036-SLLR-SLLR-2004-V-3-KONESHALINGAM-v.-MAJOR-MUTHALIF.pdf
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KONESHALINGAMv
MAJOR MUTHALIFSUPREME COURTSARATH N. SILVA, CJ.
SHIRANI BANDARANAYAKE, J.
EDUSSURIYA, J.
SC 555/2001NOVEMBER 5, 2002DECEMBER 10, 12, 2002
Fundamental rights – Constitution Article 12(1), Article 13(1), Article 13(2) -Reasons for the arrest not revealed? – Kept in custody without detention order- Torture – Injuries – Code of Criminal Procedure Act, section 37.
The petitioner complains that the army arrested him on 19.4.2001 and kepthim in detention in the army camp till 21.5.2001, and that during this period hewas assaulted. Thereafter he was handed over to the Special InvestigationUnit where he was kept in detention until 26.6.2001 – and asaulted. Thepetitioner complained of violation of Articles 11, 13 (1) and 13 (2).
Held:
The Officer-in-Charge of the Special Investigation Unit- 6th respondenthas not revealed the reasons for the arrest of the petitioner. The 1strespondent who had initially taken the petitioner into custody did notmake any submission nor has he tendered any written submissions.
The silence of the 1st respondent and his officer and the non availabilityof any material indicating the reasons for the arrest, only leads to theconclusion that no acceptable reasons were available at the time he wasarrested.
It appears that the petitioner was taken into custody on a vaguesuspicion, without there being any reasonable ground for such arrest.The arresting officer could not have possibly informed the petitioner thereason for his arrest – Article 13(1) violated.
No detention order was issued until 22.5.2001 and admittedly thepetitioner was kept in custody from 19.4.2001 until 22.5.2001, without a
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valid detention order; he was produced before the Magistrate only on26.6.2001-Article 13 (2) violated.
The petitioner was in the custody of the army and the SpecialInvestigation Unit for over two months. Except for the injury he hadsustained a few years earlier, (loss of the lower left limb) there is noevidence to indicate that he had any injuries at the time of arrest. Theobservations of the AJMO substantiate the version that the petitionerwas assaulted whilst being interrogated by the officers of the SpecialInvestigation Unit.
APPLICATION under Article 126(1) of the Constitution.
Case referred to:
(1) Vinayagamoorthy (AAL) on behalf of Wimalentharan v the ArmyCommander and others – 1997 1 Sri LR 113
V. Yogeswaran for the petitioner.
Riyaz Hamza SC for 3rd to 5th respondents.
K. R. M. Abdul Raheem for 6th respondent.
February 10, 2003.
SHIRANI BANDARANAYAKE, J.The petitioner is 26 years of age and married with 2 children. 01According to him, in 1991 he had accidentally stepped on a landmine, which cost him his lower left limb. He claimed that he is alabourer and that he is the sole breadwinner of his family. Thepetitioner submitted that the personnel of the JOOSSP Army Camparrested him on 19.04.2001 and kept him in detention in the saidCamp until 21.05.2001. During this period the petitioner claims thathe was assaulted with batons and sticks. Thereafter he washanded over to the Special Investigations Unit of the Police Station,Vavuniya, where he was kept in detention until 26.06.2001. The 10Petitioner submitted that during this period he was interrogatedfrom time to time and during the time of interrogation, he wasassaulted and was forced to admit that he was a member of theLiberation Tigers of Tamil Eelam (LTTE). On occasions when heattempted to explain his innocence, he was further assaulted andwas forced to place his signature on documents of which thecontents were neither read nor explained to him. His position isthat, in fear of further torture, he signed the said documents as
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ordered. The petitioner was produced before the Magistrate,Vavuniya on 25.06.2001, who ordered him to be sent to Remand 20.Prison, Kalutara.
During the time he was under detention, the petitioner claimsthat he was tortured and treated in a cruel, inhuman and degradingmanner and his submission is that his arrest and detention are bothwrongful and illegal thereby violating his fundamental rights. ThisCourt granted leave to proceed for the alleged infringement ofArticles 11, 13(1) and 13(2) of the Constitution.
The 06th respondent, who is the Officer-in-Charge of theSpecial Investigation Unit of the Police Station, Vavuniya, concedesthat the petitioner was arrested, but he refutes the period of 3adetention given by the petitioner. His position is that the petitionerwas handed over to the Police Station, Vavuniya only on
and the Special Investigation Unit, Vavuniya had takenover the petitioner and the investigation on 23.05.2001. Further hesubmitted that the petitioner was produced before the Magistrate,Vavuniya on 25.05.2001. He further submitted that the petitionerwas detained in terms of 2 detention orders dated, 22.05.2001 and
for 30 days and 28 days respectively, for the purpose
of investigation. The 6th respondent denies that the petitioner wasassaulted while he was in custody.4(
Article 13(1) of the Constitution provides as follows :
“No person shall be arrested except according to procedure
established by law. Any person arrested shall be informed of the
reason for his arrest.”
The 6th respondent has not revealed the reasons for the arrestof the petitioner. He has taken the position, as referred to earlier,that he was handed over to him only on 22.05.2001.
The 1st respondent, who had initially taken the petitioner intocustody, did not make any submissions nor has he tendered anywritten submissions. The two detention orders (6R5 and 6R5A), 5(issued by the Deputy Inspector General of Police for Wanni Range,regarding the petitioner stated as follows:
“A member of the LTTE who had received training in the use of
arms and thereby committed an offence punishable under
qqKoneshalingam v Major Muthalif229
(Shirani Bandaranayake, J.)
Regulation 3(a) of the Emergency Regulations published in the
Government Gazette Extraordinary, bearing No. 1012/16 of
27.01.1998.”
However, it is to be noted that they were issued only on
and 21.06.2001, respectively and that the petitionerwas taken in to custody on 19.04.2001. Amerasinghe, J., inVinyagamorthy, AAL (on behalf of Wimalenthiran) v The ArmyCommander and others has held that, in deciding whether thearrest was in accordance with the ‘procedure established by law’,the matter in issue is not what subsequent investigations revealed,but whether at the time of the arrest the person was committing anoffence, or that there were reasonable grounds for suspecting thatthe person arrested was concerned in or had committed anoffence.
In the instant case, although the detention orders refer to thepetitioner as “a member of the LTTE”, no material was producedbefore this Court to show that at the time of the arrest of thepetitioner, the arresting officers had such information prior to thedecision to arrest the petitioner. The 6th respondent’s version onlyrelates to the position after he was handed over to his custody onor about 22.05.2001. The silence of the 1st respondent and hisofficers and the non-availability of any material indicating thereasons for the arrest of the petitioner, only leads to the conclusionthat, no acceptable reasons were available at the time he wasarrested.
It appears that the petitioner was taken into custody on vaguesuspicion, without there being any reasonable grounds for sucharrest. The arresting officer could not have possibly informed thepetitioner the reason for his arrest.
I therefore hold that the petitioner’s fundamental rightguaranteed under Article 13(1) of the Constitution was violated.
The respondents have not disputed the date of arrest. Theirposition is that the petitioner was kept in the custody of the JOOSPArmy Camp until 21.05.2001 on which date he was handed over tothe Special Investigation Unit, Vavuniya. The 6th respondent, whois the OIC of the said unit, submitted that immediately afterconcluding the investigations of 25.05.2001, the petitioner was
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produced before the Magistrate, Vavuniya and two detention ordersreferred to above and dated 22.05.2001 (6R5) and 21.06.2001(6R5A) were issued for 30 days and 28 days respectively.
In the circumstances, it is evident that the petitioner was kept incustody from 19.04.2001 to 22.05.2001, without producing himbefore the magistrate. No material was produced before theCourt to indicate that there was a valid detention order to detainhim during this period. Article 13(2) of the Constitution providesthat,100
“Every person held in custody, detained or otherwise deprived ofpersonal liberty shall be brought before the judge of the nearestcompetent Court according to procedure established by law;and shall not be further held in custody, detained or deprived ofpersonal liberty except upon and in terms of the order of suchjudge made in accordance with procedure established by law.”
The established procedure regarding persons arrested,according to section 37 of the Code of Criminal Procedure Act, isas follows:
“Any peace officer shall not detain in custody or otherwise noconfine a person arrested without a warrant for a longer periodthan under all the circumstances of the case is reasonable, andsuch period shall not exceed twenty-four hours exclusive of thetime necessary for the journey from the place of arrest to theMagistrate.”
It is not disputed that no detention order was issued until
and admittedly the petitioner was kept in custody from
until 22.05.2001, without a valid detention order. Hewas produced before the Magistrate only on 26.06.2001.
In the circumstances, I am of the view that the detention of the 120petitioner for a period of over one month without a valid detentionorder is in violation of the petitioner’s fundamental right guaranteedby Article 13(2) of the Constitution.
The petitioner complained of torture during the period he was indetention, initially at the JOOSP camp and later at the SpecialInvestigation Unit, Vavuniya. Based on an order made by this
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Court, the petitioner was examined by the Assistant Judicial
Medical Officer, Colombo on 13.11.2001. The relevant contents of
the Report given by the Medical Officer is reproduced below:
“Examination of Scars of the Injuries130
Obliquely placed scar (4 x 1/4") on the back of the rightshoulder.
Obliquely placed scar (3 x 1/4") on the back of the leftshoulder.
Obliquely placed scar (7 x 1/4") on the back of the rightshoulder.
Obliquely placed scar (7 x 1/4") on the back of the leftshoulder.
Obliquely placed scar (4 x 1/4") on the back of the lower part
of the back of the chest, left side.140
Obliquely placed scar (6 x 1/4") on the lower part of the backof the chest right side.
Obliquely placed scar (5 x 1/4") on the back of the chest andloin on left side.
Transversly placed scar (5 x 1/4") on the right loin.
Circular bum scar (3/4 in diameter) on the dorsum of the rightwrist.
Circular burn scar (1/4 in diameter) on the dorsum of the righthand.
Circular burn scar (1/4 in diameter) on the dorsum of the right 150index finger.
Circular burn scar (1/4 in diameter) on the dorsum of the rightring finger.
Two burn scars (1/4 in diameter) on the right palm.
Circular burn scar (1/4 in diameter) on the right thigh laterally.
Two circular burn scar (each 1/4 in diameter) on the middleof the right thigh.
Circular burn scar (1/4 x 1/4) on the dorsum of the right foot.
Scar (3/4 x 1/2") on the middle of the right leg.”
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It is to be noted that the AJMO has not referred to the probable 160:period of time the assault on the petitioner would have taken place.However, in concluding the Report, the AJMO stated that,
“Scar No. (1) to (8) and 17 were not inconsistent with caused byblunt weapons (sic)
Scar No. (9) to (16) were consistent with history of burns withcigarette butts.”
The 6th respondent submitted that the petitioner was producedbefore the Medical Officer of the Base Hospital, Vavuniya on
Although detailed descriptions are not available, thatMedical Officer too, has referred to the presence of a number of 170:scars on the petitioner, at the time of the physical examination.
Admittedly, the petitioner was in the custody of the JOOSP ArmyCamp and the Special Investigation Unit for a period of over twomonths. Except for the injury he had sustained a few years earlier,which cost him his lower left limb, there is no evidence to indicatethat he had any injuries at the time of his arrest. This fact, combinedwith the observations of the AJMO, in my view, substantiate theversion of the petitioner that he was assaulted while beinginterrogated by the officers of the Special Investigation Unit.
For the aforementioned reasons, I hold that the petitioner’s 1 so:fundamental rights guaranteed by Articles 11, 13(1) and 13(2) wereviolated by the officers attached to the 6th respondent’s office. Iaccordingly, direct the State to pay to the petitioner a sum of Rs.15,000/- as compensation and costs. This must be paid within threemonths from today.
SARATH SILVA, C.J. -I agree.
EDUSSURIYA, J.-I agree.
Relief granted.