චාරුක
දහම් සෙනෙවිරත්න
ගල්කිස්ස පොලිසිය අත්අඩංගුවට ගන්නේ වරෙන්තුවකට. එ 2015. 09. 17. දික්කසාද බිරිඳ හා ඔහු අතර ''දරුවාගේ" භාරකාරත්වය පිළිබඳ හබයක්
සම්බන්ධ නඩුවකටය.
මේ වන විටත් මෙම උප පොලිස් පරීක්ෂක නෙළුම්දෙනිය පොලිසියේ සිටිනවා නම් ඔහු දරන තනතුර කුමක්ද?
ඔහුට විරුද්ධව පොලිසිය දෙපාර්තමේන්තුවක් වශයෙන් ගෙන තිබෙන විනය පියවර කවරේද? යන්න ජනතාවට දැන ගැනීමට පියවර ගත යුතුය.
මේ පිළිබඳව පොලිස්
මාධ්‍ය ප්‍රකාශක, නියෝජ්‍ය පොලිස්පති නීතිඥ අජිත් රෝහණ විසින් ප්‍රකාශයක් කළ යුතුව
තිබේ.
Janidhu Charuka Daham Seneviratne,
No. 4A, Sapumal Mawatha,
Sirimal Uyana,
Ratmalana.
Petitioner
SC (FR) APPLICATION NO: 402/2015
Vs.
1. Sub Inspector Nelumdeniya,
Police Station,
Mount Lavinia.
2. Officer in Charge,
Special Crimes Investigation Unit,
Police Station,
Mount Lavinia.
3. Chief Inspector Chanaka Iddamalgoda,
Head Quarters Inspector,
Police Station,
Mount Lavinia.
4. N.K. Illangakoon,
Inspector General of Police,
Police Headquarters,
Colombo 01. 2
5. Hon. Attorney General,
Attorney General’s Department,
Colombo 12.
Respondents
Before: P. Padman Surasena, J.
Janak De Silva, J.
Mahinda Samayawardhena, J.
Counsel: Shantha Jayawardena
for the Petitioner.
Sudath Jayasundara for the 1st
Respondent.
Ganga Wakishta Arachchi,
S.S.C., for the Attorney General.
Decided on: 21.05.2021
The Petitioner filed this
application under Article 126 of the Constitution seeking inter alia a
declaration that his fundamental rights guaranteed under Articles 11 and/or
12(1) and/or 13(1) and/or 13(2) and/or 13(5) of the Constitution were infringed
by the 1st to 3rd Respondents; compensation in a sum of Rs. 1 million from the
State and Rs. 3 million from the 1st Respondent; and a direction to the 5th Respondent
Attorney-General to institute criminal proceedings under the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No.
22 of 1994, against the 1st Respondent and the other police officers liable for
the infringement of the Petitioner’s fundamental rights under Article 11 of the
Constitution. The Petitioner’s complaint is that he was subjected to torture,
cruel, inhuman and degrading treatment by the 1st Respondent and two others
whilst he was under arrest and detained in the police cell of the Mount Lavinia
police station.
This Court granted leave to
proceed on the alleged violation of the Petitioner’s fundamental rights
guaranteed under Article 11 of the Constitution by the 1st Respondent.
Article 5 of the Universal
Declaration of Human Rights adopted by the General Assembly of the United
Nations in 1948 states: “No one shall be subjected to torture or cruel,
inhuman or degrading treatment or punishment.”
Fundamental rights were first
declared and recognised in Sri Lanka in the Constitution of 1972. Article
18(1)(b) in Chapter VI under “Fundamental Rights and Freedoms” of the 1972
Constitution declared: “In the Republic of Sri Lanka – no person shall be
deprived of life, liberty or security of person except in accordance with the
law.” Although there was no express provision guaranteeing freedom from
torture, cruel, inhuman or degrading treatment or punishment, these were deemed
to be included in the said Article. However, this Article was subject to
Article 18(2) and (3) which read as follows:
Article 11 of the 1978
Constitution, which falls within the Chapter dealing with “Fundamental Rights”,
reads as follows:
No person shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment.
It is significant to note that
Article 11 of the 1978 Constitution is an entrenched provision with no
restrictions whatsoever. The application of this Article cannot be relaxed even
in the interest of national security.
On 10.12.1984, the General
Assembly of the United Nations adopted the Convention against Torture and other
Cruel, Inhuman and Degrading Treatment or Punishment. This Convention against
torture entered into force on 26.06.1987. Sri Lanka acceded to this Convention
on 03.01.1994, and the Convention entered into force in Sri Lanka on
02.02.1994. This Convention requires signatory parties to take measures to end
5
torture
within their territorial jurisdiction and to criminalise all acts of torture.
In Article 1 of this Convention
against Torture, the term “torture” is defined in the following manner:
1. For the purposes of this
Convention, the term “torture” means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. It does not
include pain or suffering arising only from, inherent in or incidental to
lawful sanctions.
2. This article is without
prejudice to any international instrument or national legislation which does or
may contain provisions of wider application.
Article 2 thereof reads as
follows:
2(1) Each State Party shall
take effective legislative, administrative, judicial or other measures to
prevent acts of torture in any territory under its jurisdiction.
(2) No exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a
justification of torture.
(3) An order from a superior
officer or a public authority may not be invoked as a justification of torture.
The Parliament of Sri Lanka
enacted the Convention against Torture and other Cruel, Inhuman and Degrading
Treatment or Punishment Act, No. 22 of 1994 to give effect to this Convention.
In the interpretation section of the Act, “torture” is defined in the identical
manner as it is defined in Article 1 of the Convention against torture.
“torture” with its
grammatical variations and cognate expressions, means any act which causes
severe pain, whether physical or mental, to any other person, being an act
which is―
(a) done for
any of the following purposes that is to say―
(i) obtaining
from such other person or a third person, any information or confession; or
(ii) punishing
such other person for any act which he or a third person has committed, or is
suspected of having committed; or
(iii) intimidating
or coercing such other person or a third person; or
(b) done for
any reason based on discrimination,
and being in every case, an
act which is done by, or at the instigation of, or with the consent or
acquiescence of, a public officer or other person acting in an official capacity.
What acts constitute “torture
or cruel, inhuman or degrading treatment or punishment” will depend on the
facts and circumstances of each individual case.
The Petitioner in the present
application was 32 years old when he was arrested by officers of the Mount
Lavinia police station on 17.09.2015 around 5.00 p.m. He was entering his
residence after returning from work. The Petitioner says he was informed by the
police that he would have to be produced before the Magistrate before 5.30 p.m.
on that day. At the time, he was the Country Manager (Sri Lanka) for the
National Tertiary Education Consortium, which is based in New Zealand. The
arrest was consequent to a warrant issued by the Mount Lavinia Magistrate upon
a bigamy charge based on a complaint made by his former wife. There had been
matrimonial disputes between him and his former wife which ended up in a
divorce, but there had been an ongoing dispute for the custody and maintenance
of their child.
Since he was arrested upon
returning from work, the Petitioner was clad in formal attire. After he was
taken to the police station, he was locked up in the police cell. The police
officers who arrested him signed off from their duties for the day at 6.00 p.m.
and the 1st Respondent, SI Nelundeniya, assumed duties as the officer in charge
of the night shift.
The 1st Respondent in his
statement of objections says he heard someone from the cell yelling that he
wants to meet the Head Quarters Inspector (HQI) CI Iddamalgoda. Although the 1st
Respondent says this person was screaming obscenities at that time, I am unable
to accept it. According to paragraph 10(h) of the statement of objections of
the 1st Respondent, the Petitioner had demanded that he be taken before the HQI
“to tell your HQI to keep me outside the cell.”
The 1st Respondent admits in
his statement of objections that the Petitioner was “dressed in a white long
sleeve shirt, black trousers and shoes”. He says he “ignored the
Petitioner’s utterances and did politely request the Petitioner to remove his
shoes as it is imperative for any person who has been put into a cell to remain
bare feet [according to Police Department regulations]” as shoes can be
used “to assault a third party within or outside the cell.”
At paragraph 10 (j)-(l) of the
Statement of Objections, the 1st Respondent recounts what happened when he made
that “polite request”:
The Petitioner suddenly
grabbed me by my collar as I was standing next to the cell and had attempted to
kick me through the bars of the cell. As the Petitioner was still holding onto
my collar and to steady myself I held on to the bars of the cell when the
Petitioner bit hard the second finger of my left hand which was badly
lacerated. Thereafter I managed to obtain the key to the cell from Police
Sergeant Saman and opened the cell to remove the Petitioner’s shoes. The
Petitioner suddenly lunged forward struck and or assaulted me on the chest. The
police constable Herath had to intervene to get the 1st Respondent freed. Thereafter, according to the 1st Respondent, he left
the police station seeking medical attention. He does not speak a single word
about how the Petitioner sustained injuries whilst in the cell.
To recap, according to the 1st Respondent,
the Petitioner, while inside the cell, held the 1st Respondent (who was outside
the cell) by the collar through the iron bars and attempted to assault him and
bit his finger. Is this probable? For me, it is not.
The 1st Respondent did not
tender an affidavit from PC Herath who seems to be an eyewitness to this incident.
Instead, he tendered two statements – R4 and R5 – from two suspects who were at
the police station.
R4 – a statement given by a
female suspect who was under arrest – contradicts this story when she inter
alia says (translated):
The 1st Respondent first
told the Petitioner to remove his shoes from outside the cell and then went
inside the cell and told the Petitioner to remove his shoes. Thereafter, there
was a noise from inside the cell and then the 1st Respondent came out of the
cell complaining that his finger was bitten by the Petitioner.
The 1st Respondent at paragraph
8 of his written submission dated 15.02.2021 tells a different story. There he
says that when the Petitioner held him by the collar and bit his finger through
the iron bars of the cell, he advised the officers who were present to go
into the cell and to remove his [Petitioner’s] shoes. When officers entered the
cell the Petitioner had engaged in a fisticuff with them.
The 1st Respondent did not
tender affidavits from these “officers”.
The Petitioner’s version of
events, as stated in the petition, is that when he requested that he be
produced before the 3rd Respondent HQI, the 1st Respondent became incensed. The
Petitioner may not have made his request politely; he may well have demanded to
be produced before the HQI who was in charge of the police station to tell his
side of the story to get him released from police custody. At that point,
according to the Petitioner, the 1st Respondent entered the cell using abusive
language and began assaulting the Petitioner. In the process, the Petitioner
says the 1st Respondent held him in a head-lock position and attempted to
strangle him. Unable to breathe, the Petitioner says he bit the finger of the 1st
Respondent to release himself. Thereafter, the 1st Respondent summoned two
persons dressed in civilian clothing into the cell and all three assaulted the
Petitioner severely. The Petitioner does not know the names of those two
persons. They have not been made parties to the case.
The 1st Respondent in his
statement of objections did not say that he “advised the officers who were
present to go into the cell and to remove his shoes” and “when officers
entered the cell the Petitioner had engaged in a fisticuff with them.” That
is because if he did, he would have been compelled to name the other officers
involved in assaulting the Petitioner. In the written submissions, the 1st Respondent
attempts to implicate the other two persons (referred to by the Petitioner) as
being responsible for the assault of the Petitioner inside the cell. In
paragraph 12 of the written submission the 1st Respondent says:
Further the admission by the
Petitioner that he was attacked by two others inside the cell, whom he cannot
identify further substantiates the position that it was not the Respondent who
was involved in attacking him.
Then in paragraph 15 of the
written submission, the 1st Respondent admits that he did not use excessive
force to control the situation, suggesting that some amount of force was in
fact used.
Further it is evident that
the provocation was sought by the Petitioner and not the Respondent in any
event Respondent had refrained from using any excessive force on the
Petitioner.
At the stage of filing written
submissions, the 1st Respondent at least admits that the Petitioner was
assaulted inside the cell.
I am more than satisfied that
the 1st Respondent together with two other police officers whom the Petitioner
does not identify by name assaulted the Petitioner inside the cell.
What is the nature of the
injuries sustained by the Petitioner?
Before exploring the nature of
the injuries sustained by him, let me first consider the injury caused to the
finger of the 1st Respondent, which the Petitioner admits he inflicted in self-defence
to release himself from strangulation. There are no medical reports tendered by
the 1st Respondent regarding the extent of the injury or treatment taken. The 1st
Respondent produced only a Medico-Legal Examination Form marked R7, not a
Medico-Legal Report (MLR), wherein non-grievous laceration is noted under
injuries. The report does not even state where the alleged laceration was. The
incident took place on 17.09.2015. According to R7, the Judicial Medical
Officer (JMO) examined the 1st Respondent on 19.09.2015 at 10.00 a.m.
On the other hand, the
Petitioner sustained multiple injuries from this incident. The Petitioner
states in his petition that around 9.00 p.m. on 17.09.2015, an Attorney-at-Law
retained by his mother came to the Mount Lavinia police station and upon seeing
his condition, requested the Mount Lavinia police to admit him to hospital.
According to the Bed Head
Ticket (BHT) sent by the Director of the National Hospital of Colombo to this
Court, the Petitioner was admitted to the National Hospital at 2.35 a.m. on
18.09.2015 and was seen by a doctor at 3.00 a.m. On admission, he had visible
injuries. The BHT inter alia states “cleaning & dressing [the
wound/s]”, and “tetanus toxoid”. The MO/ENT further identifies “traumatic
perforation [ruptured eardrum] + bleeding” in the left ear. Thereafter, the
Petitioner was seen by an MO/ENT at 10.45 a.m., and “traumatic perforation –
blood clot” in the left ear is recorded. On 19.09.2015, the Petitioner was
seen by a VS [Visiting Surgeon] in ward 17 who records: “He has got a L/TM
[left tympanic membrane] perforation with blood on the TM. PTA shows
L/conduction impairment.” On the same day, the Petitioner was seen by the
JMO. The MLR states under injuries:
1.
Laceration measuring 3 cm situated over the right cheek.
2.
Patient had complained of reduced hearing over the left ear. He was seen by ENT
doctor and noted left ear traumatic perforation and associated with reduced
conduction of left ear.
3. Tenderness noted over
back of left shoulder and back of left upper chest.
Thereafter, the Magistrate had
visited the hospital and remanded the Petitioner, and the Petitioner was
transferred to the Prison Hospital on 19.09.2015.
The report sent to this Court
by the Chief Medical Officer of the Prison Hospital inter alia says:
According to history records
at Prison Hospital, there were multiple contusions over the face and body and
blood clot at left ear.
The Petitioner tendered several
documents along with his counter affidavit to show that he sought medical
advice from various doctors for body pain and suffering.
The Police force is responsible
for inter alia enforcing the law, maintaining public order and safety.
Hence there is a special responsibility on the police to uphold and protect the
fundamental rights enshrined in the Constitution. To say the least, assaulting
a person in police custody is a cowardly act, not a heroic act. A person in
police custody is at the mercy of the police.
Learned Senior State Counsel
for the 5th Respondent Attorney-General states in her brief written submission:
“subsequent to leave being granted, the 1st Respondent was represented by
private counsel”; pursuant to a disciplinary inquiry held upon a complaint made
by the Petitioner to the Inspector General of Police, “the 1st Respondent had
been discharged”; proceedings have been instituted against the Petitioner in
the Magistrate’s Court of Mount Lavinia “for behaving in an unruly manner and for
obstructing the Respondents from the performance of their duties”; and “there
has been no violation of the fundamental rights of the Petitioner by the
State.” Learned Senior State Counsel seems to be making a vague attempt to
absolve the State from liability, whilst also indirectly condoning the assault
when she says that the 1st Respondent was discharged at the disciplinary
inquiry.
The protection afforded by
Article 126 of the Constitution is against the infringement of fundamental
rights by the State, i.e. by “executive or administrative action”, through the
instrumentalities and agencies of the State. The State includes every
repository of State power. If the act complained of has been committed under
colour of law or office by the State official, the State is liable. The relief
granted against the violation of fundamental rights is principally against the
State and not against the individual miscreant, notwithstanding the latter may
also be held responsible in this process. (Mariadas Raj v. Attorney-General
[1983] 2 Sri LR 461, Velmurugu v. Attorney-General [1981] 1 Sri LR 406 at
422-430, Vivienne Goonewardena v. Perera [1983] 1 Sri LR 305, Rahuma Umma v.
Berty Premalal Dissanayae [1996] 2 Sri LR 293, Piyasena v. Associated
Newspapers of Ceylon Ltd [2006] 3 Sri LR 113)
In Sudath Silva v.
Kodituwakku [1987] 2 Sri LR 119, the Supreme Court took the view that where
the Petitioner establishes that he was tortured while in police custody, the
State is liable although it was not established which officer inflicted the
injuries. The Supreme Court condemned torture under police custody in the
strongest possible terms at 126-127:
Article 11 of our
Constitution mandates that no person shall be subjected to torture, or to
cruel, inhuman or degrading treatment or punishment. It prohibits every person
from inflicting torturesome, cruel or inhuman treatment on another. It is an
absolute fundamental right subject to no restrictions or limitations
whatsoever. Every person in this country, be he a criminal or not, is entitled
to this right to the fullest content of its guarantee. Constitutional
safeguards are generally directed against the State and its organs. The police
force being an organ of the State is enjoined by the Constitution to secure and
advance this right and not to deny, abridge or restrict the same in any manner
and under any circumstances. Just as much as this right is enjoyed by every
member of the police force, so is he prohibited from denying the same to
others, irrespective of their standing, their beliefs or antecedents. It is
therefore the duty of this court to protect and defend this right jealously to
its fullest measure with a view to ensuring that this right which is declared
and intended to be fundamental is always kept fundamental and that the
executive by its action does not reduce it to a mere illusion. This court
cannot, in the discharge of its constitutional duty, countenance any attempt by
any police officer however high or low, to conceal or distort the truth
induced, perhaps, by a false sense of police solidarity. The facts of this case
have revealed disturbing features regarding third degree methods adopted by
certain police officers on suspects held in police custody. Such methods can,
only be described as barbaric, savage and inhuman. They are most revolting to
one’s sense of human decency and dignity particularly at the present time when
every endeavour is being made to promote and protect human rights. Nothing
shocks the conscience of a man so much as the cowardly act of a delinquent police
officer who subjects a helpless suspect in his charge to depraved and barbarous
methods of treatment within the confines of the very premises in which he is
held in custody. Such action on the part of the police will only breed contempt
for the law and will tend to make the public lose confidence in the ability of
the police to maintain law and order. The petitioner may be a hard-core
criminal whose tribe deserve no sympathy. But if constitutional guarantees are
to have any meaning or value in our democratic set up, it is essential that he
be not denied the protection guaranteed by our Constitution.
The case at hand is not a
difficult one. I hold that the Petitioner has succeeded in establishing the
infringement of his fundamental rights guaranteed under Article 11 of the
Constitution. On a consideration of the totality of the facts and circumstances
of this case, I direct that the 1st Respondent shall pay the etitioner a sum of
Rs. 150,000 as compensation and another Rs. 25,000 as costs of the application.
I direct the State to pay the Petitioner a sum of Rs. 25,000 as compensation.
All payments shall be made within one calendar month from today.
Judge of the Supreme Court
P. Padman Surasena, J.
I agree.
Judge of the Supreme Court
Janak De Silva, J.
I agree.
Judge of the
Supreme Court
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