RIFAIDEEN v. SUB-INSPECTOR OF POLICE JAYALATH , WELLAWATTE POLICE STATION

029-SLLR-SLLR-1998-V-2-RIFAIDEEN-v.-SUB-INSPECTOR-OF-POLICE-JAYALATH-WELLAWATTE-POLICE-STATION-.pdf


SCRifaideen v. Sub-Inspector of Police Jayalath, Wellawatte
Police Station and Others (Shirani A. Bandaranayake, J.)253
RIFAIDEEN
v.SUB-INSPECTOR OF POLICE JAYALATH,WELLAWATTE POLICE STATION AND OTHERS
SUPREME COURT
P. S. DE SILVA, CJ„
WIJETUNGA, J. ANDBANDARANAVAKE, J.
SC (SPL) NO. 71/96SEPTEMBER 1 1998.
Fundamental Rights – Torture – Article 11 of the Constitution.
The 1 st respondent, a Sub-Inspector of Police subjected the petitioner to an assaultwhilst the petitioner was in Police custody.
Held:
The 1st respondent violated the fundamental right of the petitioner guaranteedby Article 11 of the Constitution.
AN APPLICATION for relief for infringement of fundamental rights.
Dr. T. Thirunavukarasu for the petitioner.
G. Hussain for the 1st respondent.
P. D. Ratnayake SC for the 3rd and 4th respondents.
Cur. adv. vult.
September 25, 1998
SHIRANI A. BANDARANAYAKE, J.
•
The petitioner who was 59 years old, was a "broker* by profession.He has averred that on 27.05.1996, the 1st respondent with someother police officers attached to the Police Station, Wellawatte, tookhim into custody while he was travelling from Panadura to Colombo.The petitioner alleges that he was taken to the Police Station and
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Sri Lanka Law Reports
(1998) 2 Sri LR.
was assaulted by the 1st respondent at the instigation of the 2ndrespondent. The allegation is that the petitioner was assaulted withsand filled S-lon pipes and he thereby sustained injuries to his head,eyes, legs and hand. He complains that owing to this assault his rightindex finger was fractured. He cannot use his finger at present andhe suffers from frequent “head and muscle pain". This Court grantedleave to proceed in respect of the alleged infringement of Article 11.
Learned counsel for the petitioner informed the Court on 08.06.1998that the 2nd respondent died on 04.06.1998 and that he is notproceeding against the heirs of the 2nd respondent. It was decidedto continue the application as against the 1st, 3rd and 4th respondents.
The 1st respondent in his affidavit averred that the 2nd respondentmade a complaint to the Police Station, Wellawatte, on 16.05.1996with regard to a theft of precious stones owned by him and that hesuspected the petitioner in this regard. In the course of his inves-tigations he had arrested the petitioner not on 27.05.1996 as allegedby the petitioner but on 28.05.1996 at 5.20 p.m. after informing himthe reason for such arrest. Thereafter the 1st respondent had pro-duced the petitioner before the Magistrate, Mount Lavinia on 29.05.1996and he was enlarged on bail on the same day. The plaint was filedthereafter in the Magistrate's Court, Mount Lavinia, against the petitionerfor the offence of theft under case No. 16309 and the case is pendingin Court. Learned counsel for the 1st respondent submitted that the1 st respondent was not involved in the alleged assault on the petitioner.Learned counsel for the 1st respondent referred us to the inquiry notesof the 1st respondent (1R2) made on 28.05.1996 at 5 p.m. near RoxyFilm Hall, Wellawatte. It states that when the 1st respondent informedthe petitioner that he is wanted with regard to a robbery of Gemstones, the petitioner had started to run. The 1st respondent and 3other police officers had pursued the petitioner. The petitioner hadjumped over a 6 foot wall. The 1st respondent and the other 3 officershad jumped over the wall and they had found the petitioner fallenover some stones. At that time the 1st respondent had seen someold wounds on the petitioner (1R2).«
However the petitioner's statement dated 28.05.1996 does notmention the incident where the petitioner had jumped over a 6 footwall. At the time of the incident, as mentioned earlier, the petitionerwas 59 years old. He appeared in Court at the hearing which was
SCRifaideen v. Sub-Inspector of Police Jayalath, Wellawatte
Police Station and Others (Shirani A. Bandaranayake, J.)255
years after the said incident and I am unable to accept the versionof the 1st respondent that the petitioner had jumped over a 6 footwall. This is an improbable story.
Learned counsel for the 1st respondent further submitted that thepetitioner was taken into custody on the complaint made by the 2ndrespondent at the Police Station, Wellawatte. This complaint was madeon 16.05.1996 (1R1) and the 2nd respondent has stated in thisstatement that he became aware of the loss of the Gem stones on
When the 2nd respondent inquired about the theft fromhis employees, one Sriyani, had reminded him that the petitioner hadcome to 2nd respondent's office on 10.04.1996 and that he wouldhave taken the Gem stones. This shows that the petitioner had visitedthe 2nd respondent's office on 10.04.1996, the 2nd respondent hadfound out that some of his Gem stones were missing on 06.05.1996,and he had waited for 10 days until 16.05.1996 before he made thecomplaint. The 1st respondent arrested the petitioner, according tothe petitioner on 27.05.1996 and according to the 1st respondent on
The 1st respondent also had waited for more than 10days before arresting the petitioner.
The petitioner was examined by the Medical Officer at the TeachingHospital, Colombo South (Kalubowila) on 04.06.1996. The medicalreport (P2) is as follows:
10th July, 1996.
Re Mr. A. R. M. Rifaideen
This patient was first seen by me on the 4th of June, 1996, witha history of assault sustained on the 27th of May, 1996.
Examination revealed a contusion on the right frontal region of skull,painful swollen right index finger and several bruises over the trunkand legs. He was asked to come to the accident service the followingday and x-rays of skull and right hand done. Skull x-ray normal; handx-ray showed an undisplaced fracture of proxional phalanx.
Treatment given for the hand injury.
Present status stiffness of right index finger, occasional attacks offrontal headache.
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Sri Lanka Law Reports
(1998) 2 Sri LR.
I am not inclined to accept the submission for the 1st respondentthat the petitioner has sustained the said injuries by reason of thefall from the 6 foot wall. The medical report, in my view, supportsthe version of the petitioner that he sustained the said injuries owingto the assault by the 1st respondent at the Police Station, Wellawatte.I accordingly hold that the 1st respondent has violated the fundamentalright of the petitioner guaranteed by Article 11 of the Constitution.
I direct the State to pay Rs. 20,000/- and the 1st respondent topay personally Rs. 20,000/- to the petitioner as compensation. In allthe petitioner would be entitled to a sum of Rs. 40,000/- ascompensation. This amount must be paid within three (3) months fromtoday.
The Registrar of the Supreme Court is directed to send a copyof this judgment to the Inspector-General of Police.
G. P. S. DE SILVA, CJ. – I agree.
WIJETUNGA, J. – I agree.
Relief granted.