POLICE SERGEANT KOTALAWALA AND OTHERS
SUPREME COURTAMERASINGHE. J.DHEERARATNE, J. ANDW1JETUNGA, J.
SC APPLICATION NO. 126/9413™ SEPTEMBER. 1994
Fundamental rights – Torture whilst in police custody – Article 11 of theConstitution – Illegal order by the Magistrate directing the Superintendentof Prisons to take the petitioner to prison custody – Article 13(2) of theConstitution – Section 37 of the Code of Criminal Procedure Act.
The Is' to the 10th respondents were police officers attached to the PoliceGuard Room, Boralesgamuwa which comes under the MaharagamaPolice Station. On 04. 03. 1994, the petitioner was arrested by the 1“ and2nd respondents for a traffic offence and taken to the Police Guard Room.Boralesgamuwa after using much force on him. Whilst in police custody,the 1st, 2nd, 4lh and 5th respondents assaulted him. He was assaulted witha rubber hose whilst the 3rd respondent, a Sub-Inspector of Police, struckhim on his right ear. On the 3rd day after the arrest, the petitioner wasadmitted to the Kalubowila Hospital under police custody where heremained until 11. 03. 1994 when he was taken over by Prison Officerson the Order of the Magistrate, Gangodawila and admitted to the PrisonHospital. According to the discharge ticket of the Kalubowila Hospital,the petitioner had sustained contusions, fractures and perforations ofboth ear drums.
The Order for the transfer from police custody to prison custody wasmade by the Magistrate on the application of the officer-in-charge,Maharagama Police Station whilst the petitioner was at the KalubowilaHospital. That order which is dated 06. 03. 1994 (a Sunday) states“Suspect . . . Nihal present. Remand until 16. 03. 94"
The 1st, 2nd, 3rd, 4th and 5th respondents violated the petitioner's funda-mental right protected by Article 11.
Sri Lanka Law Reports
1200011 Sri Lit.
Per Dheeralne. J.
"We are unable to find any provision of law granting sanction for aMagistrate to make such a remand order which is capable of soinsidiously eroding the liberty of the subject (see Article 13(2) of theConstitution and Section 37 of the Code of Criminal Procedure Act No.15 of 1979"
APPLICATION for relief for infringement of fundamental rights.
A. H. H. Perera with Gamini Perera for petitioner.
K. Kumarasiri with Chandima Withanarachchi for ls,-8Ul and 10u'respondents.
D. Weerasuriya, SSC for 1 1U| and 12th respondents.
Cur. adv. unit.
October 06, 1994DHEERARATNE, J.
The petitioner was granted leave to proceed for the allegedviolation of Article 11 of the Constitution by the 1st to 10,hrespondents who were police officers attached toBorelesgamuwa police guard room on 04. 03. 1994. Themedical evidence which will be referred to in detail laterdiscloses the presence of several injuries on the petitionerreceived at or about the time he was in police custody.
The petitioner states that at about 8.30 a.m. he travelledon the pillion of a motor cycle ridden by one Ranjith and about200 meters before reaching the Borelesgamuwa police guardroom, he alighted from the pillion because he wore no protec-tive helmet. Ranjith proceeded but was stopped by the 1strespondent a short distance before approaching the guardroom. When the petitioner walked up to the spot where the Is'respondent was, he was detained by 1sl respondent who askedfor his name and his national identity card. The petitioner toldthe lsl respondent that he had not committed any trafficoffence and refused to give his name or the identity card.Ranjith was issued a spot fine .ticket by the Is' respondenthaving taken into custody his driving licence. Ranjith was
SC Kodituwakkuge Nihal v. Police Sergeant Kotalawala and. Others 219
asked to leave. Thereafter the 1st respondent got on to hismotor cycle and proceeded towards the police guard roomwhile the petitioner went in the direction of the bus, standwhich was in the vicinity. When the petitioner was near the busstand, the l81 respondent came there along with the 2ndrespondent on foot. They held the petitioner by his belt at thewaist and endeavoured to frog-march him to the police guardroom. The petitioner told the lsl and 2nd respondents that hewould accompany them voluntarily but the two respondentsnext caught him by his wrists and continued to twist themcausing severe pain to the petitioner. When they approachedthe guard room, several police officers in mufti came out andassaulted him. There was an “ongoing scuffle in which thepetitioner was flaying his hands to escape the blows", statesthe petitioner. At the guard room lBt, 2nd, 4th, 7,h and 8lhrespondents assaulted him. The 3rd respondent, the OIC of theguard room, directed a search of the petitioner's person. Thepetitioner states at that stage some police officers wanted toimplicate him in a narcotic offence and they introduced somepacket into his wallet. Petitioner pleaded with the 3rd respond-ent to refrain from doing so and requested that he be examinedmedically to verify whether he was addicted to drugs or not.The 3rd respondent who was annoyed at what the petitionerstated closed the petitioner's left ear and rained a series ofblows on his right ear. Petitioner was taken to the barrackroom and assaulted by tire 5th respondent and some consta-bles with a rubber hose and two wooden slats. The 4threspondent placed the petitioner against a wall and assaultedhim. The right wrist of petitioner was handcuffed to a bed andhe was made to lie face upwards under the bed. Sometime inthe afternoon, the petitioner was produced before a medicalofficer at the Kalubowila hospital from police custody. Themedical officer wanted the petitioner to be warded, but thepolice took him back to the guard room. He was readmitted tothe hospital on the following day and remained there till tire11th of March when he was taken to the prison hospital by someprison guards.
Sri Lanka Law Reports
1200011 Sri LR.
The respondent police officers 1 to 10 gave a differentversion as to how petitioner came by his injuries. The Is1 and2nd respondents stated that they were on traffic duty on the 4thmorning when they detected a motor cyclist coming from thedirection of Colombo carrying a pillion rider who wore noprotective helmet. The 1st respondent signalled the rider tostop. Thereafter the 1st respondent asked the pillion rider whois now identified as the petitioner for his name and identitycard. The petitioner turned aggressive and refused to divulgethe information; the 1st respondent then asked petitioner toaccompany him to the police station but he refused. At thatstage the 2nd respondent held the petitioner by his wrist and‘advised him’ to come to the police station. The petitioner thenstruck the 2nd respondent on his face and the 2nd respondentfell down. When the 2nd respondent got up, he saw the 1strespondent struggling with the petitioner on the ground andthere was an exchange of blows between them. In order toextricate the 1st respondent, the 2nd respondent struck thepetitioner on his arms and legs several times with his baton.The 2nd respondent’s right eye was swollen as a result of theblow inflicted by the petitioner. There was no assault on thepetitioner thereafter and nothing happened inside the guardroom or the barrack room which could have caused injuries onpetitioner. The 3rt respondent stated that on the same day thepetitioner was produced before a medical officer at Kalubowilahospital, but as the petitioner declined to be warded, he wasbrought back to the police station. On the 5th morning on arequest made over the telephone by the medical officer whoexamined the petitioner the previous day that he be permittedto prepare a report after examining petitioner, petitioner wastaken back to the hospital where he was warded. The 7threspondent was kept at the hospital to guard the petitioner.The 3rd respondent further stated that as the Borelesgamuwaguard room came under the Maharagama police station, on
03. 94 the OIC Maharagama had reported the facts aboutthe incident to the Magistrate, Gangodawila.
SC KodltuwakkugeNiha.lv. Police Sergeant. Kotalawala and Others 221
The discharge ticket issued by the Kalubowila hospitaldated 11.03. 94 shows that the petitioner had an undisplacedfracture of the lower end of the ulnar and perforations of bothear drums. The medico-legal report of the JMO Colomboissued to this court after examination of the petitioner on 31.03. 94 (apart from the ‘tenderness’ found at two places)disclosed the presence of the following injuries.
3"x2" contusion of the right groin.
2"x2" contusion of the left groin.
contusion over medical aspect of the right collar bone – 2"with an underlying acromio clavicular joint subluxation(displacement).
Fracture of the distal end of left ulnar bone (forearm) withminimal displacement.
Fracture of the styloid process of the left ulnar bone.
At whatever point the petitioner alighted from the pillionof the motor cycle, on his own showing, he was detected by the1st respondent of having committed an offence under the MotorTraffic Act. The Motor Traffic (Amendment) Act No. 40 of 1984amended section 158 of the principal enactment to read asfollows:
158(3) Where the driver of a motor cycle carries on his motorcycle any person who does not wear a protective helmet of atype approved by the Minister under subsection (2). both suchdriver and such person shall be guilty of an offence under thisAct.
It is likely that the petitioner’s obstinate refusal, which headmits, to disclose his name and identity would have arousedthe ire of Is' respondent. It is also possible that petitioner didgive a blow to the 2nd respondent while resisting arrest and that2nd respondent received a contusion near his right eye as aresult.
Sri Lanka I jaw Reports
120001 I Sri LR.
In any event it is difficult to relate the perforation ofpetitioner’s ear drums to the acts allegedly done by the 1 51 and2nd respondents in bringing the petitioner under control whileresisting arrest. I hold that the petitioner received thoseinjuries after he was brought to the police guard room inconsequence of 3rd respondent raining blows on his right earas narrated by petitioner. Regarding the restof the injuries, thelearned counsel for petitioner rightly submitted that the forceand intensity of inflicting the injuries could be measured bythe fact that they were still present when the petitioner wasexamined by the JMO twenty seven days after he was sub-jected to assault. Particularly the injuries on the right collarbone and left forearm appear to have been received by peti-tioner more in consequence of violent assaults inflicted asdeposed by him rather than as a result of using reasonableforce as stated by the police officer respondents. However I ammindful of the fact that the entire episode was brought aboutby petitioner's own folly.
1 hold that the l*1, 2nd, 3rd, 4th and 5lh respondents haveviolated the petitioner’s fundamental right protected underArticle 1 1. The case against 6th, 7th, 8ih and 10’h respondentswas not pressed by learned counsel for petitioner and I makeno order against them. I order the lsl, 2nd, 3rd, 4lh and 5threspondents to payasum ofRs. 2000/= each as compensationand a sum of Rs. 500/= each as costs to the petitioner.Petitioner will be thus entitled to a sum of Rs. 10,000/= ascompensation and Rs. 2500/= as costs from the Is1 to 5lhrespondents.
Before parting with this judgement I would like to dealwith one aspect of this case which deeply troubled this court.The petitioner averred that when he was warded at theKalubowila hospital (Colombo South General Hospital) be-tween 05. 03. 94 – 11.03. 94 he noticed that the police officerwho was guarding him got replaced by a piison guard: he wasnever produced before a Magistrate during that period. Fromthe Kalubowila hospital the petitioner was taken by prison
Kodituwakkuge Nihal u. Police Sergeant Kotalawala and Others 223
guards to the remand prison and then to the prison hospital.The petitioner was produced before the Gangodawila Magis-trate on 16. 03. 94 under prison custody. Explaining thechange of custody of the petitioner from police to prisonpersonnel, the 3rri respondent stated that the Borelesgamuwapolice post comes under the Maharagama police station andthat “on 06. 03. 94 the OlC Maharagama police stationreported the facts to Court on a ‘B’ report in case No. 86778 ofMagistarate’s Court Gangodawila.” A bare copy of this ‘B’report was produced wherein no other entries appeared. Inthese circumstances we called for this record from the Magis-trate’s Court Gangodawila for our perusal.
According to that record, the last paragraph of the ”B’report (as translated), reads as follows:
“Reporting these facts to court I beg that an order be madeto the Superintendent of the Welikade prison to taJce intoremand custody the abouenamed suspect who is now beingtreated at the accident ward of the Colombo South hospitalunder police custody and. to produce him before the MagistrateGangodcuuila on J 6. 03. 94.
(signed) OIC Maharagama”
The Is' journal entry on this ‘B’ report (as translated)reads:
-1994. 03. 06suspect
(1) Wagegoda Kodituwaldaige Nihal – present Remanduntil 16. 03. 94.
I order that the suspect be immediately token to the custodyof prison officers.
In the warrant of detention signed by the Magistrate dated06. 03. 94 the following entry (as translated) appears at the topmargin on page 1 above the printed letters.
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1200011 Sri LR.
Superintendent of Prisons Welikada.
Take charge immediately suspect who is now being treatedat the accident ward of the Colombo South General hospital andproduce him on the due date before court.
(signed) Magistrate Gangodaivila
06. 03. 94 was a Sunday. Although the journal entry' of06. 03. 1994 Indicates that the petitioner was present, itwouldappear from the last paragraph of the ‘B' report that thepetitioner was not being physically produced before the Mag-istrate. Moreover the last part of the Magistrate's order ofremand made on 06. 03. 94 and his entry made on the topmargin of the warrant of detention, make it clear that when hemade that remand order the petitioner was not present beforehim physically; otherwise they carry no meaning and areunnecessary. We are unable to find any provision of lawgranting sanction for a Magistrate to make such a remandorder which is capable of so insidiously eroding the liberty ofthe subject. (See Article 13(2) of the Constitution and section37 of the Code of Criminal Procedure Act No. 15 of 1979). Theseriousness of this matter compels us to direct the Registrarof this Court to bring it to the notice of the Chainnan of theJudicial Service Commission for such action he deems appro-priate.
AMERASINGHE, J.I agree.
WIJETUNGA, J.I agree.
KODITUWAKKUGE NIHAL v. POLICE SERGENT KOTALAWALA AND OTHERS