කොට්ටාව පොලීසියේ, ප‍්‍රජා පොලිස් එකකයේ, ස්ථානාධිපති සිසිර හා එම පොලීසියේ වැඩ බලන ස්ථානාධිපතිව සිටි, උපාලි යන පොලිස් නිලධාරීන් දෙදෙනාට, එරෙහිව, කොට්ටාවේ ලක්ෂිකා සීලිනී කුලතුංග මිය විසින් පවරන ලද, මූලික අයිතිවාසිකම් නඩුවේ තීන්දුව, 2021.12.06 දින, ප‍්‍රකාශයට පත් කරන ලදි.
ඒම තීන්දුවෙන් මෙම පොලිස් නිලධාරින් දෙන්නාට රුපියල් ලක්ෂය බැගින් - රු. දෙලක්ෂයක්- වන්දි ගෙවන ලෙසට නියම කෙරින.
2012 අගෝස්තු මස 12 වන දින, ප.ව. 5.00 ට පමණ, කොට්ටාව පොලීසියේ නිලධාරියෙක් දුරකථනයෙන් කථා කර, ඇගේ මල්ලී ගැන තොරතුරු විමසා, වැඩි විස්තර දැන ගැනීම සඳහා පොලීසියට වහා පැමිණෙන ලෙසට නියෝග කර තිබේ.
භිය නිසා, ඇය, පොලීසියට ගිය විට, මල්ලීව බාරදෙන තුරු, ඇයව රඳවා ගැනීමට, පොලීසිය පියවර ගෙන ඇත.
මෙම නීතිවිරෝධී හා අත්තනෝමතික ක‍්‍රියාව පිළිබඳ ඇය, ඉහළ පොලිස් නිලධාරීන්ට එරෙහිව, මූලික අයිතිවාසිකම් උල්ලංඝණය කිරීම පිළිබඳව නඩු පවරන ලදි.
සටහන :
මෙවන් සිදුවීම්, එදත් අදත්, සිදුවේ.
ප‍්‍රාණ ඇපයට පුද්ගලයින් රඳවා තබා ගැනීම, අඛණ්ඩව සිදුකරයි. එමෙන්ම, එම පුද්ගලයින්ට අසභ්‍ය වචනයෙන් බැන වැදීම, වධ දෙන බවට, බොරු නඩු දාන බවට තර්ජනය කිරීම අඛණ්ඩව සිදුකරයි.
මෙම තීන්දුව, පොලිස්පති විසින් සියලූම පොලීසි වලට යැවිය යුතුයි.
මෙම නිලධාරීන් දෙදෙනාට එරෙහිව විනය පියවර ගෙන, ප‍්‍රසිද්ධ කළ යුතුය.
නඩු තීන්දුව පහත දැක්වේ.
SCFR No 531/2012
IN
THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF
SRI
LANKA
In the matter of
an application under and in terms of Article 126 of the Constitution.
SC FR 531/2012
Lakshika Dilani Kulathunga,
No.06, 1st Lane Galpotta Road,
Koswatte.
Petitioner
Vs.
1. Sisira,
Officer in Charge
Community Police Unit
police station
Kottawa.
2. Upali
Sub Inspector of Police
Acting Officer in Charge
police station
Kottawa.
3. Mr. Saliya de Silva
Senior Superintendent of Police
Nugegoda
Office of the Senior Superintend of Police
Mirihana.
4. Senapathi
Assistant Superintendent of Police
Homagama South
Office of the Assistant Superintend of Police
Homagama.
5. Inspector General of Police,
Sri Lanka Police Headquarters
Colombo 12. SCFR No 531/2012
6. Honorable Attorney General
Department of the Attorney General,
Colombo 12.
Respondents
Before : Jayantha Jayasuriya, PC, CJ
Mahinda Samayawardhena,
J
Arjuna Obeyesekere, J.
Counsel : Upul Kumarapperuma with Ms. Udumbara Dasanayake,
Ms. Radha Kuruwitabandara and Mr Shelly Gunaratne for the Petitioner.
Nuwan Kodikara for the 1st and
2nd Respondents.
G. Wakishta Arachchi SSC for Hon. Attorney General.
Written Submissions : 04.10.2021 by the Petitioner
Filed on 27.09.2021 by the 1st and
2nd Respondents
Argued on : 09.08.2021
Decided on : 06.12.2021
Jayantha Jayasuriya, PC, CJ
The petitioner, a mother of a seven year old child at the
time of the alleged incident has invoked the jurisdiction of this Court in
terms of Article 126 of the Constitution. This Court has granted leave to
proceed against 1st and 2nd respondents for the alleged infringements under Article 11,
12(1) and 13(1) of the Constitution.
1st and the 2nd respondents are
named in the petition as Sisira, Officer in Charge, Community Police Unit,
police station, Kottawa and Upali, Sub Inspector of Police, Acting Officer in
Charge, police station Kottawa, respectively.
Both these respondents filed objections and were represented
by Counsel. The 1st respondent in his affidavit dated 31st
January 2013 identifies himself as “Kolom Muhandiramge
Sisira”, acting as a Development Assistant attached to Kottawa police station.
The 2nd respondent in his affidavit dated 31st
January 2013 identifies himself as “Dissanayake Mudiyanselage
Upali Senerath Dissanayake”, and admits that he was the Acting Officer in
Charge of the Kottawa police station at the relevant time.
According to the petitioner, on or around 09th
August 2012, around 5.00 pm she received a telephone call on
her mobile phone. The said call had been originated from a mobile phone. The
caller who identified himself as an officer attached to Kottawa police station
had informed that the brother of the petitioner had been admitted to hospital
after meeting with an accident. However, when the petitioner inquired about the
condition of the brother, the caller proceeded to inquire in turn from the
petitioner details such as places the brother frequently visits, the family
background and his place of abode; without disclosing the condition of the
person who was claimed to have been admitted to the hospital. Furthermore, the
petitioner had been asked to come to Kottawa police station without proceeding
to the hospital. At the same time, a relative of the petitioner had called and
informed that she also received a telephone call from an officer attached to
Kottawa police station asking for details of the petitioner’s brother having informed
that he had been hospitalized due to an accident. Simultaneously, the brother
of the petitioner also had contacted her and informed that he had not met with
an accident.
Having received this information, the petitioner had asked
the caller who identified himself as an officer attached to the Kottawa police
station as to the reason why she was questioned on the details of the brother.
At that time the caller had asked her to come over to police station before
6.00 pm to get information about the brother. Despite the petitioner informed
her difficulties to come over to the police station that evening, the caller
had insisted that she should come over to the police station by 6.00 pm and any
failure to do so would cause difficulties to her brother as well as to her
family. The petitioner thereafter through fear, proceeded to the police station
despite having had to pick her child from a child care centre by 5.30 pm. Her
husband had been engaged with some prior business related commitments. At the
police station the 1st respondent had identified himself as the person who called
the petitioner.
When inquired, the 1st respondent
had informed that a complaint of harassment had been made against the brother
of the petitioner and demanded that he be produced forthwith. The petitioner’s
request for time till the following day had been denied and had been threatened
with detention at the police station until the brother is produced. The 1st
respondent had threatened SCFR No 531/2012 .“මල්ලී ප ොලීසියට අරපෙන එනකල් අපි යන්න පෙන්පන් නැහැ. ෙන්නවපන් පේක ප ොලිසිය. මල්ලීව පෙනාපේ නැත්නේ ස්පසේ
හුඟක් කරෙර පවන්න පවයි.” Furthermore, the petitioner
claims that she was subjected to humiliation and harassment due to the abusive
conduct of a group of people who were present at the police station in the
presence of the 1st respondent. The 1st respondent
had demanded that the petitioner join with the said group of persons to go in
search of her brother, in the police jeep. The petitioner claims that the 2nd
respondent was present at the police station when these
incidents took place.
While the aforesaid events were in progress, an
attorney-at-law related to the petitioner arrived at the police station after
being informed by the relative who informed the petitioner over the phone regarding
the telephone call she received from the police station. When the said
attorney-at-law inquired for the reason for the arrest and detention of the
petitioner at the police station, respondents had claimed that the petitioner
was at the police station on her own volition. When inquired whether there is
any complaint against the petitioner, two respondents had said that there is no
such complaint. Thereafter, the said attorney-at-law had taken the petitioner
away from the Police station. At that stage the 2nd respondent
is alleged to have remarked “ප ොලිසියට ාර්ට් ොපෙන එන එවුන්පේ
අඬු කඩලා ොන්න ඕනි. තවම කවුරුත් ෙන්පන් නැහැ ප ොලිසිපේ තරම”.
An affidavit of the said Attorney-at-Law is marked P3 and produced along with
the petition and affidavit of the petitioner.
The 1st respondent admits that he was attached to the Kottawa police
station and was acting as a Development Assistant. He further admits that he
has no authority to arrest or detain any person but his duty was to refer
complaints to inquiring police officers at the police station. This respondent
sets out the details of a complaint received at the police station on
08.08.2012 relating to a receipt of nuisance telephone calls by a female
person. In her complaint she had provided the number of the telephone from
which these calls had originated. Furthermore, she had named the person whom
the aforesaid telephone number belonged to. The 1st respondent
thereafter explains that the said person denied making such nuisance calls and
took up the position that his phone was handed over to a third party for
repairs. The 1st respondent claims that he used a detailed telephone bill
handed over by the said person (marked 1R6) and started calling different
numbers recorded therein randomly. It is through this process he claims that he
obtained the telephone number of the petitioner and thereafter called her to
obtain further details about her brother, who is suspected to have made alleged
nuisance calls. However, it is pertinent to observe at this stage, that only
one statement, among the material he had produced before this Court, predates
the events relating to this application (ie the initial complaint marked 1R3).
Two other statements (1R4 and 1R5) had been made on 10.08.2012 (the following
day of the incident). None of these statements contain any material implicating
the brother of the petitioner. It is the statements that had been recorded much
later, namely on 25.09.2012, which reveals material implicating the brother of
the petitioner; the statement marked 1R7 (the statement of the person in whose
name the phone number used to make nuisance calls is registered) and another
statement recorded on the same day (25 September 2012) reveal such material.
The 2nd respondent, admits that he was the Acting Officer in Charge
of Kottawa police station at the relevant time. He further affirms that the 1st
respondent was attached to Kottawa police station as a
Development Assistant and the duty assigned to him was to “refer complaints to
inquiring officers in the police station”. Furthermore, the 1st
respondent did not have any authority to arrest or detain a
person, as affirmed by the 2nd respondent.
The 2nd respondent denies that he was present at the police station
at the time the petitioner came over there, but says that he returned to the
police station when the petitioner and the complainant were about to leave.
However, he admits that it was in his presence, the 1st
respondent informed the Attorney-at-Law, that the petitioner
came over to the police station on her own and that she is waiting for the
arrival of her brother. This respondent denies that they followed the
petitioner and the attorney-at-law and made any utterance.
The 2nd respondent who also produced the information book extracts
containing the statements recorded in relation to the complaint made two days
prior to the principal incident relating to this application, marked 2R3, 2R4,
2R5 and 2R7 (which were produced marked 1R3, 1R4, 1R5 and 1R7 by the 1st
respondent), affirms that he directed the 1st
respondent to “refer (this) matter for inquiry”.
When considering the material presented before this court by
the two respondents, it is clear that the 1st respondent,
who was attached to the police station in the capacity of a ‘Development
Assistant’ did not have any authority to conduct investigations. The duty
assigned to him was to refer any complaints to officers who have the
authority to conduct investigations. However, the material presented before
this court by the petitioner and the two respondents reveal that the 1st
respondent had stepped outside the legal bounds of authority
and had actively got involved in the investigation, to which he had no legal
authority. It is difficult to comprehend, on what authority he actively got
involved in the investigation by contacting possible witnesses and suspects
over the phone and questioning them on matters relating to the investigation.
Even if the petitioner voluntarily came over to the police station as claimed
by the 1st respondent, on what basis did he provide his personal phone
number asking her to contact him when she reaches the police station? It
appears that the 1st respondent arrogated to himself powers of a police officer
and had got involved in the investigation, for reasons best known to him. He
had acted arbitrarily, outside the scope of authority.
The 2nd respondent was the acting officer-in-charge of the Kottawa
police station. In Ukwatta v Marasinghe and others [2011 BLR 120
at 129] this court had observed,
“Under the procedure established by law for the
administration and discharge of duties of a police station, regulations have
been gazetted under the Police Ordinance and the Code of Criminal Procedure Act
and officer-in-charge of a police station is the Chief administrative officer.
He is in charge of the entire police station and is personally responsible for
over all functions of the police station”
It is pertinent to note, section 55 of the Police Ordinance
empowers the Inspector General of Police to “frame orders and regulations for
the observance of the police officers”. Paragraph 2 of Part I–Preamble of such
Departmental Order No A3 – which sets out the ‘duties of officers in charge of
stations’ reads,
“You are now in a position in which you are responsible for
the efficient carrying on of their duties by all under you. You are responsible
for their health, for their recreation, and comfort and for their good
behaviour and discipline” (emphasis added)
Furthermore, paragraph 6 of Order no. A3 reads,
“The creation and maintenance of discipline are among your
most important duties. You must insist that your orders and the orders of those
empowered to make orders are obeyed immediately without argument or hesitation
and with cheerfulness and energy”
“Never pass any lapse from duty, however trivial, without
taking notice of it”
“Drop hard on slackness, disobedience and slovenliness”
The 2nd respondent, under whose direction, control and supervision
the 1st respondent performed duties, fail to explain on what basis
and under whose authority the 1st respondent got
himself involved in this investigation without confining himself to his duty of
referring the complaint to inquiring officers at the police station.
Furthermore, the 2nd respondent fails to explain the administrative mechanisms or
any meaningful measures placed at the police station to ensure that the 1st
respondent would not abuse his position as a Development
Assistant and get involved in investigations. Nor there is any material placed
before this court to establish that the 2nd respondent
as the Officer-in-Charge of the station took any steps to inquire from the 1st
respondent the reasons for his involvement in the
investigation without any lawful authority. He neither denies any knowledge on
this aspect. He just affirms that the 1st respondent’s
duty is to ‘refer complaints to inquiring officers in the police station”,
but admits that in his presence it was the 1st respondent
who explained the petitioner the details on the complaint relating to alleged
incident of harassment. Furthermore, the 2nd respondent
admits that it was the 1st respondent who informed the attorney-at-law who visited the
police station to verify the information that the petitioner had been arrested
and detained at the police station, that the petitioner voluntarily came over
to the police station in response to the complaint made against her brother.
Nor there is any material placed before this court to establish that the 2nd
respondent as the Officer-in-Charge of the station took any
steps to investigate the 1st respondent’s unlawful conduct after he came to know of the
same. The 2nd respondent had not only failed to prevent the arbitrary
conduct but also had failed to investigate such conduct of his subordinate.
When all these circumstances are taken together, it is reasonable to infer that
there was tacit approval of the 2nd respondent
in regard to the role the 1st respondent
played in the investigation relating to the alleged incident of harassment.
Though it is repetitive, it is important to observe, that
none of the statements recorded prior to the 25th September
2012, reveal any material linking the brother of the Petitioner to the alleged
incident of harassment on which the first information was received on the 08th
September 2012. No complaint had been made naming the brother
of the petitioner as a suspect. It is also pertinent to note that the three
reports filed by the Officer in Charge of the Kottawa police station in the
Magistrates Court of Homagama in case B 1890/12 also reveal that it was in
November 2012, police sought notice on the brother of the petitioner. The
initial report filed on 10.08.2012 – the day after the incident relating to
this application occurred - names a different person on whom the complainant
entertained suspicion. Furthermore, it is pertinent to observe that the
statement of S.K.Basnayake, a relative of the complainant (at page 3 of the IB
extracts produced by the two respondents) reveal that their presence at the
police station in the evening of the 09th,
was due to a telephone call received from Kottawa police. According to him they
had been asked to come over to the police station as the suspect party is due
to come over there. Therefore, the meeting of the petitioner and the other
group of people at the police station is not a coincidence.
When all these factors are taken together with the personal
interest the 1st respondent had developed in this matter and the manner in
which the 2nd respondent had conducted himself despite being the acting
Officer in Charge of the police station, I am of the view, that the petitioner
has proved, on a balance of probability, that the alleged incidents did in fact
take place in the manner described by the petitioner as opposed to the position
taken up by the two respondents. In my view, the conduct of the two
respondents, as revealed through the material placed before this Court is
arbitrary and unlawful.
I am further of the view that securing the presence of a
person at a police station through deception or through fear of harm to use as
a hostage for the securing the presence of a possible suspect, without using
due process of law by adhering to the relevant provisions of law which enables
the securing the presence of a suspect for an investigation, is not only
arbitrary but unlawful too. Any administrative or executive action tainted with
such conduct warrants deterrent sanctions.
Article 12 (1) of the Constitution guarantees equality before
law and equal protection of the law. This court in its’ Full Bench decision in Sampanthan
et. al. v Attorney-General et. al. (SC FR 351-356 & 358-361/19, SC
minutes dated 13th December 2018) citing with approval jurisprudence developed
in Jayanetti v Land Reform Commission [ 1984 2 SLR 172] and Shanmugam
Sivarajah v OIC Terrorist Investigation Division and others [SC FR
15/2010 SC Minutes of 27.07.2017] held that the right guaranteed under Article
12(1) of the Constitution encompasses protection of ‘Rule of Law’ too.
Maintenance of Law and Order forms an integral part of
protecting Rule of Law and the Police Force as the organ that is entrusted with
tasks such as investigation of crimes, apprehension and prosecution of
offenders carries a heavy burden to ensure that the powers vested on its
officers are not arbitrarily or discriminately exercised. Such exercise of
arbitrary or discriminatory power by officers of the Police Force will result
in break down of law and order and would pose a serious threat to Rule of Law.
In Sudath Silva v Kodithuwakku [1987 2 SLR 119 at 126] in
examining an alleged violation of Article 11, it was observed,
“……….. 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 in any
circumstance.”
This Court in Sampanthan (supra), citing with
approval the jurisprudence in Chandrasena v Kulathunga and Others [1992
2 SLR 327], Premawathie v Fowzie and Others [1998 2 SLR 373], Pinnawala
v Sri Lanka Insurance Corporation and Others [1997 3 SLR 85], Sangadasa
Silva v Anuruddha Ratwatte and Others [ 1998 1 SLR 350], Karunadasa
v Unique Gem Stones Ltd and Others [1997 1 SLR 256] and Kavirathne
and Others v Pushpakumara and Others [SC FR 29/2012 SC Minutes of
25.06.2012] held that Article 12(1) of the Constitution guarantees protection
against arbitrary exercise of power.
As I have already discussed herein before, the conduct of the
1st and the 2nd respondents is
arbitrary and unlawful. Through such conduct the Right to equal protection of
Law guaranteed to the petitioner has been breached.
Article 13(1) of the Constitution reads, “no person shall be
arrested except according to procedure established by law”. This Article
guarantees a protection against arbitrary arrest. In Namasivayam v
Gunawardena [1989 1 SLR 394] this court held that actual use of force
is not necessary to constitute a breach of Article 13(1) but even a threat of
force to procure the presence of a person is sufficient. Furthermore, it was
held that the deprivation of the liberty to go wherever a person feels, results
in an arrest. In Namasivayam (supra at 401-402) the Court held,
“The liberty of an individual is a matter of great
constitutional importance. This liberty should not be interfered with, whatever
the status of that individual be, arbitrarily or without legal justification.”
In Piyasiri v Fernando [1988 1 SLR 173 at 183]
this court held,
“….Custody does not today, necessarily import the meaning of
confinement but has been extended to mean lack of freedom of movement
brought about not only by detention but also by threatened coercion, the
existence of which can be inferred from the surrounding circumstances” (emphasis
added).
Material presented before this court reveal that the
respondents secured the presence of a the petitioner at the police station by
instilling fear of harm and thereafter threatened to detain her at the police
station until the brother is produced. Furthermore, the petitioner was asked to
join with the police team to go in search of the brother.
In Lakshman de Silva v Officer in Charge Kiribathgoda
Police [SC FR 9/2011, SC Minutes of 03.03.2017, at p 12] observed,
“Detention of the spouse or a family member or a relative of
a suspect merely to compel or to induce a suspect to surrender to the police
cannot be a reasonable reason for the Peace Officer to arrest and detain such a
person in police custody under section 32(1)(b) of the Criminal Procedure Code.
The arrest and detention of a spouse or a family member or any other relative
of a suspect by a peace officer must be condemned and discouraged by Courts of
law in this Country”.
Based on the facts as revealed in the instant matter, I have
no difficulty to find that the petitioner’s right guaranteed under Article
13(1) also had been breached.
On the question whether the petitioner’s right guaranteed
under Article 11 had been breached or not, the petitioner does not allege any
kind of physical assault. In this regard, it is pertinent to observe that this
Court had held that the protection guaranteed under Article 11 encompasses a
protection from psychological trauma, psychological suffering, psychological
injury and severe mental pain or suffering too. [W.M.K.De Silva v
Chairman Ceylon Fertilizer Corporation 1989 2 SLR 393; Channa
Peiris and others v Attorney-General 1994 1 SLR 1; Adhikary v
Amerasinghe 2003 1 SLR 270; Puwakketiyage Sajith Suranga v Prasad
et al SC FR 527/2011, SC minutes dated 22.07.2016]. However, in the
context of an alleged breach of Article 11 of the Constitution it is also
important to note that a high degree of certainty is required for the court to
hold a violation of Article 11. In Channa Peris (supra at 107) it
was held,
“…. having regard to the nature and gravity of the issue, a
high degree of certainity is required before the balance of probability might
be said to tilt in favour of a petitioner endeavouring to discharge his burden
of proving that he was subjected to torture or to cruel, inhuman or degrading
treatment or punishment; and unless the petitioner has adduced sufficient
evidence to satisfy the Court that an act in violation of Article 11 took
place, it will not make a declaration that Article 11 of the Constitution did
take place”. In W.M.K.De Silva (supra at 401) His Lordship
Justice Jameel observed,
“…..ill-treatment per se, whether physical or mental, is not
enough; a very high degree of mal-treatment is required”
to constitute a violation of Article 11. His Lordship
Amarasinghe J, further elaborating on this matter in Kumarasena v
Sub-Inspector Shriyantha et al [SC FR 257/93, SC minutes of 23.5.1994]
observed,
“The assessment of whether a person has been subjected to
treatment violative of Article 11 depends on the nature of the act or acts
complained of in the circumstances in which they were committed. (See W.R.K. de
Silva v. Chairman, Ceylon Fertilizer Corporation (1987) 2 SLR 393,[W.M.K.
de Silva v. Chairman, Ceylon Fertilizer Corporation (1989) 2 SLR 393] Fernando
v. Silva and others S.C. Application 7/89 S.C. Minutes 3 May 1991). In the
circumstances of this case the suffering occasioned was of an aggravated kind
and attained the required level of severity to be taken cognizance of as a
violation of Article 11 of the Constitution. The words and actions taken
together would have aroused intense feelings of anguish that were capable of
humiliating and debasing the Petitioner. I therefore declare that Article 11 of
the Constitution was violated by the subjection of the Petitioner to degrading
treatment.”
Her Ladyship Justice Bandaranayake, in Adikary (supra
at 275) having considered W.M.K.De Silva (supra) and Kumarasena
(supra) observed,
“……… the test which has been applied by our Courts is that
whether the attack on the victim is physical or psychological, irrespective of
the fact that, a violation of Article 11 would depend on the circumstances of
each case.”
When all the material presented before this court by the
petitioner is considered, I am of the view that the material available is
insufficient to hold that there had been a violation of Article 11.
For the reasons set out above, I hold that the petitioner has
established that rights guaranteed to her under Articles 12(1) and 13(1) had
been infringed. Therefore, I grant the petitioner a declaration that her
fundamental rights guaranteed under Articles 12(1) and 13(1) of the Constitution
have been infringed by the 1st and 2nd
respondents.
I order the 1st and 2nd
respondents to personally pay to the petitioner rupees one
hundred thousand (Rs 100,000/-) each, within three months of today.
Chief Justice
Mahinda Samayawardhena, J
I agree.
Judge of the Supreme Court
Arjuna Obeyesekere, J.
I agree.
Judge of the Supreme Court
