WIJENAYAKE AND OTHERS v. AMERASENA AND OTHERS

028-SLLR-SLLR-2000-V-2-WIJENAYAKE-AND-OTHERS-v.-AMERASENA-AND-OTHERS.pdf


WIJENAYAKE AND OTHERSv.
AMERASENA AND OTHERS
SUPREME COURTDHEERARATNE, J.
PERERA, J.
BANDARANAYAKE, J.
SC (FR) 290/9801 ^ SEPTEMBER. 1999
Fundamental Rights – Constitution, Articles 11, 13(1), 13(2) – Search ofpremises – Conflicting medico legal Reports – Offences under the BrothelsOrdinance – Acquitted in the Magistrate's Court – Observations ofMagistrate in acquitting accused.
The Petitioners allege that a Police party entered the "Guesthouse" andcaused a search to be made. The Petitioners also allege that they werebrutally assaulted.
The Petitioners were also charged under the Brothels Ordinance, in theMagistrate’s Court, and all the Petitioners were acquitted after trial.
Held :
The three Medico Legal Reports issued by Government Medical Officeronly show abrasions or no injuries.
The Medico Legal Report of the 1*‘ Petitioner issued by the J. M. O.Matara, show injuries; the Medical Certificate issued to the 2nd and 3rdPetitioners also show injuries.
Per Perera, J.
"The Medical Officer who examined the Is' Petitoner when hewas produced before him by the 1st Respondent veiy shortly after thisincident has failed to observe the several injuries which were noted by theJ. M. O. three days later. The only inference which could reasonably bedrawn is that the Medical Officer who issued the Medico Legal Report onthe very same day after an examination of the lsl Petitioner hasendeavoured to assist the Police in the unlawful exercise."
(2) In the Magistrate’s Court case the Magistrate had observed that theRespondents have not produced a single woman who was indulging in
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the unlawful actitivty before Court. The reason given by the Magistratein acquitting the accused appear to be a telling indictment on the PoliceOfficers who conducted the raid.
There was no justification whatsoever for this exercise on the part ofthe Respondents who unlawfully Interfered with the lives of ordinarypeace loving and law abiding citizens.
The conduct of the Respondents in inflicting serious injuries onthe Petitioners and the treatment meted out to them in the presenceof onlookers in the neighbourhood, undoubtedly amounts to cruel,inhuman and degrading treatment.
APPLICATION under Article 126 of the Constitution.
Barana Gayan Perera with Ms Prabha Perera for Petitioners.
D. Akunigoda with Ms Kumudu Nanayakkara for the 1 -8 RespondentsAllan David, S. C. for 10th and 11th Respondents.
November 29, 1999.
PERERA, J.
Leave to proceed in this case has been granted by thisCourt for the alleged infringement of the fundamental rights ofthe Petitioner protected by Articles 11, 13(1) and 13(2) of theConstitution.
The 1st Petitioner states that he was running a Guesthouseat No 7, Demoni Road, Weligama from 1987 under the nameof MDilkini Guesthouse.” The aforesaid business was dulyregistered under the provisions of the Business RegistrationAct No 1 of 1990 (PI).
The gravamen of the Petitioners complaint is that a Policeparty led by the 1st Respondent having entered the premises ofthe Dilkini Guesthouse on the 31st of October, 1997 without asearch warrant had searched the premises, despite thestrenous objections of the Petitioners. According to the 2ndPetitioner on that date, the 1st Respondent who led the Policeteam had pushed her to a side when she informed him that
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she was unable to permit the Police Officers to search theGuesthouse. The 2nd Petitioner had fallen as a result of the actof the 1st Respondent and the Is* Respondent had stated. “Wecan do anything,” and had gone into the Guesthouse andcarried out a search. The 1st Petitioner had then made a requestof the 1st Respondent to issue a letter stating that they hadsearched the Guesthouse and the Respondents who had beenannoyed by this request had replied. "We shall not give you any
letters. We are prepared to go even to JaffnaWe shall
not permit you to carry on these activities. We shall destroy allthese." No detection whatsoever had been made on this date atthe aforesaid premises.
Thereafter, according to the Petitioners on 4th November,1997 once again, the 1st to the 7th Respondents had come to theDilkini Guesthouse in a jeep around 12.30 p. m. The 1st and2nd Respondents were in uniform, but the other Respondentswere in civvies. The 1st Respondent had entered theGuesthouse and had informed the 2nd Petitioner that he hadcome there to search the Guesthouse that day, armed with asearch warrant, to which, the 2nd Petitioner had replied asfollows – “Today, you have acted in the correct manner.” Thenthe 1st and 2nd Respondents had entered the Guesthouse andsearched the entire house. At that stage, the 2nd Petitioner hadalso gone inside the Guesthouse and as the 2nd Petitioner waspassing through the corridor, the 2nd Respondent, a womanPolice Constable in uniform had jumped at her and said,“Where is your mouth today? How did you speak to ourSub-Inspector on the last occasion?” and had slapped the 2ndPetitioner on the face. The 2nd Petitioner had then raised criesasking them not to assault her. At the same time, the 1stRespondent and the other two men who were clad in civvieshad come up to her and had assaulted her brutally, kicked herand dragged her out.
The 2nd Petitioner was dragged up to the jeep, while the 2ndRespondent had whipped the 2nd Petitioner with her leatherbelt. At this stage, while the 2nd Petitioner was being dragged
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up to the jeep, her son, the 3rd Petitioner had rushed thereand had begged of them not to assault his mother, the 2ndPetitioner. Two persons who were seated at the ReceptionDesk had attempted to save the 2nd Petitioner from thisbrutal attack, but they were chased out by the Respondents.Affidavits from these two witnesses setting out these facts areattached marked P5 and P6. The Respondents had thenjointlyput the 2nd and 3rd Petitioners into the Police jeep.
At this stage, the 1st Petitioner who was in his house whichis situated in the same premises as the Guesthouse had heardthis commotion and had attempted to inform the AssistantSuperintendent of Police, Weligama whose office was situatedat die rear of the Petitioner’s house to seek his assistance. Buttwo people in civvies, whom they later came to know werePolice Officers had held him and assaulted him. Then the 1stPetitioner had run into his house to telephone the ASP, butfound that his telephone lines had been disconnected. The 1stPetitioner states that while he was in this predicament, the 1stRespondent together with two other Police Officers who werein civvies arrested him and forcibly dragged him inside thehouse for the purpose of searching the premises. After carryingout the search of the premises, the 1st Respondent and the twoother Police Officers aforesaid had dragged him into the jeepwhile continuing to assault him – he was at that stage bleedingfrom his mouth. These facts set out in the Petition arecorroborated by two other independent witnesses whoseaffidavits have been filed marked 97 and P8.
The Petitioners were then taken to the Matara PoliceStation in the Respondents’ jeep and in the course of thisjourney they were subjected to assault and abuse at the handsof the 1st, 2nd and 5th Respondents.
Shortly after the Petitioners were taken to the MataraPolice Station, they were taken before a Medical Officer at theMatara Hospital. The Petitioners were threatened with direconsequences if they divulged to the Doctor that they wereassaulted by the Respondents.
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After the Medical Examination of the Petitioners, theywere taken back to the Matara Police Station and detainedthere overnight. On the next day the statements of thePetitioners were recorded. The Petitioners allege that they werenot given an opportunity of reading the statements before theysigned them. Thereafter the Petitioners were produced beforethe Matara Magistrate. The learned Magistrate released the 3rdPetitioner on bail in a sum of Rs. 2,500/- and remanded the 1stand 2nd Petitioners until the 7th of November, 1997 on whichday they were also enlarged on bail in M C Matara caseNo 1663/92.
Upon his release, the 1st Petitioner had to seek admissionto the Matara Hospital for treatment for the injuries sustainedby him resulting from the Police assault. This is amply borneout by the contents of the Medico-Legal Reports issued by theJMO Matara dated 9.11.1997 and the certified copy of the BedHead ticket relating to the 1st Petitioner which were forwardedupon a direction given by this Court, (vide x)
It is indeed very significant that the 1st Petitioner on thesame day, that is on the 31st of October 1997, very shortly afterthe search of the premises which took place around 2.45 p. m.had complained about this unlawful search at the WeligamaPolice Station around 3.15p. m. (videP4) Itisinthis backgroundthat one has to consider the conduct of the Respondents whocame to these premises once again on the 4th November 1997.The conversation that ensued between the Petitioners and theRespondents on the 31st of October 1997 (which has beenreproduced earlier) is very clearly indicative of the fact that theRespondents were irked by the conduct of the Petitioners onthat occasion and that their objective on the 4th of November1997 was more to embarrass and harass the Petitioners forwhat occurred on the 31st of October, 1997 than to effect agenuine detection.
I do not propose to reiterate the conversation (between theRespondents and the Petitioners on that occasion) which
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clearly demonstrates the motivation of the Respondents, andhaving regard to the contents of P4 which is a promptcomplaint made by the 1st Petitioner to the Weligama PoliceStation, I have no hesitation in accepting the version narratedby the Petitioners that the 1st Respondent had conducted anunlawful search on the said premises on 31.10.1997.
The Is' to 7th Respondents (herein after referred to as theRespondents) in the affidavits filed by them state that they hadreceived information to the effect that the premises in questionwas a house of ill-fame. Thereafter from 31.10.1997 to
they had done a surveillance of these premises tocheck the accuracy of the information received by them. Insupport of this statement, the Respondents have produced acertified copy of the notes made by the 1st Respondent inDivisional Vice Minor Offences marked 1R1. He has alsoproduced certain entries marked 1R1A, 1R2 and 1R4.
Thereafter on the 4th of November, 1997 they hadproceeded to the Dilkini Resthouse having obtained asearch warrant from the learned Magistrate of Matara. TheRespondents have produced a certified copy of the searchwarrant marked 1R5 and the reports regarding the executionmarked 1R5A, 1R6 and 1R7. The Petitioners had obstructedthe Respondents in the execution of their duties under thesearch warrant and had assaulted WPC Chandra Ranasinghe(the 2nd Respondent). The Respondents had therefore to useminimum force to execute the search warrant arid to bring thePetitioners under control as they had turned out to be violent.The 2nd Respondent had suffered and sustained injuries in thecourse of this transaction. The Respondents had thereafterexplained the charge to the Petitioners and had taken theminto custody according to the procedure prescribed by law -vide 5R1. The Respondents have also produced a Medico-LegalReport relating to the injury sustained by the 2nd Respondentmarked 2R2 which is described as an abrasion, (a merescratch). According to the Respondents, the allegations madeagainst them by the Petitioners are of a malicious nature.
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In this connection, I have examined the notes made by theRespondents which have been produced marked 1R1, 1R1Aand 1R2 dated 31.10.1997, 1R3 dated 1.11.1997, 1R4 dated
1R6, 1R7 and 1R7A dated 4.11.1997.
On a perusal of these notes. I am, though reluctantly,compelled, to make the observation that the contents of thesenotes are most unconvincing, artificial, and if I may say so,self-serving. Hence I could place very little reliance onthese documents. It is indeed significant that although theRespondents vehemently deny having entered the aforesaidGuesthouse on 31.10.1997, the original notes made by theRespondents marked 1R1, lRlAand 1R2 are dated 31.10.1997This is the date on which the Petitioners complained that anunlawful search of the premises was done by the Respondents.
The Respondents also state that they had producedthe Petitioners before the Magistrate at the earliest possibleopportunity within the time prescribed by law, and that thePetitioners did not make any complaint to the Magistrate ofany harassment by the Respondents.
The Respondents have also invited the attention of thisCourt to the fact that the Respondents had produced the 3Petitioners before a Government Medical Officer at around3.30 p. m. on the 4th of November, 1997 veiy shortly after thearrest. They have produced the Medico-Legal Examinationforms relating to the Petitioners marked 1R9, lRlOand 1R11.1R10 relates to the 1st Petitioner and the only injuries indicatedtherein are described as an abrasion. The Medico-Legal reportrelating to the 2nd Petitioner marked 1R9 indicates that shehad sustained no injuries, while in the Medico-Legal reportrelating to the 3rd Petitioner marked 1R11 the injuries aredescribed as an abrasion. These were the documents that theRespondents relied upon to establish the fact that they hadmerely used reasonable force in bringing the Petitioners undercontrol when they obstructed the lawful exercise of theirduties.
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At the request of the Petitioners’ Counsel, this Court calledfor a Medical-Legal report from the JMO, Matara relating to theinjuries he observed on the l8t Petitioner who was admitted tothe Matara hospital on 8.11.97 to obtain treatment for theinjuries he had sustained in the course of this incident up tothe time of his discharge from hospital on 10.11.97. ThePetitioner was prevented from procuring proper treatmentfor his injuries as he had been remanded by the MataraMagistrate on the application of the 1st Respondent on 5.11.97and was released on bail only on 7.11.97.
According to the JMO, the 1st Petitioner had given a historyof injuries sustained as a result of an assault by 8 PoliceOfficers with hands on 4.11.97 at 12.00 noon at the DilkiniGuesthouse. According to the Medico-Legal report marked ‘x’,the 1st Petitioner had sustained the following injuries :-
1/2” lacerated wound on the lower lip,
1” x 1” contusion on the chin,
3” superficial abrasion on the back of the chest (leftside),
2” superficial abrasions on the right forearm, and
2” x 1” contusion on the right leg.
According to the JMO, these injuries could have beencaused with a blunt weapon. However, the Medical Officer whoexamined the 1st Petitioner when he was produced before himby the 1st Respondent on the 4th of November 1997 very shortlyafter this incident has failed to observe the several injurieswhich were noted by the JMO three days later. This is aquestion which indeed perplexes me. The only inference whichcould reasonably be drawn in these circumstances is that theMedical Officer who issued the document 1 RIO on the verysame day after an examination of the 1st Petitioner hasendeavoured to assist the Police in this unlawful exercise.
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This same observation has to be made in regard to theMedico-Legal report relating to the 2nd Petitioner. The 2ndPetitioner has produced a Medical Certificate dated 9.11.97from a General Practitioner inTangalle. According to P10. the2nd Petitioner suffered from,
ear-ache,
discharge from the left ear,
severe headache,
chest pain,
abrasions of knee joints, and
contusion of the legs.
Here again, the same Medical Officer who examined hershortly after the incident had not observed any of theseinjuries and in point of fact states in his report that she had noinjuries.
In regard to the 3rd Petitioner, the Respondents hadproduced the Medico-Legal report marked 1R11 whichindicated that he had sustained an abrasion and no more. The3rd Petitioner has also produced marked Pll, a MedicalCertificate dated 5.11.97 from a General Practitioner inTangalle,wherein the following injuries have been set out :-
intractable headache,
vomiting,
generalised aches and pains,
abrasions of hands, and
several contusions of chest.
The Doctor goes on to state that the patient is advised to bekept under observation and institutional treatment if thevomiting continues.
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Having regard to the following documents, namelythe JMO’s report of the 1st Petitioner marked ‘x and theMedical Certificates relating to the 2nd and 3rd Petitionersmarked P10 and Pll, I have no hesitation whatsoever inrejecting the documents produced by the Respondents marked1R9, and 1R11 relating to the injuries sustained by the threePetitioners.
The Petitioners have also produced marked P24, acertified copy of the proceedings in M C Matara Case No 29139.On a perusal of P24, it would appear that the 3 Petitionerswere charged on the following counts : –
that on 4th November, 1997 the 1st and 3rd accused (2nd& 3rd Petitioners) had committed an offence undersection2(a) of the Brothels Ordinance,
that in the course of the same transaction, the 2ndaccused (1st Petitioner) had permitted the Is* accused (2ndPetitioner) to use the said premises as a brothel, an offencepunishable under section 2 of the Brothels Ordinance,
that the 2nd accused (1st Petitioner) aided and abetted the1st accused (2nd Petitioner) to cany on a brothel in theaforesaid premises, an offence punishable under section 2of the Brothels Ordinance.
that the 1, 2 and 3 accused (the Petitioners in this presentapplication), obstructed the Respondents in executing aSearch Warrant issued by the Magistrate, an offencepunishable under section 183 read with section 32 of thePenal Code.
at the same time, in the course of the same transaction,obstructed the Police officers in the performance oftheir duties by assaulting them with hands and causinginjuries, an offence punishable under section 323 readwith section 32 of the Penal Code, and
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that the 3 accused were guilty of having committed theoffence of criminal intimidation of the Respondents, anoffence punishable under section 344 read with section 32of the Penal Code.
This matter was taken up for trial by the learnedMagistrate of Matara on the 26th of February. 1999. At theconclusion of the 1st Respondent’s evidence, the learnedMagistrate acquitted the accused observing that, havingregard to the nature of the evidence given by the 1s' Respondentin examination-in-chief, he did not wish to proceed with thiscase any further. Commenting on the evidence of the 1stRespondent, the Magistrate observes thus
“The testimony given by the 1st Respondent in his capacityas a responsible Police officer is prima facie unacceptable. It isthe evidence of this witness that he was assisted in thisdetection by 3 male Police officers and 2 women Police officersand a decoy. The only person who had objected to the searchof the premises was the 1st accused (2nd Petitioner). At thisstage, the 1st Respondent who was inside the Guesthouse hadobserved 3 women whom he suspected to be prostitutes,together with 2 men who were seen running out of the reardoor. The main objective of the Respondent was to detect theunlawful activities of the brothel. If so, it was the prime dutyof the 1st Respondent to have arrested the women who were inthat Guesthouse indulging in prostitution. The main objectiveof a person conducting a detection of such a place would be toarrest the women who were indulging in this activity and theperson who was running this institution, with a view toproducing them before a court. But it is the evidence of thiswitness that neither he nor the other officers who assisted himin this detection, made any effort to apprehend the prostituteswho were escaping from these premises. This evidence in myview is prima facie unacceptable.
The Respondents have not produced a single woman whowas indulging in this unlawful actitvity before this Court.”
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In my view, the reasons given by the Magistrate In acquittingthe accused appears to be a telling indictment on the l9tRespondent and the other Police officers who assisted him inthis raid and proceeded thereafter to arrest and detain thethree Petitioners until the next day at the Matara PoliceStation.
Upon a consideration of the observations made by theMagistrate in acquitting these Petitioners, it is amply clear thatit was, the testimony of the 1st Respondent, at the trial that theonly person who obstructed the search of the aforesaid premises 'was the 2nd Petitioner. If that be so, what was the justificationfor inflicting the numerous injuries they inflicted upon the 1st,and 3rd Petitioners?
The Magistrate having disbelieved and rejected the evidenceof the Is* Respondent at the trial has acquitted the Petitionerson all the charges including the charge of obstructing theRespondents on the 4th of November, 1997.
I am of the view that in the circumstances of this casethere was absolutely no justification for the arrest of the 3Petitioners by the Respondents on 4.11.97. There was also nojustification for the Respondents to have taken the Petitionersto the Police Station on that day, to have detained them untilthe next day at the Police Station, and to have produced thembefore the Magistrate from whom they sought an order for theremand of the 1st and 3rd Petitioners until the 7th of November,1997.
Having regard to the totality of the circumstances of thiscase, I much prefer to acept the version given by the Petitionersrelating to their arrest and detention and the circumstances inwhich they sustained their injuries at the hands of theRespondents. This view I have expressed finds ample supportin the reasons given by the learned Magistrate acquitting thePetitioners in M C Matara Case No. 29139 produced markedP24 extracts of which have been reproduced in this Judgement
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elsewhere. This type of highhandedness on the part of Policeofficers whose primary duty it is to uphold and maintain thelaw, must be condemned without any reservation.
I hold that the 1st to 7th Respondents in this case haveacted in violation of the fundamental rights of all 3 Petitionersprotected by Articles 13(1) and 13(2) of the Constitution.
There is also sufficient material adduced by the Petitionersto establish that in the course of the arrest, the Respondentshave inflicted several injuries on the Petitioners, draggedthem out of their house and humiliated them without anyjustification by taking them to the Police Station, producingthem before the Magistrate and having two of the Petitionersremanded and one Petitioner released on bail. There was in myview, no justification whatsoever for this exercise on the partof the Respondents who have unlawfully interfered with thelives of ordinary peace loving and law abiding citizens.
The conduct of the Respondents in this case in inflictingserious injuries on the Petitioners and the treatment metedout to them in the presence of onlookers in the neighbourhood,indoubtedly, amounts in my view, to cruel, inhuman anddegrading treatment which is prohibited by Article 11 of theConstitution. I, therefore, hold that the lsl to 7th Respondentsacted in violation of the fundamental rights of the Petitionersprotected by Article 11 of the Constitution as well.
Counsel for the Respondents raised a preliminary objectionto the maintainability of the present application on the groundthat the application was out of time. I hold that there is nosubstance in this objection as the Petitioners have made acomplaint to the Human Rights Commission of Sri Lanka on21.11.97. The Human Rights Commission has by its letter tothe lsl Petitioner dated 29.04.98 (P9) instructed the Petitionerto file a Fundamental Rights Application in the Supreme Courtwithin 30 days of the date of the aforesaid letter (vide P9) interms in Section 15(3) of the Human Rights Commission Act
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No. 21 of 1996. The Petitioners have filed the present petitionwithin the specified period.
I order the 1st Respondent to personally pay a sum ofRs. 20,000/- to each of the Petitioners.
I further order the 2nd to the 7th Respondents to personallypay a sum of Rs. 5,000/- to each of the three Petitioners.
The State will pay the Petitioners Rs. 25,000/- ascompensation and costs.
The three Petitioners will therefore be entitled to a sumof Rs. 150,000/- from the 1st to the 7th Respondents ascompensation and a sum of Rs. 25,000/- from the State ascompensation and costs making a total of Rs. 175,000/-.
The Respondents are directed to pay this sum to thePetitioners within three months from today.
DHEERARATNE, J. – I agree.BAND ARANAYAKE, J. – I agree.Application allowed.