ROMESH COORAY v. JAYALATH ,SUB-INSPECTOR OF POLICE AND OTHERS

004-SLLR-SLLR-2008-V-2-ROMESH-COORAY-v.-JAYALATH-SUB-INSPECTOR-OF-POLICE-AND-OTHERS.pdf


Romesh Cooray v
$cJavalath, Sub-Inspector of Police and othersfJL
ROMESH COORAYvJAYALATH, SUB-INSPECTOR OF POLICE AND OTHERSSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
RAJA FERNANDO, J. ANDSOMAWANSA, J.
S.C. (F.R.) APPLICATION NO. 663/2003JUNE 25th, 2007
Fundamental Rights – Article 11 and 13(1) of the Constitution – Cruel andinhuman treatment in violation of Article 11 – violation of Article 13(1), arrested notaccording to procedure established by law – Article 126(2) – time frame withinwhich an application regarding an infringement of fundamental rights guaranteedby the Constitution must be made – Supreme Court Rules – 30(4), 45(6), 45(8) -Human Rights Commission of Sri Lanka Act – Section 13(1) – computation oftime for the purpose of Article 126 of the Constitution.
The Supreme Court Granted leave to proceed for the alleged violation of Articles11 and 13(1) of the Constitution.
The 6th respondent also raised a preliminary objection that the petitioner has notfiled the application within time in terms of Article 126(2) of the Constitution.
Held:
A preliminary objection should be raised at the earliest opportunity; either inhis objections or in the written submissions.
Per Dr. Shirani Bandaranayake, J.
"The whole purpose of objections and written submissions is to place theircase by both parties before Court prior to the hearing and when the
44 .Sri Lanka Law Reports[2008] 2 Sri L.R
petitioner’s objections are taken along with the objections and'or writtensubmissions, filed by the respondents prior to the hearing, it would not comeas a surprise either to the affected parties or to Court and the applicationscould be heard without prejudice to any one's rights."
Section 13(1) of the Human Rights Commission of Sri Lanka Act. No. 21 of1996 deals with the computation of time for the purpose of Article 126 of theConstitution. As the petitioner has complied with provisions laid down inSection13(1) of the Human Rights Commission Act and had complained tothe Human Rights Commission within one month of the alleged infringementof his Fundamental Rights, the period within which the inquiry into suchcomplaint is pending before the Commission, shall not be taken into accountin computing the period of one month. In the circumstances the petitioner hasfiled his application before the Supreme Court within the stipulated timeframe in terms of Article 126(2) of the Constitution. Preliminary objectionoverruled.
Per Dr. Shirani Bandaranayake, J.
“It has to be borne in mind that torture, cruel, inhuman and degradingtreatment or punishment could take many forms, viz; psychological and/orphysical and the circumstances of each case would have to be carefullyconsidered to decide whether the act/s in question had led to a violation ofArticle 11 of the constitution."
When the allegations are considered in the light of section 12 of the Tortureand other Cruel, Inhuman or Degrading treatment or Punishment Act, alongwith the available medical evidence, and on a consideration of the totality ofthe facts and circumstances and the conclusion and opinion of the AssistantJudicial Medical Officer, it is clear that the petitioner's fundamental rightguaranteed in terms of Article 11 of the Constitution had been infringed byexecutive action.
(i) As there was no material produced before the Supreme Court to show that
there had been any complaint against the petitioner or that there had beencredible information or a reasonable suspicion that had existed against thepetitioner, it is apparent that the arrest of the petitioner was unlawful and notaccording to the procedure established by law.
(ii) The petitioner's fundamental rights guaranteed by Articles 11 and 13(1) ofthe Constitution had been violated by the 1st to 3rd respondents.
Cases referred to:
Gamaethige v Siriwardena and others (1988) 1 SLR 384.
Collins v Jamaica (Communication No. 240/87).
Kumarasena v Sub-Inspector Sriyantha and others S.C. ApplicationNo. 257/93 – S.C. Minutes of 23.5.1994.
Wijayasiriwardena v Kumara, Inspector of Police, Kandy and twoothers.
Romesh Cooray v Jayalath, Sub-Inspector of Police and others
SC(Dr. Shirani Bandaranavake. J.).
Hobbs v London and South Western Railway Co. (1875) L.R. 10 Q.B.111.
APPLICATION complaining of infringement of the fundamental rights.
Mahohara de Silva, P.C. with W.D. Weeraratne for petitioner,
Mohan Peiris, P.C. with Nuwanthi Dias for 1st, 2nd and 3rd respondents.Romesh Samarakkody for 5th respondent.
Senany Dayaratne for 6th respondent.
Harshika De Silva, S.C. for 7th respondent.
Cur.adv.vult
July 2nd, 2008
DR. SHIRANI BANDAR AN AYAKE, J.The petitioner, who was the Managing Director of RanbimaJanitorial Services (Pvt.) Limited, which operated a Janitorial Servicein the country at the time material to this application, complained ofthe violation of his fundamental rights guaranteed in terms of Articles11, 12(1) and 13(1) of the Constitution due to the conduct of the 1 st to6th respondents. This Court granted leave to proceed for the allegedviolation of Articles 11 and 13(1) of the Constitution.
The petitioner's case, as presented by the petitioner, albeit brief, isas follows:
The petitioner, a 26 years old bachelor, was living with his parentsat his parents' house in Panadura, at the time the incident in questiontook place. On 06.07.2003 around 12.30 a.m., the 1st, 2nd and 3rdrespondents came to his residence and had inquired about a personby the name of Romesh Cooray. At that time, only the petitioner'smother, brother and the petitioner had been present in his house andthe petitioner had identified himself as Romesh Cooray.
The 1st respondent had then informed the petitioner that they arearresting him and while the petitioner was getting dressed, the 1st to3rd respondents had searched his house, but had not found anythingincriminating the petitioner.
Soon after the 1st to 3rd respondents had arrested the petitionerand had accompanied him out of his house. A white coloured van hadbeen parked outside his residence, which was driven by a person,who was clad in a white T-shirt. The petitioner believed that the vehicleand the driver did not belong to the police.
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The 1st respondent had directed the petitioner towards the saidvan and instructed him to sit at the back. The 2nd and 3rdrespondents also sat with the petitioner whilst the 1 st respondent satin the front seat next to the driver. There were two (2) others seatedat the back of the vehicle, whom the petitioner had later identified asthe 4th and 5th respondents.
Before they took off, the 3rd respondent had blindfolded thepetitioner with a piece of cloth. The vehicle had thereafter travelled forabout 25 minutes and when the vehicle stopped, the petitioner wasdragged inside a premises and afterwards his blinds were removed.The petitioner realized that he was in a room with the 1st to 5threspondents and he identified the place as the Lunawa Restau-rant.
No sooner the blindfolding was removed, the 1st, 2nd and 3rdrespondents started assaulting the petitioner with their fists, woodenclubs and a hose pipe, which continued for about 10 minutes. Whilstthe petitioner was being assaulted, he was questioned about a housebreaking of the residence of the 6th respondent. The 3rd respondenthad stated that the petitioner had taken part in the said housebreaking and that he had possessed a gun.
The petitioner had denied any involvement in the saidhousebreaking and had also denied a gun being in his possession.His position had been that the 6th respondent was a rivalbusinessman in Panadura and that there had been a certain amountof rivalry between the two families and this had been well known in thePanadura area.
When the petitioner had denied any involvement in the said housebreaking, the 1 st, 2nd and 3rd respondents had started assaulting thepetitioner and inquiring about the gun. When the petitioner had clearlystated that he does not possess a gun, the 4th respondent had alsostarted kicking the petitioner. The petitioner at this point had fallen onthe ground and both the 2nd and 3rd respondents had joined kickingthe petitioner on his stomach and head. This had continued for over15 minutes at which point, the petitioner had feared for his life as the'assaults were intense and unbearable'. In the circumstances, thepetitioner had told the 1st respondent that he would show where hehad hidden the gun although there was no gun to show. He told that
Romesh Cooray v Jayalath, Sub-Inspector of Police and others
SC(Dr. Shirani Bandaranayake, JJ47^
he had kept it at his uncle's house as he believed that if he was takento the uncle's house, he would come to his rescue.
Soon after, the kicking stopped and the petitioner was dragged intothe van as he was not in a position to walk. When the petitioner wastold to give instructions as to where he had hidden the gun, he gavedirections to his uncle's house in Panadura. When they reached thepetitioner's uncle's house, the 1 st respondent told the petitioner not toreveal about the assault.
The petitioner had nevertheless informed his uncle about thebeating and the search of the gun, which he does not possess. At thatpoint the petitioner's uncle had told the 1st respondent to leave thepetitioner with him and that he would bring him to the police the nextday. However, the 1st respondent had not agreed to the saidsuggestion and had taken the petitioner in the van to the LunawaRestaurant owned by the 4th respondent. The 2nd and 4threspondents had assaulted the petitioner inside the same room wherehe was put earlier for over 30 minutes and had thereafter taken himto the Panadura beach.
Then the petitioner was thrown on to the beach and the 1 st and 2ndrespondents had assaulted the petitioner for over 15 minutes. The 2ndrespondent had taken a cellophane bag filled with petrol and made thepetitioner to inhale the petrol fumes from the said bag. While all theaforesaid was happening the 3rd, 4th and 5th respondents werewatching the same without rendering any assistance to the petitioner.
Thereafter the 2nd respondent had taken the petitioner to the officeof the Special Crimes Division situated at Walana, Panadura, wherehe was pushed in to a washroom. There, the 1 st and 2nd respondentshad again assaulted the petitioner and had thrown him under ashower. Thereafter the petitioner was put to a room, where he waskept locked until around 11.00 a.m. in the morning.
The petitioner was brought to the Police Station and at that time hisparents were present at the Police Station and the petitioner hadinformed them about the assault.
The petitioner was kept in the Police Station until around 2.00 a.m.and later he was taken to a Government Medical Officer. Thereafterthe petitioner was brought back to the Police Station and was put in a
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cell. That particular cell was occupied by another person, namely oneSamson Kulatunga. The petitioner had later learned that he had beenassaulted on an allegation of housebreaking.
Thereafter the 1st and 2nd respondents had produced thepetitioner and the said Samson Kulatunga before the Magistrate,Panadura on an allegation of housebreaking. The petitioner wasreleased on bail in a sum of Rs. 5,000/- (P8 and P9).
After he was released on bail, the petitioner had got himselfadmitted to the General Hospital, Kalubowila.
The Panadura Police had filed a B Report on 06.03.2003 informingCourt of a complaint made by the 6th respondent on 28.02.2003 andthe 5th respondent had stated that the petitioner had met him on twooccasions armed with a pistol and had inquired from the 5threspondent as to the place where the 6th respondent keeps hisvaluables and jewellery. However, the respondents had not been ableto maintain the Magistrate's Court case No. 24638 at the Magistrate'sCourt, Panadura as there was no evidence and accordingly thelearned Magistrate had discharged the petitioner from theproceedings. Accordingly the petitioner alleged that theaforementioned action had violated his fundamental rightsguaranteed in terms of Articles 11 and 13(1) of the Constitution.
When this matter was taken for hearing, learned Counsel for the6th respondent took up a preliminary objection on the basis that theapplication is time barred and therefore it should be rejected and/ordismissed in limine. In the circumstances, before I examine thealleged infringement of the petitioner's fundamental rights guaranteedin terms of Articles 11 and 13(1) of the Constitution, let me considerthe submissions of the 6th respondent on the basis of his preliminaryobjection.
Preliminary objection
The 6th respondent contended that the alleged infringement of thepetitioner's fundamental rights by the 1st to 6th respondents hadtaken place on 06.07.2003, whereas the present application of thepetitioner had been filed in this Court only on 11.12.2003. Hiscontention was that, Article 126(2) of the Constitution has made clearprovisions to the effect that any application on the basis of an
Romesh Cooray v Jayalath, Sub-Inspector of Police and others
SC(Dr. Shirani Bandaranayake, J.)49
allegation regarding an infringement of a fundamental rightguaranteed in terms of the Constitution, must be made within onemonth from the alleged infringement and that the petitioner has comebefore this Court well after the period provided in terms of Article126(2) of the Constitution. Learned Counsel for the 6th respondenthad referred to the decision by Mark Fernando, J., in Gamaethige vSiriwardene and others in support of his contention.
Learned President's Counsel for the petitioner strenuouslycontended that the preliminary objection taken by the 6th respondentcannot be sustained for two reasons, Firstly, it was submitted that the6th respondent has taken the said objection belatedly and after all theCourt pleadings were completed. Secondly, it was submitted that thepetitioner before filing this application had made a complaint to theHuman Rights Commission in terms of Section 13(1) of the HumanRights Commission Act,No. 21 of 1996 and therefore this applicationcannot be regarded as time barred as that matter was pending at thetime this application was made before this Court.
The petitioner filed this application admittedly on 11.12.2003 andthe alleged infringement had taken place on 06.07.2003. Thisapplication was supported for leave to proceed on 13.02.2004. Whenleave to proceed was granted, respondents were given four (4) weekstime to file objections. Accordingly, the 6th respondent had filed hisobjection on 13.07.2004. In the said statement of objections, nopreliminary objection regarding the time bar was taken by the 6threspondent. It is not disputed that the said objection was taken for thefirst time only on 25.06.2007, when this matter was taken for hearing.
The contention of the 6th respondent was that there was nonecessity to have raised the said objection in his statement ofobjections. Learned Counsel for the 6th respondent referred to Rule45(6) of the Supreme Court Rules of 1990, in support of hiscontention. The said Rule reads as follows:
"Each respondent may file counter-affidavits within fourteendays of the receipt of such notice, with notice to the petitionerand the other respondents. The petitioner may in like mannerfile a counter-affidavit, within seven days, replying to theallegation of fact contained in any respondent's affidavit."
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Accordingly his position was that the respondent's objectionshould contain only 'allegations of fact* and that there is no need formatters of law and the issue of time-bar to be specially referred toin the statement of objections.
Rule 45 (6) is contained in Part IV of the Supreme Court Rulesof 1990. The said Part IV deals with applications under Article 126.Nevertheless it is to be borne in mind that Rule 45(6) cannot betaken in isolation in this regard, as the other Rules also deal withspecific details in filling written submissions, etc., regarding theappeals and applications and that the Supreme Court Rules are notconfined to the procedures pertaining to statement of objections, asRule 45(7) deals with the filing of the written submissions by allparties. According to Rule 45(7),
"The petitioner and the respondent shall file their writtensubmissions at least one week before the date fixed for thehearing of the application, with notice to every other party."
The contents that should be included in the written submissionsare specified under the general provisions regarding appeals andapplications in Part II of the Supreme Court Rules, 1990. Rule45(8), refers to the provisions of Part II of the Rules and states that,
"The provisions of Part II of these rules shall apply, mutatismutandis, to applications under Article 126."
Rule 30(4) specifically deals with the contents of the writtensubmissions of the respondents and states that,
"The submissions of the respondent shall contain asconcisely as possible –
a statement, in reply to the appellant's statement of facts,confining whether, and if not to what extent, therespondent agrees with such statement of facts; and astatement of the other relevant facts, referring to theevidence, both oral and documentary
the questions of law or the matters which are in issue inthe appeal;
H
Romesh Cooray v Jayalath, Sub-Inspector of Police and others
SC(Dr. Shirani Bandaranayake, J.)51
Accordingly on a consideration of the aforementioned Rules, itis evident that a preliminary objection should be raised at the timethe objections are filed and/or should be referred to in the writtensubmissions that has to be tendered in terms of the Rules. Theobjective of this procedure is quite easy to comprehend. The wholepurpose of objections and written submissions is to place their caseby both parties before Court prior to the hearing and when thepetitioner's objections are taken along with the objections and/orwritten submissions filed by the respondents prior to the hearing, itwould not come as a surprise either to the affected parties or toCourt and the applications could be heard without prejudice to anyone's rights. Therefore, as correctly pointed out by the learnedPresident's Counsel for the petitioner, the earliest opportunity the6th respondent had of raising the aforementioned preliminaryobjection was at the time of filing his objections and writtensubmissions in terms of the Supreme Court Rules, 1990; as theobjections and/or the written submissions should have containedany statement of fact and/or issue of law that the 6th respondentintended to raise at the hearing.
Admittedly, the 6th respondent had not raised the preliminaryobjection on the ground of the application being filed out of timeeither in his objections or in the written submissions. In thecircumstances, it is apparent that there is no merit in the objectionraised by the 6th respondent.
It is not disputed that the petitioner had filed this application on
complaining of the infringement of his fundamentalrights guaranteed in terms of Articles 11,12(1) and 13(1) of theConstitution, which arose out of the incident/s, which took place on
Admittedly, the petitioner had complained to theHuman Rights Commission about the said infringements on
The petitioner in paragraph 47 of his petition dated
clearly stated thus:
"The petitioner states that he has made a complaint to theHuman Rights Commission on 08th July 2003 against theaforesaid unlawful conduct of the respondents and theinquiry in respect of the same is pending in the Human RightsCommission. The petitioner annexes hereto a copy of the
52Sri Lanka Law Reports(2008) 2 Sri L.R
letter issued by the Human Rights Commission marked P11in proof thereof."
The document marked Pit is issued by the Human RightsCommission of Sri Lanka, which refers to the complaint made on behalfof the petitioner on 08.07.2003. Accordingly, a complaint had beenmade to the Human Rights Commission within one month from the dateof the alleged incident. Section 13(1) of the Human Rights Commissionof Sri Lanka Act, No. 21 of 1996, deals with the computation of time forthe purpose of Article 126 of the Constitution. This section reads asfollows:
"Where a complaint is made by an aggrieved party in termsof Section 14, to the Commission, within one month of thealleged infringement or imminent infringement of afundamental right by executive or administrative action, theperiod within which the inquiry into such complaint is pendingbefore the Commission, shall not be taken into account incomputing the period of one month within which anapplication may be made to the Supreme Court by suchperson in terms of Article 126(2) of the Constitution."
Considering the aforementioned circumstances, it is clear that thepetitioner had complied with the provisions laid down in Section 13(1) ofthe Human Rights Commission Act and had complained to the HumanRights Commission within one month of the alleged infringement of hisfundamental rights. Further, when he had filed the present applicationbefore this Court on 11.12.2003, the inquiry before the Human RightsCommission had been still pending.
In the circumstances, it is quite clear that the petitioner had filed hisapplication before this Court within the stipulated time frame in terms ofArticle 126(2) of the Constitution.
For the reasons aforesaid the preliminary objection raised by thelearned Counsel for the 6th respondent is overruled.
I would now turn to examine the alleged infringement of thepetitioner's fundamental rights guaranteed in terms of Articles 11 and13(1) of the Constitution.
Romesh Cooray v Jayalath, Sub-Inspector of Police and others
(Dr. Shirani Bandaranavake. J.)53
Alleged infringement of Article 11 of the Constitution
As stated earlier the petitioner's complaint was that he was brutallyassaulted by the 1 st to 3rd respondents. Since the petitioner's versionwas stated earlier, let me now turn to consider submissions made by the1 st to 3rd respondents.
According to the submissions made, at the time material to thisapplication, the 1st respondent was assigned the task of investigatinginto the robbery of the 6th respondent's residence and was stationed inthe Special Crimes Unit of Panadura, Walana Police'Station. This was,according to the 1st respondent, as the officers of the Panadura,Walana Police were not successful in the investigations. The 2nd and3rd respondents had assisted the 1st respondent in the said investi-gations.
According to the 1st respondent, the 6th respondent had made acomplaint on 28.02.2003 of a robbery at his residence of valuablesamounting to approximately Rs. 450,000/-. In the course of hisinvestigations, the 1st respondent had received information from the 5threspondent that the petitioner had sought his assistance to burgle theresidence of the 6th respondent, as he was ’familiar with the' 6threspondent and his family. In relation to the said assistance, thepetitioner had offered a sum of Rs. 50,000/- to the 5th respondent andalthough the 5th respondent had not participated in the said robbery hehad been aware of the robbery and that the petitioner was responsiblefor the said robbery.
On the basis of this information, the 1st respondent had arrested thepetitioner at his residence on 06.07.2003. The petitioner was informedof the reasons for his arrest, he was questioned inside the van and wastaken to the Police Station, where he was handed over to the officers tobe produced before the Judicial Medical Officer. After being examinedby the Government Medical Officer, the petitioner was brought back tothe Police Station and thereafter produced before the learnedMagistrate. Accordingly the 1st respondent had categorically denied theallegations levelled against him by the petitioner.
The petitioner was examined by the Assistant Judicial MedicalOfficer of the Teaching Hospital, Colombo-South on 07.07.2003,after the petitioner was admitted to the said hospital on 06.07.2003.The Medico-Legal Report deals with several injuries and the
54Sri Lanka Law Reports[2008] 2 Sri L.R
conclusions and opinion refer to the nexus between the saidinjuries and the history given by the petitioner. In thecircumstances, l give below the relevant portions of the Medico-Legal Report, which deal with the history given by the petitioner, theinjuries on examination and the conclusion and opinion of theJudicial Medical Officer, who examined the petitioner.
"History given by the patient"As said by the patient on 06.07.2003 around 12.15 a.m. three
police officers came to the place, said they are from Police- Mirihana and took him to custody. Then put him to a hiredprivate van, blindfolded him and took him away. Later theytook him to a house at Lunawa, removed the blind fold. Therewere 04 people – 03 persons who were said to be of policeand a person called Prasanna, the driver of the van. All ofthem assaulted him. He was assaulted by following ways forabout 1 1/2-2 hrs. duration.
with a wooden pole
rubber hose
batten
butt of a gun
threw petrol on to the body
asked to breath into a petrol filled polythene bag(face was pushed into the bag)
According to him, he was assaulted on the head, back of thechest, abdomen, elbow and knee joint, soles and thighs.Later he was put into same van, asked to sit on the floor.Then he was taken to a beach. He was asked to kneel downand then assaulted in a similar manner for about anotherhour.
Then he was put back to the same van, asked to sit on thefloor and brought back to the same house. After that thedriver of the van left the scene. The other three assaulted himin the same way as the previous two episodes …"
Romesh Cooray v Jayalath, Sub-Inspector of Police and others
SC(Dr. Shirani Bandaranayake, J.)55
Examination of InjuriesA contusion, tender and bluish colour measuring5x6c.m. in size lying over the left buttock.
Tenderness over both soles. No visible injuries.
Tramline contusion on right lower shin placed on theanterior aspect each in measuring 6×0.5 c.m. in sizeand lying 2 c.m. apart placed obliquely with lateral endbeing above the medial end.
m
Contusion, bluish in colour, lying on the medial aspectof right ankle, measuring 6×8 c.m. extending to thesole.
• ■ • •
Conclusion and Opinion
Injury No. 1 is due to blunt trauma and could havebeen caused by one or more methods of assaultdescribed by him. The colour and appearance of theinjury is compatible with the time period given by thevictim.
Injury No. 3 is due to blunt trauma caused by aweapon with a cylindrical striking surface. The colourand appearance is compatible with the time periodgiven by the victim.
Tenderness over both soles have caused by blunttrauma. The absence of visible injuries does notexclude blunt force trauma.
Injury No. 4 is due to blunt trauma. The colour andappearance is compatible with the period given by thevictim."
The medical evidence thus supports the version placed beforethis Court by the petitioner with regard to the violation of hisfundamental rights guaranteed in terms of Article 11 of theConstitution.
Learned President's Counsel for the 1 st respondent contendedthat not every unkind act or punishment will constitute torture, but
56Sri Lanka Law Reports[2008] 2 Sri L.R
only the act that is qualitatively of a specially reprehensible kindwould meet the necessary requirement to satisfy Article 11 of theConstitution. Accordingly his contention was that the conductcomplained of by the petitioner falls short of the qualitative standardof reprehensible conduct required to meet for the grant of adeclaration in terms of Article 11 of the Constitution.
This submission of the learned President's Counsel that aparticular act should be ‘qualitatively of a specially reprehensiblekind' comes out clearly in the words of Resolution 3452(xxx)adopted by the General Assembly of the United nations at its 30thsession in 1975. Article 1 of that Resolution reads as follows:
"For the purpose of this Declaration, torture means any act bywhich severe pain or suffering, whether physical or mental, isintentionally inflicted by or at the instigation of a public officialon a person for such purposes as obtaining from him or athird person information or confession, punishing him for anact he committed, or intimidating him or other persons."
The kind of torture in terms of Article 7 of the InternationalCovenant on Civil and Political Rights had been considered inCollins v Jamaica(2), where a man, who was found guilty of murderand was in death row had been subjected to search during whichhe was injured and forced to undress in the presence of otherinmates, wardens, soldiers and policemen. He was also subjectedto severe beatings, when he had invoked his rights under prisonlegislation. It was held that the assault by the prison wardens andsubsequent injuries were violative of Article 7 of the InternationalCovenant on Civil and Political Rights.
Article 7 provides that 'No one shall be subjected to torture or tocruel, inhuman or degrading treatment or punishment. It also statesthat ‘in particular, no one shall be subjected without his free consentto medical or scientific experimentation'.
Article 11 of the Constitution, which deals with the freedom fromtorture, is as follows:
"No person shall be subjected to torture or to cruel,
inhuman or degrading treatment."
Romesh Cooray v Jayalath, Sub-Inspector of Police and others
SC(Dr. Shirani Bandaranavake. J.)5Z_
Considering the physical harm suffered by a petitioner, due totorture and/or to cruel, inhuman treatment, it would not be an easytask for the Court to decide and conclude as to what actions andconducts would constitute torture or cruel, inhuman treatment. Asimilar difficulty would arise when considering degrading treatment,especially when there is no physical harm encountered by thevictim such as in Kumarasena v Sub-Inspector Sriyantha andothers^). Accordingly, it has to be borne in mind that, torture, cruel,inhuman and degrading treatment or punishment could take manyforms, viz., psychological and/or physical and the circumstances ofeach case would have to be carefully considered to decide whetherthe act/s in question had led to a violation of Article 11 of theConstitution. Our courts have not found it easy to decide whetherthe force used is in violation of Article 11. In Wijayasiriwardene vKumara, Inspector of Police, Kandy and two others,w consideringthis aspect Mark Fernando, J., referred to the statement made byBlackburn, J., in Hobbs v London and South Western RailwayCoS5 where it was stated that,
"It is something like having to draw a fine between nightand day; there is a great duration of twilight when it isneither night nor day,…."
It would have been correct to describe the difficulty in drawingthe distinction and deciding whether an incident in question wouldhave amounted to torture, at the time relevant to the decision inWijayasiriwardene (supra). However, this position has changedsince the enactment of the Convention against Torture and otherCruel, Inhuman or Degrading Treatment or Punishment Act, No. 22of 1994, on the basis of the UN Convention on Torture. Section 12of the said Act defines 'torture' and reads as follows:
"torture" with its grammatical variation and cognateexpressions, means any act which causes severe pain,whether physical or mental, to any other person, being anact which is –
done for any of the following purposes that is to say –
obtaining from such other person or a third person,any information or confession; or
58Sri Lanka Law Reports(2008) 2 Sri L.R
punishing such other person for any act which heor a third person has committed, or is suspected ofhaving committed; or
intimidating or co-ercing such other person or athird person; or
done for any reason based on discrimination, andbeing in every case, an act which is done by, or at theinstigation of, or with the consent or acquiescence of,a public officer or other person acting in an officialcapacity".
Accordingly, when the allegations are considered in the light ofSection 12 of the Torture and other Cruel, Inhuman or DegradingTreatment or Punishment Act, along with the available medicalevidence, it would not be difficult to ascertain whether the actcomplained of was 'qualitatively of a specially reprehensible kind'.
In the circumstances, on a consideration of the totality of thefacts and circumstances in this matter and the conclusion andopinion of the Assistant Judicial Medical Officer of the TeachingHospital, Kalubowila, it is quite clear that the petitioner'sfundamental right guaranteed in terms of Article 11 of theConstitution had been infringed by executive action.
Alleged violation of Article 13(1) of the Constitution
The petitioner’s complaint deals with his arrest and the learnedPresident's Counsel for the petitioner submitted that the petitioner hadbeen arrested without any substantial evidence incriminating thepetitioner regarding the robbery at the 6th respondent's residence.Article 13(1) of the Constitution deals with freedomfrom arbitrary arrest, detention and punishment and reads as follows:
"No person shall be arrested except according toprocedure established by law. Any person arrested shallbe informed of the reason for his arrest."
Section 32(1 )b of the Code of Criminal Procedure Act, specifiesthe established procedure for arrest and reads thus:
"Any peace officer may without an order from aMagistrate and without a warrant arrest any person –
Romesh Cooray v Jayalath, Sub-Inspector of Police and others
SC(Dr Shirani Bandaranavake, J.)
who in his presence commits any breach of thepeace;
who has been concerned in any cognizable offence oragainst whom a reasonable complaint has been madeor credible information has been received or areasonable suspicion exist of his having been soconcerned."
The 1st respondent had admitted that he was deployed toinvestigate into the robbery of the 6th respondent’s residence andwas stationed at the Special Crimes Unit of the Panadura, WalanaPolice Station. According to the 1 st respondent, the 6th respondenthad made a complaint on 28.02.2003 regarding a robbery at hisresidence of valuables amounting to approximately Rs. 456,000/-.His position was that he had received information, in the course of hisinvestigations about the involvement of the 5th respondent andanother employee of the 6th respondent, known as one SamsonKulatunga. He had thereafter received information from his privateinformant that the 5th respondent had left the employment of the 6threspondent shortly after the robbery and was residing at Hatton. The1st respondent averred that he had questioned the 5th respondentand that the 5th respondent had revealed that the petitioner hadbefriended him and that the petitioner had sought his assistance toburgle the 6th respondent's residence as he was familiar with the 6thresident's residence. In return for the information and assistance, thepetitioner had promised to pay the 5th respondent a sum ofRs. 50,000/-.According to the 1st respondent, the 5th respondenthad not taken part in the robbery, although he was aware that the 6threspondent's residence was burgled in the night of 27.02.2003 andthat the petitioner was responsible for the said act. Later on
the 1st respondent had taken 2nd and the 3rdrespondents along with the 5th respondent to the petitioner'sresidence in a van driven by a civilian driver and there the 5threspondent had identified the petitioner as the person, who hadbroken into the residence of the 6th respondent.
Except for his averments, the 1st respondent however, had notsubmitted any material to substantiate the aforementioned position.The 5th respondent on the contrary had submitted that he did notknow the petitioner personally and that he had never had any
60Sri Lanka Law Reports[2008] 2 Sri L.R
dealings whatsoever with the petitioner. Moreover the 5th respondenthad stated that he was subjected to torture, while he was underinterrogation. Under these circumstances, would it be possible toaccept the contention of the 1st respondent that he had receivedcredible information or that there existed a reasonable suspicionagainst the petitioner or there had been any reasonable complaintsagainst the petitioner? Considering all the circumstances of thismatter my answers to all these questions are in the negative. It isalso to be noted that, as submitted by the learned President'sCounsel for the petitioner, the petitioner was discharged from theproceedings in the Magistrate Court, Panadura as there was noevidence whatsoever against him (P9-Pg.4).
Considering all the circumstances, could it be said that the 1strespondent had arrested the petitioner according to the procedureestablished by law? There was no material produced before thisCourt to show that there had been any complaint against thepetitioner or that there had been credible information or areasonable suspicion that had existed against the petitioner. In thecircumstances, it is apparent that the arrest of the petitioner wasunlawful and not according to the procedure established by law. Forthe reasons aforesaid I hold that the petitioner's fundamental rightsguaranteed by Articles 11 and 13(1) of the Constitution had beenviolated by the 1st to 3rd respondents.
I accordingly hold that the petitioner is entitled to a sum ofRs. 100,000/- as compensation and costs payable by the Sate. Idirect the 1st to 3rd respondents to pay Rs. 15,000/- each,personally as compensation. In all, the petitioner will be entitled toa sum of Rs. 145,000/- as compensation and costs. This Amountmust be paid within three (3) months from today.
The Registrar of the Supreme Court is directed to send a copyof this judgment to the Inspector General of Police.
RAJA FERNANDO, J.-I agree.
SOMAWANSA, J.-I agree
Preliminary objection on time bar overruled.
Application allowed.
Compensation ordered.