031-SLLR-SLLR-1998-V-2-PRIYANKARA-v.-PC-SISIRA-KUMARA-POLICE-STATION-PUTTALAM-AND-OTHERS.pdf
sc
Priyankara v. PC Sisira Kumara, Police Station.
Puttalam and Others
267
PRIYANKARA
v.PC SISIRA KUMARA, POLICE STATION,
PUTTALAM AND OTHERS
SUPREME COURTG. P. S. DE SILVA, CJWADUGODAPITIYA, J. ANDPERERA, J.
SC APPLICATION NO 214/96 (SPL.)
MAY 21, 1998
Fundamental rights – Unlawful arrest and detention – Assault by Police Officers- Articles 11, 13 (1) and 13 (2) of the Constitution.
The petitioner was travelling in a Puttalam bound bus when a passenger boardedthe bus with a lighted cigarette. When the conductor of the bus attempted tostop the smoking, the passenger retaliated by using obscene language. At thatstage the petitioner intervened. Then also the passenger retaliated by usingobscene language. When the bus reached the Puttalam bus stand the passengerchallenged the petitioner. The petitioner attempted to escape but the passengerassaulted the petitioner repeatedly. Thereafter, the petitioner visited the PuttalamPolice Station and complained to the OIC, the 3rd respondent who arranged tohave the petitioner's complaint recorded. At that stage it was found that thepassenger who assaulted the petitioner was the 1st respondent police officer.Whereupon, the 3rd respondent assaulted the petitioner and directed a PoliceOfficer to lock him up, in a cell, which was done. Thereafter the petitioner wasremoved from the cell when the 2nd respondent, a police constable also assaultedhim. Consequently, the petitioner was hospitalised where he was treated for hisinjuries.
268
Sri Lanka Law Reports
(1998) 2 Sri LR.
Held:
The petitioner's rights under Articles 11, 13 (1) and 13 (2) of the Constitution
were infringed by the 1st, 2nd and 3rd respondents.
Per Perera, J.
“I trust that I will be failing in my duty in this case if I fail to alert theInspector-General of Police to the urgent necessity to give appropriate instruc-tions to Officers-in-charge of Police Stations in regard to the manner, thecare and courtesy which private persons having legitimate business in PoliceStations are entitled to receive at the hands of the Police with a view to ensuringthat incidents such as this would not recur in the future".
APPLICATION for relief for infringement of fundamental rights.
Kithsiri Jay ala th for the petitioner.
Ms. Chandrika Morawaka for the 1st respondent.
M. Y. M. Faiz for the 2nd respondent.
D. S. Wijesinghe PC with T. C. Weliamune and Ms. A. B. D. Dharmadasa for
the 3rd respondent.
Cur. adv. vult.
September 1, 1998PERERA, J.
The petitioner in this case was at the relevant time attached to theAlcohol & Drug Information Centre at Anamaduwa. He was workingin a voluntary capacity as a Co-ordinating Officer.
By his petition under Article 126 of the Constitution, the petitionercomplains that on the 15th of October, 1996, he boarded a bus atthe Kalladiya junction to go to Puttalam. This bus was overcrowded,at that stage. A passenger who appeared to have consumed liquorboarded this bu§ with a lighted cigarette in his hand. The conductorof the bus had requested this passenger not to smoke in the busand the latter had responded by using obscene language on theconductor and had continued to smoke the cigarette very much tothe discomfort of the other passengers.
SCPriyankara v. PC Sisira Kumara, Police Station,
Puttalam and Others (Perera, J.) "269
At this stage, the petitioner had intervened and requested thispassenger to put out his cigarette. The passenger concerned had thenretaliated by using obscene language on the petitioner as well. Whenthe bus reached the Puttalam bus stand and the petitioner attemptedto get off the bus, the aforesaid passenger had held the petitioner'shand and said, "malli mehe vareng". The petitioner had then tried torelease himself and get away from this place. The aforesaid personhad then assaulted the petitioner and when the petitioner endeavouredto escape from this place of incident, he was followed by this personwho continued to assault him. The petitioner has in support of theversion given by him filed an affidavit from the conductor of the buswhich has been marked P1. The affidavit of the conductor of the busNihal Premasiri corroborates the version narrated by the petitioner inregard to the incident that took place in the bus on the 15th of October1996, and the subsequent assault at the Puttalam bus stand on thepetitioner by the aforesaid passenger.
The petitioner states further that when this passenger who has nowbeen identified as the 1st respondent continued to assault him at thebus stand, the crowd that had gathered there intervened and set uponthe 1st respondent.
The petitioner had thereafter proceeded to the Puttalam PoliceStation to complain about this incident. He was accompanied to thePolice Station by one W. N. Dhammike.
At the Police Station the petitioner states that he met the Officer-in-Charge, the 3rd respondent and informed him that he wished tomake a complaint to the Police regarding an assault on him. The 3rdrespondent then directed the petitioner to a Police Officer with instruc-tions to record his complaint. As this Police Officer was about to recordthe petitioner's statement, he heard some person who had come tothe Police Station at this stage telling the OIC that the petitioner hadcome there after assaulting “one of our fellows". The 3rd respondenthad then come up to the petitioner and assaulted him. The petitionercomplains that the 3×1 respondent had hit him several times on hishead. The 3rd respondent having assaulted him further had directeda Police Officer to lock him up in a cell. It is the petitioner's casehe was in fact arrested at this point of time when he had come tothe Police Station to make a complaint, in contravention of the pro-visions of Article 13 (1) of the Constitution. Shortly thereafter he was
270
Sri Lanka Law Reports
(1998) 2 Sri LR.
taken out of the cell and the 3rd respondent had questioned himwhether it was wrong for a Police Officer "to smoke inside a bus".At this stage the petitioner had come to know that the person withwhom he had a dispute in the bus and had thereafter assaulted himwas indeed a Police Officer, namely the 1st respondent. The petitionerstates that he was in severe pain and the 3rd respondent havingobserved this had ordered a Police Officer to lock the petitioner upin a cell. The 3rd respondent has also in his hearing given directionsto the Police Officer not to send the petitioner to hospital alone. The3rd respondent had stated thus, "Send him with our fellow, otherwisewe will stand to lose”.
The 3rd respondent then left the Police Station. Thereafter thepetitioner was taken out of the cell by the 2nd respondent who hadassaulted him once again together with another Police Officer whomhe was unable to identify. The petitioner had cried out in pain andpleaded with the officers not to assault him any further, but theycontinued with the assault and he was thereafter locked up in thecell.
The petitioner's mother having heard of this incident had cometo the Police Station around 7.30 pm but she had not been permittedto speak to the petitioner by the Police Officers.
The petitioner's father had in the meantime met the Member ofParliament of the Puttalam District Mr. S. D. R. Jayaratne and informedhim about this incident. The Member of Parliament had thentelephoned the Police on the complaint made by the petitioner's fatherand requested the OIC to give some relief to the petitioner. At thisstage, the petitioner's mother and sister who were at the Police Stationwere permitted to speak to the petitioner.
Thereafter the Police Officers had prepared certain documents andsent the petitioner to the hospital accompanied by some PoliceOfficers. The petitioner's mother and sister had also accompanied thepetitioner to the hospital. The petitioner was admitted to Ward No4. at the Base hospital, Puttalam, around 8.20 pm. The petitioneravers further that he remained in hospital from 15. 10. 1996 till the17th of October, 1996, and that consequent on the assault by thePolice, he suffered from severe pain in the region of the chest,stomach, face and head. After his discharge from hospital, he had
sc
Priyankara v. PC Sisira Kumara, Police Station,
Puttalam and Others (Perera, J.) "
271
obtained treatment from his family Physician for approximately onemonth. Thus according to the petitioner he was kept in custody forthe aforesaid period of time without producing him before a Magistrateas required by Article 13 (2) of the Constitution.
The petitioner had on the 23rd of October, 1996, made a complaintto the Assistant Superintendent of Police, Puttalam, who summonedthe petitioner and held an inquiry on the 9th of December, 1996. Thepetitioner had produced marked P2 a letter from the ASP, Puttalam,in support of this averment.
The petitioner has in the above circumstances complained of illegalarrest, detention, inhuman and degrading treatment at the hands ofthe 1 st, 2nd and 3rd respondents which he states constitute a violationof his fundamental rights guaranteed by Articles 11, 13 (1) and 13(2) of the Constitution. He has also claimed compensation in a sumof Rs. 200,000/- from the respondents.
This Court has granted the petitioner leave to proceed for thealleged infringement of Articles 11, 13 (1) and 13 (2) on the 24thof March, 1997. I
I would now advert to the affidavit filed by the 3rd respondent,the Officer-in-Charge of the Puttalam Police Station. In his affidavit,the 3rd respondent substantially denies the allegations made by thepetitioner in the petition. According to the 3rd respondent, around6.00 pm on the 15th of October, 1996, both the petitioner and the1st respondent were seen at the Puttalam Police Station. The 1strespondent was bleeding from his nose and was seen covering hisface with a bloodstained doth. On inquiry, he learnt that there hadbeen an altercation and an exchange of blows between the petitionerand the 1st respondent. He had then directed the OIC of the MinorOffences Branch to inquire into this matter. The inquiry revealed thatthe petitioner and the 1st respondent had engaged in a fight on thesame day and that the 1st respondent had sustained injuries as aresult. The investigation according to the 1st respondent was con-cluded on the 16th of Qctober, 1996 and to the best of his knowledgeneither the petitioner nor the 1st respondent were ayested. The 3rdrespondent has specifically denied that any politician spoke to himor to any other Police Officer regarding the petitioner. He has averredthat the petitioner's application is a vexatious one consequent upona dispute which he has had with a Police Officer in the earlier partof the day.
272
Sri Lanka Law Reports
(1998) 2 Sri LR.
The 3rd respondent in support of the averments in his affidavithas sought to file a further affidavit from the OIC of the Minor OffencesBranch Sub-Inspector Punchi Banda Wijekoon. Wijekoon states in hisaffidavit that on the 15th of October, 1996, around 5.00 pm he receiveda complaint relating to a dispute between the petitioner and the 1strespondent who was a Police Constable attached to the PuttalamPolice Station. The 1st respondent Police Constable Sisira Kumarawas covering his face with a piece of cloth which appeared to bebloodstained. The OIC of the Puttalam Police Station, the 3rd respond-ent had detailed him to inquire into this matter. He had accordinglyrecorded the statements of the petitioner and the 1st respondent. Hehad thereafter produced both these persons the petitioner and the1st respondent before the Medical Officer, Base Hospital, Puttalam.The Medical Officer had examined both these persons and issuedMedical Reports. He had not observed any external injuries on thepetitioner.
Sub-Inspector Wijekoon had then proceeded to the scene of theincident and recorded the statements of a person by the name ofSunimal Joseph Antony. His inquiries revealed that there had beena fight between the 1st respondent and the petitioner and that the1st respondent had sustained injuries in the course of this transaction.He had not effected the arrest of either of these persons as therewas no justification for doing so and he had informed the petitionerthat it would not be necessary for him to report to the Police Stationthereafter.
Wijekoon also denied any assault by the 3rd respondent. He furtherdenies that while the petitioner was at the Police Station that the latter'smother and sister visited him. He has denied that the Member ofParliament of the Puttalam District Mr. S. D. R. Jayaratne telephonedthe Police regarding this incident. Wijekoon has produced togetherwith his affidavit the statements recorded relating to this matter andthe inquiry notes marked XI and the Medico-Legal form relating tothe petitioner and the 1st respondent marked X2 and X3.
•
The 1st respondent has also filed an affidavit stating that on the15th of October, 1996, around 4.30 pm he had boarded a busproceeding to Puttalam at the Kalladiya junction. He was on leaveon that day and was clad in civil clothes. While waiting for the bushe had lit a cigarette and he had boarded the bus with a lighted
sc
Priyankara v. PC Sisira Kumara, Police Station,
Puttalam and Others (Perera, J.)
273
cigarette in his hand. The conductor had invited him to enter the bus,but he had not complied with this request and was travelling on thefootboard because he was smoking a cigarette. He specifically denieshaving abused the conductor or any other passenger in the bus. Headmits that a passenger whom he now knows as the petitioner inthis case had come up to him and ordered him to put out the cigarette.He had told the petitioner to "mind his business". He states that hedid not abuse the petitioner nor had he consumed liquor on that day.
The 1st respondent further states that when the bus reached thePuttalam bus stand, he had alighted from the bus and had askedthe petitioner why he had questioned him in the bus. The 1strespondent then stretched his hand to shake hands with the petitioner.
The petitioner who had misunderstood the move made by the 1strespondent had assaulted him with an umbrella. The 1st respondenthad then retaliated He states that there were several onlookers whojoined the petitioner. These persons had held him and had encouragedthe petitioner to assault him. In support of the facts set out in hisaffidavit the 1st respondent has annexed to his affidavit a statementmade by one Sunimal Joseph Antony and an affidavit dated26. 5. 97 from one Tony Jayantha and Mohamed Iqbal marked 1R4and 1R5. The 1st respondent had also annexed the complaints madeby himself and the petitioner to the Police on the 15th of October,1996, marked 1R2 (a) and 1R2 (6) and the Medico-Legal reportrelating to his injuries marked 1R3 and a certificate from the DMOPuttalam to the effect that he was admitted to the Puttalam hospitalon 15. 10. 96 and discharged on 18. 10. 96.
The petitioner in a counter-affidavit dated 17th September, 1997,has denied the averments filed in the affidavit by the 1st, 2nd and3rd respondents and has attached to his counter-affidavit an affidavitby the Member of Parliament, Puttalam District, Mr. S. D. R. Jayaratneand a further affidavit from one Wijeyaweeralage Nilanka Dhammike,the person who accompanied the petitioner to the Police Stationimmediately after this fncident marked P3 and P4, respectively. In hisaffidavit the Member of Parliament Jayaratne confirms that thepetitioner's father had on the 15th October, 1996, complained to himthat the petitioner had been assaulted by a Police Constable SisiraKumara (the 1st respondent) attached to the Puttalam Police Stationand requested him to obtain some assistance for his son by
274
Sri Lanka Law Reports
(1998) 2 Sri L.R.
telephoning the Headquarters Inspector (the 3rd respondent to thisapplication.) On this representation made to him by the petitioner'sfather, Mr. Jayaratne had in his capacity as Member of Parliamentof the Puttalam District immediately telephoned the 3rd respondentand requested him to grant some form of relief to the petitioner.
According to the affidavit filed by Dhammike (P4) who had ac-companied the petitioner to the Puttalam Police Station on the dateof the alleged incident, the petitioner had been assaulted by someperson in the Puttalam town. As the petitioner was about to makea statement to a Police Officer at the Police Station re this matterthe 1st respondent had arrived there and without any inquiry hadassaulted the petitioner in the most inhuman manner. This was onthe 15th of October, 1996, around 6.00 pm. After the 1st respondentset upon the petitioner, Police Constable Anura the 2nd respondentwho was attached to the Traffic Branch of the Puttalam Police Stationand another Police Officer attached to the Puttalam Police Stationhad set upon the petitioner. Dhammike states that he was an eye-witness to this assault. He avers further that subsequently he becameaware of the fact that the person who assaulted the petitioner at thePuttalam bus stand was a Police Officer attached to the PuttalamPolice Station by the name of Sisira Kumara who is the 1 st respondentto this application.
The 2nd respondent has also filed an affidavit denying theallegation that he had participated in an assault on the petitioner atthe Puttalam Police Station on the 15th of October, 1996.
Counsel for the respondent stated that this application was outof time and that this Court should therefore reject this application.In this connection it must be observed that this application was onewhich has been originated upon an undated petition sent by thepetitioner to His Lordship the Chief Justice and received in the Registryof the Supreme*Court on the 19th of November, 1996. The petitioneris therefore strictly speaking out of time by approximately 4 days. Butthis Court has consistently taken the view that in respect of appli-cations made in this form to His Lordship the Chief Justice, the timebar should not be strictly adhered to. Taking into consideration the
SCPriyankara v. PC Sisira Kumara, Police Station,
Puttalam and Others (Perera, J.)275
particular circumstances of this case, I am of the view that it wouldnot meet the ends of justice if I were to hold against the petitioneron this point. I therefore hold that this objection raised by counselmust fail.
The version given by the petitioner therefore is supported by theaverments contained in the affidavit marked P4 filed by Dhammikewho had accompanied the petitioner to the Puttalam Police Stationon the 15th of October, 1996.
There is further support for the petitioner's version in the affidavitfiled by the Member of Parliament S. D. R. Jayaratne who in hisaffidavit has affirmed to the fact that petitioner's father had on the15th of October, 1996, complained to him that the petitioner had beenassaulted by a Police Constable attached to the Puttalam PoliceStation and had requested him to contact the 3rd respondent, theHeadquarters Inspector of the Puttalam Police Station for the purposeof ensuring his safety. It is significant that the 3rd respondent hasin his affidavit denied this statement made by the Member of Par-liament. I fail to comprehend why the Member of Parliament shouldmake a false averment in his affidavit relating to the 1st respondentif in fact he had not done so on the representation made to him bythe petitioner's father on the 15th of October, 1996.
Yet another reason which throws considerable doubt on the versiongiven by the 3rd respondent in his affidavit is his own conduct onthis occasion when he saw one of his Police Officers with a bleedinginjury at the Police Station and upon inquiry had discovered that suchinjuries had been sustained as a result of an assault by the petitionerwho was himself at the Police Station. According to the 3rd respondenthe had not proceeded to arrest the petitioner who is alleged to haveinflicted this injury on the Police Officer concerned. This to my mindappears to be highly® improbable conduct on the part of the 3rdrespondent.»
The 3rd respondent also in his affidavit admits the presenceof the petitioner at the Police Station around 6.00 pm on this dateand according to him he had directed the petitioner to make a
276
Sri Lanka Law Reports
(1998) 2 Sri L.R.
complaint to an Officer detailed by him for this purpose. If this wasin fact the course of action that was taken by the 3rd respondenton that occasion, I fail to understand why the petitioner should havemade any allegation, leave alone an allegation of a merciless assaultupon him by the 3rd respondent. It is also significant that neither the1st nor the 3rd respondent have alleged any motive on the part ofthe petitioner to falsely implicate them in the alleged assault on himat the Police Station.
I have also given my mind to the fact that the petitioner hadsustained certain injuries and had complained of pain in the regionof his chest, head and abdomen. This is borne out by the Medico-Legal report. It would also be relevant to advert to the averment inthe petitioner's affidavit where he states that while at the PoliceStation he heard the 3rd respondent stating thus: "Don't send himto the hospital alone. Send him with our fellow, otherwise we willstand to lose". It is the version of the petitioner that the injuries hehad sustained were inflicted upon him at the Puttalam Police Stationby the 2nd and 3rd respondents.
Further the petitioner's version in regard to the circumstances inwhich the fight between the 1st respondent and himself commencedfinds support in the affidavit filed by the conductor of the bus andto an extent in the averments in the affidavit filed by the 1st respondenthimself. Indeed it was the misconduct of the 1st respondent that setin motion this unfortunate trail of events which led to the violationof the petioner's Fundamental Rights. Although there is no evidenceto establish that the 1st respondent on 15. 10. 96 participated in theassault on the petitioner at the Puttalam Police Station, one cannotoverlook the fact that it was the 1st respondent and none other whowas responsible for this unfortunate incident by his gross misconductand assault on the petitioner both while travelling in the bus and atthe Puttalam bus stand on that day. He must therefore, in my viewtake full responsibility for the predicament in which the petitioner wasplaced. I
I also wish to observe that the conduct of the 3rd respondent whowas the then QIC of the Puttalam Police Station must indeed be
sc
Priyankara v. PC Sisira Kumara, Police Station,
Puttalam and Others (Perera, J.)
277
condemned without reservation. The 3rd respondent has in this caseacted in the most reprehensible manner when he set upon a law-abiding citizen who had come to the Puttalam Police Station onlegitimate business to complain of an unprovoked attack upon himat a public bus stand.
I see no reason to doubt the truth of the story narrated by thepetitioner in regard to his arrest and unprovoked assault upon himby the 2nd and 3rd respondents at the Police Station. I hold, therefore,that upon an evaluation of the material placed before this Court thepetitioner has established that his fundamental rights protected byArticles 11, 13 (1) and 13 (2) of the Constitution have been infringedby the 1st, 2nd and 3rd respondents. I would accordingly direct the3rd respondent to pay the petitioner a sum of Rs. 20,000/- as com-pensation. The 1st and 2nd respondents will also pay the petitionera sum of Rs. 7,500/- each. The 1st, 2nd and 3rd respondents willjointly pay the petitioner the costs of this application fixed atRs. 6,000/-. I also direct the state to pay a sum of Rs. 15,000/- ascompensation to the petitioner. The 1st, 2nd and 3rd respondentsare further directed to pay the compensation and costs ordered bythis court on or before the 30th of October, 1998. I
I trust that I will be failing in my duty in this case if I fail to alertthe Inspector-General of Police to the urgent necessity to giveappropriate instructions to Officers-in-Charge of Police Stations inregard to the manner, the care and courtesy which private personshaving legitimate business in . Police Stations are entitled to receiveat the hands of the Police with a view to ensuring that incidents suchas this would not recur in the future. The Registrar is directed toforward a copy of this judgement to the Inspector-General of Police.
G. P. S. DE SILVA, CJ. – I agree.
WADUGODAPITIYAI(tJ. – I agree.
Relief granted.