041-SLLR-SLLR-2006-V-1-LEELAWATHIE-vs.-SUNDARALINGAM-HEAD-QUARTERS-INSPECTOR-OF-POLICE-MIRIHANA.pdf
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LEELAWATHIEvs.
SUNDARALINGAM, HEAD QUARTERS INSPECTOROF POLICE, MIRIHANA AND OTHERSCOURT OF APPEALBALAPATABENDI, J„ AND
IMAM, J.,
CA/H. C. A. 65/90
Writ of Habeas Corpus – Ingredients – Prerogative writ of right – Violation offundamental rightp – Constitution, Articles 126(1), 126(2) and 126(3) – Detentionunlawful – Reference to Supreme Court – Instances – Can it be done?
CA
Leelawathi vs. Sundaralingam and others (Imam, J.)
327
The petitioner sought a writ of habeas corpus directing the respondents toproduce the 11th respondent her son and a declaration that the arrest anddetention are unlawful.
The matter was referred to the Chief Magistrate's Court for inquiry andreport.
The finding of the Chief Magistrate was that it had been established byevidence that the corpus was arrested by the Police,, shot dead by the Policeand the body of the corpus later cremated. This was during a period ofnationwide unrest and emergency.
HELD:
To succeed in a writ of habeas corpus, the petitioner would have toprove that the corpus had been illegally or unlawfully arrested anddetained by the respondents: in this case, the arrest is admitted anddetention is also within the law as a detention order had been obtained.
It is only if the detention is not proved to be lawful that a writ of habeacorpus is issued.
The writ of habeas corpus is a prerogative writ of right which issues exdebit justitae when the applicant has satisfied the court at the conclusionof the inquiry that the detention is unlawful.
As to the application that this matter be referred to the Supreme Court under
Article 126(3) —
HELD FURTHER:
1. If a person who alleges that his fundamental rights have been violatedfails to comply with Articles 126(1) and (2) he cannot smuggle thatquestion into a writ application in which relief is claimed on differentfacts and grounds.
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2. The evidence does not reveal any violation of the fundamental rights ofthe petitioner. The arrest and the detention of the corpus had beenmade in conformity with the law. The petitioner is endeavouring to obtainrelief available to her under Article 126(1) in this application after alapse of more than 14 years which is unreasonable.
APPLICATION for a writ of habeas corpus.
Cases Referred to:
Juwanis v. Lathiff, Police Inspector S. T. F. and others (1988) 2 SriLR 185
Shanthi Chandrasekeran v. D. B. Wijetunga and others (1992) 2 SriLR 299
R.S. Weerawickrama for petitioner
Nalini Kaneshayogan for 1 st petitioner
Saliya Peiris for 2nd respondent.
S.K. Wickramarachchi, State Counsel for 9th and 10th respondents.
January 20,2006S. I. IMAM, J.
The Petitioner instituted this action by a Petition dated 01.11.1990seeking a Mandate in the nature of a Writ of Habeas Corpus directing the1st to 9th Respondents to produce the 11 th Respondent namelyWeragodage Jayarathna her son the corpus in this case, and a Declarationthat the arrest and detention of the 11th Respondent and/or theirsubordinates is unlawful. The matter was thereafter referred by this Courtto the Chief Magistrate’s Court of Colombo for inquiry and report. Theaforesaid report is in respect of the 11 th Respondent in this application.
Consequent to the Inquiry, the learned Chief Magistrate of Colombosubmitted a Report to this Court dated 24.01.2003 after inquiry into therelevant circumstances and available evidence. As the learned ChiefMagistrate of Colombo has observed, November 1989 during which periodthe 11th Respondent is alleged by the Petitioner to have been arrested
CA
Leelawathi vs. Sundaralingam and.others (Imam, J.)
329
and detained by the Sri Lanka Police was during a period of nationwideunrest and emergency. The general public, public institutions, public andprivate property, state officers and members of the armed forces and policewere under grave threat and danger.
The Petitioner in her evidence before the learned Chief Magistrate ofColombo stated that on 02.11.1989 the corpus was taken away by the2nd to 6th Respondents, and that she visited the corpus on severaloccasions at the Mirihana Police Station. She thereafter was informedthat the corpus had been taken to the Athurigiriya Police Station whereshe visited the corpus, but since 24.12.1989 she had not seen the corpus.She further stated that she was informed by the Police that the corpushad escaped from the Police. The 1st Respondent Sundaralingam theHQI of Mirihana stated that after the corpus was arrested on 09.11.1989by several Police Constables namely PCs 18565,7104,2606 and 22575he was kept under detention orders at this Police Station until 01.12.1989,and thereafter for security reasons and on the instructions of the ASP,Mirihana the corpus was transferred to the Athurigiriya Police Station andkept there under Detention Orders.
IP Vijitha Gunarathna in his evidence said that he was assigned to takeaway the corpus and three others from Athurugiriya to be detained at theDetention Camp at the race course, and while being taken away atKoskandawala the persons they were taking including the corpus hadescaped from their custody.
The 2nd Respondent in his evidence stated that while proceeding towardsAthurugiriya he saw a group of persons moving in a suspicious mannerwho threw an object about 25 meters away which exploded. The 2ndRespondent explained that thereafter they fired, and subsequently found 4dead bodies of the group. He said that IP Vijitha Gunarathna identified thebody of the corpus among the dead persons. Subsequently SP AnuraSenanayake giving evidence testified how IP Vijitha Gunarathna identifiedthe body of the corpus and in accordance with the necessay order givenunder the Emergency Regulations the body of the corpus was cremated.
The finding of the learned Chief Magistrate was that it had beenestablished by the evidence of the Respondents who gave evidence that
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the corpus was arrested by the Police, shot dead by the Police, and thebody of the corpus later cremated.
For the Petitioner to succeed in a Writ of Habeas Corpus and a RuleNisi to be issued, the Petitioner would have to prove that the corpus hadbeen illegally or unlawfully arrested and detained by the Respondents. Inthis case the arrest is admitted, and detention is also within the law asdetention orders had been obtained. In the case of Juwanis vs. Lathiff,Police Inspector Special Task Force and others(,) it was held that it isonly if the detention is not proved to be lawful that a Writ is issued. It wasfurther held that the Writ of Habeas Corpus is a prerogative Writ of rightwhich issues “ex debit Justitiae” when the applicant has satisfied theCourt at the conclusion of the inquiry that the detention is unlawful.
In accordance with the evidence led before the learned Chief Magistratethe respondents having admitted the arrest of the corpus have also justifiedthe said arrest by tendering the relevant arrest notes and the orders pertainingto the arrest of the corpus. The Petitioner has sought an order in herwritten submissions from this court referring this application to the SupremeCourt to detemine any violations of the Petitioner’s Fundamental Rights.However in accordance with Article 126(3) of the Constitution an applicationfor. Writs of Habeas Corpus can only be referred to the Supreme Courtonly if it appears to this Court that there is prima facie evidence of aninfringement or imminent infringement of fundamental rights. In the case ofShanthi Chandrasekaram vs. D.B. Wijetunga and others<2> it was held byhis Lordship Mark Fernando J. that “Article 126(1) confers sole and exclusivejurisdiction in respect of infringement of fundamental rights. Article 126(2)prescribes how that jurisdiction may be invoked. Article 126(3) is not anextension of or exception to those provisions; if a person who alleges thathis fundamental rights have been violated fails to comply with them, hecannot smuggle that question into a writ application in which relief is claimedon different facts and grounds, and thereby seek a decision from theSupreme Court. The evidence led before the learned Chief Magistrate ofColombo and the affidavits filed before this court do not reveal any violationof the fundamental rights of the Petitioner. The arrest and the detentionof the corpus had been made in conformity with the law. The Petitioneris endeavoring to obtain reliefs available to her under Article 126(1) inthis application, after a lapse of more than 14 years which is unreasonable.
CA
Vyapuri vs. Abuthahir (Somawansa, J. (P/CA))
331
It is my view that the arrest and detention of the corpus have beenmade in accordance with the law, and is thus lawful. The Petitioner hasnot satisfied this Court that at present the corpus is in the custody orcontrol of the Respondents, nor has the Petitioner made out a prima faciecase. The corpus died as a result of confrontation with the Respondentsas borne out by the evidence at the inquiry in the Magistrate’s Court.
For the aforesaid reasons as the allegations of the Petitioner haveno merit, I dismiss the application of the Petitioner without costs.
BALAPATABENDI, J. — I agree.
Application refused.