294 Sri Lanka Law Reports [2007] 2 Sri L.R
SRI
THAMINDA, DHARSHANE AND
MAHALEKAM
v
INSPECTOR
OF POLICE AND OTHERS
SUPREME COURT
S.N. SILVA, C.J.
THILAKAWARDANE, J.
MARSOOF, J.
SC FR 463/464/465/03
JUNE 27, 2005
SEPTEMBER 2, 5, 2005
Fundamental
Rights - Article 11, 13 (1) - Assault - No reason or
justification?
- Assaulted by crowd - Arrested by Police to prevent major
skermish
- Petitioners under influence o f liquor - Fundamental rights
guarantee
owed to any person? - Does torture per se amount to cruel and
degrading
treatment -
Burden of proving - Torture? - Use o f excessive
force.
- 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 brutally
assaulted, and further
contend that, they were subjected to torture or to cruel inhuman or degrading
treatment or punishment in violation of Article 11.
The respondents
contended that the petitioners were under the influence of liquor and when the
3rd petitioner was requested to move his three wheeler away, the petitioners
had attacked the respondents and the Police Constable who had sustained
injuries had to be hospitalised, and that the petitioners had sustained injuries
at the hands of the crowd, that had gathered there to intervene and save the
Police Constable from being assaulted.
Held:
(1) The mere fact that
there was an assault which carried some injury is not indicative of a violation
of Article 11. The use of force does not per
se amount
to cruel, inhuman or degrading treatment and in particular a
sc Sri
Thaminda, Dharshane and Mahalekam v Inspector o f Police and others (Saleem
Marsoof, J.)
minimum level of
severity should be established to sustain a charge of torture.
The onus is on the
petitioner to adduce sufficient evidence to satisfy
Court that any act in
violation of Article 11 did take place.
Per
Saleem
Marsoof, J.
"I am of the
opinion that the fundamental rights guaranteed by Article 11 are owed to 'any
person’ which includes even persons in a high state of intoxication”.
(2) Despite the failure
on the part of the petitioners to identify those who violated their fundamental
rights, they are entitled to a declaration that their fundamental rights have
been violated by executive and administrative action.
APPLICATION under
Article 126 of the Constitution.
Cases referred to:
1. Lucas Appuhamy v
Mathurata 1994 1 Sri LR 400.
2. Samanv Leeladasa 1989 1 Sri LR 10.
3. Gunasekeraw Kumara and others SC 191/88 SCM 3.11.89.
4. Wijayasiriwardane v Kumara, Inspector o
f Police, Kandy and others
1989 2 Sri LR 312.
5. Sisira Kumara v
Sergeant Perera and others 1998 1 Sri LR 162.
6. Malinda Channa Peiris and others v Attorney-General
1994 1
Sri LR 1.
7. Ratnasiri and another v Devasurendra,
Inspector o f Police, Slave Island
and
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, 2007
SALEEM MARSOOF, J.
These three applications have been filed
alleging violations of Articles 11 and 13(1) of the Constitution by certain
Police Officers who were on duty on the last day of the Kandy Esala Perahera which
fell on 11th August 2003. Since they arose from the same transaction, the three
applications were heard together, and it is convenient to deal with them in one
judgment.
The petitioner in SC Application No.
463/03, Mahadura Pandula Sri Thaminda, and the petitioner in SC Application No.464/03
Ruwan Darshana Fernando, were persons who were earning their living by running
fruit stalls opposite the Central Market, Kandy. The petitioner in SC
Application No. 465/03, Aruna Shantha Mahalekam was the driver of the
three=wheeler belonging to the said Ruwan Dharshana Fernando.
The petitioners' version of the incident
that gave rise to these applications, as narrated in the petitions filed in
this Court, is that at about 9.30 p.m. on 11th August, 2003, the petitioners
came to the fruit stalls owned by Taminda and Fernando after dinner in the
three-wheeler driven by Mahalekam. When the three-wheeler was stopped at the
three-wheeler park opposite the Central Market for them to get down, there were
a number of Police Officers there. One Police officer asked the driver to take
the three-wheeler away immediately. The driver Mahalekam told the
Police Officer that he would take it way
after the persons inside got down. Then the Police Officer asked him,
"What did you say?" and slapped him. It is the position of the
petitioners that Ruwan Dharshana Fernando had an injury on his leg and was using
crutches to walk, and consequently, there was a slight delay in alighting from
the three-wheeler. When Mahalekam was being assaulted. Fernando asked the
Police Officer not to assault him because it was his delay. The petitioners
state that at that point Police Constable 31461 Abeyratne of Galhewa Police
Station, gave Fernando a blow. Then, Thaminda got down from the three-wheeler
and appealed to the Police Officer not to assault Fernando because he is a
disabled person on his crutches. Thaminda said to the Police Officer. "Do
not assault
him. There is a law in the country. Act
according to law". At that time the Police bus bearing Registration No.
63-376 came there, and a Police Officer who was inside the bus inquired from PC
Abeyratne, "What was the problem?". He said: "These men talk law".
Thereafter, about 12 Policemen alighted from the bus. The Policemen, who got
down from the bus, saying: "Who are you? We are the chandiyas,"
kicked the petitioners and assaulted
them with hands, batons and leather
belts. According to the petitioners, they were arrested by the 1 st and 2 nd
respondents without any justification and were dragged into the bus, and
thereafter put under the seats and further assaulted. As Fernando could not
walk, the Police Officers dragged him along the tarred road and put him into
the bus. The
petitioners asked them too, not to
assault them and to act according to law. They allege that they were attacked
with batons and butts of guns at the Police Station as well, and the petitioners
sustained severe injuries. Thaminda claims that at the Police Station one
Police Officer attacked him on his chest with the muzzle of a gun, causing a
bleeding injury. The petitioners allege that Mahaiekam was dealt with most
brutality, and that
due to the attack with batons he
sustained a bleeding head injury. When he asked for some water, one Police
Officer had hit him on his bleeding wound with a baton, saying "I will
give you some water". With that blow he became unconscious, and they put
all three petitioners into the bus which took them to the General Hospital,
Kandy, where Mahaiekam was admitted to ward 11. Thereafter, the other two
petitioners, namely Thaminda and Fernando, were taken to the residence of the
Additional Magistrate, Kandy. These two petitioners claim that while they were
being taken from the Hospital to the Magistrate's Bungalow, the Police Officers
put them under the seats of the bus and kept kicking them. When they were
produced before the Additional
Magistrate, they informed him that they
have sustained injuries due to assaults by the Police, and the Magistrate
ordered the Police to admit them to the Hospital for treatment. It is claimed that
even when they were being taken from the Magistrate's Bungalow to the Hospital,
the Police Officers continued to assault them saying "You told the
Magistrate and did this to us". Even inside the Police Post at the
Hospital they were assaulted
saying "These are the men who put
part to us". They were taken to the General Hospital, Kandy at about
midnight on 11th August 2003, and although Fernando was discharged from
hospital after treatment at ward 10 the next morning. Thaminda had to be treated
at ward 11 for a few days.
All three petitioners were in remand
custody till 19th August 2003, on which date they were bailed out. The very
next day they visited the Police Headquarters in Colombo and made the statement
produced marked 'P2* with the three petitions filed in this court. Their statements are substantively in the same lines as the
averments in their petitions, except that in these statements they have sought
to identify the Police Officers who allegedly assaulted them. The question of
identity is very crucial to applications of this nature, and will be looked
into in greater detail later on in this judgment. The petitioners have pleaded
that they were arrested by the 1st and 2nd respondents without
any reason or jurisdiction, in violation of their fundamental right to freedom
from arbitrary arrest guaranteed by Article 13(1) of the Constitution, and that
they were brutally assaulted by the 1st to 10th respondents causing
serious injuries requiring hospitalization, thereby infringing their
fundamental rights to freedom from torture and cruel, inhuman or degrading
treatment or punishment
guaranteed by Article 11 of the
Constitution. It appears from the affidavit filed in these cases and the statements
recorded by the Police that the incident arose from the delay in taking away
the three-wheeler from which the petitioners had alighted within a prohibited
zone within 400 meters from the route of the Perahera within which parking of vehicles
inclusive of three-wheelers) was not permitted for security reasons. It is not
disputed by the petitioners that the incident occurred while the three-wheeler
was being parked in a prohibited area. It is common ground that the incident in
question took place on the last day of the Kandy Esala Perahera (the
"Randoli Perahera"), at a time
when tens of thousands of persons, inclusive of foreigners, had gathered by the
road side to view the Perahera. Special traffic arrangements had been made in
order to facilitate the conducting of the Perahera by closing certain areas for
traffic and by diverting the traffic into by-roads. The respondents' version of
this incident is set out in the
affidavit dated 3rd November 2003 filed
by the 1st respondent and the joint affidavit dated 3rd November 2003 filed by
the 2nd to 10th respondents along with their objections. As
attachments to the affidavit of the 1st respondent has been produced two
more affidavits marked respectively '1R4a' and '1R4b' and affirmed to by
Ekanayake Mudiyanselage Goonethilake Banda, the senior Superintendent of Police
for the Kandy Division, and Senanayake Mudiyanselage Abeyratne, who was a
constable on duty near the Kandy Market at the time of the incident. It transpires
from these affidavits and the documents annexed thereto that PC Abeyratne, who
was deployed near the Market, had required the driver - Mahalekam to move the
three-wheeler away, but the petitioners, who were under the influence of
liquor, had been incensed at this request and had turned abusive and violent.
They had assaulted PC Abeyratne during the course of which the latter sustained
injuries, and his uniform was torn. According to the respondents, the crowd
that had gathered there had to intervene to prevent PC Abeyratne from being
assaulted further, and in view of the injuries sustained by him, he had to be admitted
to Hospital along with the petitioners. The respondents' position is that all
three petitioners were drunk, disorderly and violent, and the crowd had set on
the petitioners when they saw PC Abeyratne being assaulted by the petitioners. At
that time, the 1st to 10th respondents, who were officers of the Rapid
Deployment Force (RDF) Unit of the Kandy Police were in a police vehicle parked
nearby ready to meet any emergency. According to the respondents, it was a
by-stander who had informed the said Police vehicle about the incident, and this
Unit proceeded to take action to avoid a further breach of the peace. The Rapid
Deployment Force (RDF) is a Unit of the Sri Lanka Police specially trained to
deal with unusually difficult situations inclusive of the controlling of riots
and other similar circumstances, and is required to play a lead role in
situations which Police Units indulging in normal Police duties are unable to
effectively deal with. RDF Units are stationed in principal towns in Sri Lanka
and are also called upon to be present on special occasions at which large
crowds gather in order to
support and supplement the local Police
in the area. The 1st to 10th respondents were all members of this Unit, and
were led by the 1st respondent who was in rank an Inspector of Police. Learned
President's Counsel appearing for the 1st to 11th respondents
submits that the 1st to 10th respondents had to act quickly in
order to avert a major skirmish between the petitioners and the crowd which had
already assaulted the petitioners. The immediate concern of these respondents
was to obtain medical attention to the petitioners who had sustained injuries
at the
hands of the crowd and the said
respondents had difficulty in even getting the petitioners to board the Police
bus. It is the position of the respondents that the petitioners were informed
at the time of their arrest that they were being arrested for obstruction of
the performance of duties by a Police Officer, for drunken and disorderly
behaviour and for breach of the peace.
Learned President's Counsel has referred
us to Section 23 (2) of the Code of Criminal Procedure Act No. 15 of 1979, as subsequently
amended, which provides that if any person forcibly resists the endeavour to
arrest him or attempts to evade arrest, "the person making the arrest may
use such means as are reasonably necessary to effect the arrest." He also
submits that in Lucas Appuhamy v Mathurata^\ it was observed by
this
Court that where an arrest without
warrant is effected on sufficient grounds, such arrest was not in violation of
Article 13(1) of the Constitution. The petitioners have since been charged for offences
punishable in terms of Sections 183, 314 and 410 of the Penal Code, and
proceedings are said to be pending. It is clear from the evidence that the 1st
to 10th respondents did not act at any time in excess of the powers
granted to them by law in
effecting the arrest of the petitioners,
and that their intervention prevented the occurrence of a major breach of the
peace. In these circumstances, at the hearing of this case, the learned Counsel
for the petitioners indicated to Court that he was not pursuing his case under
Article 13(1).
The petitioners also allege that they
were subjected to torture or to cruel, inhuman or degrading treatment or
punishment in violation of their fundamental rights guaranteed by Article 11 of
the Constitution. In this connection, it must be stated at the outset that the
medical reports made available to Court unequivocally support the allegation
made by the respondents that the petitioners were drunk. However these reports
need to be scrutinized closely to ascertain whether their fundamental
rights under Article 11 have been
infringed.
As far as the petitioner in SC
Application No. 464/03 Ruwan Darshana Fernando is concerned, the Medico - Legal
Report issued by Dr. T.H.L. Wijesinghe has been produced in Court. This report
shows that he was examined on the morning of 12th August 2003
in ward No. 10 of the General Hospital, Kandy prior to his discharge, and it
shows that he had minor abrasions and contusions of a non-grievous nature,
which clearly indicates that this petitioner has been subjected to assault.
Learned
President's Counsel for the 1st
to 11th respondents has cited the decisions of this Court in Saman v
LeeladasaM and Gunasekera v Kumara and others/3) for the
proposition that the mere fact that there was an assault which carried some
injury is not indicative of a violation of Article 11. In fact in Wijayasiriwardena
v Kumara, Inspector o f Police, Kandy and two others <4> and Sisira
Kumara v Sergeant Perera and others<5> this Court has taken
the view that the use of force does not per se amount to cruel, inhuman or
degrading treatment and in particular, a 'minimum level of
severity' should be established to
sustain a charge of torture. As
Justice (Dr.) A.R.B. Amerasinghe
observes in his work ‘Our Fundamental Rights of Personal Security and
Physical Liberty'at page 29 -
" 'Torture' implies that the su ffe
rin g o c ca s io n e d must be of a
p a rticu la r in te n s ity o r
cruelty. In o rd e r th a t ill-tre a tm e n t may
be regarded as inhuman o r d e g ra d in
g it m ust be 'severe'.
There must be the a tta inm e n t of a
'minimum level of severity'. There must (be) the c ro s s in g of the 'th re sh
o ld ' set by the prohibition . There must be an a tta inm e n t o f 'the se
rio u sn e s s of tre a tm e n t env isa g e d by the prohibition in o rd e r
to sustain a case based on torture or inhuman or degradingtreatment or punishment."
In Wijayasiriwardena v. Kumara, Inspector of Police, Kandy and Two
others (supra), the petitione rs had a split lip and an injury on the cheek
which he alleged amounted to a violation of Article 11, Mark Fernando , J.
(with Dheeraratne , J. and
Ramanathan, J. concurring ) observe d
that - "The use of excessive force may well found an action for damages in
delict, but does not per seamount to cruel, inhuman or deg ra d ing
treatment that would depend on the
persons and the circumstances. A degree
of force which would be cruel in relation to a frail old lady would not necessarily
be cruel in relation to a tough young man; force which would be degrading if
used on a student inside a quiet orderly classroom, would not be so regarded if
used in an
atmosphere charged with tension and
violence .... To decide whether the force used in this instance was in
violation of Article 11, "is something like having to draw a line between night
and day' there is a great duration of twilight when it is neither night nor
day; but on the question now before the
Court, though you cannot draw the
precise line, you can say on which side of the line the case is." The
injuries suffered by Ruwan Darshana Fernando are as much consistent with the
story of this petitioner that he was
assaulted by the Police, as they are
with the story of the respondents that he along with the other petitioners were
set upon by a crowd from whom they were rescued by the Police. In my opinion,
this petitioner has not been able to establish a violation of Article 11 of the
Constitution. The burden of proof required in applications of this nature was
explained in the case
of Malinda Channa Peiris and others v
Attorney-General), wherein it was stressed that having regard to the
gravity of the matter in issue, a high degree of certainty is required before
the balance of probability might be said to tilt in favour of any petitioner
seeking to discharge his burden of proving that he was subjected to torture or
to cruel, inhuman or degrading treatment or punishment. Accordingly, the onus
is on this petitioner to
adduce sufficient evidence to satisfy
Court that any act in violation of Article 11 did take place, and this in my
opinion, he has failed to do. In the circumstances, I am of the view that the application
filed by this petitioner should be dismissed, but in all the 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 SC Application No. 465/03, Aruna Shantha Mahalekam, was examining
by Dr. D.P.P. Senasinghe on the morning of 13th August 2003 in Ward
No. 11 and in the Medico - Legal Report issued by him it is expressly stated
that even at that time his breath was smelling of alcohol. However, the following
injuries
have been noted by the Doctor in the
body of Mahalekam:-
"1. Laceration, 6x4 cm, cruciate in
shape, placed on the upper
middle aspect of the head.
2. Contusion, 3x2 cm, oral shaped,
placed on the back aspect
of the left shoulder, at the root of the
neck.
3. Contusion, 2x3 cm. band shaped,
placed on the mid-back
aspect of the right shoulder.
4. Contusion, 4x3 cm, oral shaped,
placed 4 cm away to the
left from the midline and 10 cm
below the lower angle of
the left scapula on the back of the left
side of the chest.
5. Contusion, 5x3 cm, band shaped,
placed obliquely towards
right, 5 cm below and 6 cm to the
left from the lower angle
of right scapula on the back of the
right side of the
chest.
6 . Contusion, 6x3 cm,
band shaped, placed obliquely towards
the left, on the back of the right side
of the abdomen 10 cm
below the injury No. 5.
7. abrasion, 2 cm, linear, placed
transversely on the right
outer aspect of the abdomen.
8 . Contusion, 4x3 cm, oral
shaped, placed on the right outer
aspect of the abdomen surrounding the
injury No. 7.
9. Contusion, 5x4 cm, oral shaped,
placed on mid inner
aspect of right arm.
10. Abrasion, 1x 1 cm,
irregular, placed on inner aspect of right
elbow."
The very first item of injury noted
above supports the story of
this petitioner Mahalekam that even when
he was brought to the
Police Station he was bleeding with a
head injury caused by a
Police assault, and that when he asked
for some water one
Police Officer, who is not named by the
petitioner in his petition
or 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
consciousness, vomiting or bleeding from
the ears, nose or
mouth," but the injuries suffered
by this petitioner are in my
opinion clearly on the other side of the
line, and of sufficient seriousness to justify a finding of a violation of
Article 11 of the Constitution.
The petitioner in SC Application No.
463/03, Mahadura Pandula Sri Thaminda was also examined on the morning of 13th
August 2003 by Dr. Senasinghe who has noted in the Medico - Legal Report issued
by him that his breadth too was smelling of alcohol. He has also noted the following
injuries on the body of this petitioner.
“1. Sutured laceration, 1 cm
placed obliquely, 1 cm above the
inner 1/3 of the right eye brow.
2. Sutured laceration, 1 cm
placed vertically, 1.5 cm away to
the right, from the outer angle of right
eye.
3. Sutured laceration, 5 cm, placed
obliquely, on the middle of
the back aspect of the head.
4. Contusion, 8x2 c,, placed obliquely
on the back aspect of
right side of the chest over right
scapula.
5. Abrasion, 1x0.5 cm, irregular in
shape, placed 10 cm below
and 3 cm to the right from lower angle
of left scapula on the
back aspect of the left side of the
chest.
6 . Abrasion, 4x0.3 cm,
linear, placed transversely on the left
lower chest, 6 cm below the left
nipple.
7. Abrasion, 1 cm, linear, placed
transversely on the left lower
chest, 2 cm below the injury No. 6
."
In my opinion the injuries found on the
petitioner Thaminda
are also of a fairly grievous nature,
and are of sufficient seriousness to justify a finding of a violation of
Article 11 of the Constitution.
In my view, it is extremely unlikely
that the injuries suffered by the petitioners in SC Applications 463/03 and
465/03 were sustained in the course of a confrontation with a crowd as alleged
by the respondents. In fact, if such serious injuries were inflicted on these
two petitioners by a crowd of people, it was the duty of the police to trace
the persons who inflicted such injuries and take action to prosecute them. In
the absence of any information regarding action taken by the police to
apprehend such persons, the only reasonable conclusion one can arrive at is
that they were inflicted by the police after the arrest of these petitioners
and while they were in Police custody. There is, however, one difficulty in
granting these petitioners relief, and that is the uncertainty which permeates
their entire
case in regard to the identity of those
who subjected them to torture or to cruel, inhuman or degrading treatment or punishment.
It is important to note that the only person whom they have expressly identified
in the petitions filed by them as a person who dealt any one of them even a
blow is PC Abeyratne, whom they have not chosen to cite as respondent to these applications.
All the other acts they have complained of are not
attributed 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 August 2003 marked 'P2'
and produced with his petition, the name of the 1st respondent is
expressly mentioned, along with the numbers of the 2nd, 3rd, 6 th, 7th, 8
th, 9th and 10th respondents as those who assaulted him in the Police
Station, but in addition to these
persons Thaminda has mentioned
PC 37434 and PC 34111 who are not respondents to these applications, and no
explanation has been offered as to why these persons have not been cited as
respondents. In the statement of Thaminda no reference is made to the 5th and 6
th respondents, and the reliability of the statement is put into great
uncertainty by the disclosure that the numbers of the Police Officers who are
alleged to have assaulted
Thaminda were obtained from a sincere
friend whose name or identity is not mentioned in the statement. In the
statement made by the petitioner in SC application No. 465/03 Mahalekam on the same
day, the 2nd, 3rd, 5th, 7th, 8 th, 9th and 10th respondent are
identified as those who assaulted him, but he too makes reference to PC 37034
who is not a respondent to his petition. He has, however, not disclosed his
source of information
regarding the numbers mentioned by him,
but it is most likely that this is some information that Thaminda shared with
him. The fact is, that there is no averment in the petition filed by this
petitioner regarding the identity of those who allegedly assaulted him.
It is obvious that the petitioners have
not been able to identify any of the Police Officers who assaulted them as they
themselves were in a highly intoxicated state. However, I am of the opinion
that the fundamental rights guaranteed by Article 11 are owed to "any
person" which includes even persons in a high state of intoxication. On
the available material I am satisfied that during the night of 11th August
2003, certain police officers
attached to the Kandy Police Station and
the Rapid Deployment Force (RDF) of that police station, acting under the
colour of office, did assault the petitioners in SC Application No. 463/03 and
SC Application 465/03 and subjected them to inhuman treatment. The situation in
these applications is similar to that in Ratnasiri and another v Devasurendran,
Inspector of Police, Slave Island and others<7> in which the Supreme
Court held that
despite the failure on the part of the
petitioners to identify those who violated their fundamental rights, they were
entitled to a declaration that their fundamental rights have been violated by executive
or administrative action for compensation.
However, in all the circumstances of the
present applications, where the petitioners have themselves conducted
themselves in a disgraceful manner on a noble occasion, and must share parts of
the blame for their predicament, I am not inclined to award any compensation,
and only grant a declaration that the fundamental rights guaranteed to the petitioners in
SC Application No. 463/03 and SC Application 465/03 by Article 11 of the
Constitution have been infringed due to executive or administrative action. In
the particular circumstances of these two applications. I do not make any order
for costs.
SILVA, CJ. - I agree.
TILAKAWARDANE, J. - I agree.
Only declaratory relief granted.
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