025-SLLR-SLLR-2006-V-1-NANDASENA-vs.-CHANDRADASA-O.-I.-C.-POLICE-STATION-HINIDUMA-AND-OTHERS.pdf
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Chitra Manohari Perera vs
Shanthi Perera (Dissanayake, J.)
207
NANDASENAVSCHANDRADASA, O. I. C., POLICE STATION,HINIDUMA AND OTHERSSUPREME COURTBANDARANAYAKE, J.
WEERASURIYA, J. ANDUDALAGAMA.J
SC (SPL) APPLICATION No. 12/200417TH JUNE AND 15TH SEPTEMBER, 2005
Fundamental Rights-Articles 11, and 13(1) of the Constitution-Alleged unlawfularrest and torture-insufficiency of evidence on torture-Arrest for a breach of thepeace.
The petitioner complained that the 1st respondent OIC came near hisboutique in a jeep; and after summoning him assaulted him on his face. Hewas then taken to the police station by other police officers. He complained ofinfringement of Articles 11 and 13(1) of the Constitution. He alleged that a partof his boutique had been demolished.
It was proved that on information received by the 1st respondent over thetelephone, from a Pradeshiya Sabha Member that the petitioner was makingan unauthorized construction encroaching on the public road and that a crowd
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had gathered creating unrest and a possible breach of the peace, the 1strespondent visited the scene. He found an atmosphere of unrest there. Theevidence of the 1 st respondent was supported by the Pradeshiya Sabha Memberand another witness by their affidavits.
The petitioner's version which was supplement by his petition and abelated statement made to a Grama Niladhari was contradictory. He had noinjuries to establish the alleged assault.
The 1st respondent's version was that he reached the scene on informationreceived over the telephone and saw the unlawful construction which thepetitioner refused to remove. There was unrest in the crowd that had gatheredthere. In the context, the 1 st respondent arrested the petitioner to prevent abreach of the peace.
There was no medical evidence showing any injury to the petitioner.
Article 13(1) requires arrest according to procedure established by law ;and the person arrested should be informed of the reason for the arrest.
Article 11 provides that no person should be subjected to torture or to cruel,inhuman or degrading treatment or punishment.
HELD:
The petitioner must discharge his burden regarding alleged infringementof Article 11 with a high degree of certainty. In the instant case, the evidencefalls short of the required standard.
Under section 32 of the Code of Criminal Procedure Act, No. 15 of 1979,an arrest without a warrant is competent where, inter-alia, a personcommits a breach of the peace, in the presence of the arresting officer. Inthe instant case, the evidence established the commission of a breachof the peace.
In the circumstances, there was no infringement of Articles 13(1) or 11 ofthe Constitution.
Cases referred to:
Me. Nabb vs. U. S. (1943) 318 US 332
Channa Peirisvs. Attorney-General and Others (1994) 1 Sri LR 1APPLICATION for relief for infringement of fundamental rights.
Kapila Gamini Jayasinghe for petitioner.
D. Akurugoda for 1 st respondent.
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Nandasena vs Chandradasa, O. I. C., Police Station,
Hiniduma and Others (Bandaranayake, J.)
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K. A. P. Ranasinghe, State Counsel for 2nd and 3rd respondents
Cur.adv.vult
14th October, 2005
SHIRANI BANDARANAYAKE, J.The petitioner, who was 54 years of age at the time of the incident, is asmall scale trader, carrying on his business at Thawalama, a villagesituated in the Galle District. He alleged that on 02.09.2003 around 10.00o’clock in the morning, the 1 st respondent, who was-the Officer-in Chargeof the Police Station at Hiniduma, arrived near his boutique in his jeep andafter summoning the petitioner near the jeep assaulted him on his face.Thereafterthe 1st respondent, along with some other police officers hadtaken the petitioner to the Police Station. Prior to that, part of his boutiquehad been demolished by the aforementioned group of police officers. Thepetitioner further submitted that he was produced before the Magistrate’sCourt of Baddegama on 03.09.2003 and was released on bail.
The petitioner therefore complained that the 1st respondent hadviolated his fundamental rights guaranteed in terms of Articles 11,12(1),12(2), 13(1) and 14(1)(g) of the Constitution.
This Court granted leave to proceed for the alleged infringement ofArticles 11 and 13(1) of the Constitution.
The petitioner’s allegations were against the 1st respondent that hewas arrested on 02.09.2003 without any basis and that he was assaultedat the time he was so arrested on 02.09.2003. In support of his complaintagainst the 1st respondent, the petitioner had produced an affidavit fromone Jinadasa Vithanage from Thawalama, Galle and a copy of thecomplaint made by the petitioner to the Grama Niladhari of Thawalama.
Of the allegations made against the 1st respondent, let me firstconsider the alleged violation of Article 13(1) of the Constitution. Article13(1) of the Constitution, which relates to freedom from arbitrary arrest,reads as follows
“No person shall be arrested except according to procedureestablished by law. Any person arrested, shall be informed ofthe reason for his arrest.”
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According to 1st respondent, around 9.00 a.m. on 02.09.2003, he hadreceived a telephone message (1R7) informing him that a person waserecting a structure encroaching the road and thereby causing anobstruction to the public at Halvitigala-Aswalandeniya junction. On theinformation received he had decided to visit the place in question and onhis arrival at the said junction he had seen that a person was erecting ashed encroaching several feet of the Aswalandeniya road. The 1strespondent had also observed that at that time a crowd had gathered andthe two parties were about to clash. At that instance the 1 st respondenthad dispersed the said crowd and had warned the petitioner to removethe unauthorised construction, which was being erected by him encroachingthe road. The petitioner, according to the 1st respondent, had refused toremove the said unauthorised construction and continued with his workirrespective of the warning given by the 1 st respondent. Accordingly afterexplaining to the petitioner that he was causing a public nuisance whichmay lead to an imminent breach of the peace, the 1st respondent hadtaken the petitioner into custody. In support of his contention the 1strespondent had produced an affidavit from a Member of the PradeshiyaSabha of Thawalama, namely, one Waidyaratne Attanayake HerathMudiyanselage Sumathipala, who had been an eye witness to theaforesaid incident. According to him around 8.00 a.m. on 02.09.2003 agroup of villagers had informed him that the petitioner had started toconstruct a temporary shed obstructing the junction near AswalandeniyaRoad. According to his version if this construction was allowed to remainthat would have obstructed the roadway and would have prevented anyvehicle using the road. At the time the said Sumathipala had approachedthe Aswalandeniya junction (1R2), villagers had assembled near thejunction and were becoming restless..
The 1st respondent had also filed a further affidavit from one GardiHewavasam Dodangodage Sujeewa Lakmal who was carrying on a businessof collecting and transporting tea leaves from Dammala, in Hiniduma area.According to him around 7.00 a.m., when he was passing Aswalandeniyain his truck, he had seen the petitioner constructing a temporary shedObstructing the main road. Sometime later, a Member of the PradeshiyaSabha, had arrived at the scene and had warned the petitioner not to carryout the construction, but to no avail. Later the 1st respondent had arrivedand had warned the petitioner, but as the petitioner continued with hisconstruction, the 1st respondent arrested him after dispersing the crowdthat had gathered near the junction (1R6).
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Nandasena vs Chandradasa, O. I. C., Police Station,
Hiniduma and Others (Bandaranayake, J.)
211
On a consideration of the afore mentioned affidavits it is apparent thatthe 1 st respondent had arrived at the scene in question on the informationhe had received by way of a telephone message, that had been given ashad been found out later, by the Member of the Pradeshiya Sabha. It isalso clear that the 1 st respondent had arrested the petitioner as it hadclearly appeared to him that the petitioner was causing a public nuisance.
Section 32 of the Code of Criminal Procedure Act, No. 15 of 1979describes the instances where peace officers could arrest persons withouta warrant. According to Section 32 (1) (b)
“Any peace officer may without an order from a Magistrate andwithout a warrant arrest any person –
who in his presence commits any breach of the peace;
who has been concerned in any cognizable offence or againstwhom a reasonable complaint has been made or credibleinformation has bpen received or a reasonable suspicion exists ofHis having been so concerned’’.
It is common ground that the petitioner was arrested by the 1strespondent. The contention of the 1 st respondent is that the petitionerwas arrested as he was causing a public nuisance. In such circumstancescould such an arrest be a violation of the petitioner’s fundamental rightsguaranteed in terms of Article 13(1) of the Constitution ? In terms of Article13(1), as stated earlier, the arrest should be ‘according to procedureestablished by law*. The importance of observing the ‘correct and properprocedure’ was correctly evaluated by Justice Frankfurter in Me. Nabb vs.L/.S.(1) where he had stated that ‘the history of liberty has largely been thehistory of observance of procedural safeguards’. The purpose of followingthe correct procedure is therefore to safeguard the liberty as well asmaintain law and order and thereby to mete out justice and fairplay.
Considering the circumstances of this matter, it is clear that the 1strespondent had arrested the petitioner as he was instrumental in causinga public nuisance leading to a breach of the peace. The police had takennecessary steps against the petitioner and criminal proceedings were
2 – CM6578
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instituted against him. On an examination of the totality of the evidence, Iam inclined to accept the version given by the 1 st respondent.
In such a situation the arrest of the petitioner cannot be regarded as anillegal arrest and therefore the petitioner’s claim with regard to Article13(1) of the Constitution should fail.
The petitioner has complained that the 1st respondent had assaultedhim on 02.09.2003 and thereby he has alleged that the 1st respondenthad violated his fundamental rights guaranteed in terms of Article 11 of theConstitution. Article 11 of the Constitution refers to freedom from tortureand states as follows
“No person shall be subjected to torture or to cruel,inhuman or degrading treatment or punishment”.
According to the complaint made by the petitioner, the 1 st respondenthad assaulted him on his face at the time the latter had arrived near hisboutique. Except for his petition and affidavit where he refers to the saidassault, it is to be borne in mind that the petitioner has not produced anymedical evidence to substantiate his allegations against the 1strespondent.
Learned Counsel for the petitioner submitted that the petitioner had notreceived any medical treatment with regard to the aforementioned assaultand that it was the reason for the non-production of any medicalcertificates. Accordingly it is clear that there were no injuries due to thealleged assault. Learned Counsel for the petitioner drew our attention tothe affidavit given by Jinadasa Vithanage (P3) and the complaint made bythe petitioner to Grama Niladhari on 23.09.2003 (P3A) as supportingdocuments to substantiate his allegations against the 1 st respondent. Inthe affidavit given by the said Jinadasa Vithanage (P3) it is averred that the1 st respondent had summoned the petitioner near the jeep and thereafterhad assaulted the petitioner on his face. Paragraph 3 of the said affidavitrefers to the said incident in the following terms :
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Nandasena vs Chandradasa, O. I. C., Police Station,
Hiniduma and Others (Bandaranayake, J.)
213
On an examination of these two documents it appears that thepetitioner’s version given in his petition and affidavit is different to theversion stated in the two documents filed by him to substantiate his position.
When there is an allegation based on violation of fundamental rightsguaranteed in terms of Article 11 of the Constitution, it would be necessaryfor the petitioner to prove his position by way of medical evidence and/orby way of affidavits and for such purpose it would be essential for thepetitioner to bring forward such documents with a high degree of certaintyfor the purpose of discharging his burden. Discussing this position,Amerasinghe, J. in Channa Peiris and other vs Attorney General andothers(2) had clearly stated that,
“Having regard to the nature and gravity of the issue a high degreeof certainty is required before the balance of probability might besaid to tilt in favour of the petitioner endeavpuring to discharge hisburden of proving that he was subjected to torture or to cruel, inhumanor degrading treatment”.
Considering the non-availability of any medical evidence with regard tothe alleged assault, it would be necessary to examine carefully thesupporting documents produced by the petitioner to substantiate hisallegations against the 1 st respondent.
The petitioner attempted to substantiate his allegations against the 1 strespondent on the basis of the complaint made by him to the GramaNiladhari of Thawalama and relying on an affidavit he'had filed along withhis petition of one Jinadasa Vithanage. The first document, being thecomplaint made-to the Grama Niladhari of Thawalama (P3A), indicatesthat the petitioner had made the said complaint on 23.09.2003.Accordingly the petitioner had decided to make a statement to the GramaNiladhari only after 3 weeks from the date of the said incident. The affidavitof Jinadasa Vithanage (P3) on the other hand is dated 22.03.2004, whichis over 6 months from the date of the incident.
However, in the complaint made to the Grama Niladhari at Thawalama(P3A) what is stated is as follows
(emphasis added)”.
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Learned Counsel for the 1 st respondent contended that the said JinadasaVithanage, who is the author of the affidavit dated 22.03.2004, is a closerelative of the petitioner and is the owner of the boutique adjoining the_ petitioner’s grocery store at Thawalama. Therefore it is not possible toplace any reliance on the aforesaid affidavit not only that being the singleaffidavit filed by the petitioner to substantiate his position, but also, asreferred to earlier, the contents of this affidavit differ from what was statedby the petitioner in his petition and affidavit.
In the event where there has been no evidence of physical harm and theonly document produced by the petitioner being a statement by him thatthe 1st respondent had assaulted him on his face which statement hadnot been supported by any independent evidence by way of affidavits or bymedical evidence, I am of the view that the petitioner has not been able tosatisfy this Court that his fundamental rights guaranteed in terms of Article11 were infringed by the 1 st respondent.
Considering all the circumstances referred to above it is apparent thatthe 1 st respondent has not violated the fundamental rights of the petitionerguaranteed in terms of Articles 11 and 13(1) of the Constitution.
I accordingly hold that the petitioner has not been successful inestablishing that his fundamental rights guaranteed in terms of Articles 11and 13(1) of the Constitution have been violated by the actions of the 1 strespondent. This application is accordingly dismissed, but in all thecircumstances of this case without costs.
WEERASURIYA, JI agree.UDALAGAMA, J.—I agree.Application dismissed