Edward Vincent Lloyd Peiris anAttorney-at-Law who has been in practice in the Kegalle Courts for 29years stated on oath in this Court that the wife of the Petitioner methim at his residence at about 8.00 a.m. on the 15th and told him thattheir house had been searched by the C.I.D. on the 13th morning andthat her husband had been taken away by them when they left atabout 9.30 a.m. She informed him that she had complained about thisto the Member of Parliament. Mr. Peiris advised her to make acomplaint to the Kegalle Police as 48 hours had passed and he hadnot been produced before the Magistrate. This evidence was notcontradicted. He was not cross-examined by Counsel for theRespondents or by Counsel for the Attorney-General. Mr.Maliyawawadu Buddhadasa Ranatunga of Molagoda Estate, Kegalle,a retired Government Surveyor and Court Commissioner, now inprivate practice, has filed an affidavit stating that he went on the 13thto meet the Petitioner at his bungalow. There he was informed by thePetitioner's wife that the Petitioner had been taken into custody on the15th by persons claiming to be C.I.D. officers and that she had notheard from him since. She also told him of the advice given her by
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Mr. Winston Peiris and that she was reluctant to go alone to the PoliceStation. He informed her that she should follow legal advice andthereupon she went accompained by him to the Police Station whereshe made a complaint. Kuruwita Arachchilage Peiris Appuhamy, ChiefSurvey Labourer under the Petitioner for 18 years, states in hisaffidavit that he went to the Petitioner's bungalow at 6.00 a m. on15th June as a survey had been fixed for that day in terms of aCommission issued in D.C., Kegalle, Case No. 22119'but thePetitioner was not in his house. He was informed by the Petitioner'swife that he had been taken into custody on the 13th by C.I.D.Officers. The Petitioner's diary was produced in court from thecustody of the Respondents, at the request of Counsel for thePetitioner. In it was entered against date 15th June-
"P/Suvy D.C. 22119 Marapone Kegalle."
Anandapala Cyril Jayaratne, Rest House Keeper of the Rest House,Kegalle states in his affidavit that on the 13th June at about 9.30 a.m.the 2nd respondent came into the Rest House and left after havingtea. One Mervyn Dharmadasa Gammampila, a businessman ofKegalle, happened to be in the same Rest House that morning. Hestates that at about 9.00 a.m. or 9.30 a.m. a jeep came to the RestHouse and was parked in the compound. Two passengers alightedand went into the Rest House. He looked through the perspex screenof the rear door and recognised the petitioner, whom he knew, seatedinside. Later that day he came to know that the petitioner had beenarrested by the C.I.D. The Respondents deny these statements andthe 1 st Respondent states that neither he nor the 2nd respondent norany of his team of C.I.D. officers was in Kegalle on the 13th.
As against this mass of evidence the Respondents produced for ourinspection in Court a document which was referred to by the DeputySolicitor General as the "Information Book" of the C.I.D. It was not abook. It turned out to be a collection of loose leaves punched and filedbetween two hard covers. It had originally been serially numbered butthose serial numbers had been altered. Counsel read out a series ofsuch alterations and submitted that this clearly proved fabrication andinterpolation of papers. Such a comment is not unjustified in thecircumstances. No reliance can be placed on it to justify a finding thatthe arrest took place on the 16th June and not on the 13th June.There is another suspicious circumstance which militates against therespondents. The respondents state that Captain was taken into
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custody on the morning of the 15th and produced before theMagistrate on the 16th. The original of the B Report has the date'84-06-16' under the signature of the 2nd respondent. The figure'16' is an alteration in ink of the figure in typescript. The figure '2' intype is clearly visible, over which the figure "1” has been written. Thedate placed under the Magistrate's order has the figure '16' written inheavy hand over another figure (which is not visible) indicating analteration. The carbon copy of this same B Report which is also filed ofrecord has the following date in type :
'84-06 – 14'
Before ' 1 “ in ‘ 14' appears '2' which has been struck off by a verticlestroke. If as the respondents state 'Captain' was arrested on the 15thmorning how came it that a B Report was prepared in respect of himwith the date 14th June stating inter alia in terms of section 124 thatCaptain had indicated his willingness to make a confession to theMagistrate ? I find myself unable to place any reliance on thesedocuments. The totality of evidence adduced on behalf of thepetitioner is consistent with the allegation that he was arrested on themorning of the 13th June and not on the 16th June. I reject thestatements of the respondents on this point.
I will now consider the first of the allegations. The petitionercomplains that he was subjected to torture and/or to cruel and/or toinhuman and/or to degrading treatment. This allegation has beendescribed in detail in paragraph 10 of his affidavit (marked PI) asfollows :
'10. On the said 4th floor after a few preliminary questions theordeal of torture which I underwent at the hands of the C.I.D.commenced. A.S.P. Hettiarachchi ordered that no food or waterwas to be given to me. I.P. Amunugama hit my knuckles until theybled. Thereafter he hit my skull and forehead methodically, afterwhich he made me stretch my hands out and placed two heavyledgers in my hands and made me to carry them in that position untilI could not hold them no longer. While this was going on he keptdescribing the various methods of torture that the C.I.D. are capableof and reminded me of the case of Dodampe Mudalali. Thereafter Iwas handed over to a lower ranking officer who placed three largeledgers weighing over 100 pounds on my head and made me walkon my knees. I was thereafter taken into another room and made todo the same until I collapsed of exhaustion. Well after midnight I
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was handcuffed to a chair and made to lie down on a table. In themorning the torturing commenced and I was made to walk onbended legs with heavy ledgers on my head. Inspector Amunugamastarted questioning me and when I denied any knowledge of thecrime, I was assaulted, hit on the jaws, given karate shots on thechest and ten paper pins were driven under the nails of both hands.Thereafter A.S.P. Hettiarachchi arrived and I was taken before himfor questioning. I denied any knowledge of the crime. At the end ofthe interrogation the A.S.P. left with the remark to his subordinates'do not kill him". I.P. Amunugama thereafter started his torturingsession again and this time an additional ten pins were driven underthe nails of both my feet. I was given a packet of food on theafternoon of the 14th. I was confronted with a person calledCaptain whom I had never seen before who said that I am theperson who engaged him to commit the crime. Thereafter, tiny taperecorders were produced and played where my voice had beenrecorded. Thereafter I was taken to another room, manacled to acupboard and made to sit on the ground. Captain who was in theroom begged of me to agree to say what the Police wantedotherwise they would torture me as they had tortured him and theothers, and said, that I would never be able to withstand the othertortures. At about 4.30 p.m. I.P. Amunugama came and assaultedme again and trampled my ankles and stood on my thighs andkicked me on the jaws with the heel of his shoes and drove a fewmore pins under my nails and left threatening to continue the torturein the evening. In the evening he brought a spike and showed ahandkerchief which would be used to hold a lighted cigarette to thenose."
These are third degree methods and if true they constitute a violationof Article 11 of the Constitution. However we have only the statementof the petitioner on this point. He appears to have complained oftorture to his Counsel in Court on the 19th June [Vide Note P 6).Counsel in his affidavit states that he brought this to the notice of theMagistrate on the 22nd June and asked for an order that the petitionerbe examined by the Judicial Medical Officer. There is nothing onrecord to this effect and no such order has been made. On the 19th,consequent to an application made by Counsel, the Magistrate hasmade order that the petitioner be examined by the prison doctor forhis diabetic condition. But this order has not been communicated tothe prison authorities and therefore the examination has not been
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done. Perhaps if this order was carried out a complaint might havebeen made to the prison doctor of torture too. In the resultcorroborative evidence that might have been available is lacking. The1st respondent states that the 4th floor comprises a set of officesused by several high ranking officers for their official duties. There is noevidence that such a place has living facilities for ordinary humanexistence but this fact alone cannot establish torture, cruel or inhumanor degrading treatment. In the circumstances I hold that a violation ofthe fundamental right set out in Article 11 has not been established.
The fourth allegation is that the first respondent attempted to denythe petitioner the unfettered right to be freely defended by anAttorney-at-law. This concerns an incident that occurred in the well ofthe Magistrate's Court on the 19th June. While in the dock thepetitioner handed to his counsel a note of instructions (P 6). The firstRespondent then demanded that he be shown this note whichCounsel refused to do. The first respondent states that he wasunaware of such a note and therefore denies the allegation. ThePetitioner is corroborated on this point by his Counsel Mr. D. M. S.Gunasekera who states that such an incident did occur which led tocross-talk between himself and the first Respondent in Court. Hedescribes the incident thus in paragraph 6 of his affidavit (P 14) :
'6. Whilst submissions were being made by other Counsel a notewas handed to me by my client from the dock. Thereafter A.S.P.Hettiarachchi the C.I.D. officer in the case demanded of me to showthe note to him. I indignantly refused to show it to him and said thatit was a communication from my client to me. Thereafter there wasan exchange of words during the course of which the said A.S.P.Hettiarachchi threatened to have me questioned on the 4th floor ofthe C.I.D. I countered that I would report him for contempt ofCourt."
The first Respondent states in his counter affidavit that theseaverments of Counsel are false. He adds :
'I further state that the Court Room in the Colombo FortMagistrate's Court is quite small and was packed to capacity on the19 th June 1984."
What impact this fact had on the falsity or otherwise of theallegation made by Counsel is difficult to comprehend. In view of thefact that this affidavit and others had been filed on the 31 st July andthe inquiry, commenced on the 3rd August and also in view of the
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importance of the matters in issue I informed Counsel for the firstRespondent and the Deputy Solicitor General that they couldcross-examine any of the deponents if they chose to, but they declinedto do so. Nothing has been established to indicate that this statementof Counsel for the petitioner is untrue and I see no reason to reject histestimony on this issue. The conduct of the first Respondent in thisinstance in Court is reprehensible and I have no doubt the Magistratewould have taken serious note of it had it been brought to his notice.Comminications between Counsel and client are privileged and noperson has a right to pry into them. However this attempt on the partof the first Respondent to see these instructions has not succeededand has therefore not impeded a fair trial.
The last complaint is that the Petitioner has been denied thefreedom to engage in his lawful occupation, profession and businessby reason of his arrest on the 13th June and the failure or neglect tofurnish him with a list of, and/or signed receipt for, the documentstaken from his residence. This is a reference to the right conferred byArticle 14(1) (g) of the Constitution. There is no doubt that hisprofessional work could not have been done during the three days thathe was illegally detained. His diary shows that such work had beenfixed for the 15th June. Failure to provide a list or receipt for thedocuments taken is of little consequence as the Petitioner does notcomplain of the taking of the documents itself.
Since writing this judgment I have had the benefit of reading theorder of Justice Wimalaratne. I find that I have not dealt with theallegation that there has been a violation of the provisions of Article13 (1) of the Constitution. I have perused the reasons given by JusticeWimalaratne and I agree with his finding that there has not been aviolation of the right granted by Article 13 (1) of the Constitution.
In view of my finding that the Petitioner has been illegally detainedfor three days and the finding that he has been unlawfully preventedfrom practising his profession on those days he is entitled to relief andI order the first and second Respondents to pay the Petitioner a sum ofRs. 10,000 as compensation. His prayer for an order to furnish a listof documents taken and that his documents be returned to him is amatter for the Magistrate of Kegalle and application should properly bemade to him. The petitioner will be entitled to costs.
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WIMALARATNE, J.
I have had the benefit of reading the Judgment prepared by the ChiefJustice where the relevant facts are set out. I am in entire agreementwith him that we should steer clear of facts and matters that do notconcern this case, but are only germane to the proceedings pending inthe Magistrate's Court of Kegalle.
The question of the degree of proof required of a Petitioner seekingto establish his case of infringement of fundamental rights hasassumed great importance because of the sharp conflict in thematerial placed before us by the parties. The nature of that degree ofproof has been considered by this Court on earlier occasions, of whichI may refer to the decison in A. K. Velmurugu v. The Attorney General(1) which is a decision of a Bench of five Judges. Wanasundera, J.expressed the view that "the petitioner must prove his allegations tothe satisfaction of the Court", and observed that the Court had tried tosteer clear of using a formula or language that may lead to anymisunderstanding. But he also made it clear that the test they hadapplied was "the degree of proof used in civil cases, which is not sohigh as is required in criminal cases". In reaching this conclusion theCourt appears to have balanced the consideration of laying an undueburden on a petitioner complaining of an infringement of hisfundamental rights, which it is the duty of the Court to safeguard, asagainst the contrary consideration that as the liability that has beenimposed is one against the State, a high degree of probability, which isproportionate to the subject matter is necessary.
In deciding whether any particular fundamental right has beeninfringed I would apply the test laid down in Velmurugu (above) thatthe civil, and not the criminal standard of persuasion applies, with thisobservation, that the nature and gravity of an issue must necessarilydetermine the manner of attaining reasonable satisfaction of the truthof that issue.
Alleged infringement of Articles 13 (1) and 13 (2) of theConstitution.
These Articles read as follows
"13(1) No person shall be arrested except according toprocedure established by law. Any person arrestedshall be informed of the reason for his arrest.
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Every person held in custody, detained or otherwisedeprived of personal liberty shall be brought before thejudge of the nearest competent court according toprocedure established by law, and shall not be furtherheld in custody, detained or deprived of personallioerty except upon and in terms of the order of suchjudge made in accordance with procedure establishedby law'.
In the context of the present case 'procedure established by law' inthe above Article cannot mean any other than the procedureestablished by the Code of Criminal Procedure Act, No. 15 of 1979.The two sections of that Code relevant for present purposes aresections 36 & 37.
'36. A peace officer making an arrest without warrant shallwithout unnecessary delay and subject to the provisionsherein contained as to bail take or send the personarrested before a Magistrate having jurisdiction in thecase.
37. Any peace officer shall not detain in custody orotherwise confine a person arrested without a warrantfor a longer period than under all the circumstances ofthe case is reasonable, and such period shall not exceedtwenty-four hours exclusive of the time necessary forthe journey from the place of arrest to the Magistrate'.
These valuable statutory rights enjoyed by suspects have now beenmade constitutional rights, and unless there are compelling reasons,they ought not to be cut down by judicial construction. Theimportance of this requirement that no suspect shall be kept in policecustody in any event for more than 24 hours is underlined in section115(4) of the Code which provides for the procedure that policeofficers are required to adopt when investigations are long drawn outand cannot be completed within the 24 hour period. In such an eventthe officer in charge of a police station has first to obtain theauthorisation of the Magistrate to have access to the remand prisonerfor the purpose of further investigation ; and such Court may authorisethe police officer to take the suspect from place to place only if thecourt is of opinion that the suspect is required to be so taken and onlyin the company of a prison officer. This new procedure was notcontained in the earlier Criminal Procedure Code (Cap. 16) even after itreceived extensive amendments in 1938.
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In his judgment the Chief Justice has outlined the mass of evidenceadduced by the petitioner in support of his allegation that he wasarrested on the 13th of June. In their second affidavits filed on3.8.84, the 1st and 2nd respondents stated that they were trying toobtain the entries relating to the movements of police jeep bearingNo. 31 Sri 5019 which was the vehicle assigned to them for the purpose
of this investigation and which was the vehicle used by them on the16th of June when they took the petitioner into custody. The runningchart of that vehicle was not made available to us for scrutiny eventhough arguments in this case went on till the 8th of August.
Applying the test relating to the degree of proof referred to above tothe evidence before us, I am satisfied that the petitioner was arrestedat his house in Kegalle at about 9.30 a.m. on the 13th of June,1984,and not on the 16th of June as averred by the 1st and 2ndrespondents. The Petitioner was produced before the acting JointMagistrate of Colombo only on the 17th of June long after the periodof time specified in section 37 of the Code. I am in agreement with theChief Justice that there has thus been an infringement by the 1 st and2nd respondents of the petitioner's fundamental right guaranteed byArticle 13 (2). In view of this finding it is unnecessary to decide thequestion as to whether in the light of the facts of this case 'the nearestcompetent court' was the Magistrate's Court of Kegalle.
The Petitioner complains also of infringement of his rightsguaranteed by Article 13 (1). Police powers of arrest without awarrant are laid down in section 32 (1) (b) of the Code. It wouldappear that the C.I.D. had certain information against the petitionerwhich empowered them to arrest the petitioner. Thus no complaintabout an illegal arrest can be entertained. The question is whether thefurther requirement that he should have been informed of the reasonfor his arrest had been complied with by the officers arresting thepetitioner. On this question too there is a sharp conflict of testimonyAs against the affidavits of the petitioner and of his wife there are theaffidavits of the 1st and 2nd respondents. In regard to the date ofarrest the material placed before us by the petitioner was conclusive.But in regard to this question as to whether the petitioner wasinformed of the reason for his arrest, there is no such independentevidence. In that situation I would hold that the petitioner has notestablished an infringement of Article 13 (1) by the respondents.
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Alleged infringement of the fundamental right guaranteed by Article
(3) of the Constitution.
Article 13 (3) reads thus :
Any person charged with an offence shall be entitled to be heard,in person or by an attorney-at-law, at a fair trial by a competentcourt".
The corresponding provision of the Indian Constitution (Article22 (1)) is much wider in that "no person arrested can be denied theright to consult, and to be defended by a legal practitioner of hischoice". It is unnecessary to examine the ambit of Article 13 (3)because the petitioner had in fact been represented by his lawyer on
and there has thus been no infringement of this Article. If anyincident as related by Mr. Goonasekera did occur in the Magistrate'sCourt on that date it is a matter to be dealt with by the Magistrate.
Alleged infringement of the fundamental right guaranteed by Article
(1) (g) of the Constitution.
This paragraph of Article 14 reads as follows :
"Every citizen is entitled to the freedom to engage by himself or inassociation with others in any lawful occupation, profession, trade,business or enterprise".
In paragraph 20 (e) of his petition the petitioner complains that hehas been denied the freedom to engage in his lawful occupation,profession and business by reason of the acts referred to inparagraphs 3 and 4. Now, in paragraphs 3 and 4 he complains mainlyabout the illegal search and removal, of several documents includingfiles relating to Court cases and surveys conducted by him. Thecontention of learned Counsel for the petitioner was that as a result ofthe removal of these documents, he was unable to entrust hisprofessional work to another surveyor. The 1 st respondent's answer isthat the only documents removed were those that he believed wouldhelp in the further investigation of the offences.
Article 14(1) postulates a legal capacity to exercise the rightguaranteed by it and if a citizen loses the freedom of his person as aresult of either a lawful arrest, remand or detention on conviction foran offence or otherwise, he cannot in my view claim any of thefreedoms guaranteed by Article 14(1). In this case the petitioner
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should have been produced before the Magistrate on the 14th ofJune. Had he been so produced the Magistrate had no option but toremand him. As regards his complaint that he had been denied hisright to carry on his business by entrusting it to others, therenecessarily has to be curtailment of such right if the documents seizedare necessary for the investigations. There has thus been, in my view,no infringement of the right guaranteed by Article 14 (1) (g).
Alleged infringement of tha fundamental right guaranteed byArticle 11.
I am in agreement with the reasons and finding of the Chief Justicethat the petitioner has not established infringement of the fundamentalright guaranteed by Article 11.
Relief.
In view of my finding that the Petitioner, a professional man, has beenillegally held in the custody of the 1st and 2nd respondents at thefourth floor of the C.I.D. for a period of three days, I order the 1st and2nd respondents to pay the petitioner a sum of Rs. 10,000 ascompensation.
The Petitioner will also be entitled to the costs of this application.COLIN-THOMl J.
The Petitioner who is a suspect in a case of murder of ShyamaDedigama has complained of a violation of his fundamental rights bythe 1st and 2nd respondents. The petitioner pleads that incontravention and violation of his fundamental rights guaranteed byArticles 11 and/or 13(1) and/or 13(2) and/or 13(3) and/or14 (1) (g) of the Constitution he was –
subjected to torture and/or to cruel and/or to inhuman and/or todegrading treatment ;
arrested in contravention and violation of the procedureestablished by law and was not informed of the reason for hisarrest;
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held in custody, detained or otherwise deprived of his personalliberty in contravention of the procedure established by law andwithout being brought before the judge of the nearestcompetent court according to the procedure established bylaw ;
subject to an attempt to deny the petitioner the unfettered rightto be freely defended by an Attorney-at-Law ;
denied the freedom to engage in his lawful occupation,profession and business.
He prays for an award of compensation for the torture, crueltyand/or inhuman, and/or degrading treatment and/or suffering and/orhumiliation and/or harassment caused to him, for costs, and adirection that the respondents furnish him with a list of documentstaken from him and to return to him forthwith any documents that arenot necessary for the purpose of M.C. Kegalle case No. 49789.
The learned Chief Justice has summarised the facts in this case inhis judgment. The material placed before Court has been by way ofaffidavit, counter affidavit and the sworn testimony of Mr. E. V. L.Peiris, Attorney-at-Law, residing at Nagolle Road, Kegalle. As thereare certain inherent difficulties in the proof of allegations averred inpetitions and affidavits, this Court out of an abundance of cautionexamines carefully the evidence available from an independent source.
In this case there is no medical evidence to support the allegation oftorture. I agree therefore with the learned Chief Justice andWimalaratne, J. that it follows that there is insufficient material beforethis Court that Article 11 was violated. For similar reasons, thematerial before this Court to establish that Article 13 (1) whichrequired that the person arrested shall be informed of the reason of hisarrest is insufficient. I agree with the learned Chief Justice andWimalaratne, J. that Article 13(1) has not been violated.
I agree with the learned Chief Justice and Wimalaratne, J. that thereis reliable independent evidence which establishes that the petitionerwas arrested on the 13th of June 1984 by the 1st and 2ndrespondents and was illegally detained by them on the 4th floor of theC.I.D. office for three days violating the mandatory provisions ofArticle 13 (2) of the Constitution read with Sections 36 and 37 of the
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Code of Criminal Procedure Act No. 15 of 1979. The evidence ofMr. E. L. V. Peiris, Attomey-at-Law,that the petitioner's wife informed himon the morning of the 15th of June 1984 that her husband had beentaken away on the 13th morning by the C.I.D. and that he advised herto make a complaint to the Kegalle Police was not challenged either bylearned Counsel for the 1st and 2nd respondents or the learnedDeputy Solicitor-General. Mr. Chandra Ranatunga. M.P. forMawanella, stated in his affidavit that the petitioner's wife informedhim on the morning of the 14th of June that the petitioner was takenaway by the C.I.D officers on the morning of the 13th of June. Theveracity of this affidavit was not challenged by learned Counsel for the1 st and 2nd respondents and the learned Deputy Solicitor General.Learned Counsel for the 1st and 2nd respondents suggested thatMr. Ranatunga may have made a mistake about the date the petitionerwas taken into custody. On the totality of the evidence in this case thissuggestion is untenable. The learned Chief Justice has referred to theother evidence which establishes that the petitioner was taken intocustody on the 13th.
In my view Article 13 (3) of the Constitution has not been violatedbecause at the time the petitioner passed the note P6 to his Counselthe stage of a trial by a competent court had not been reached.However, it appears that an attempt was made to interfere with thepetitioner's right of representation contravening section 41 (1) of theJudicature Act No. 2 of 1978. This was a matter which could havebeen dealt by the Magistrate if brought to his notice.
As we have held that the arrest of the petitioner under Article 13(1)has not been violated it follows that the seizure of the documents mayhave been necessary for the investigation of the crime. I hold thatArticle 14 (1) {g) has not been violated. The petitioner may make anapplication to the Magistrate of Kegalle for the return of his documentsthat have no relevance in M.C. Kegalle No. 49789.
As the learned Chief Justice, Wimalaratne, J. and I are agreed thatthe petitioner has been illegally detained for three days and that hisfundamental rights under Article 13 (2) have been violated. I order the1 st and 2nd respondents to pay the petitioner a sum of Rs. 10,000 ascompensation. The petitioner will also be entitled to the costs of thisapplication.
Compensation ordered for illegal detention.