004-SLLR-SLLR-1999-V-2-SUBASINGHE-v.-POLICE-CONSTABLE-SANDUN-AND-OTHERS.pdf
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Subasinghe v. Police Constable Sandun and Others
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SUBASINGHE
v.
POLICE CONSTABLE SANDUN AND OTHERS
SUPREME COURTG. P. S. DE SILVA, CJ„
WADUGODAPITIYA, J. ANDBANDARANAYAKE, J.
S.C. (SPECIAL) NO. 235/96
AUGUST 25, AND NOVEMBER 30, 1998
Fundamental rights – Degrading treatment – Articles 11, 13 (1) and 13 (2) ofthe Constitution.
On 26.11.1996 the petitioner made a complaint to the 3rd respondent (OIC,Dankotuwa Police) regarding a commercial transaction. On the evening of thatday, the 1 st respondent police constable met the petitioner at the Dankotuwa PublicMarket and threatened to teach him a "good lesson". The next day, the 1strespondent and another police officer (the 2nd respondent) arrested the petitionerat the Dankotuwa Public Market and took him to the police station. Thereafterthe 1st respondent assaulted the petitioner with hands, kicked him and also beathim with a belt. The petitioner was then handcuffed, taken to the Dankotuwajunction in a private bus and paraded there and brought back to the police station,where he was confined in a cell. The 1st respondent again assaulted the petitioner.A Deputy Minister visited the police station immediately and obtained the releaseof the petitioner. The 1st respondent's defence was that he arrested the petitionerfor riding a motor cycle without a helmet, a driving licence and insurance andfor obstructing the 1st respondent in the performance of his official duties. Medicalevidence disclosed injuries on the petitioner caused by a blunt weapon.
Held:
The 1 st respondent had violated the fundamental rights of the petitioner guaranteed .by Articles 11, 13 (1), and 13 (2) of the Constitution.
Per Bandaranayake, J.
“the fact that the petitioner was taken handcuffed in a private vehicle tothe Dankotuwa town and "exhibited" in the manner spoken to by thepetitioner in my view, is an affront to the petitioner's dignity as a humanbeing and amounts to “degrading treatment" within the meaning ofArticle 11".
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APPLICATION for relief for infringement of fundamental rights.Nimal Weerakody for the petitioner.
L C. M. Swarnadhipathy for 1st to 3rd respondents.
S. Rajaratnam SC for 4th and 5th respondents.
Cur. adv. vult.
December 16. 1998.
SHIRANI A. BANDARANAYAKE, J.
The petitioner submitted that on 26.11.1996 he went to DankotuwaPolice Station to meet the OIC of the Police Station. He had askedthe 1st respondent (Police Constable Sandun), who was seated atthe Inquiry Desk, whether the OIC was present, to which the 1strespondent had replied in the negative. Thereafter the petitioner hadinquired from the 1st respondent whether another officer was present.While answering in the negative to this question, he had asked thepetitioner for the reason for inquiring about important officers withoutinforming him his problem. The petitioner had left the police stationat that stage as his need was to meet the 3rd respondent (the OIC).The next morning the petitioner had met the 3rd respondent and hadmade a complaint regarding a commercial transaction. On the sameday around 9.30 am when the petitioner was near the DankotuwaPublic Market, the 1st respondent, who was not in his uniform, cameup to the petitioner and told him that he will come in his uniform toteach the petitioner "a good lesson".
On 27.11.1996 around 5.30 pm, when the petitioner was talkingto a friend near Dankotuwa Public Market, the 1st respondent andthe 2nd respondent came and held the petitioner by his shirt collarand took him to the Dankotuwa Police Station. The 3rd respondentwas present at the Police Station but he had ignored the petitioner.Thereafter the 1st respondent had beaten the petitioner with handsand legs and with the 1st respondent's belt in a brutal manner forabout 15 minutes. The 2nd respondent was looking on. The petitioner'sfriends and relatives had heard about the. incident and had gathered
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Subasinghe v. Police Constable Sandun and. Others
(Shirani A. Bandaranayake, J.)
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outside the Police Station and they were watching the assault. The1st respondent had tried to pour alcohol down his throat but thepetitioner had refused vehemently. Thereafter the 1st respondent hadput handcuffs on the petitioner and pulled him outside. The 1strespondent brought the petitioner to the Dankotuwa junction in aprivate bus (P6). The petitioner submits that at the Dankotuwa junction,he was made to walk with the handcuffs across the Dankotuwa junctionand was later put into another vehicle and was taken away (P7, P8,P9, P10 and P11). He was then taken to the Dankotuwa DistrictHospital and was brought back to the Dankotuwa Police Station. Thepetitioner was put in the cell and beaten again with hands and legsby the 1st respondent. His head was knocked very hard on the wall(P3 and P12). The petitioner noticed that his gold chain which wasworth about Rs. 20,000 was missing. He was released on 27.11.1996and entered the Negombo Base Hospital. The petitioner allegesthat his fundamental rights guaranteed under Article 11, 13 (1)and 13 (2) were violated by the actions of the respondents.
The Court granted leave to proceed in respect of the allegedinfringement of Articles 11,13 (1) and 13 (2).
The 1st respondent in his affidavit has averred that he and the2nd respondent were on duty at the Dankotuwa junction. Around4.50 pm on 27.11.1996, he had signalled the petitioner who was ridinga motor cycle without a helmet to stop. The petitioner had proceededtowards the market without heeding to his signal to stop. The 1strespondent, with the 2nd respondent, had gone towards the marketand waited in front of the market for the petitioner to return. Whenthe petitioner returned, he had stopped the petitioner and asked himto produce his driving licence and the insurance policy. As the petitionerfailed to produce them the 1 st respondent had questioned him to findout his name and address to serve him with a fine sheet for ridinga motor cycle without a helmet, driving licence and insurance. At thatmoment, the petitioner had dragged the 1st respondent to him fromhis belt and threatened to transfer him by informing the Deputy MinisterMilroy Fernando if he issued him a fine sheet. The 1st respondenttherefore had arrested him for obstructing a police officer in thedischarge of his public functions and riding a motor cycle without a
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helmet, driving licence and insurance. The 1st respondent states thathe had to use minimum force to arrest the petitioner as the petitionerresisted the arrest. The 1st respondent averred that due to thepetitioner’s action his belt was damaged.
The 1st respondent had immediately brought the petitioner to thepolice station and after making the necessary entries in the relevantbooks he had left the police station at 5.20 pm with the petitionerto go to the hospital. He had brought the petitioner back to the policestation at 6.10 pm and had handed him over to the reserve and leftthe police station at 6.20 pm for duty at the Dankotuwa junction(1R'3a, 1R3b and 1R3c). The 1st respondent had further averred thatMr. Milroy Fernando, had come to the police station immediately tomeet the OIC of the police station to secure the release of thepetitioner on bail.
The petitioner was admitted to the Base Hospital, Negombo, on
at 10.40 pm The Admission Form gives the followingdetails:
assaulted by policechest painheadachevomiting – blood
no injury marksswelling of the face
The Medico-Legal Examination Form indicates that the petitionerwas examined on 27.11.1996 at 10.40 pm and that he had a non-grievous contusion that would have been caused by a blunt weapon.
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Subasinghe v. Police Constable Sandun and Others
(Shirani A. Bandaranayake, J.)
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The petitioner has produced 12 affidavits; the affirmants aver thatthey have seen the petitioner being taken by 2 police officers andthe police officers assaulting him (P1 – P12). Two of the affirmantshave seen the 1st respondent assaulting the petitioner with his hands,feet and the belt (P1 and P3). The driver of the bus which belongsto the Don Bosco church avers in his affidavit that he brought thepetitioner who was in handcuffs to the Dankotuwa Town at the requestof the police (P6). There are several affidavits wherein the affirmantsaver that they saw the petitioner in handcuffs around 6.20 pm at theDankotuwa Town on 27.11.1996 (P7, P8, P9, P10 and P11).
The fact that the petitioner was taken handcuffed in a privatevehicle to the Dankotuwa town and “exhibited" in the manner spokento by the petitioner in my view, is an affront to the petitioner's dignityas a human being and amounts to "degrading treatment" within themeaning of Article 11.
The respondents' case is that the petitioner was arrested by the1st and 2nd respondents for riding a motor cycle without a helmet,driving license and insurance and for obstructing a public officer whiledischarging his public duties. He was arrested around 4.50 pm on
and was released on bail around 7.35 pm the same day.The position of the petitioner is that, while he was talking to a friendof his, seated on a motor cycle parked near the Dankotuwa market,the 1st and 2nd respondents brought him to the police station. Thepetitioner has made a statement to the Dankotuwa Police Station on
at 7.10 pm to this effect (1R3).
A friend of the petitioner has filed an affidavit, which shows thatthe 2 police officers arrested the petitioner while he was talking tothe petitioner near the Dankotuwa market (P1). On the other hand,other than the respondents’ own notes (1R3b), there is no evidenceto show that the petitioner was taken into custody for riding a motorcycle without a helmet, driving licence and insurance and forobstructing a public officer while discharging his duties. The respond-ents' submission is that the petitioner had obstructed them while theywere performing their duty but this has been denied by the petitioner
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in his statement made to the police on 27.11.1996 (1R3). The notes1R3b constitute no more than self-serving evidence on which noreliance could be placed.
On a consideration of the totality of the material placed beforeus, I reject the version of the 1st respondent and I hold that the 1strespondent has violated the fundamental rights of the petitionerguaranteed by Articles 11, 13 (1) and 13 (2) of the Constitution.
I direct the State to pay Rs. 10,000 to the petitioner as compen-sation and Rs. 5,000 as costs. The 1 st respondent is directed to payRs. 5,000 personally to the petitioner as compensation. In all, thepetitioner will be entitled to a sum of Rs. 20,000 as compensationand costs. This amount must be paid within three (3) months fromtoday.
The Registrar of the Supreme Court is directed to send a copyof this judgment to the Inspector-General of Police.
G. P. S. DE SILVA, CJ. – I agree.WADUGODAPITIYA, J. – I agree.
Relief granted.