SENADEERA ,INSPECTOR OF POLICE ,PULMUDDAI POLICE STATION vs. LT. SIYASINGH

047-SLLR-SLLR-2005-V-1-SENADEERA-INSPECTOR-OF-POLICE-PULMUDDAI-POLICE-STATION-vs.-LT.-SIYASINGH.pdf



■scSenadeera, Inspector of Police, Pulmuddai Police■ Station
vs LT. Siyasinghe and others
335
SENADEERA, INSPECTOR OF POLICE,PULMUDDAI POLICE STATIONvs
LT. SIYASINGHE AND OTHERSSUPREME COURTWEERASURIYA, J.
UDALAGAMA, J. ANDFERNANDO, J.
SC APPLICATION No. 263/2001 (FR)
20th JANUARY, 2005
Fundamental Rights – Articles 11, 12(1) and 12(2) of the Constitution – Weakand contradictary evidence – Weight of evidence to satisfy court – Balance ofevidence.
336Sri Lanka Law Reports(2005) 1 Sri L. R.
The petitioner police officer complained that when he and his wife (President,Police Seva Vanitha Movement) were having lunch, the first and second re-spondents (army officers of the Kokilai Camp) together with soldiers of theKokilai Camp arrived, kicked their plates and took the petitioner away in a truck,assaulted him and later chased him away. In his counter affidavit the petitionersaid that there were other uniformed police officers accompanying him butthere was no affidavit from any officer to support this, except his wife's affidavit.The 3rd to the 5th respondents were soliders and the 6th respondent was theArmy Commander.
The evidence was contradictory except that there appears to have been a clashbetween the police and the army when the police were stopped from enteringKokilai village. The petitioner was produced before a medical officer accordingto whose report there were no major injuries. The petitioner decided not toenter the hospital for further treatment.
The 1st and 5th respondents and 10 others were prosecuted before a Magis-trate, but the case was withdrawn on the advice of the Attorney-General. In thecourse of the Supreme Court proceedings, the 3rd. 4th and 5th respondentswere discharged.
The petitioner complained of infringement fo his rights under Articles 11, 12(1)and 12(2) of the Constitution.
HELD:
Per Udalagama, J.
" This court in order to consider granting relief to the petitioner needs tobe satisfied on a balance of probabilities as to whether the petitionerhad discharged his burden of establishing the allegation made out inthe petitioner's petition and affidavit "
The case for the petitioner is exaggerated and unsupported by inde-pendent evidence.
APPLICATION for relief for infringement of fundamental rights.
Upul Jayasuriya for petitioner,
K. S. Tilakaratne for 1st, 2nd, 4th and 5th respondents.
S. L. Gunasekera for 3rd respondent.
Hashika de Silva. State Counsel for 6th and 7th respondents.
Cur.adv.vult
SCSenadeera, Inspector of Police, Pulmuddai Police Station vs.337
Lt. Siyasinghe and Others (Weerasuriya,' J.j
April 01st, 2005UDALAGAMA, J.
The petitioner, an Inspector of Police, who was the officer-in-charge ofPulmuddai Police Station alleges in his petition dated 01.05.2001 videparagraph 4 of same that on the 16th April, 2001 which obviously appearsto have been erroneously referred to as "the day prior to the Sinhala NewYear” that inter alia the' 1 and 2 respondents together with soldiers in theKokilai Army Camp subsequent to abusing the petitioner and his wife, thelatter of whom was referred to as the President of the Police Seva VanithaAssociation kicked their plates whilst having lunch and smashed same onthe ground, pulled the petitioner by his collar using obscene language andwas ordered to be dragged and put in a truck and further assaulted by atleast 15 soldiers whilst in the said truck and later dropped off and orderedto run: This appears to be the second incident after a Corporal attached tothe said Army Detachment is said to have abused the petitioner in obscenelanguage and refused entry to the Kokilai village.
The latter also complains that notwithstanding his introducing himselfas the officer-in-charge of Pulmuddai Police Station that the 1 st respondentassaulted him in the presence of his wife.
It is also alleged that he and his wife and two Reserve Sub-Inspectorsof Police were produced before the Government Medical Officer of Padaviyabut they chose not to be admitted to the hospital for further treatment. Thepetitioner also refers to documents P3a, P3b, P3c and P3d, the medicalreports dated 16.04.2001 (Medical Legal Examination reports).
The petitioner is said to have thereafter informed the AssistantSuperintendent of Police of Kebitigollewa, the Superintendent of Police(Operations) Padaviya and the Divisional Superintendent of Police,Anuradhapura, subsequent to which the 1,2 and 5 respondents and 10others were produced before the Magistrate of Kebitigollewa on a B reportfiled of record bearing No. 3134/2001 dated 23.04.2001 (P4). It is observedfrom the averments of paragraph 42 of the affidavit of the petitioner dated04.11.2001 that the Magistrate discharged the accused from theproceedings on the advice of the Attorney General. The petitioner also byhis averment in paragraph 48 of the same affidavit alleges inter alia malafides on the part of the then Additional Solicitor General but significantlyunsupported.
The petitioner in paragraph 35 of the petition alleges that his fundamentalrights to liberty, the freedom to engage in a profession and equal protection
33SSri Lanka Law Repons(2005) 1 Sri L. R.
of the law guaranteed under Articles 12(1), 13(1), 13(2), and 14(l)(g)hadthus been infringed and in the above circumstances prays for relief againstthe 1 to 6 respondents.
By a second petition which is undated the petitioner had also claimedan infringement of his fundamental rights recognized by the provisions ofArticle 11 of the Constitution.
On 31.08.2001 this court has granted leave to proceed only for theviolation of Articles 11,12(1) and 12(2) of the Constitution.
It must be also mentioned here that the petitioner having not claimedrelief against the 3rd respondent had no objection to the discharge of thelatter and this court had on 20.05.2004 discharged the 3rd respondentaccordingly.
The affidavit of the petitioner filed with the original petition dated01.05.2001 does not refer to any allegations of arrest, detention, tortureor abuse against the 4th respondent and as no violation of the petitioner'sfundamental rights by the 4th respondent appears to have been establishedthis court has no alternative but to discharge the 4th respondent.
The 4th respondent is accordingly discharged.
The only evidence against the 5th respondent, vide paragraph 23 of theaforesaid affidavit of the petitioner appears to be the former's mere presencewith the 1st and 2nd respondents and no allegation of a violation by the5th respondent of any of the petitioner's fundamental rights as alleged. Inthe circumstances the 5th respondent is also discharged from theseproceedings.
The 6th respondent who is the Commander of the Sri Lanka Army hadbeen made a party as the 1 to 5 respondents are under the latter'sadministrative control and general supervision and the 7th respondent, theAttorney General, is made a party to comply with the rules of court.
Considering the averments in the objections filed by the 1st respondentand also as admitted to by the petitioner the latter at the time of thealleged incident was not in uniform. The 1 st respondent appears to haverefused a request for a boat made by the petitioner and considering the
5cSenadeera, Inspector of Police. Pulmuddai Police Station vs.339
Lt. Siyasinghe and Others (Udalagama J.)
submissions of the learned Counsel for the petitioner at the hearing andalso the contents of the affidavits of the petitioner and his wife togetherwith the averment in the affidavits of the 1 and 2 respondents it isreasonable to assume that a confrontation between the Police party andthe Army personnel had.occurred on the date of the incident and that in allprobability a violent confrontation had also occurred. Considering also theaverments as contained in the affidavit of the petitioner supported by thoseof his wife together with those of the 1 and 2 respondents it is apparentthat the version of the incident as submitted to court by both parties are atvariance except for the fact that an incident had occurred. This court, inorder to consider granting of relief to the petitioner needs to be satisfied ona balance of probability as to whether the petitioner had successfullydischarged his burden of establishing the allegation made out in thepetitioner’s petition and affidavit:
I am however, inclined to the view that the petitioner has in fact failed todo so for the following principal reasons :
The uncertainty as to the date of the incident in view of the averments inparagraph 4 of the petitioner’s affidavit wherein the date is referred to asthe 16th of April, 2001 and also referred to as the day prior to theSinhala New Year which undoubtedly are two separate and differentdates.
Admittedly the petitioner embarked on a journey accompanied by anumber of Police officers from the Pulmuddai Police station, and noneof the junior Police officers had affirmed or sworn to of such incident.The only averments in support of the purported incident as related to bythe petitioner was those as contained in the affidavit of his wife.
The petitioner’s averments vide paragraph 5 of his counter affidavit thatthe other Police officers accompanying him were in uniform is significantlyunsupported by affidavit from any of those officers. Undoubtedly affidavitsfrom those Police officers who accompanied the petitioner or importantlyby those who received injuries, would have certainly added value incomparison to the solitary averments in the affidavit of his wife.
The injuries described by the Medical Officer, vide Medico Legal reportsfiled marked P5A and P5(C) appear to be mild and incompatible with
340Sri Lanka Law Reports(2005) 1 Sri L. R.
the alleged severity as complained of by the petitioner and his wifewhich included assault with weapon butts.
The petitioner also complained of being dragged along the ground to atruck and assaulted by 15 soldiers whilst inside the truck. The assaultas described by the petitioner in my view appears exaggerated whenconsidering the injuries in reference to the aforesaid Medico LegalReports.
P5d, a Medico Legal Report with reference to a Sub-lnspectorof Policewho is said to have accompanied the petitioner and who was also statedto have been assaulted is not supported by an affidavit from that officer,which if done undoubtedly would have added credence to the petitioner'sversion of the incident as described by him.
The position of the petitioner that his wife was the President of the SevaVanitha Association is also unsupported by independent evidence.
The criminal proceedings instituted in the Magistrate's Court ofKebithigollewa, vide B report bearing No. 3134/2001 and suspectsincluding the 1 and 2 respondents who had been charged with offencesunder the provisions of sections 128, 129, 141, 145, 183, 186, 324,332, 344, 345, 348, 356, 410 and 438 of the Penal Code had beenconcluded by the learned Magistrate by his order dated 15.10.2001discharging all suspects on the orders of the Attorney General.
The allegation made by the petitioner against the Additional SolicitorGeneral of mala fides as stated above is without supportive evidence andneeds to be rejected.
It must be noted and understood that such discharge of the suspectsincluding the 1 and 2 respondents from the serious allegations made outon the complaint of the petitioner points to the fact of an obvious lack ofmaterial to proceed on the complaint of the petitioner apparently renderingthe version of the petitioner supported by the averments in the affidavit ofhis wife to be unworthy of consideration.
Accordingly on a careful consideration of the aforesaid circumstancesI am inclined to the view that the petitioner has not succeeded in establishingon a balance of probability that the petitioner was subjected to cruel,
SCMachchavallavan vs-341
OIC, Army Camp, Palntain Point, Trincomalee and others
inhuman and degrading treatment thereby infringing the provisions of Article11 of the Constitution or that the respondents infringed the petitioner’srights to equal protection as contemplated in the provisions of Article 12(1)of the Constitution or that the petitioner was subjected to any discriminationas provided for in Article 12(2) of the Constitution.
This application is accordingly dismissed without costs.
WEERASURIYA, J. — I agree.
FERNANDO, J. —I agree.
Application dismissed.