024-SLLR-SLLR-2007-V-2-SRI-THAMINDA-DHARSHANE-AND-MAHALEKAM-v.-INSPECTOR-OF-POLICE-AND-OTHERS.pdf
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SRI THAMINDA, DHARSHANE ANDMAHALEKAMv
INSPECTOR OF POLICE AND OTHERSSUPREME COURT
S.N. SILVA, C.J.
THILAKAWARDANE, J.
MARSOOF, J.
SC FR 463/464/465/03JUNE 27, 2005SEPTEMBER 2, 5, 2005
Fundamental Rights – Article 71, 13 (1) – Assault – No reason orjustification? – Assaulted by crowd – Arrested by Police to prevent majorskermish – Petitioners under influence of liquor – Fundamental rightsguarantee owed to any person? – Does torture per se amount to cruel anddegrading treatment – Burden of proving – Torture? – Use of excessiveforce. – Penal Code – Sections 183. 314, and 410.
The petitioners allege violations of Articles. 11 and 13(1) by certain officers.They complain that they were arrested without justification and were brutallyassaulted, and further contend that, they were subjected to torture or tocruel inhuman or degrading treatment or punishment in violation of Article
11.
The respondents contended that the petitioners were under the influence ofliquor and when the 3rd petitioner was requested to move his three wheeleraway, the petitioners had attacked the respondents and the Police Constablewho had sustained injuries had to be hospitalised, and that the petitioners hadsustained injuries at the hands of the crowd, that had gathered there tointervene and save the Police Constable from being assaulted.
Held:
(1) The mere fact that there was an assault which carried some injury is notindicative of a violation of Article 11. The use of force does not per seamount to cruel, inhuman or degrading treatment and in particular a
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minimum level of severity should be established to sustain a charge oftorture.
The onus is on the petitioner to adduce sufficient evidence to satisfyCourt that any act in violation of Article 11 did take place.
Per Safeem Marsoof, J.
"I am of the opinion that the fundamental rights guaranteed by Article 11 areowed to 'any person' which includes even persons in a high state ofintoxication".
(2) Despite the failure on the part of the petitioners to identify those whoviolated their fundamental rights, they are entitled to a declaration thattheir fundamental rights have been violated by executive andadministrative action.
APPLICATION under Article 126 of the Constitution.
Cases referred to:
Lucas Appuhamy v Mathurata 1994 1 Sri LR 400.
Saman v Leeladasa 1989 1 Sri LR 10.
Gunasekera v Kumara and others SC 191/88 SCM 3.11.89.
Wijayasiriwardane v Kumara, Inspector of Police, Kandy and others1989 2 Sri LR 312.
Sisira Kumara v Sergeant Perera and others 1998 1 Sri LR 162.
Malinda Channa Peiris and others v Attorney-General 1994 1 Sri LR 1.
Ratnasiri and another v Devasurendra, Inspector of Police, Slave Islandand others 1994 3 Sri LR 127.
K. Thiranagama with S.H.K.K. Kumari for petitioners.
Mohan Peiris PC for 1st – 11th respondents.
Mahen Gopallawa SC for Attorney-General.
Cur.adv.vult.
August 2. 2007SALEEM MARSOOF, J.
These three applications have been filed alleging violations ofArticles 11 and 13(1) of the Constitution by certain Police Officerswho were on duty on the last day of the Kandy Esala Peraherawhich fell on 11th August 2003. Since they arose from the sametransaction, the three applications were heard together, and it isconvenient to deal with them in one judgment.
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The petitioner in SC Application No. 463/03, MahaduraPandula Sri Thaminda, and the petitioner in SC Application No.464/03 Ruwan Darshana Fernando, were persons who wereearning their living by running fruit stalls opposite the CentralMarket, Kandy. The petitioner in SC Application No. 465/03,Aruna Shantha Mahalekam was the driver of the three=wheelerbelonging to the said Ruwan Dharshana Fernando.
The petitioners' version of the incident that gave rise to theseapplications, as narrated in the petitions filed in this Court, is thatat about 9.30 p.m. on 11th August, 2003, the petitioners came tothe fruit stalls owned by Taminda and Fernando after dinner inthe three-wheeler driven by Mahalekam. When the three-wheelerwas stopped at the three-wheeler park opposite the CentralMarket for them to get down, there were a number of PoliceOfficers there. One Police officer asked the driver to take thethree-wheeler away immediately. The driver Mahalekam told thePolice Officer that he would take it way after the persons insidegot down. Then the Police Officer asked him, “What did yousay?" and slapped him. It is the position of the petitioners thatRuwan Dharshana Fernando had an injury on his leg and wasusing crutches to walk, and consequently, there was a slightdelay in alighting from the three-wheeler. When Mahalekam wasbeing assaulted. Fernando asked the Police Officer not toassault him because it was his delay. The petitioners state thatat that point Police Constable 31461 Abeyratne of GalhewaPolice Station, gave Fernando a blow. Then, Thaminda got downfrom the three-wheeler and appealed to the Police Officer not toassault Fernando because he is a disabled person on hiscrutches. Thaminda said to the Police Officer. "Do not assaulthim. There is a law in the country. Act according to law". At thattime the Police bus bearing Registration No. 63-376 came there,and a Police Officer who was inside the bus inquired from PCAbeyratne, “What was the problem?". He said: "These men talklaw". Thereafter, about 12 Policemen alighted from the bus. ThePolicemen, who got down from the bus, saying: "Who are you?We are the chandiyas," kicked the petitioners and assaultedthem with hands, batons and leather belts.
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According to the petitioners, they were arrested by the 1st and2nd respondents without any justification and were dragged intothe bus, and thereafter put under the seats and furtherassaulted. As Fernando could not walk, the Police Officersdragged him along the tarred road and put him into the bus. Thepetitioners asked them too, not to assault them and to actaccording to law. They allege that they were attacked withbatons and butts of guns at the Police Station as well, and thepetitioners sustained severe injuries. Thaminda claims that at thePolice Station one Police Officer attacked him on his chest withthe muzzle of a gun, causing a bleeding injury. The petitionersallege that Mahaiekam was dealt with most brutality, and thatdue to the attack with batons he sustained a bleeding headinjury. When he asked for some water, one Police Officer had hithim on his bleeding wound with a baton, saying "I will give yousome water". With that blow he became unconscious, and theyput all three petitioners into the bus which took them to theGeneral Hospital, Kandy, where Mahaiekam was admitted toward 11. Thereafter, the other two petitioners, namely Thamindaand Fernando, were taken to the residence of the AdditionalMagistrate, Kandy. These two petitioners claim that while theywere being taken from the Hospital to the Magistrate's Bungalow,the Police Officers put them under the seats of the bus and keptkicking them. When they were produced before the AdditionalMagistrate, they informed him that they have sustained injuriesdue to assaults by the Police, and the Magistrate ordered thePolice to admit them to the Hospital for treatment. It is claimedthat even when they were being taken from the Magistrate’sBungalow to the Hospital, the Police Officers continued toassault them saying "You told the Magistrate and did this to us".Even inside the Police Post at the Hospital they were assaultedsaying "These are the men who put part to us". They were takento the General Hospital, Kandy at about midnight on 11th August2003, and although Fernando was discharged from hospital aftertreatment at ward 10 the next morning. Thaminda had to betreated at ward 11 for a few days.
All three petitioners were in remand custody till 19th August2003, on which date they were bailed out. The very next day they
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visited the Police Headquarters in Colombo and made thestatement produced marked 'P2‘ with the three petitions filed inthis court. Their statements are substantively in the same linesas the averments in their petitions, except that in thesestatements they have sought to identify the Police Officers whoallegedly assaulted them. The question of identity is very crucialto applications of this nature, and will be looked into in greaterdetail later on in this judgment.
The petitioners have pleaded that they were arrested by the1st and 2nd respondents without any reason or jurisdiction, inviolation of their fundamental right to freedom from arbitraryarrest guaranteed by Article 13(1) of the Constitution, and thatthey were brutally assaulted by the 1st to 10th respondentscausing serious injuries requiring hospitalization, therebyinfringing their fundamental rights to freedom from torture andcruel, inhuman or degrading treatment or punishmentguaranteed by Article 11 of the Constitution.
It appears from the affidavit filed in these cases and thestatements recorded by the Police that the incident arose fromthe delay in taking away the three-wheeler from which thepetitioners had alighted within a prohibited zone within 400meters from the route of the Perahera within which parking ofvehicles inclusive of three-wheelers) was not permitted forsecurity reasons. It is not disputed by the petitioners that theincident occurred while the three-wheeler was being parked in aprohibited area. It is common ground that the incident in questiontook place on the last day of the Kandy Esala Perahera (the"Randoli Perahera"), at a time when tens of thousands ofpersons, inclusive of foreigners, had gathered by the road side toview the Perahera. Special traffic arrangements had been madein order to facilitate the conducting of the Perahera by closingcertain areas for traffic and by diverting the traffic into by-roads.
The respondents' version of this incident is set out in theaffidavit dated 3rd November 2003 filed by the 1st respondentand the joint affidavit dated 3rd November 2003 filed by the 2ndto 10th respondents along with their objections. As attachmentsto the affidavit of the 1st respondent has been produced twomore affidavits marked respectively 'lR4a' and '1R4b' and
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affirmed to by Ekanayake Mudiyanselage Goonethilake Banda,the senior Superintendent of Police for the Kandy Division, andSenanayake Mudiyanselage Abeyratne, who was a constable onduty near the Kandy Market at the time of the incident. Ittranspires from these affidavits and the documents annexedthereto that PC Abeyratne, who was deployed near the Market,had required the driver – Mahalekam to move the three-wheeleraway, but the petitioners, who were under the influence of liquor,had been incensed at this request and had turned abusive andviolent. They had assaulted PC Abeyratne during the course ofwhich the latter sustained injuries, and his uniform was tom.According to the respondents, the crowd that had gathered therehad to intervene to prevent PC Abeyratne from being assaultedfurther, and in view of the injuries sustained by him, he had to beadmitted to Hospital along with the petitioners. The respondents'position is that all three petitioners were drunk, disorderly andviolent, and the crowd had set on the petitioners when they sawPC Abeyratne being assaulted by the petitioners.
At that time, the 1st to 10th respondents, who were officers ofthe Rapid Deployment Force (RDF) Unit of the Kandy Policewere in a police vehicle parked nearby ready to meet anyemergency. According to the respondents, it was a by-standerwho had informed the said Police vehicle about the incident, andthis Unit proceeded to take action to avoid a further breach of thepeace. The Rapid Deployment Force (RDF) is a Unit of the SriLanka Police specially trained to deal with unusually difficultsituations inclusive of the controlling of riots and other similarcircumstances, and is required to play a lead role in situationswhich Police Units indulging in normal Police duties are unableto effectively deal with. RDF Units are stationed in principaltowns in Sri Lanka and are also called upon to be present onspecial occasions at which large crowds gather in order tosupport and supplement the local Police in the area. The 1st to10th respondents were all members of this Unit, and were led bythe 1st respondent who was in rank an Inspector of Police.
Learned President's Counsel appearing for the 1st to 11threspondents submits that the 1st to 10th respondents had to actquickly in order to avert a major skirmish between the petitioners
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and the crowd which had already assaulted the petitioners. Theimmediate concern of these respondents was to obtain medicalattention to the petitioners who had sustained injuries at thehands of the crowd and the said respondents had difficulty ineven getting the petitioners to board the Police bus. It is theposition of the respondents that the petitioners were informed atthe time of their arrest that they were being arrested forobstruction of the performance of duties by a Police Officer, fordrunken and disorderly behaviour and for breach of the peace.Learned President’s Counsel has referred us to Section 23 (2) ofthe Code of Criminal Procedure Act No. 15 of 1979, assubsequently amended, which provides that if any personforcibly resists the endeavour to arrest him or attempts to evadearrest, "the person making the arrest may use such means asare reasonably necessary to effect the arrest." He also submitsthat in Lucas Appuhamy v MathurataW, it was observed by thisCourt that where an arrest without warrant is effected onsufficient grounds, such arrest was not in violation of Article 13(1)of the Constitution. The petitioners have since been charged foroffences punishable in terms of Sections 183, 314 and 410 of thePenal Code, and proceedings are said to be pending, it is clearfrom the evidence that the 1st to 10th respondents did not act atany time in excess of the powers granted to them by law ineffecting the arrest of the petitioners, and that their interventionprevented the occurrence of a major breach of the peace. Inthese circumstances, at the hearing of this case, the learnedCounsel for the petitioners indicated to Court that he was notpursuing his case under Article 13(1).
The petitioners also allege that they were subjected to tortureor to cruel, inhuman or degrading treatment or punishment inviolation of their fundamental rights guaranteed by Article 11 ofthe Constitution. In this connection, it must be stated at theoutset that the medical reports made available to Courtunequivocally support the allegation made by the respondentsthat the petitioners were drunk. However these reports need tobe scrutinized closely to ascertain whether their fundamentalrights under Article 11 have been infringed.
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As far as the petitioner in SC Application No. 464/03 RuwanDarshana Fernando is concerned, the Medico – Legal Reportissued by Dr. T.H.L. Wijesinghe has been produced in Court. Thisreport shows that he was examined on the morning of 12thAugust 2003 in ward No. 10 of the General Hospital, Kandy priorto his discharge, and it shows that he had minor abrasions andcontusions of a non-grievous nature, which clearly indicates thatthis petitioner has been subjected to assault. LearnedPresident's Counsel for the 1st to 11th respondents has cited thedecisions of this Court in Saman v LeeladasaW and Gunasekerav Kumara and others/3* for the proposition that the mere fact thatthere was an assault which carried some injury is not indicativeof a violation of Article 11. In fact in Wijayasiriwardena v Kumara,inspector of Police, Kandy and two others <4> and Sisira Kumarav Sergeant Perera and others^ this Court has taken the viewthat the use of force does not per se amount to cruel, inhumanor degrading treatment and in particular, a ‘minimum level ofseverity1 should be established to sustain a charge of torture. AsJustice (Dr.) A.R.B. Amerasinghe observes in his work 'OurFundamental Rights of Personal Security and Physical Liberty'atpage 29 –
" ‘Torture' implies that the suffering occasioned must be of aparticular intensity or cruelty. In order that ill-treatment maybe regarded as inhuman or degrading it must be 'severe'.There must be the attainment of a 'minimum level ofseverity'. There must (be) the crossing of the 'threshold' setby the prohibition. There must be an attainment of 'theseriousness of treatment envisaged by the prohibition inorder to sustain a case based on torture or inhuman ordegrading treatment or punishment."
In Wijayasiriwardena v. Kumara, Inspector of Police, Kandyand Two others (supra), the petitioners had a split lip and aninjury on the cheek which he alleged amounted to a violation ofArticle 11, Mark Fernando, J. (with Dheeraratne, J. andRamanathan, J. concurring) observed that –
"The use of excessive force may well found an action fordamages in delict, but does not per se amount to cruel,inhuman or degrading treatment that would depend on the
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persons and the circumstances. A degree of force whichwould be cruel in relation to a frail old lady would notnecessarily be cruel in relation to a tough young man; forcewhich would be degrading if used on a student inside a quietorderly classroom, would not be so regarded if used in anatmosphere charged with tension and violence …. To decidewhether the force used in this instance was in violation ofArticle 11, "is something like having to draw a line betweennight and day1 there is a great duration of twilight when it isneither night nor day; but on the question now before theCourt, though you cannot draw the precise line, you can sayon which side of the line the case is."
The injuries suffered by Ruwan Darshana Fernando are asmuch consistent with the story of this petitioner that he wasassaulted by the Police, as they are with the story of therespondents that he along with the other petitioners were setupon by a crowd from whom they were rescued by the Police. Inmy opinion, this petitioner has not been able to establish aviolation of Article 11 of the Constitution. The burden of proofrequired in applications of this nature was explained in the caseof Malinda Channa Peiris and others v Attorney-General(6>,wherein it was stressed that having regard to the gravity of thematter in issue, a high degree of certainty is required before thebalance Of probability might be said to tilt in favour of anypetitioner seeking to discharge his burden of proving that he wassubjected to torture or to cruel, inhuman or degrading treatmentor punishment. Accordingly, the onus is on this petitioner toadduce sufficient evidence to satisfy Court that any act inviolation of Article 11 did take place, and this in my opinion, hehas failed to do. In the circumstances, l am of the view that theapplication filed by this petitioner should be dismissed, but in allthe circumstances of this case, without costs.
However, as far as the other two applications are concerned,the position is much more serious. The petitioner in SCApplication No. 465/03, Aruna Shantha Mahalekam, wasexamining by Dr. D.P.P. Senasinghe on the morning of 13thAugust 2003 in Ward No. 11 and in the Medico – Legal Reportissued by him it is expressly stated that even at that time his
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breath was smelling of alcohol. However, the following injurieshave been noted by the Doctor in the body of Mahalekam:-
"1. Laceration, 6×4 cm, cruciate in shape, placed on the uppermiddle aspect of the head.
Contusion, 3×2 cm, oral shaped, placed on the back aspectof the left shoulder, at the root of the neck.
Contusion, 2×3 cm. band shaped, placed on the mid-backaspect of the right shoulder.
Contusion, 4×3 cm, oral shaped, placed 4 cm away to theleft from the midline and 10 cm below the lower angle ofthe left scapula on the back of the left side of the chest.
Contusion, 5×3 cm, band shaped, placed obliquely towardsright, 5 cm below and 6 cm to the left from the lower angleof right scapula on the back of the right side of thechest.
Contusion, 6×3 cm, band shaped, placed obliquely towardsthe left, on the back of the right side of the abdomen 10 cmbelow the injury No. 5.
abrasion, 2 cm, linear, placed transversely on the rightouter aspect of the abdomen.
Contusion, 4×3 cm, oral shaped, placed on the right outeraspect of the abdomen surrounding the injury No. 7.
Contusion, 5×4 cm, oral shaped, placed on mid inneraspect of right arm.
Abrasion, 1×1 cm, irregular, placed on inner aspect of rightelbow."
The very first item of injury noted above supports the story ofthis petitioner Mahalekam that even when he was brought to thePolice Station he was bleeding with a head injury caused by aPolice assault, and that when he asked for some water onePolice Officer, who is not named by the petitioner in his petitionor elsewhere, had hit him on his bleeding wound with a baton,and that he thereupon lost consciousness. Of course, Dr.Senasinghe has observed in his report that “there was no loss of
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consciousness, vomiting or bleeding from the ears, nose ormouth," but the injuries suffered by this petitioner are in myopinion clearly on the other side of the line, and of sufficientseriousness to justify a finding of a violation of Article 11 of theConstitution.
The petitioner in SC Application No. 463/03, MahaduraPandula Sri Thaminda was also examined on the morning of13th August 2003 by Dr. Senasinghe who has noted in theMedico – Legal Report issued by him that his breadth too wassmelling of alcohol. He has also noted the following injuries onthe body of this petitioner.
“1. Sutured laceration, 1 cm placed obliquely, 1 cm above theinner 1/3 of the right eye brow.
Sutured laceration, 1 cm placed vertically, 1.5 cm away tothe right, from the outer angle of right eye.
Sutured laceration, 5 cm, placed obliquely, on the middle ofthe back aspect of the head.
Contusion, 8×2 c,, placed obliquely on the back aspect ofright side of the chest over right scapula.
Abrasion, 1×0.5 cm, irregular in shape, placed 10 cm belowand 3 cm to the right from lower angle of left scapula on theback aspect of the left side of the chest.
Abrasion, 4×0.3 cm, linear, placed transversely on the leftlower chest, 6 cm below the left nipple.
Abrasion, 1 cm, linear, placed transversely on the left lowerchest, 2 cm below the injury No. 6."
In my opinion the injuries found on the petitioner Thamindaare also of a fairly grievous nature, and are of sufficientseriousness to justify a finding of a violation of Article 11 of theConstitution.
In my view, it is extremely unlikely that the injuries suffered bythe petitioners in SC Applications 463/03 and 465/03 weresustained in the course of a confrontation with a crowd asalleged by the respondents. In fact, if such serious injuries were
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inflicted on these two petitioners by a crowd of people, it was theduty of the police to trace the persons who inflicted such injuriesand take action to prosecute them. In the absence of anyinformation regarding action taken by the police to apprehendsuch persons, the only reasonable conclusion one can arrive atis that they were inflicted by the police after the arrest of thesepetitioners and while they were in Police custody.
There is, however, one difficulty in granting these petitionersrelief, and that is the uncertainty which permeates their entirecase in regard to the identity of those who subjected them totorture or to cruel, inhuman or degrading treatment orpunishment. It is important to note that the only person whomthey have expressly identified in the petitions filed by them as aperson who dealt any one of them even a blow is PC Abeyratne,whom they have not chosen to cite as respondent to theseapplications. All the other acts they have complained of are notattributed to any particular police officer or officers.
In the statement made by the petitioner in SC Application No.463/03 Thaminda at the Police Headquarters on 19th August2003 marked 'P2‘ and produced with his petition, the name of the1st respondent is expressly mentioned, along with the numbersof the 2nd, 3rd, 6th, 7th, 8th, 9th and 10th respondents as thosewho assaulted him in the Police Station, but in addition to thesepersons Thaminda has mentioned PC 37434 and PC 34111 whoare not respondents to these applications, and no explanationhas been offered as to why these persons have not been citedas respondents. In the statement of Thaminda no reference ismade to the 5th and 6th respondents, and the reliability of thestatement is put into great uncertainty by the disclosure that thenumbers of the Police Officers who are alleged to have assaultedThaminda were obtained from a sincere friend whose name oridentity is not mentioned in the statement. In the statement madeby the petitioner in SC application No. 465/03 Mahalekam on thesame day, the 2nd, 3rd, 5th, 7th, 8th, 9th and 10th respondentare identified as those who assaulted him, but he too makesreference to PC 37034 who is not a respondent to his petition.He has, however, not disclosed his source of informationregarding the numbers mentioned by him, but it is most likely that
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this is some information that Thaminda shared with him. The factis, that there is no averment in the petition filed by this petitionerregarding the identity of those who allegedly assaulted him.
It is obvious that the petitioners have not been able to identifyany of the Police Officers who assaulted them as theythemselves were in a highly intoxicated state. However, i am ofthe opinion that the fundamental rights guaranteed by Article 11are owed to “any person" which includes even persons in a highstate of intoxication. On the available material I am satisfied thatduring the night of 11th August 2003, certain police officersattached to the Kandy Police Station and the Rapid DeploymentForce (RDF) of that police station, acting under the colour ofoffice, did assault the petitioners in SC Application No. 463/03and SC Application 465/03 and subjected them to inhumantreatment. The situation in these applications is similar to that inRatnasiri and another v Devasurendran, Inspector of Police,Slave Island and others(y) in which the Supreme Court held thatdespite the failure on the part of the petitioners to identify thosewho violated their fundamental rights, they were entitled to adeclaration that their fundamental rights have been violated byexecutive or administrative action for compensation.
However, in ali the circumstances of the present applications,where the petitioners have themselves conducted themselves ina disgraceful manner on a noble occasion, and must share partsof the blame for their predicament, I am not inclined to award anycompensation, and only grant a declaration that the fundamentalrights guaranteed to the petitioners in SC Application No. 463/03and SC Application 465/03 by Article 11 of the Constitution havebeen infringed due to executive or administrative action. In theparticular circumstances of these two applications. I do not makeany order for costs.
SILVA, CJ. – I agree.
TILAKAWARDANE, J. – I agree.
Only declaratory relief granted.