031-SLLR-SLLR-1997-V3-NALIKA-KUMUDINI-ATTORNEY-AT-LAW-ON-BEHALF-OF-MALSHA-KUMARI-v.-NIHAL-MAH.pdf
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Nalika Kumudini, Attorney-at-law, (on behalf of Malsha Kumari)
v. Nihal Mahinda, O.I.C. Hungama Police and Others
331
NALIKA KUMUDINI, ATTORNEY-AT-LAW,
(ON BEHALF OF MALSHA KUMARI)
v.
NIHAL MAHINDA, O.I.C. HUNGAMA POLICE AND OTHERS
SUPREME COURT.
FERNANDO, A.C.J.,
DHEERARATNE, J. ANDANANDACOOMARASWAMY, J.
S.C. APPLICATION (F.R.) NO. 615/95OCTOBER 30,1996, AUGUST 28,1997.
Fundamental rights – Articles 11, 13(1) and 13(2) of the Constitution – Effectiverelief for infringement of rights – Redress by way of compensation.
Malsha Kumari a 14 year old girl was arrested at her house by police officers ofthe Hungama Police Station. She was questioned about the theft of a gold chainand assaulted by Police Officers both at the time of her arrest and at the PoliceStation. The 1st respondent, officer- in-charge of the Police Station, assaulted herwith a hose-pipe and trampled her. Thereafter her hands were tied behind herback and she was hung on a tree with a rope. While she remained hung the 1strespondent beat her with a hose-pipe. Four other officers joined in the assault.She sustained injuries on her body and the spine. She also had injuries on bothwrists caused when she was tied and hung.
Held:
The arrest and detention of the girl without producing her before a Magistratewere unlawful and that she was also subjected to torture. The 1st respondentacquiesced in and condoned the said acts which infringed her rights underArticles 11, 13(1) and 13(2) of the Constitution.
In all the circumstances, the petitioner came 1o court within a month ofbecoming free of the disability caused by the infringement of her rights.Hence, her application was not time-barred.
per Fernando, A.C.J.
‘In many cases in the past this Court has observed that there was a need forthe Inspector-General of Police to take action to prevent infringements offundamental rights by Police Officers, and where such infringements neverthelessoccur, the Court has sometimes directed that disciplinary proceedings be taken.The response has not inspired confidence in the efficacy of such observationsand directions, and persuades me that in this case compensation is theappropriate remedy’.
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Cases referred to:
Lakshman v. Fernando, S.C. 324/90 S.C. Minutes 29th September, 1995.
Premadasa v. Officar-in-Charge of the Hakmana Police S.C. 127/94 S.C.Minutes 10 March, 1995.
APPLICATION for relief for infringement of fundamental rights.K. Thiranagama for the petitioner.
Gamini Perera for the 1st respondent.
D. Ratnayake, S.C. for the 2nd and 3rd respondents.
Cur. adv. vuit.
September 24, 1997.
FERNANDO, ACJ:
This application was filed on 9.11.95 by an Attorney-at-Law (“thecomplainant Attorney”) on behalf of a 14 year old girl, whom I willrefer to as the petitioner, alleging torture, unlawful arrest anddetention on 5.9.95, contrary to Articles 11, 13(1) and 13(2), byofficers of the Hungama Police, including the 1st respondent, HieOfficer-in-Charge.
The original petition, and the supporting affidavit of thecomplainant Attorney, were prepared on the basis of a letter dated
purportedly signed by the petitioner's father, to Lawyers forHuman Rights and Development (“LHRD”). That letter had beenposted on 30.10.95, and had been received on 1.11.95.
On 15.11.95 this Court (G. P. S. de Silva, CJ, Kulatunga, J, andWadugodapitiya, J.) made the following order:
‘We are of the opinion that the delay can be excused and theapplication has been made in time. However we inform(Counsel) that he must take steps to have the minor properlyrepresented before proceeding with this application. Moreover,
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admissible evidence should also be furnished. … support … on
"
On 16.1.96, Counsel stated that LHRD had not been able to obtainan affidavit from the petitioner (as required by the order of 15.11.95),and that consequent upon letters written to the petitioner's father hehad informed LHRD by telephone that they did not wish to proceedwith the application because the Police Officers had asked forpardon and agreed to pay the costs. He therefore moved to withdrawthe application. This Court (Fernando, J, Amerasinghe, J, andSilva, J.) said:
‘Having regard to the serious allegations of torture set out in thepetition, which are supported by the complaint made on 6.9.95(the contents of which Counsel has read out to the Court), the factthat the minor had been hospitalized for several days andcontinues even now to receive medical treatment, and the fact that- among other things – it is alleged that the sight of one eye hasbeen impaired and that she has not attended school since theincident, and, in particular, the fact that Counsel himself states thathe feels that the father's wish to withdraw this application wasbecause of pressure, we do not allow the withdrawal of theapplication."
I would add that since an Attorney-at-Law had filed that petition onbehalf of the minor petitioner (not assisted by a guardian-ad-litemappointed by the Court), I doubt whether a third party even if he wasthe father of the minor had the right to give instructions for itswithdrawal.
Accordingly, leave to proceed was granted, medical records andreports were called for, and the petitioner was granted permission tofile additional documents, including the statement she had made on6.9.95, and the instructions which the Petitioner and her father hadgiven LHRD.
The Court also directed the 2nd respondent:
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'…to ensure that neither the minor nor the other members of herfamily are subjected to any harassment or interference by thePolice, particularly the Hungama Police, and also to take allreasonable steps for the protection of the minor and the othermembers of her family."
On 24.1.96 the petitioner tendered photocopies of the instructionsgiven to LHRD by the petitioner and her mother (X2 and X3), a copyof the statement she made to the Tangalla Police on 6.9.95 (X4), andthe draft affidavits prepared by LHRD in accordance with theinstructions of the petitioner and her mother (X5 and X6, both datedDecember 1995).
Thereafter the 1st respondent filed his counter-affidavit dated
annexing affidavits from the petitioner’s father (1R2),Dodangodage Hinniappuhamy (1R4), Dodangodage Kirthiraja (1R5).and PS Sumanapala (1R1, to which were annexed several statementsrecorded by him on 5.9.95). The petitioner’s father said that thesignature on the letter dated 1.10.95 was not his.
The complainant Attorney’s counter-affidavit dated 6.5.96 was thentendered. She stated that on 20.11.95 the petitioner and her motherhad visited the LHRD office in Colombo, and had given instructionsfor the preparaion of their affidavits (i.e. X5 and X6), but had notcome to sign them; and that a few days thereafter the mother hadinformed LHRD by telephone that they did not wish to pursuethe matter.
On 8.10.96, with notice to the respondents, the complainantAttorney tendered affidavits signed by the petitioner and her mother,and an application for the appointment of the Petitioner's mother asher guardian-ad-litem. In those affidavits the Petitioner and hermother affirmed to the truth of the averments contained in the draftaffidavits (already filed as X5 and X6 respectively) which, they said,had been prepared on their respective instructions. Both stated thatthey had not come to the LHRD office to sign those draft affidavitsbecause of threats and intimidation by the 1st Respondent and otherPolice officers from Hungama.
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SC v. Nihal Mahinda, O. I.C. Hungama Police and Others (Fernando. ACJ) 33$
On 30.10.96 the Court appointed the mother as guardian-ad-litem.The 1st respondent did not seek to file any affidavit in reply to theaffidavits filed on 8.10.96. No complaint was made, then or later, byCounsel of any lack of opportunity to controvert those affidavits. Theapplication was taken up for hearing, but not concluded, on that day;and for various reasons, it could not be resumed until 28.8.97.On 30.10.96 learned Counsel for the petitioner alleged that shewas being harassed by the 1st Respondent by means ofcertain proceedings filed in MC Hambantota 25528, and theCourt directed the learned Magistrate not to take any furtherproceedings pending the final determination of this application, andcalled for the record.
THE PETITIONER’S CASE
In these circumstances, neither the letter dated 1.10.95 nor theoriginal affidavit of the complainant Attorney, in so far as it was basedon that letter, can be relied on. The direct evidence in support ofthe petitioner’s case thus consists of the affidavits of her motherand herself filed on 8,10.96, and the draft affidavits marked X5 andX6 the truth of which they confirmed, thereby adopting them as partof their sworn affidavits. In the circumstances of this case, I considerthat the draft affidavits ought to be treated as having beenduly sworn.
Early morning on 5.9.95 the petitioner went to fetch water, On herway back she noticed a small red glass box on the side of the road;she picked it up and saw, inside it, a gold chain and “suraya" (whichI will refer to as “the chain" for convenience); and she put it back.Kirthiraja's house was adjacent, and two members of his household,who were washing clothes, had seen this. At about 9.00 a.m. twoconstables (Gamini and Sunil) came to the petitioner’s house,and inquired for her. Without even questioning her, one of themslapped her, telling her to return the things she had stolen from "that[meaning Kirthiraja's] house". She explained about the red glass box.They went and retrieved it. They then came back, and asked herto return the other things she had taken. When she said, she hadnot taken anything they dragged her to Kirthiraja’s house, and beat
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her with sticks, asking her about a sum of Rs. 10,000, twowrist-watches, three rings and two earrings. They then put her motherand her into a three-wheeler and took her to the HungamaPolice Station.
At the Police Station, the same two constables beat her with ahose-pipe; a lady officer snatched the hose-pipe, whereupon theyslapped the petitioner on both cheeks. She was then taken beforethe 1st respondent, who questioned her on the same lines, with thesame result. He then took the hose-pipe, told her to place her headon a chair, and hit her several times on the spine, asking her to returnthe articles she had stolen. She fell to the ground. The 1strespondent, who was wearing shoes, trampled her. He thenthreatened to take her, and beat her, near her school; she cried,saying that she had done no wrong. Again she was beaten with thehose-pipe, put into the jeep, and taken to Kirthiraja’s house.Her mother was not allowed to accompany her in the jeep. Her handswere tied behind her back and she was hung from a kohombatree with a rope which Kirthiraja brought. She was raised untilher head was brushing against the branches. One officer held therope suspending her, while the 1st Respondent beat her with thehose-pipe and another hit her with a thick stick; four officers joined inthis exercise. She was then lowered to the ground, put in thejeep, and brought back to the Police Station. Only then were herhands untied.
In the evening her mother came to the Police Station, but shewas scolded in filth and told that her child would not be released, andthat complaints were being recorded to file a case. That was atabout 5.45 p.m. Her mother then met Mr. Andrahennedi, an Attorney-at-Law and a member of the Southern Provincial Council, whospoke to the 1st respondent at about 8.00 p.m. Then only wasshe released. Her mother was told to come with her to the PoliceStation the next day. When she came the 1st respondent told her totake the petitioner to an ayurvedic physician, and that if she took thepetitioner to a hospital, she should say – without mentioningthe Police assault – that one of the parents had hit her for somesmall lapse.
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SC v. Nihal Mahinda, O.I.C. Hungama Police and Others (Fernando, ACJ) 337
The petitioner vomited blood twice in the early hours of themorning on 6.9.95. She was taken to the Ranna hospital, but themedical officer was not there; a private practitioner refused to treather when the mother said that she had been assaulted by the Police,but later gave her some medicine just for that day. Again at mid-dayshe vomited blood. The mother then took her to the Superintendent ofPolice, Tangalla, who asked her to make a complaint to the TangallaPolice, and gave her a chit addressed to the D.M.O. Tangalla. ThePetitioner's statement X4 was recorded at 2.45 p.m. on 6,9.95. Shewas warded at the Tangalla hospital till the 8th; and although she wasdischarged and went home, she again vomited blood on the 1.0thnight. She went back to the Tangalla hospital on the 11th, but wassent to the Matara hospital, where she was warded until the 15th. Butshe continued to have chest pains, spine ache, swelling of the kneesand the soles of the feet, lifelessness, dizziness and reduced vision,for which she took western and ayurvedic treatment for over a month.Because of the threats made by the Police, as well as her ill-healthand the humiliation she had undergone, she did not go to school.
There are some inconsistencies between the petitioner’s affidavitand her statement X4. In her statement she says that no one saw herpick up the red glass box, and she does not stay that the twoconstables retrieved the box in the morning. However, if she hadundergone even half the physical and mental ill-treatment which shealleges, lapses of memory as well as errors in communication areunderstandable.
According to the petitioner and her mother, the 1st respondentmade attempts to prevent the matter being pursued. On 5.11.95 the1st respondent and two others told the mother that she would begiven Rs. 25,000 if the complaint was withdrawn. On 7.11.95 the 1strespondent, together with five other Police officers, and oneNissanka, a Justice of the Peace, came to the petitioner’s house withgifts, and asked them to withdraw the complaint, promising to payRs. 20,000, and also to recover compensation for her by institutinglegal proceedings against Kirthiraja. Nissanka asked the petitioner’smother to sign a piece of paper which had a stamp at the bottom.When the mother wanted to read it she was told that there was noneed, and because of their insistence, she signed it without reading.
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On 9.11.95, the mother complained about this to the SP Tangalla. The1st respondent did not seek to file a further affidavit to contradict anyof these allegations.
THE 1ST RESPONDENT'S CASE
The 1st respondent relied mainly on the affidavits of Kirthiraja,Hinniappuhamy and PS Sumanapala as to what transpired at thepetitioner's house. He denied that he was present at the petitioner'shouse that evening, and that the petitioner was ever at the Policestation that day.
According to Kirthiraja’s affidavit (1R5), the chain which he woreround his neck had fallen off while he was going to the market; laterhe learnt (but he does not say from whom) that the petitioner hadpicked up the chain; he went to her house, which adjoined his, andasked for the chain. Because she did not give it, he complained tothe Hungama Police at 5.00 p.m. PS Sumanapala (and no otherofficer) went to the petitioner’s house, and questioned her; she saidthat she had not picked up the chain; he then told her to return thechain, saying there was evidence. At that stage, the petitioner’s fathersternly told her to return the chain, and gave her a blow with hishand. She ran, and she fell into a stone quarry which was in front ofthe house. They helped her out. Kirthiraja noticed that she had someminor injuries. The father then hit her several times with a stick. Shethen brought the chain which she had hidden – Kirthiraja did not giveany particulars as to how, and from where, they were brought. Heidentified the chain as his; and he therefore told PS Sumanapala thatno further investigation was necessary. About an hour and a half laterhe heard cries from the direction of the petitioner's house. He laterlearnt that this was due to the petitioner being beaten by her father:and that is corroborated by Hinniappuhamy (1R4).
PS Sumanapala’s affidavit (1R1) is extremely brief, and lacksdetail. He said that Kirthiraja complained of the loss of a chain; afterquestioning him at length, he recorded a statement at 5.00 p.m.; andleft for investigation at 5.10 p.m. without any other officer. Afterinvestigation he handed over the articles which were recovered to theowner, after identification. The owner then said legal action was not
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necessary, and so he severely warned the suspect and recorded herstatement; thus the matter was settled. He annexed the relevantstatements and notes of inquiry.
This version is contradicted in several respects. According toKirthiraja’s statement, someone (unnamed and unidentified) had toldhim that he had seen the petitioner picking up something(unspecified) from the road and going on her way. PS Sumanapaladoes not explain why – despite his claim that he questionedKeerthiraja at length – he had not probed those matters: who was theinformant, and what exactly had he seen? Why did he not try tolocate the informant and get a statement from him first? Further, in hisstatement Kirthiraja claimed to have discovered the loss at 11.00 a.m.- but there is no explanation why he had waited till 5.00 p.m. tocomplain to the Police.
Although Kirthiraja claims that the petitioner had only minor injuriesafter she fell into the stone quarry, PS Sumanapala’s notes record thatshe had sustained several injuries – contusions and abrasions on thehands and spine. How did he notice any injuries on her spine? Orwas that put in his notes because he knew that she had been hit onthe spine? It is difficult to believe that the father, despite theseinjuries, at once hit her again; and that the mother stood by, without atleast insisting on some first aid. But leaving that aside, Kirthiraja'saffidavit and PS Sumanapala’s notes state that the latter told thepetitioner that there was "evidence" that she had picked up thechain, when in fact there was not even hearsay evidence to thateffect; they also suggest that the petitioner was allowed to go alone -despite having tried to run away just a few minutes before – to bringthe chain; no mention is made of the place where it was supposed tohave been "hidden”: although that would have indicated whether thepetitioner had simply picked it up and put it back, or had dishonestlytaken it. But Hinniappuhamy tells quite a different story: that at about
p.m. he saw the petitioner, her father and Kirthiraja come to anovergrown spot, near his house, and recover something from there.
Further, PS Sumanapala’s notes record that when the chain wasbrought, he found that it had the marks mentioned by Kirthiraja; andthat was why he decided that the chain was Kirthiraja's and gave it to
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Kirthiraja, who identified it as his. But in Kirthiraja's statement noidentifying marks are mentioned.
In his affidavit the petitioner’s father did not say anything about theincidents of 5.9.95. It is not likely that he would have admitted havingseverely assaulted his own daughter, and I therefore do not regardhis silence as being inconsistent with the 1st respondent's version onthat point. However, there is no doubt that the petitioner did receiveserious injuries on 5.9.95, and if it is the 1st respondent’s position thather father was responsible, I would have expected him to havecaused that matter to be investigated with no less enthusiasm thanthe loss of Kirthiraja's chain: his failure to do so indicates that heknew that it was not the father who was responsible for those injuries.
FINDINGS
These contradictions and infirmities make it probable thatKirthiraja's and PS Sumanapala's version of the events of the eveningof 5.9.95 was not true. But there is another circumstance which to meis conclusive. The unchallenged medical evidence is that on 6.9.95the petitioner was found to have a two-inch wide injury encirclingeach wrist “like a bangle". That is totally inconsistent with the 1strespondent's version as to how she received injuries, and completelycorroborates the petitioner's claim that her hands were tied behindher back and that she was then suspended from a tree.
I therefore reject the 1st respondent's version as to those events. Ifind the petitioner’s version to be much more probable. Dueallowance being made for her state of health, a prompt complaintwas made to the Tangalla Police on 6.9.95 at 2.45 p.m., and that wasin all material respects the same as what she said in her subsequentaffidavits. The 2nd respondent, the Inspector-General of Police, hasnot tendered affidavits from the SP, Tangalla, and the appropriateofficer of the Tangalla Police, and hence this Court is not awarewhether, and if so what, steps had been taken – as indeed theyshould have been – to see whether that complaint was true, and toinstitute criminal and/or disciplinary proceedings against thoseresponsible.
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SC v. Nihal Mahinda, O.I.C. Hungama Police and Others (Fernando, ACJ) 341
PRELIMINARY OBJECTION
Despite the order made on 15.11.95, learned Counsel for the 1strespondent submitted that the petition was out of time because -even ignoring the entire period between the incident and the date ofdischarge from the Matara Hospital – the petition could have beenfiled on or after 16.9.95, but not later than 16,10.95.
The order made on 15.11.95 was ex parte, and in my opinion itwould be contrary to natural justice to deny the 1st respondent anopportunity to be heard in regard to the time bar.
Article 17 recognises that the right to institute a fundamental rightsapplication is itself a fundamental right Lakshman vs. Fernando'", forbreach of which compensation may be awarded). If an aggrievedperson delays the institution of such an application throughignorance of the law relating to the time bar, such ignorance wouldbe no excuse. However, delay for other reasons is not necessarilyfatal, as for instance where an aggrieved person is prevented <e.g.by arrest and detention, or even threats) or incapacitated {e.g. byinjury, whether resulting in hospitalization or not) from applying to thisCourt in time, where it is the alleged offender who is responsible forsuch prevention or incapacity. That must be so, because otherwise aperson who infringes the fundamental right of another can avoidliability for that infringement simply by ensuring that the victim isdetained or incapacitated for over one month. The period of onemonth prescribed by Article 126(2) is one during which theaggrieved party is not only free of such disability, but is truly free totake the steps necessary to vindicate his legal rights. The furtherquestion may arise: What if such detention or disability is the result ofthe act of a third party? The answer may again be, lex non cogit adimpossibilia, but that however I need not determine today.
Another consideration is the minority of the petitioner. While it maybe that a minor is not entitled to wait until majority to instituteproceedings, minority is at least relevant in deciding whether theeffect of force, duress, injury and the like has worn off.
While discharge from hospital, in the absence of other evidence,may well be proof that a victim was "free” to institute action, (unlike inPremadasa v. Officer-in-Charge, Hakmana Police)™ there is evidence
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that the petitioner continued to be under a real disability lor aconsiderable period of time. That evidence has not beencontroverted. I hold that the 1st respondent has not established thatthe petitioner ceased to be under a disability, arising from the injuriesinflicted by him, at least one month before the petition was filed.
I therefore overrule the preliminary objection.
ORDER
I hold that the 1st respondent acquiesced in and condoned thepetitioner's unlawful arrest and deprivation of liberty; was responsiblefor her unjustified detention without production before a Magistrate;and subjected her to torture and to cruel, inhuman and degradingtreatment, in order to extract an admission of guilt and to recoverproperty alleged to have been stolen. I hold that he has infringed thepetitioner’s fundamental rights under Articles 11, 13(1) and 13(2). Thetorture was over an extended period. Its consequences were severeand the 1st respondent attempted, by threats and intimidation, todeter the petitioner from pursuing her legal remedies. The petitionerhas prayed for compensation in a sum'of Rs. 200,000, which is by nomeans excessive in the circumstances.
In many cases in the past this Court has observed that there was aneed for the Inspector-General of Police to take action to preventinfringements of fundamental rights by Police Officers, and wheresuch infringements nevertheless occur, this Court has sometimesdirected that disciplinary proceedings be taken. The response hasnot inspired confidence in the efficacy of such observations anddirections, and persuades me that in this case compensation is theappropriate redress.
I order the State to pay a sum of Rs. 150,000 as compensation tothe petitioner. This will be deposited in the National Savings Bank in afixed deposit yielding monthly interest, which will be paid to thepetitioner’s mother, to be used for the petitioner. The petitioner will beentitled to deal with this deposit only upon attaining majority. I furtherorder the 1st respondent personally to pay the petitioner a sum ofRs. 50,000 in five monthly instalments of Rs. 10,000, commencing30.11.97. The first instalment will be paid to the petitioner's mother tobe used for the petitioner's welfare, while the remaining instalmentswill be deposited in the National Savings Bank on the same terms as
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SC v. Nihal Mahinda. O.I.C. Hungama Police and Others (Fernando, ACJ) 343
set out above. The State will also pay the petitioner a sum ofRs. 5,000 as costs.
The 2nd respondent is directed to ensure that neither the petitionernor the other members of her family are subjected to any harassmentor interference by the 1st respondent and the Hungama Police.
It is also necessary to refer to MC Hambantota Case No. 25528.The proceedings commenced with an application dated 24.1.96made by the 1st respondent under section 81 of the Code of CriminalProcedure- Act, in respect of seven persons, for security for keepingthe peace. That application referred to three complaints, only one ofwhich involved the petitioner: a complaint of abuse and causingannoyance by one Dodangodage Somasiri, who was not involved inthe other two complaints. Another complaint was by the petitioner’smother, On 24.1.96 neither Somasiri nor the petitioner were present inCourt. Without recording any reasons the learned Magistrate issuedwarrants, although section 84 requires a summons in the firstinstance, except in the circumstances set out in the proviso. Upon anapplication by an Attorney-at-Law, the warrants were recalled on
The case was called on 28.2.96, 24.4.96, and 31.7.96. On allthree days the petitioner was present, but Somasiri was not, andthree orders were made for the issue of a warrant. On the next day,
Somasiri as well as the petitioner were absent, and anotherorder was made for the issue of warrants against both. The recorddoes not show that the Police were asked, on any of these dates, whySomasiri had not been arrested and produced in Court. No stepswere taken to inquire into the other two disputes. There was cause forthe petitioner's belief that those proceedings were instituted to harassher. The record has been returned to the Magistrate’s Court whichwill, no doubt, expedite the proceedings. The Registrar is directed toforward a copy of this order to the Judicial Service Commission forinformation.
DHEERARATNE, J. – I agree.
ANANDACOOMARASWAMY, J. -1 agree.
Relief granted