037-SLLR-SLLR-2002-V-1-ROSHANA-MICHAEL-v.-SALEH-OIC-CRIMES-POLICE-STATION-NARAHENPITA-.pdf
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Roshana Michael v. Saleh, OIC (Crimes), Police Station,
Narahenpita and Others
345
ROSHANA MICHAEL
v.SALEH, OIC (CRIMES), POLICE STATION, NARAHENPITAAND OTHERS
SUPREME COURTFERNANDO, J.,
GUNASEKERA, J. ANDWIGNESWARAN, J.
SC (FR) NO. 1/2001JUNE 03, 2002
Fundamental rights – Unlawful arrest and torture of the petitioner – False policeentries to suppress the true facts – Articles 11, 13 (1) and 13 (2) of theConstitution – Whether the addition of an affirmation to an oath necessarilyvitiates an affidavit.
The petiitoner, a visiting domestic servant worked in the house of her employeruntil 12.15 pm on 03. 12. 2000. At about 6 pm., the employer's wife (thecomplainant) observed her husband's gold wristlet watch missing. She got downthe petitioner and questioned her but the wristlet watch was not found.
According to the Information Book of the Narahenpita Police Station, the complainanthad made a complaint regarding the loss of the wristlet watch on 04. 12. 2000at 9.10 am.; the 1st respondent (Inspector of Police) and another officer left forinquiry at 10.00 am, in a private vehicle; they went to the petitioner's house forinvestigation; arrested the petitioner at 5.10 pm on suspicion and brought herto the Police Station at 6.30 pm. Her statement was recorded on 05. 12. 2000at 7.30 am and she was produced before the Magistrate at 11.30 am the sameday.
The proved facts showed that the 1st respondent and two police officers and thecomplainant had visited the petitioner's house at 8 pm on 03. 12. 2000 in aprivate car and assaulted the petitioner and brought her to the complainant's house.After a futile search for the wristlet watch there and a lot of threatening andharassment on the way, the Police brought her to the Police Station. Whilstin Police custody she was assaulted with a rod and a pole with the object ofextracting a confession of theft of the wristlet watch. A doctor also witnessed thepetitioner's condition at the Police station and saw injuries. A complaint was alsomade to the Magistrate regarding the assault. The JMO"s evidence supportedthe petitioner's version of the alleged assault.
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Held:
The petitioner’s version was the credible version which was amplysupported by witnesses. The Police version was false and had to berejected as being a cover up for the illegal arrest of the petitioner on03. 12. 2000.
By their acts the respondents infringed the petitioner's fundamental rightsunder Articles 11, 13 (1) and 13 (2) of the Constitution.
Obiter :
The petitioner's affidavit was not invalid for the reason that it containedan oath and an affirmation. Even if her affidavit was rejected, there wasample evidence besides that affidavit to establish her averments.
APPLICATION for relief for infringement of fundamental rights.
W. R. Sanjeewa for petitioner.
Manohara de Silva for 1st respondent.
Ms. Viveka Siriwardena de Silva, State Counsel for 2nd and 3rd respondents.
Cur. adv. vult.
August 02, 2002
FERNANDO, J.
The petitioner seeks relief from this Court for the alleged infringement 1of her fundamental rights under Articles 11, 13 (1) and 13 (2), byreason of her arrest by the 1st respondent (the officer-in-charge(Crimes) of the Narahenpita Police) at about 8.00 pm on 03.12 2000;her detention in Police custody thereafter until she was producedbefore a Magistrate shortly before noon on 05. 12. 2000; and thecruel inhuman and degrading treatment to which she was subjectedwhilst in Police custody.
SCRoshana Michael v. Saleh, OIC (Crimes), Police Station,
Narahenpita and Others (Fernando, J.)347
The petitioner is a 25-year old unmarried woman living at No. 100/
14. Dabare Mawatha, Narahenpita, with her parents. She had been 10working as a domestic aide in a nearby household at No. 18/95.Dabare Mawatha, Narahenpita. This case is the sequel to the allegedtheft of a gold wrist-watch belonging to her employer's wife (whomI will refer to as "the complainant").
According to a statement made by the complainant to the NarahenpitaPolice at 9.40 am on 04. 12. 2000, all four members of her familyattended a party on 02. 12. 2000, and returned home in the earlyhours of the 3rd. Both the complainant and her husband owned goldwrist-watches each worth Rs. 500,000. Before going to sleep thecomplainant left her husband's watch on the dressing table, and put 20her own (together with her jewellery) in a wall cupboard, in their(upstairs) bedroom. The petitioner came for work as usual at 8.00am. While the complainant was downstairs the petitioner was workingupstairs, and left at about 12.15 pm. She and her two children thenworked upstairs. When she opened the wall cupboard at 10.50 am,for some other purpose, she had observed that her watch was there.
It was only at about 6.00 pm that evening, when she decided to putaway the two watches, that she found that her watch was missing.
She checked with her husband, who said that he had not put it away.
She had only one other employee, who had been on leave since 3029. 11. 2000. She claimed that nobody other than the petitioner wentupstairs that day, and therefore suspected that it was the petitionerwho had stolen the watch. Thereupon "she got down the petitioner”
– how, she did not say – and asked her to find the watch, but thepetitioner did not. Her statement makes no mention of any complaint,written or oral, to the Police that day. The complainant, an Attorney-at-Law, gave no reason for failing to make a prompt complaint onthe 3rd itself. The respondents did not submit an affidavit from her,or any member of the family.
According to his "Out" entry made at 10.00 am on the 4th, the 401st respondent set out to investigate the theft in a private vehicle
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(the registration number and ownership of which was not disclosed)accompanied only by constable Tissera. According to Tissera's notes,they reached the complainant's residence only at 11.00 am – takingone hour for that short journery.
In his affidavit the 1st respondent described the subsequent eventswith the utmost brevity :
"… I went with two other police officers to the [complainant's]residence and commenced investigations. At about 5.10 hours [s/c]on the same day I went to the residence of the petitioner and soarrested [her] on suspicion and thereafter brought her to theNarahenpita Police and [she] was handed over to the officer onduty. Thereafter, the petitioner was in the custody of the officer-in-charge." [emphasis added
According to his “In" entry made at 6.30 pm, the 1st respondentreturned in a private vehicle; handed over the petitioner to the officeron duty to await the orders of the officer-in-charge; and directedTissera to record her statement. At 6.40 pm it was recorded that shewas examined by a Police matron and that she had no visible injuiries.
For some unexplained reason Tissera did not record the petitioner's 60statement that day, and waited until 7.30 am the next day. Accordingto the certified copy produced by the 1st respondent the concludingportion of her statement was a follows :
". . . Thereafter the lady [nona] came on the night and askedme whether I took her watch. I said no. Accordingly, having goneto the house I searched. I did not find. I did not see the watch.What I have to say further is that I did not take that watch. Thatis all I have to say about that incident. Read over and accept ascorrect. Further, some Police officers in civvies came. Further, theInspector gave me two slaps. That is all I have to say. Read over 70and accepted as correct, (signed) …"
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Narahenpita and Others (Fernando, J.)
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This gives the impression that the complainant came alone on the3rd. However, on perusing the Information Book itself, it was foundthat the petitioner had actually referred to the complainant "with others"(nona-la) and had said "Further on that occasion some Police officersin civvies came." The petitioner also claimed in her counter-affidavitthat Tissera had refused to record that the Police had assaulted her,saying that that was not necessary; that thereupon she refused tosign the statement; and that it was only then that Tissera had recordedthe next few. sentences. That is borne out by the repetition of the sophrases. "That is all I have to say" and "Read over and acceptedas correct".
It is common ground that the petitioner was produced in the ChiefMagistrate's Court, Colombo, on the 5th at about 11.30 am. The Courtrecord shows that Counsel on her behalf had submitted that she hadbeen in Police custody for two days and had been assaulted, resultingin contusions to her chest and elsewhere. There is no doubt thatshe did have injuries, as it is recorded that she opened her blouseslightly and showed injuries. As directed by the Magistrate, the JMOexamined her on the 7th, and reported that she had seven contusions 90: on the left shoulder (4" x 3"), left upper arm near the armpit(2“ x 2"), back of the left upper arm (3" x1"), right shoulder (3n x3“), left buttock (3" x 1.5"), left buttock extending to the upper leftthigh (2.5” diameter), and right buttock (3“ x 1.5”). The JMO was ofthe opinion that these injuries had been caused by an assault witha blunt object and were around two to four days old, consistent withan assault on the 3rd night. I must add that the dimensions of thecontusions do not suggest that each was the result of just a blowor two.
No criminal proceedings were instituted against the petitioner. 10C
There were no affidavits, apart from his own, in support of anypart of the 1st respondent's version.
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The petitioner's affidavit discloses a very different picture. At about8.00 pm on the 3rd, a neighbour called out to the petitioner that somepersons had arrived in a vehicle and were inquiring for her. Sheand her mother came out of the house. She saw "the black vehiclebelonging to the lady of the house where she worked", and standingnearby were the complainant and two unknown men, not in uniform.The complainant said that her watch was missing, and that was whyshe had come with those Police officers. The petitioner later came 11°to know that one of the two men was the officer-in-charge (Crimes)of the Narahenpita Police.
They asked her to get into that vehicle and took her to thecomplainant's residence. There she was told to search everywherefor the watch. The complainant said "there is no point in searchingin those places", and left the room, whereupon the 1st respondentslapped the petitioner twice, saying "this is not the way you will bebeaten if you are taken to the Police station". The petitioner searched,unsuccessfully, and the complainant asked her to say if she had takenthe watch. When she denied having taken it, the complainant said 120there was nothing she could do, and "to settle it with the Police".
She was then taken in a white vehicle driven by one Gamini. Shesaw her mother and sister standing at the gate. Her sister asked the1st respondent to take her mother along with the petitioner, whereuponthe 1st respondent raised his hand, threateningly, to strike her sister.
The vehicle was then stopped at a dark spot, the 1st respondentthreatened her, asking her to admit it if she had taken the watch,and saying that she would be beaten if they took her to the Policestation. At the Police station, she was beaten all over her body bythe 1st respondent and another officer, with a rod and a pole, for 130about two hours. She was also abused and threatened in crude andobscene language. The complainant's husband was present. The
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petitioner’s father and sister state that they came to the Police station,and the 1st respondent told the father that the watch was in theirhouse and to bring it; and when the father replied that the petitionerwas not that kind of child, the 1st respondent asked him to get out.
The petitioner was then taken again to the complainant's housein the black car, and again asked to search. Her mother and sisterstated that they too went to that residence, whereupon they were toldby the Police officers not to create problems but to go and wait at mothe Police station.
Thereafter, the petitioner was taken back to the Police station atabout 2.15 am., and from the vehicle she saw her mother, sister andneighbour outside the entrance. Her mother and sister, stated thatwhen the mother asked about the petitioner, the 1st respondent replied"You have the article, when you bring it we will give your child".
At about 7.00 am her father brought breakfast for her, and sheinformed him that she had been assaulted. Thereafter, her motherand sister came, and her sister applied Siddhalepa and gave herPanadoi. The petitioner showed her sister the officers who had isobeaten her. The petitioner's mother stated that she informed Dr. NalinSwaris. Later, Dr. Nalin Swaris and Counsel came to the Police stationto see her.
At around 1.30 pm the 1st respondent, with a Police party, tookthe petitioner to her home, and searched the entire place, and thenbrought her back to the station. That night there was a Police matronpresent.
The petitioner's version is fully corroborated by the detailed affidavitsof her neighbour, father, mother and sister. Those affidavits refer to
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events and statements (particularly the two statements italicized above) 160between 8.00 pm on the 3rd and 7.00 am on the 4th – before thetime at which the petitioner was arrested according to the 1strespondent's version. The 1st respondent has contented himself witha bare denial of those affidavits, and has not even made an attemptto show that he was not on duty between 8.00 pm on the 3rd and7.00 am on the 4th, or that he was engaged in other duties. As forthe visit of Dr. Swaris and the petitioner's Counsel, he simply statedthat he was "unaware".
In response to the 1st respondent's affidavit, the petitioner fileda counter-affidavit, together with supporting affidavits, obtained in 170October, 2001, from Dr. Swaris, and two priests and a nun to whomthe fact of the petitioner's arrest and ill-treatment is said to have beencommunicated, who are said to have visited her at the Police stationbefore the 4th afternoon. The petitioner's first affidavit made no referenceto the priests and the nun, and the 1st respondent has not had anopportunity of replying to their affidavits. It would not be fair to the1st respondent to act on those affidavits. However, Dr. Swaris' visitwas clearly mentioned in the first set of affidavits; and the 1st respondentdid not deny that visit. Accordingly, I would accept Dr. Swaris' affidavitas confirming his visit. That affidavit also refers to any other matters, isoincluding alleged conversations between Dr. Swaris and others at thePolice station, to which the 1st respondent has not had an opportunityof responding. I will, therefore, ignore those averments.
The principal issue is whether the petitioner was arrested at 5.10pm on the 4th. If so, there was by then a complaint of theft againsther, which would probably have given rise to a reasonable suspicionjustifying arrest. The petitioner did not allege any assault after 5.10pm, and she was produced in Court within 24 hours. If she had beenarrested at that time this application has to be dismissed.
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Roshana Michael v. Saleh, OIC (Crimes), Police Station,
Narahenpita and Others (Fernando, J.)
353
There are several reasons why the 1st respondent's version is 190unacceptable, while the petitioner's is credible.
The petitioner's position that the complainant came with two Policeofficers in civvies on the 3rd night is amply corroborated by herneighbour and her mother, and is inherently probable. It is to someextent confirmed by the complainant's statement that she "got down"the petitioner to her residence. It is, of course, possible that thecomplainant "got her down" in some other way – by sending amessage, or sending someone else – but there is no evidence ofany such thing. Her only other employee was away on leave. Thepetitioner was hardly likely to have come alone, and gone back alone, 200at that time of the night.
The supporting affidavits establish that at several subsequent pointsof time the petitioner was observed to be in Police custody – atthe complainant's residence and at the Police station. As against those,the 1st respondent has failed to submit affidavits from the complainantor any member of her family, or from Tissera or any other Policeofficer.
Finally, the 1st respondent's affidavit is not worthy of credit. Heaverred that he set out to investigate with two officers, although his"Out" entry refers only to one. He gave the time of arrest as 5.10 210hours which his Counsel says was mistake for 5.10 pm. He did notexplain how he came to use a private vehicle, for over eight hours- from 10.00 am till 6.30 pm. Who was the owner of that vehicle,and who drove it? Why did he make it available? Were official vehiclesnot available? Besides, the 1st respondent does not explain why ittook him over seven hours to arrest the petitioner. Considering thatthe complainant had already delayed fifteen hours to make a complaint,it was essential that he should have acted promptly to question the
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suspect and to try to recover the watch. Further, the petitioner hadaverred that the 1st respondent and a Police party had searched her 220house at 1.30 pm. The 1st respondent simply denied that, and saidnothing whatever about a search – but his notes, purportedly writtenat 5.10 pm, do refer to a search before arrest.
In an attempt to explain the delay in arresting the petitioner, hisCounsel referred to the 1st respondent's "In" entry which mentioneda telephone call, supposed to have been received at 11.30 am onthe 4th to the effect that a suspect who was already under arreston a charge of rape had pointed out the scene of the alleged offence,and that the 1st respondent had gone to the scene and made hisobservations. That was a matter which should have been averred in 230the affidavit, and it is unsafe to rely on the Police statements andnotes, which are by no means the best evidence, as substantiveevidence. However, in the certified copy of his notes produced bythe 1st respondent, the portion relating to the period between 11.30am and 5.10 pm has been omitted. The delay has not been satisfactorilyexplained. It is far more likely that entries were made to cover upan illegal arrest on the 3rd. I
I hold that the 1st respondent's claim that he had arrested thepetitioner on 04. 12. 2000 was false, and I hold that the petitionerhas established beyond reasonable doubt that the 1st respondent 240arrested her at about 8.00 pm on the 3rd although there was thenno complaint which could have given rise to a reasonable suspicionof theft. Further, the 1st respondent failed to make a correct entryin regard to her arrest, and subjected her to cruel, inhuman anddegrading treatment. In direct consequence of his failure to make acorrect entry, the petitioner was detained for a period in excess ofthat permitted by law. I grant the petitioner a declaration that herfundamental rights under Articles 11, 13 (1) and 13 (2) have been
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infringed by the 1st respondent, and I award her compensation andcosts in a sum of Rs. 100,000 payable on or before 30. 09. 2002, 250of which Rs. 70,000 shall be paid by the State and Rs. 30,000 bythe 1st respondent personally.
I must now deal with a "preliminary objection" taken at the outsetby learned counsel for the 1st respondent, that the petitioner's affidavitwas defective and that the application should therefore be dismissedin limine. He referred to the following portions of her affidavit :
”… do sincerely, truthfully and solemnly swear and affirm . . .
1. I am the affirmant named above . . .
I have read and understood the above
declaration and have signed it under oath (signed)260
on 31st day of December, 2000.
(Affirmant
It was submitted that a person could not both swear and affirm;that it was contradictory for the petitioner to purport to take an oathand yet to describe herself as an "affirmant"; and that the jurat shouldhave contained a statement by the Commissioner for Oaths that thepetitioner had read, understood and sworn to the affidavit (and nota statement by the petitioner herself in the first person).
Even if the petitioner's affidavit was ignored, the material avermentsin the petition were amply supported by the affidavits of the petitioner's 270neighbour, father, mother and sister, the Magistrate's Court record andthe JMO's report. The objection therefore fails.
Although a person who makes an affidavit is usually described asa “deponent", it would not be incorrect to describe him as a "declarant"
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(see sections 181 and 438 of the Civil Procedure Code). The useof the word “declaration" in the jurat does not vitiate the affidavit.While it is inappropriate for a person to take an oath or swear, iffor him an oath has no binding force, or if he has a conscientiousobjection to make an oath, the converse is not true. A person whodoes believe in the binding force of an oath may make, without doing 280violence to his beliefs, a solemn declaration or affirmation. Of coursesuch an affirmation alone may not suffice to constitute a valid affidavit,but the addition of an affirmation will not vitiate an otherwise validoath; and the description of the petitioner as an "affirmant" did notinvalidate the oath which she took. As for the jurat, it is true thatit is the person administering the oath or affirmation who must statein the jurat that the oath or affirmation was administered in hispresence, and the place and date. The jurat is defective as it purportsto be the petitioner's statement. However, the Commissioner’s attestationconfirms that the document was signed under oath in his presence. 290Had that affidavit been vital, I would have adjourned the hearing andgiven the petitioner an opportunity of correcting that formal defect,but that was unnecessary as the other affidavits were more thanadequate.
GUNASEKERA, J. – I agree.
WIGNESWARAN, J. – I agree.
Relief granted.