EKANAYAKE, RESERVE POLICE CONSTABLE. POLICE STATION.POLPITHIGAMA AND OTHERS
SUPREME COURTS.N. SILVA, C.J.
PERERA, J. ANDBANDARANAYAKE, J.
SC (APPLICATION) NO. 860/9923rd JANUARY, 2001
Fundamental rights – Unlawful arrest and torture – Articles 13(1) and11 of the Constitution.
The petitioner who Is from Homagama was a teacher attached to theKattamberiya Yaya Vidyalaya, Makulpotha. He was accompanied by thePrincipal of the school and was on the way to board a bus. At that stage the1st and 2nd respondent Reserve Police Constables came on a motor cycleand questioned the petitioner, Including on his place of birth. When thepetitioner replied that It was Batdcaloa they said that he must be a tigerand assaulted him despite the Intervention of the Principal. They forciblytook the petitioner on the motor cycle. While riding, the 2nd respondentassaulted the petitioner. When they rached a teak forest, the petitionerescaped and later entered hospital.
The petitioner had 23 injuries Including a laceration on his penis. Therespondents said that the petitioner was taken into custody as there hadbeen robberies in the area; and the petitioner failed to provide details ofhimself.
There were no complaints or a reasonable suspicion that the petitionerwas concerned in the commission of any offence. Hence his arrest wasviolative of Article 13(1) of the Constitution. The respondents had by thetreatment inflicted on the petitioner Infringed the petitioner's rights underArticle 11 of the Constitution.
Per Bandaranayake, J.
“It is clear that the 1st and 2nd respondents have under the coIout ofoffice, pounced upon and unleashed their fury on a teacher who had beenpeacefully waiting near a bus halt with the Principal of his school. Theirconduct displays a total lack of discipline and an alarming tendency towardssadism. If police officers who are guardians of the law unleash their furyin this manner on the very persons whom they are duty bound to protectand safeguard, a dismal picture would emerge as to what passes for lawand order."
Priyantha Dias u Ekanayake, Reserve Police Constable,
Police Station, Polplthlgama and Others (Bandarahayake, J.)
APPLICATION for relief for Infringement of fundamental rights.K. Tiranagama for petitioner.
R. Abeysurlya. State Counsel for 4th respondent.
1st and 2nd respondents present in person.
Cur. adv. vult.
March, 27, 2001.
SHIRANI A. BAND ARANAYAKE, J.At the time material to this application, the petitioner wasa 42 year old school teacher attached to the Kattamberiya YayaVidyalaya in Makulpotha. Around 4.30 p.m. on 02.09.1999,the petitioner, along with the Principal of the said School walkedtowards the Kattamberiya Junction to board a bus. Whilewaiting for a bus, they saw two Policemen, (subsequentlyidentified as the 1st and 2nd respondents) on a motor cycleentering the premises of one Peter Mudalali. They also witnessedthe Policemen inquiring something from one Indra Kumari.Thereafter the Policemen came towards the petitioner andinquired about some person to which the petitioner replied inthe negative as he was not from the area. The 1st respondentqueried as to where the petitioner is residing and the petitionerstated that he is a teacher attached to Kottamberiya YayaVidyalaya. At this point the Police officer wanted to know as towhy he does not know about the village, if he is a teacher ofthat school. He further queried from the petitioner as to whetherhe Is a Sinhalese. The petitioner answered in the affirmativeand further stated that he is from Homagama. Thereafter thePolice officer wanted to know the place of birth of the petitioner.When the petitioner informed them that he was born inBatticaloa, the 1st respondent immediately responded by statingthat the petitioner must be a ‘tiger’ and asked for his National
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Identity Card. Simultaneously, the Is* respondent pulled thepetitioner by his shirt collar and searched for his NadonalIdentity Card in his shirt pocket. When the petitioner informedthe 1st and 2nd respondents that his National Identity Card is inschool, they assaulted him stating that he is a ‘tiger’ and orderedhim to get on to the motor cycle to take him to the police station.
While the 1SI and 2nd respondents were assaulting thepetitioner the Principal tried to intervene and explain that thepetitioner was a teacher attached to his school, who is fromHomagama and to refrain from assaulting him. 1st and 2ndrespondents were visibly angry about this intervention and hadassaulted the Principal as well.
The petitioner refused to get on to the motor cycle as hehad not committed any offence. The Is* and 2nd respondentsagain assaulted the petitioner and got him to sit on the motorcycle. Whenever the 1st and 2nd respondents made the petitionersit on the motor cycle, he managed to get off and by this time alarge number of villagers were gathered there. The petitionerbecame embarrassed of the situation and told the Is1 and 2ndrespondents that if a helmet is given to him, he would get on tothe motor cycle. The 2nd respondent removed his helmet andgave it to the petitioner and on the insistence of them thepetitoner got on to the motor cycle. The 1st respondent rode themotor cycle and the petitioner sat between the lsl and 2ndrespondents.
After the motor cycle proceeded a short distance, the Is'respondent hit the petitioner hard on his stomach with his rightelbow, scolded him in filth and ordered him to remove the helmet.The petitioner removed the helmet and gave it to the 2ndrespondent. While the motor cycle was moving, the 2ndrespondent hit the petitioner hard on his mouth, both ears andthe sides of the upper body.
After a while the 1st respondent told the 2nd respondent tohold the petitioner hard, as there is a possibility that the
Prtyantha Dias u. Ekanayake, Reserve Police Constable.
Police Station, Polplthlgama and Others (Bandaranayake, J.)
petitioner might try to run away. The 1st respondent threatenedhim that he will not allow the petitioner to continue with hisemployment and that they will Introduce a parcel of cannabisand send him to jail. The 1st respondent inquired from thepetitioner whether he is a graduate. When the petitioner repliedin the negative, the 1st respondent said that if he had been,they would have killed him on the spot. Whenever the petitionertried to explain that he was innocent and had committed nooffence, the 1st respondent informed him that he will use thisopportunity to show the petitoner the capabilities of the Policeofficers.
When they came to a deserted area near the teak forest atMakulpotha, the 1st respondent stopped the motor cycle andordered the petitioner to get off from the cycle. Even before thepetitioner could do so, the respondents started assaulting him.The petitioner was pleading with them not to assault him, butthey did not accede to his request. Blood was oozing out ofpetitoner’s nose and mouth due to the assault. At that time therewas a cyclist on the road and the 1st and 2nd respondents stoppedassaulting the petitioner. Using that opportunity, the petitionerran away from the scene. The 2nd respondent grabbed the cyclefrom the cyclist and came after the petitioner. The petitionerran across the teak forest and reached the house of theCommunity Health Officer of Kosgaha Ela and informed him asto what had taken place. In the meantime the Principal ofKattamberiya Yaya School along with the Principal ofNikawahara Vidyalaya, who were in search of the petitioner,sent him to the Polpithigama District Hospital.
The petitioner submitted that the 1st and 2nd respondentshad infringed his fundamental rights guaranteed under Articles11 and 13(1) of the Constitution.
This Court granted leave to proceed in respect of the allegedinfringment of Articles 11 and 13( 1) of the Constitution.
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Article 13(1) of the Constitution states that,
“No person shall be arrested except according to procedure
established by law. Any person arrested shall be informed
of the reason for his arrest.”
The 1st and 2nd respondents who were present in Court andappeared in person submitted that the petitioner was takenInto custody on suspicion as there had been many robberies inthe area. The 2nd respondent submitted that when the petitionerwas asked to give details of himself he had not come out withthe necessary information.
However, there were no supportive affidavits or documentsto substantiate the version given by the 1st and 2nd respondents.Moreover, there was no evidence to show that the petitioner hadeither committed any breach of the peace in the presence of the1st and 2nd respondents or was concerned in the commission ofany cognizable offence. There was no evidence to indicate thatthere were reasonable complaints or a reasonable suspicionwhich existed against the petitioner.
The petitioner had along with his petition and affidavittendered affidavits from the Principal from the KattamberlyaYaya Vidyalaya in Makulpotha, who was with him at the time ofthe arrest of the petitioner by the 1st and 2nd respondents (PI)and by Community Health Field Officer of Kosgaha Ela (P2).The petitioner had taken refuge at the latter’s house afterescaping from the 1st and 2nd respondents. Both these affidavitsconfirm the position taken up by the petitioner.
The 1st and 2nd respondents were unable to explain the needto check the identity of the petitioner or to know his place ofbirth.
In these circumstances, considering the two versions givenby the petitioner and the 1st and 2nd respondents, I do not
Prtyantha Dias v. Ekanayake. Reserve Police ..Constable,
Police Station, Polplthigama and Others (Bandaranayake, J.)
hesitate in accepting the allegation of the petitioner that he wasarrested by the 1st and 2nd respondents without any basiswhatsoever. I accordingly hold that the 1st and 2nd respondentshad violated the petitioner’s fundamental rights guaranteedunder Article 13(1) of the Constitution.
The petitioner was warded in the District Hospital,Polplthigama from 02nd to 06th September and thereafter he waswarded in the Teaching Hospital, Kurunegala from 06th to 08thSeptember 1999. While he was at the Teaching Hospital,Kurunegala, he was examined by the Acting Judicial MedicalOfficer, Kurunegala. On a direction given by this Court, theMedico-Legal Report was submitted by the Acting JudicialMedical Officer. In a diagram attached to the Medico-LegalReport, dated 0*7.09.1999, it is revealed that the petitioner had23 injuries all over his body. These injuries included 22abrasions and 01 laceration. The abrasions were on theforehead, chest, upper and lower left arm and the right arm,upper left and right legs and the lower abdomen. The sizes ofthe abrasions range from 0.5cm x 0.25cm to 5cm x 0.5cm. Thesingle ldceration which was 1cm x 0.5cm was on his penis.These injuries are consistent with the description given by thepetitioner as to the inhuman and degrading treatment metedout to him by 1st and 2nd respondents. In addition to the injuriessustained by the petitioner, in the circumstances of this case,the suffering occassioned by him, in my view, was of anaggravated kind which no doubt humiliated the petitioner.
I accordingly declare that the petitioner’s fundamental rightguaranteed under Article 11 of the Constitution has beenviolated by the 1st and 2nd respondents.
It is clear that the 1st and 2nd respondents have under thecolour of office, pounced upon and unleashed their fury oh ateacher who had been peacefully waiting near a bus halt withthe Principal of his school. Their conduct displays a total lackof discipline and an alarming tendency towards sadism. If Police
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officers, who are the guardians of the law unleash their fury inthis manner on the very persons whom they are duty bound toprotect and safeguard, a dismal picture would emerge as to whatpasses off for law and order. Further, the immediate reaction ofthe 1st and 2nd respondents that any person born in Batticaloashould be a ‘tiger’ is a sad reflection of their mental make up.Such attitudes engender hatred and not peace. 1 have thoughtit fit to note these comments so that persons responsible forrecruitment and discipline of law enforcement officers wouldinstil a higher degree of sensitivity and restraint in those whoare clothed with awesome power of armed law enforcement.personnel.
I direct the 1st and 2nd respondents to pay the petitioner asum of Rs. 5000/- each as compensation and costs; the Statewill pay the Petitioner Rs.20,000/- as compensation and costs.In all the petitioner will be entitled to a sum of Rs. 30,000/- ascompensation and costs. These amounts must be paid withinthree! 3) months from today.
The Registrar of the Supreme Court is directed to send acopy of this judgment to the Inspector General of Police.
S.N. SILVA, C.J. – I agree.
PERERA, J.I agree.
PRIYANTHA DIAS v. EKANAYAKE, RESERVE POLICE CONSTABLE, POLICE STATION POLP