In the Land mark judgment delivered on 30.05.2017, Supreme
Court state that the 1st to 5th Respondents, namely 1. Sub Inspector Salwatura, 2. Sergeant Manoj, 3. Constable Ashoka, 4. Seargeant
Kithsiri , 5. Security Assistant Dissanayake, all of Police Station,
Bandaragama, have violated the Petitioner’s fundamental rights
guaranteed to him by Article 11 of the Constitution.
And 1st to 6th namely 1. Sub Inspector Salwatura, 2. Sergeant Manoj, 3.
Constable Ashoka, 4. Seargeant Kithsiri
5. Security Assistant Dissanayake, 6. Charles
Wickremasinghe, Officer in Charge, Police Station, Bandaragama, have violated the Petitioner’s
fundamental rights guaranteed to him by Article 13(1) and 13(2) of the
Constitution.
The
Supreme Court order that compensation of Rs. 500,000/- be paid to the
Petitioner by the 1st , 3rd, 4th and 5th Respondents, each one paying
Rs.125000/- personally to the Petitioner. I order that the State should pay to
the Petitioner a further sum of Rs. 500,000/- for and on behalf of the 6th
Respondent who had totally failed to keep any control over the police officers
and/or allowed them to do the wrongful acts to the extent it was done at the
Bandaragama police station. Supreme Court further order that costs of suit also be paid
by the State.
Full
judgment:-
IN THE SUPREME COURT OF THE DEMOCRATIC
SOCIALIST REPUBLIC OF SRI LANKA
In the matter of a Fundamental
Rights Application in which Leave to Proceed Was granted under Articles 11,
13(1) And 13(2) of the Constitution.
SC FR Application No. 244 / 2010
Chaminda Sampath Kumara
Wickremapathirana.
Maithri Mawatha,
Walgama, Welimilla Junction.
Petitioner
Vs
1. Sub Inspector Salwatura,
Police Station, Bandaragama.
2. Sergeant Manoj, Police Station,
Bandaragama.
3. Constable Ashoka, Police
Station,
Bandaragama.
4. Seargeant Kithsiri , Police
Station,
Bandaragama.
5. Security Assistant
Dissanayake,
Police Station, Bandaragama.
6. Charles Wickremasinghe,
Officer in Charge,
Police Station, Bandaragama.
7. Assistant Superintendent of
Police,
Prasad Ranasinghe, Panadura
Division,
ASP’s Office, Panadura.
8. The Inspector General of
Police,
Police Headquarters,
Colombo 01.
9. Hon. Attorney General,
Attorney General’s Department,
Colombo 12.
Respondents 2
BEFORE : S. EVA WANASUNDERA PCJ.
UPALY ABEYRATHNE J &
H.N.J. PERERA J.
COUNSEL :Ms. Ermiza Tegal with
Shalomi Daniel for the Petitioner.
Jagath Abeynayake for the 1st
to 5th Respondents.
Madhawa Tennekone, SSC for the
6th to 9th Respondents.
ARGUED ON 06.03.2017.
DECIDED ON 30.05.2017.
S. EVA WANASUDERA PCJ.
In this matter, Leave to
Proceed was granted under Articles 11, 13(1) and 13(2) of the Constitution on
17.05.2010. The Petition was filed in this Court on 30.03.2010.
Chaminda Sampath Kumara was 31
yrs. He was a labourer. He has had no previous conviction of any offence or
even a complaint against him prior to the incident which is the basis of the
case in hand. He has come before this court complaining about his arrest by the
Police and how much of physical and mental pain he had to go through until he was
produced before the Magistrate. He has sought relief in respect of violation of
his fundamental rights guaranteed by and under the Constitution. This court has
granted leave to proceed under Articles 11, 13(1) and 13(2) of the
Constitution.
Article 11 reads:
“ No person shall be subject to
torture or to cruel, inhuman or degrading treatment or punishment. “ 3 Article
13(1) reads:
“ No person shall be arrested
except according to procedure established by law. Any person arrested shall be
informed of the reason for his arrest. “
Article 13(2) reads:
“ Every person held in custody,
detained or otherwise deprived of personal liberty shall be brought before the
judge of the nearest competent court according to procedure established by law,
and shall not be further held in custody, detained or deprived of personal
liberty except upon and in terms of the order of such judge made in accordance
with procedure established by law.”
The incident which has happened
prior to the filing of this Petition by the Petitioner can be narrated in
summary as follows. One householder namely Wanshawathie in the Bandaragama area
had complained to the Police that when she had gone out of the house during the
day time on 12.10.2008, for a wedding, her house had been burgled by some
person or persons and she had lost a gold ring, a mobile phone and money , the
value of all of which were twenty three thousand rupees. (Rs. 23000/-). With
regard to this burglary, as it is stated as such by the Police, the Petitioner
was apprehended and brought to the Police Station of Bandaragama. No goods were
found in his custody or found elsewhere at all. There had been two pawning
receipts in the house where the Petitioner was living with his mother , sisters
and brothers but neither of the said receipts were with regard to the lost ring
claimed by Wanshawathie, the complainant of the day time burglary. According to
the Petitioner, the pawning receipts which were found in the Petitioner’s house
and taken by the police by force, belonged to the Petitioner’s sister and a
friend who had pawned their own jewellery.
However, the Police had filed
two cases in the Magistrate’s Court of Bandaragama against the Petitioner with
regard to this incident. The Magistrate had acquitted the Petitioner of all
charges since the evidence before court, of the police officers who did the
arrest of the Petitioner and of the complainant Wanshawathie , did not bear an
iota of evidence against the Petitioner.
The Petitioner states that he
was arrested on 20.05.2009 at around 11.00 a.m. when he was returning
home by foot from a shop close to his house with a bag in his hand which
contained chicken meat. The Petitioner was taken to his house by the 1st
Respondent who was in police uniform along with four other police officers 4
and after searching the house and finding two gold pawning receipts therein had
put the Petitioner in the Police Jeep wherein there was another villager by the
name Nuwan. The Police Jeep arrived at the Police Station at about 1.00 p.m.
and later on, the Petitioner had been taken to the Police barracks. He had then
been subjected to torture after removing his clothes, assaulted with a club and
a hose pipe and forced him to eat ‘kochchi miris’ and later poured crushed
kochchi miris into his eyes and nose, questioning him whether he had any
jewellery in his possession. At 6.00 p.m. on the same day, his brother had
visited him at the Police Station and wanted to get him released. The
Petitioner had informed the brother how he was tortured and at that time he had
difficulty in breathing and had experienced blurredness of vision. The Police
had told the brother that the Petitioner would be released shortly but it did
not happen. When the Petitioner was screaming in pain the 1st Respondent had
threatened to falsely charge the Petitioner with having a bomb in his
possession and imprisoning him.
The next day, on 21.05.2009,
the Petitioner’s mother and the siblings and their families had all gone to the
Police Station to visit him. When the Petitioner’s sister, Achala inquired
about bail for him or release of him, the 2nd Respondent had informed her that
there is a detention order against the Petitioner and therefore he could be
detained by the Police for five days. The family visited the Petitioner each
and every day till 26.05.2009, i.e. the day the 6th Respondent had informed
that the Petitioner would be produced before the Magistrate. The Petitioner
was not produced before Court even on 26.05.2009.
The Petitioner’s family members
had advocated the Petitioner’s release with higher officials of the Police.
Further more, the Petitioner’s sister Achala had made a complaint regarding the
Petitioner’s illegal detention and torture at the Bandaragama Police Station,
to the Human Rights Commission. That Complaint is before this Court marked as P1.
It gives precisely the date the Petitioner was arrested as 20.05.2009 and the
time as 11.30 a.m.; the fact that the Petitioner is being tortured inhumanely
by the Police; the fact that the Police has been postponing the Petitioner
being produced before the Magistrate and begs the Human Rights Commission to
intervene and get the Petitioner to be produced in Court.
The next day, i.e. on
27.05.2009 , the Petitioner was not produced in the morning but as alleged
by the Petitioner, after taking his signature on a blank paper, later 5 on in
the day, at about 1 p.m. the Petitioner had been finally produced before the
Magistrate under two case numbers, 44655/09 and 44663/09 charging him for
housebreaking and theft. The certified copies of the two case records upto the
date of granting personal bail to the Petitioner have been produced before this
Court as P2A and P2B. The Petitioner had pleaded not guilty and was
granted personal bail by Court. On the same day night, the Petitioner was admitted
to Panadura Base Hospital due to the severe body aches and pains he had
suffered as a result of torture. The Judicial Medical Officer had examined him
and discharged him on 29.05.2009. The Medico Legal Report is marked as P3 and
produced before this Court. The history given by the patient, the Petitioner,
states that on two dates, i.e. the 20th and 24th of May,2009, he was “hung up
and beaten by the Police” and ‘kochchi miris’ was poured into his eyes.
The Complaint by the Petitioner
himself to the Human Rights Commission was accepted by the said Commission and
that letter is marked as P4 and produced before this Court. P4 indicates
that the Petitioner had lodged the Complaint on 05.06.2009 and that the number
of the complaint registered is HRC 2491/09. Affidavits of the brothers,
brothers in law, sisters in law and friends narrating the events that had taken
place from the 20.05.2009 to 27.05.2009 are placed before this Court marked as
P5A to P5G. These seven affidavits state the incidents in detail.
The 1st to 5th Respondents are
Sub Inspector Salwatura, Seargeant Manoj, Police Constable Ashoka, Seargeant
Kithsiri and Security Assistant Dissanayake. The 6th Respondent is the Officer
in Charge of the Bandaragama Police Station, Charles Wickremasinghe. The 7th
Respondent is the ASP Prasad Ranasinghe. The 8th Respondent is the IGP and the
9th Respondent is the Hon. Attorney General. The reason for placing the names
of the Respondents herein, at this juncture is that they are referred to in the
evidence before court by way of affidavits by their names and it is easy to
follow by the name. At the time of hearing this matter, it was brought to the
notice of Court that the 2nd Respondent is already dead. After some of
the Respondents filed their objections, the name of another Police Officer
called Lasantha , Police Constable 66649 had come up in the objections and on
that account, the Petitioner moved this Court to add the said Lasantha as the
10th Respondent. This Court had not allowed the said application. Counsel for
the 1st to 5th Respondents, Mr. Jagath Abeynayake made submissions before this
Court and referred to the Statements of Objections filed by each Respondent and
6 the affidavits affirming the contents of the Statements of Objections. The
6th to 9th Respondents were represented by Mr. Madhawa Tennekone, Senior State
Counsel at the hearing of this matter. He relied on the Affidavits which were
filed by the 6th and 7th Respondents on behalf of the 6th to 9th Respondents.
The Affidavit of the 6th
Respondent confirms the position of the Petitioner that the Petitioner’s
relatives met him on 25.05.2009 and that the 6th Respondent had informed
the relatives that the Petitioner will be produced in Court on 26.05.2009 as
stated in paragraphs 6 and 7 of the Affidavit. Thereafter, ironically, in
the same Affidavit, this Officer in Charge of the Bandaragama Police Station
states in paragraph 9(a) of the same Affidavit that the Petitioner was
arrested on 26.05.2009 at 6.20 p.m. How could the OIC have said on the 26th
that the Petitioner would be produced in Court on the 26th if he had not been
arrested prior to the 26th? The 6th Respondent has contradicted his own
statement in his own affidavit. This confirms the Petitioner’s position that he
was arrested prior to 25th and produced in Court on the 27th. The 6th
Respondent admits that the Petitioner was produced on the 27th in paragraph
9(c) of the Affidavit.
In the same Affidavit , the 6th
Respondent alleges that the Petitioner had not complained to the Magistrate
about inhuman treatment. Nobody who was tortured at a police station would ever
be not scared to complain to the judge at such a time when he was at the mercy
of the judge and the police to get bail. If any human being gets tortured by
the police at any time, the victim by that time has lost confidence of the
whole system of justice in the country. Such a person would not have any other
feeling than to be wanting to live by getting away from the custody of the
police for the time being. He would not be in his proper senses as to think
what could be done next. He would have suffered mentally and physically inside
a cell, without anybody to give him food or drink or medicine or to save him
from the torture that he was undergoing for the period he was within the Police
Station in the recent past, for whatever number of hours or days he was
tortured.
The victim of torture in the
hands of the police who was holding power over him perhaps would never make up
his mind to complain against the police. When a human being gets beaten on the
body by another holding more power than himself, the first paid is the body
pain and the second pain is the mental pain. I would analyze the mental pain to
be much more than the physical pain. The 7 physical damage may be cured with
the help of medical professionals and the medicine available at the time and
era when the physical damage is done to a ‘body’ but the mental damage is
definitely not something which can be cured that easily. If I were to say that
mental pain can never be cured, that is reality of life. Every time the human
being who was subjected to torture of any kind remembers the same, the mind
projects the scenario in front of him. Then the tears and the pain that causes
the tears, spring out of this body automatically and no one could ever say when
that horrible feeling would go away. The damage caused mentally, in reality, is
thererfor permanent for this life.
In the case in hand, the 6th
Respondent OIC has pointed out that the Petitioner had not complained of any
torture to the Magistrate at the time he was produced before the Magistrate. I
find that he had pleaded so, to get advantage from such a lapse by the
Petitioner. In the case of Sudath Silva Vs Kodithuwakku 1987 2 SLR 119,
Justice Atukorale has stated that “ the failure of the Petitioner to
complain to the Magistrate before whom he is produced must be viewed and
judged against the backdrop of his being at that time, held in police custody
with no access to any form of legal representation.” The OIC of any police
station should have control over the officers of that station and he should be
responsible for what has happened in the police station or the barracks or
about whatever action is taken by any police officer in his station with regard
to a complainant or a suspect.
The 7th Respondent has filed
documents 7R1 and 7R2 along with his affidavit of objections. 7R1 is the
complaint made to him by the Petitioner regarding the actions of torture by the
Police officers, on 19.06.2009. I find that the contents of the said statement
made before the 7th Respondent by the Petitioner is consistent with his
Petition before this Court. Document 7R2 is the final report of the inquiry
held by the inquiry officer which states that Inspector of Police Salwathura
had pleaded guilty of charges levelled against him, and that he was punished
with “placing red markings in his trainee file “. The inquiry report and the
police statements have been filed in this court by the State on 15.11.2010.
However, this is an instance where the 1st Respondent had admitted and found
guilty of wrong doing as complained by the Petitioner to the ASP, at the end of
a disciplinary inquiry. Even though I find that the punishment doled out to
Salwatura is abundantly less than what it should have been, proportionate to
the wrong doing, one aspect is clear. That fact is, “ the fact that the 1st
Respondent has 8 admittedly tortured the Petitioner as well as proven to have
done so after a full inquiry held by the 7th Respondent who is his disciplinary
authority”.
I would like to consider the
Affidavit filed by the 1st Respondent, Salwatura. While denying everything in
the Petition of the Petitioner, Salwathura had stated that the Petitioner was
arrested on the 26th of May, 2009 at 6.20 p.m. on information received by the
police and it is reflected in the Information Book under GCIB 176/116. However
he has not annexed even a copy of the said entry before this Court. He had
failed to place proof of the date and time of arrest which is crucial to the
Application of the Petitioner before this Court. The documents Salwathura
had filed along with his own affidavit are other affidavits of other
persons marked as Y1, Y2 and Y3. They are affidavits of suspects who were in
police custody at the particular period complained of, affirming that during
the period of 20th May to 26th May, 2009 there was no person by the name of the
Petitioner in the cutody of the Police at Bandaragama.
In the first instance, how can
an Inspector of Police expect any Court of this country to act on affidavits by
some other suspects who were at that time, in the custody of the police
officers in the said police station. The said suspects are also under the power
and authority of other police officers, in the ‘cell of the suspects behind
bars’. When asked for affidavits confirming the absence of another
suspect by an Inspector of Police, can that suspect decline to give such
affidavits? Do those suspects have any idea of who the other suspect is or what
name the other suspect bears or any internal matters of the police? Do the
inmates in a police cell know what each others’ names are? To place this kind
of very low standards of proof of absence of the Petitioner, during that
period, inside the Police Station, is incredible. I view this kind of
action as despicable and absurd. No court would be ever willing to rely on
affidavits by suspects and detainees in the custody of the police, to safeguard
the police officers under whom the said suspects and detainees were living their
lives inside the cell of the police station, during that period. I do not find
any evidential value in the said documents.
The 1st Respondent has
challenged document marked P5A filed
by the Petitioner, which is an Affidavit by the Petitioner’s brother in law who
had been a police constable at the Vavunia Police Station before being
dismissed from service on a charge of misappropriation of funds. He has also
alleged that the author of P5A is an accused in a Magistrate’s Court case in
Vavunia and that the 1st Respondent 9 was assigned to arrest him at that time
and therefore the Petitioner had acted mala fide in instituting this action. In
the same run, the 1st Respondent states further that all the 1st to 5th
Respondents had to carry out duties regarding the investigations and arrest
against the said brother in law of the Petitioner, the author of Affidavit P5
and hence the Petitioner has acted mala fide against all these five Respondents.
Yet I do not find any documents in proof of what the 1st Respondent has stated.
He has not filed any case number in MC Vaunia; he has not filed evidence to
show that he was assigned to arrest the author of P5A; he has not filed any
material with regard to what kind of misappropriation of funds and whether it
is government funds or private funds. He has not filed any material to prove
that the 1st to 5th Respondents were assigned to carry out investigations
regarding that matter. It is just another statement. Court cannot find out the
truth about those matters or verify any statement which he has made.
The Petitioner had filed a
counter affidavit against the said statements of the 1st Respondent dated
24.01.2011 and denied totally the allegations as mentioned above and further
states that there is no such case against the author of P5A, who is the
brother in law of the Petitioner. The said brother in law has a civil case for
recovery of money against him by a Bank. The counter affidavit claims that the
said brother in law had been pressurized by the police officers to demand that
the Petitioner should withdraw this Fundamental Rights Application filed
against them.
In the counter affidavit filed
by the Petitioner, he reiterates that he has filed this application to
vindicate his rights and seek redress in view of the serious and degrading acts
of torture, arbitrary arrest and detention and for no other reason.
The Affidavit filed by the 2nd
Respondent has annexures 2Y1 to 2Y5. By 2Y4 and 2Y5 the 2nd Respondent tries to
explain that he was not in the police station from the 24th to the 27th May,
2009. The Petitioner has complained that the 2nd Respondent was involved in the
arrest of the Petitioner and torture on the date of the arrest on the 20th of
May, 2009. The other documents are again affidavits by the inmates of the
police cell which cannot be taken as valid evidence of the absence of the
Petitioner in police custody. I am also of the view that those in the custody
of the police cannot become aware of all other things that happen in the
premises of the police station such as in the barracks of the police wherein
the 10 Petitioner claims that he was tortured. I reject the contents of the
affidavits of the detainees and others in custody. The Affidavits filed by the
3rd, 4th and the 5th Respondents are also in the same lines as the affidavits
filed by the 1st and the 2nd Respondents. The contents seem to be an attempt to
state that the Petitioner was not taken into custody on the 20th May, 2009 and
that they were not inside the police station but were on duty out of the police
station implying that they could not have tortured the Petitioner at the times
that he claims such actions were done.
The Petitioner has continuously
been stating that he was arrested by the 1st Respondent who was in police
uniform along with four other police officers who were in civilian clothes on
the 20thMay, 2009 . When the Petitioner was returning home from a boutique
where he had gone to buy 500 grams of chicken meat by foot, he had seen a jeep
of the Police parked alongside the road near Walekade junction. The police
officers had been changing a flat tire of the jeep. The 4th Respondent had held
the Petitioner and asked what he was carrying. Then the 2nd Respondent too had
inquired about the Petitioner’s name and when the name “Chaminda” was
mentioned, the 2nd Respondent had said “you are the man” and taken him to his
house which was about 150 meters away from the jeep dragging him from the
collar of his T-shirt. His room was searched by the police officers and they
found two gold pawning receipts which allegedly belonged to the Petitioner’s
sister and a friend by the name of Udayanga.The Police officers had however
taken the two receipts against the wishes of those in the house. The Petitioner
had been taken to the Police Station. His brother Samantha who came to the
Police Station had been chased out.
The Petitioner had been taken to
the police barracks. The officer in a sarong in the barracks was the 3rd
Respondent. The 1st , 2nd and the 3rd Respondents had commenced the torture
then by ordering the Petitioner to remove all his clothes. He was made to kneel
down with his hands lifted up. He was ordered and made to eat kochchi miris
brought by the 5th Respondent. The 3rd Respondent wearing only a sarong had
made the Petitioner sit on the floor and tied up his hands at the back. The 2nd
Respondent tied up his feet with a strip of cloth at the ankles. Then the 2nd
Respondent had sat behind the Petitioner on a chair and pulled the Petitioner’s
head back, kept it in between the 2nd Respondent’s knees and held the head back
tight in that same position. He then poured crushed kochchi miris 11 into the
Petitioner’s eyes and nose. He was questioned whether he had any jewellery with
him. The Petitioner had denied. Then the 2nd Respondent had ordered the
Petitioner to lie down on his back and they trampled the chest, the legs and
poured kochchi miris once again into the eyes and nose. When the Petitioner
screamed and denied having anything to do with any jewellery being in his
possession, they assaulted him with a hose pipe and a club looking like a broom
stick.That was the nature of the torture. On the following days after the 20th
until the 26th he was again tortured having hung him up on a ‘mol gaha’ having
tied up his ankles and wrists.
The medico legal report states
that there were healing wounds at the wrists and the ankles. The history given
is consistent with the wounds. At the inquiry by the ASP an identification
parade was conducted to identify the police officers who had tortured him. The
narration given to the Human Rights Commission and the ASP by the Petitioner is
the same. The same words were repeated and the way he was tortured was told in
the same manner.
This Court has granted leave to
proceed and directed the 7th Respondent ASP and the SSP Panadura to forward to
the Supreme Court, the reports, proceedings and statements relating to the
inquiry held on the complaints made by the Petitioner against the 1st to 5th
Respondents. I have gone through the said reports, proceedings and statements
and find that they are consistent with what the Petitioner has placed before
this Court by having placed the evidence by way of Affidavits.
The case in hand being one of
torture which is not reflected very well on the face of the Medico Legal
Report, I wish to quote Justice A.R.B. Amarasinghe in his book by the name “Our
Fundamental Rights of Personal Security and Physical Liberty” .
He states that “….Lastly,
traces of torture or ill treatment may with lapse of time become
unrecognizable, even by medical experts, particularly where the form of
torturing itself leaves……few external marks”.
The 1st to 5th Respondents have
used ‘kochchi miris’ as the substance used to torture the Petitioner firstly
making him eat it which burns the toungue totally, for hours on end, if bitten
bare. Thereafter they had poured the juice into the eyes and the nose which
pain nobody would have experienced in normal life and the extent of the pain
cannot be ever imagined by any human being. That kind 12 of torture is
unheard of, but for sure the said Respondents did not leave any marks of
torture. That is the very reason they have used such an unusual kind of torture
which the medical experts could not trace. The beating was done with a hose
pipe, which once again, does not leave marks on the skin. The only marks which
had left a trace by 29th May, were the marks on the wrists and the ankles of
the Petitioner by which he was hung up on a ‘mol gaha’ parallel to the ground
and beaten. The fact that the Petitioner had gone to the hospital and was
admitted to the hospital and was treated for the aches and pains of the body
and kept in the hospital for three days itself speaks out to confirm the
history given by him to the JMO who has written the MLR.
Even though the perpetrators
had tortured the Petitioner leaving only the few external marks on the body,
that itself is good enough to prove the extent of torture, due to the
unwavering narration of the way he was tortured consistently before the inquiry
by the ASP, before the Judicial Medical Officer and before this Court.
The Torture Act No. 22 of 1994
, Sec. 12 defines torture a follows:
“ 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:
i.
Obtaining from such person or a third person any information or confession,
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 , public officer or
other person acting in an official capacity.”
I hold that the torture done to
the Petitioner by the 1st to the 5th Respondents fall within this definition.
The evidence before us placed by the Petitioner and the evidence placed by the
Respondents have been considered by this Court. 13 This Court has analyzed the
matters before us and has come to the conclusion that the 1st to the 5th
Respondents have committed the act of torture on the Petitioner.
The Petitioner did not know why
he was arrested at the time of arrest. His house was searched without a search
warrant. The Respondents had failed to bring forth the so called ‘information’
given to the Police to suspect the Petitioner to be the person who might have
committed house breaking. The procedure of arrest is wrong.
The Petitioner had been kept
within the police station from the 20th May to the 27th May,2009 illegally
by the 6th Respondent as OIC of the Police Station, Bandaragama. I hold
that the 1st to 6th Respondents have violated Articles 13(1) and 13(2) of the
Constitution.
I have also considered the case
law of this country which is contained in many authorities which I do not want
to discuss at length at this juncture as it would only lenghthen this judgment
unnecessarily.
The case law contained in Muttusamy
Vs Kannangara 52 NLR 324, Premalal de Silva Vs Inspector Rodrigo 1991 2 SLR
307, Navasivayam Vs Gunawardena 1989 1 SLR 394, Piyasiri Vs Fernando ASP 1988
1SLR 173 and Elasinghe Vs Wijewickrema and Others 1933 1 SLR 163 have
been considered by me. The counsel for the Petitioner had filed some unreported
cases after the hearing was concluded. They are M.D,Nandapala Vs Sergeant
Sunil and Others – SCFR 224/2006 – which was decided on 27.04.2009 and
H.M.Y.I.Herath Vs Ajith Police Constable - SCFR 555/2009 – which was decided on
18.02.2014. I have considered those judgments as well.
I hold that the 1st to 5th Respondents have violated the Petitioner’s
fundamental rights guaranteed to him by Article 11 of the Constitution. I hold
that the 1st to 6th Respondents have violated the Petitioner’s fundamental
rights guaranteed to him by Article 13(1) and 13(2) of the Constitution. 14 I
order that compensation of Rs. 500,000/- be paid to the Petitioner by the 1st ,
3rd, 4th and 5th Respondents, each one paying Rs.125000/- personally to the
Petitioner. I order that the State should pay to the Petitioner a further sum
of Rs. 500,000/- for and on behalf of the 6th Respondent who had totally failed
to keep any control over the police officers and/or allowed them to do the
wrongful acts to the extent it was done at the Bandaragama police station. I
further order that costs of suit also be paid by the State.
Judge of the Supreme Court
Upaly Abeyrathne J.
I agree.
Judge of the Supreme Court
H.N.J.Perera J.
I agree.
Judge of the Supreme Court
