SERGEANT SUGATHADASA AND SEVEN OTHERS
COURT OF APPEAL.
C.A. 39/90HABEAS CORPUSOCTOBER 26, 1995JANUARY 15, 1997.
Writ of Habeas Corpus – Arrested by Police – Whereabouts not known – Deniedarrest and custody – Doubt regarding identity of the respondents – Exemplarycosts.
Having regard to the evidence available it has been clearly established thatthe 1 st and 2nd respondents were responsible for the arrest of the corpus andthat the 4th respondent was the officer-in-charge of the Police Station.
Per Yapa J.
‘The Rule of Law, the freedom and the safety of the subject would be completelynullified, if any person in authority can cause the disappearance of an individualwho has been taken into custody and then deny arrest or any knowledge of theperson arrested."
In the circumstances, the arrest and the detention of the corpus falls into thecategory of cases where a person who has been arrested detained by theauthority has disappeared thereafter.
APPLICATION for a writ of Habeas Corpus.
Case referred to:
1. Sebastian M. Hongray v. Union of India – 1984 1 AIR SC 1026
A. A. de Silva with Nimal Punchihewa, M. Balalla and Jayalath Hissella for thepetitioner.
A. Wengappuli S.C., with P. Kumaratnam S.C., for respondents.
Cur. adv. vult.
This is an application for a writ of Habeas Corpus, filed by thepetitioner in respect of W. Nandasiri Fonseka. The petitioner is the
mother of the corpus. According to the petitioner the corpus wasarrested on 12.09.89 by some officers of the Kalutara North Policestation and the Pofice party included the 1st and the 2nd respondents.After the arrest of the corpus, he was detained at the police stationwhere the 4th respondent was the Officer-in-charge, till 16.09.89 andthereafter, the whereabouts of the corpus was not known
After this Habeas Corpus application was filed, notice was issuedon the respondents on 22.08.90 ordering them to produce the corpusbefore this Court. Thereafter the 1st, 2nd, 3rd and 4th respondentsfiled their affidavits dated 21.12.90 denying the arrest and alsohaving the custody of the corpus. In the circumstances on 20.03,91this application was referred to the Magistrate of Kalutara for inquiryand report, in terms of the proviso to Article 141 of the Constitution.The learned Magistrate of Kalutara who held the inquiry has sent hisreport which is filed of record, in his report he has stated that therewas a doubt in regard to the identity of the respondents who took partin the arrest of the corpus, but however he has held that havingregard to the totality of the evidence, it has been established that thecorpus had been at the police station from 12.09.89 to 17.09.89.
This Court having considered the material available against therespondents, the findings of the Magistrate, and the submissionsmade by Counsel on 26.10.95, issued a rule nisi on 29.05.96 againstthe 1st, 2nd, 4th and 5th respondents directing them to produce thecorpus before this Court or that any information regarding hiswhereabouts be furnished to this Court on 31.07.96. Thereafter, timewas obtained on behalf of the said respondents on several dates tofile their affidavits and on 02.12.96 an affidavit was filed on behalf ofthe 4th respondent and on 08.01.97 an affidavit was filed on behalf ofthe 1st respondent, denying the arrest of the corpus. ThereafterCounsel for the petitioner and for the respondents madesubmissions, referring to the findings of the learned Magistrate andthe denial of arrest repeated in the subsequent affidavits filed by the1st and 4th respondents, it was also brought to notice of Court thatthe 2nd respondent in this application was dead.
The facts relating to the arrest and detention of the corpus are asfollows:-
In the affidavit filed by the petitioner, she has stated that the 1st,2nd and 3rd respondents were responsible for the arrest anddetention of the corpus and that the 4th respondent was the officer incharge of the Police station, where the corpus was detained from
to 16,09.89. She has specifically referred to the presence ofthe 1st respondent at the time of the arrest of the corpus. When shegave evidence before the Magistrate at the inquiry, she has statedthat the 1st and the 2nd respondents came to arrest the corpus on
at about 3.00 a.m. and at that time a lamp was burning inher house. She further stated that she visited the Kalutara NorthPolice station in the morning at about 6.00 or 6.30 with her daughterand other members of her family and gave meals to the corpus. Shehas said on that occasion she saw the corpus seated on a bench atthe rear side of the Police station and that the corpus was handcuffedwith another. In her evidence, she has referred to the presence ofRani Silva, Gratian and Ajith at the Police station. She has also statedin detail how she went to the Police station carrying food andmedicine to the corpus from 12th to the 15th September, 1989, andthat on the 16th, the corpus was not there, and they were told that thecorpus was taken to Boosa to record a statement. It has been herevidence that the 3rd respondent was not in the police party whichcame to arrest the corpus. Petitioner’s position was that the 3rdrespondent was included in her affidavit as a person who came toarrest the corpus, since the mother of another person who wasarrested along with her son, had stated to her lawyer that the 3rdrespondent was present.
The daughter of the petitioner has given evidence and stated thatshe identified the 1st respondent as one of the persons who came toarrest the corpus. She has also stated that she could not identify theothers in the police party. Her position has been that she knew the 1strespondent before and that there was a light burning in her house atthe time of the arrest. She has further stated that she visited thePolice station with her mother taking meals to her brother (the corpus)and that she has seen him at thq) Police station from 12.09.89 to16.09.89. She has said on 17.09,89 she found that her brother, wasnot there at the Police station and they were toid the corpus wastaken away to record a statement,
The third witness, Morin Fernando has given evidence and statedthat on the night of 11.09.89 a Police party came in a van to thehouse where she was staying and at that stage she identified the 1stand the 2nd respondents. Thereafter, she has stated that she wastaken with her aunt to her house and then from there to her sister’shouse where they were dropped. She has said later when they werereturning home at about 5.30 a.m., she came across the said van inwhich she had seen the corpus, Gratian and Ajith, along with the 1stand the 2nd respondents. This witness has said, when he visited thePolice station in the morning of 12.09.89 she has seen Gratian, Ajith,Rani, his brother Saman and the Corpus at the Police station. Herposition has been that on 12.09,89 in the afternoon Gratian and Ajithwere released. She has also stated that when she visited the Policestation on several dates to see her brother, she had seen the corpusat the police station with her brother until 17.09.89, when she foundthat both of them were not there. Therefore, the evidence of thiswitness corroborates the evidence given by the petitioner and herdaughter Malanee Fonseka with regard to certain matters.
When the evidence of the petitioner, her daughter and MorinFernando is considered in their totality, it establishes clearly the factthat the 1st and the 2nd respondents were responsible for the arrestof the corpus on 12.09.89, and thereafter, the corpus had beendetained at the Police station where the 4th respondent was theofficer in charge, from 12.09.89 to 16.09.89. Further, I find that thereis no reason to disbelieve the evidence given by these witnesses. Onthe other hand the respondents did not give evidence and they reliedon the affidavit filed by them in the Court of Appeal denying the arrestof the corpus. In addition, they had filed three affidavits from AjithDharmatillake, W. Gratian and Rani Silva who stated in their affidavitsthat when they were at the Kalutara Police station, the corpus andone Saman Fernando were not detained there. It appears that theMagistrate has not acted on these affidavits. Further, in my view, it isnot possible to act on these affidavits, as they do not reveal the dateon which the said Dharmatillake, Gratian and Rani Silva were at thePolice station but merely refer to flie month of September 1989.
Therefore, in this case, considering the evidence that is available,it is difficult to understand how the learned Magistrate came to theconclusion that there was some doubt with regard to the identity ofthe respondents who participated in the incident of arresting thecorpus. In my view, having regard to the evidence available, it hasbeen clearly established that the 1st and the 2nd respondents wereresponsible for the arrest of the corpus and that the 4th respondent
was the officer in charge of the Police station, when the corpus wasdetained there from 12.09.89 to 16.09.89. It was the 4th respondent’sresponsibility to see that persons who were arrested and detained atthe Police station were safe. The Rule of Law, the freedom and thesafety of the subject would be completely nullified, if any person inauthority can cause the disappearance of an individual who hasbeen taken into custody and then deny arrest or any knowledge ofthe person arrested.
In the circumstances, the arrest and the detention of the corpusfalls into the category of cases where a person who has beenarrested and detained by the authorities has disappeared thereafter.In such a situation the question of an appropriate order that shouldbe made was considered by this Court in H.C.A. 164/89, 171/89 and166/89 decided on 02.12.94. In those applications it was decided byCourt that the decision of the Indian Supreme Court in the case ofSebastian M. Hongray v. Union of India^ should be followed andexemplary costs ordered against the respondents who have failed toaccount for the detention of the corpus. I therefore adopt in this casethe reasons stated in the Judgment dated 02.12.94 referred to aboveand direct the 1st,and the 4th respondents to pay a sum ofRs. 25,000/* each as exemplary costs to the petitioner on or before
Since the 2nd respondent is now dead, I make no orderagainst him. If these amounts are not paid by the 1st and the 4threspondents as directed, further action will be considered in thismatter as to contempt of Court. I also direct the Registrar of this Courtto forward copies of the proceedings recorded in the Magistrate'sCourt to the Inspector General of Police who is hereby directed toconsider the evidence recorded as information of the commission ofa cognizable offence. He will take necessary action to conductproper investigations and to take steps according to law. TheRegistrar is also directed to forward a copy of the proceedings withthis judgement to the Hon. Attorney General for appropriate action tobe taken by him. The petition is accordingly allowed with costs to bepaid as stated above by the 1st and the 4th respondents.
MURIN FERNANDO v. SERGENT SUGATHADASA AND SEVEN OTHERS