Jayatillake and Another v. Kaleel and Others (Kulatunga J.)
MATURATA AND OTHERS
AMERASINGHE, J. ANDDHEERARATNE, J.
S.C. APPLICATION NO. 87/94OCTOBER 11TH, 1994.
Fundamental Rights – Arrest and Torture – Constitution, Articles 11 and 13(1),
Where there were sufficient grounds for suspecting that a cognizable offence hadbeen committed by the petitioner, his arrest without a warrant was in accordancewith procedure prescribed by the Code of Criminal Procedure and therefore not Inviolation of Article 13(1) of the Constitution.
Where the medical evidence of the injuries found on the petitioner was consistentVith the version of the Police that they had been sustained in the process of theuse of reasonable force in making the arrest, it cannot be said that a violation ofhis rights under Article 11 of the Constitution has been established.
APPLICATION for violation of fundamental rights guaranteed under Articles 11and 13( 1) of the Constitution.
Sri Lanka Law Reports
[1994} 1 Sri L.R.
A H. H. Patera for petitioner.
Asoka Weerasooriya for 2nd, 4th and 5th respondents.Kumarasiri for 3rd and 6th respondents.
Kolitha Dharmawardena SSC, for 1st, 7th and 8th respondents.
November 7th, 1994.
On 31st March 1994, this Court granted the petitioner leave toproceed in respect of the alleged infringement of Articles 11 and13(1) of the Constitution.
On 22nd February 1994, the petitioner and one Weeraratnaboarded a bus sometime after 7.35 p.m. and assaulted the thirdrespondent, a police officer, who was travelling home after work. Thereason for the assault was that the petitioner, who was intoxicated atthe time, had been provoked at the sight of the third respondent whohad sometime before arrested the petitioner on a complaint ofmischief in respect of which proceedings were pending in theMagistrates Court of Negombo. Having got off the bus, the thirdrespondent complained of the incident to two police officers whowere on duty close by and proceeded by taxi to the Negombo PoliceStation and made a complaint. The third respondent, latercomplained of the incident to the officer in charge of the PoliceStation, the first respondent who no doubt would have seen the injurycaused. On the advice of the first respondent, the third respondentpresented himself for examination before the District Medical Officerwho certified that the third respondent had a contusion. The fact thatthe third respondent was injured is borne out by the notes of thepolice officers who investigated his complaint, for they recordedobserving blood stains on the clothes of the complainant. It is alsosupported by Weeraratne who said that he joined the petitioner in the#assault. There was sufficient evidence to establish the fact that thepetitioner assaulted the third respondent.
Although Weeraratne had been arrested by the officers to whomthe third respondent had complained soon after the incident, the
Lucas Appuhamy v. Maturata and Others (Amerasinghe, J.)
petitioner had not been arrested. The first respondent, therefore,ordered his arrest. The arrest was made by a police party comprisingth§ second, fourth, fifth and sixth respondents on the basis of thecomplaint made by the third respondent.
Since there were sufficient grounds for suspecting that acognizable offence had been committed by the petitioner, his arrestwithout a warrant was in accordance with the procedure prescribedby the Criminal Procedure Code and was therefore, not in violation ofArticle 13(1) of the Constitution.
When the sixth respondent informed the petitioner that he wasfrom the Police, the petitioner attempted to flee and in doing sostumbled against a coconut stump and fell into a pit which was aboutfour feet deep. The production of a plan made by a surveyor in 1969showing paddy lands in the area did not refute the version of thepolice.
When the police party “pounced on him”, the petitioner offeredresistance and “minimum force" had to be used to bring him undercontrol. He was soon afterwards produced before a medical officerwho certified that the petitioner was under the influence of alcoholand that he had sustained abrasions. On the directions of this Court,the District Medical Officer, Negombo, examined the petitioner on23rd February 1994. The D.M.O. confirmed the fact that the petitionerhad sustained abrasions. In addition, he reported the existence of “asimple fracture of the radius and ulna left side". No complaint wasmade to the medical officer who first examined him with regard to theinjury to the arm. The sixth respondent suggests that the petitionerwas at the time too intoxicated to feel any pain. The petitioner hassubmitted photographs of himself purporting to show the injuriesinflicted on him. However, apart from the plaster cast on his arm, themarks depicted in the photograph have not been interpreted: Werethey lacerations, abrasions, medication or some other substanceapplied for the purpose of the photographs? In any event, thephotographs have not been authenticated, and, therefore they are ofno probative value.
Sri Lanka Law Reports
 1 Sri LR.
The injuries reported are more consistent with the fall into the pitand/or the use of minimum force to effect the arrest, than with theseveral sessions of brutal assault alleged by him. The petitioner’sstory that he was "divested” of his sarong and that the members of thePolice party "sported themselves by pouring hot tea on my body", isnot borne out by the medical evidence. The petitioner was obviouslyexaggerating and reduced the credibility of his version of his injuriesand how he came by them. The petitioner was a Bus Conductor in thePeoplised Road Transport Service of Negombo. The petitioner wasreleased on bail and handed over to the custody of two officers of theRoad Transport Service for which he worked. In their statements to theAssistant Superintendent of Police, no reference is made by the twoofficers with regard to the alleged assault.
In my view, the petitioner has simply sustained certain Injuries inthe process of the use of reasonable force in making the arrest andhe has failed to establish that his rights under Article 11 of theConstitution were violated.
For the reasons explained in my judgment, I declare that there hasbeen no violation of Article 13(1) or 11 of the Constitution andtherefore dismiss the application.
FERNANDO, J. -1 agree.DHEERARATNE, J. -1 agree.