KARUNATHILAKE vs. LIYANAGE ,INSPECTOR OF POLICE (CRIMES) ,GAMPAHA AND OTHE

037-SLLR-SLLR-2005-V-1-KARUNATHILAKE-vs.-LIYANAGE-INSPECTOR-OF-POLICE-CRIMES-GAMPAHA-AND-OTHE.pdf


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KARUNATHILAKEVSLIYANAGE, INSPECTOR OF POLICE (CRIMES), GAMPAHA ANDOTHERSCOURT OF APPEALBALAPATABENDI, J. ANDWIMALACHANDRA, J.
HCA14/2001FEBRUARY, 28 ANDMARCH 18, 2005
Writ of habeas corpus – Constitution. Articles 11, 13(1) 13(2), 126, 126(1) and126(3) – Prima facie evidence of infringement of a fundamental right – Duty ofCourt of Appeal – Reference to Supreme Court – When – How ?
The petitioner had sought a writ of habeas corpus stating that her son, the 8threspondent was arrested by the Police on 30.04.2001, at Katugastota and wastaken to the Nittambuwa Police Station. Thereafter he was taken to WeerangulaPolice Station, where he had been badly assaulted in connection with themurder of a Customs Officer. The plaintiff contended that as there was primafacie evidence of an infringement or imminent infringement of a fundamentalright the matter should be referred to the Supreme Court to determine thatmatter.
HeldArticle 126(1) confers sole and exclusive jurisdiction in respect ofinfringment of fundamental rights by executive or administrative actionon the Supreme Court. Article 126(2) provides how the jurisdictionmay be invoked. Article 126(3) is not an extension of or exception tothose provisions.
In the instant habeas corpus application the petitioner sought reliefunder Article 126(3) after 49 days of the alleged arrest/detention.
The Supreme Court is vested with jurisdiction to hear and determinethe question of any violation only if the time prescribed in Article 126(2)is complied with.
If the petitioner failed to comply with Article 126(2) the petitioner cannotseek relief or redress under Article 126(3) in the writ of habeas corpusapplication filed in the Court of Appeal.
CA
Karunathilake vs
Liyariage and Others (Balapatabendi. J.).
277
Reference could be made in terms of Article 126(3) only if twoconditions specified in the Sub – Articles are satisfied viz: (i) Thereshould be a hearing of the application in the Court of Appeal (ii) in thecourse of such hearing the Court of Appeal should find that there isprima facie evidence of an infringement or imminent infringement of afundamental right by a party to such application.
APPLICATION for a writ of habeas corpus.
Cases referred to:
Shanthi Chandrasekeram vs D.B. Wijetunga -(1992) 2 Sri LR 293
K.W.C.’ Perera vs Prof. Daya Edirisinghe – (1995) 1 Sri LR 148
Kanamani Krishnapillai vs O/C Pettah – SC (Sp) writ 01/2001
Manohara R. de Silva for petitioner.
S.K. Wickramarachchi, State Counsel, for respondents
Cur. adv. vult.
May 26, 2005
JAGATH BALAPATABENDI, J.The Petitioner had sought a writ of Habeas Corpus by the petitiondated 19th June 2001 stating that, her son the 8th respondent, the corpus(A.D. Priyantha) was arrested by Gampaha Police on 30.04.2001 atKatugastota and was taken to Nittambuwa Police. While he was in thecustody of Nittambuwa Police he was taken to Weerangula Police on26.05.2005, where he was badly assaulted with clubs by 1st to 5th inRespondents in connection with the murder of a customs officer.Later, on10.06.2001 he was taken to Gampaha Police Station. She states thatNittambuwa Police and Weerangula Police fall within the GampahaPolice Division. Further she states that her son the corpus was not givenany medical treatment for his injuries, and was not produced before aMagistrate by the 1st to 5th respondents up to date. Thus, she allegedthat her son’s arrest and detention was wrongful, illegal and the violentacts of the 1st to 5th respondents were tantamount to a violation of hisfundamental right guaranteed under Articles 11,13(1), 13(2) of theConstitution; hence had prayed for the reliefs mentioned in the prayer tothe petition.
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The 5th respondent(D.W. Prapathasinghe, Deputy Inspector Generalof Police) in his affidavits dated 31 st August 2002 and 17th February 2003had admitted that the corpus was arrested on 30.04.2001 at Katugastotaonly after informing him the reasons for such arrest, and detained him ondetention orders issued by the Deputy Inspector General of Police.Subsequently on 04.07.2001 he was produced before the Magistrate ofColombo as a suspect in case No. B./1619/5. Later, he was dischargedon the advice of the Attorney-General. Further, he had stated, to prove thevalidity and legality of the detention of the corpus, the detention ordersissued in respect of the corpus under Regulations 19(2) of the emergencyregulations had been marked and produced as XI, X2, X3. (supported byan affidavit of the 5th Respondent), covering-the period of detention of thecorpus from 01.05.2001 to 14.07.2001.
When the above mentioned matters were brought to light the counselfor the Petitioner informed Court that he confines the reliefs asked only tothe paragraph (d) of the prayer to the petition viz“ to refer this matter tothe Supreme Court under Article 126(3) of the Constitution. Probably forthe reason that the Petitioner was unable to proceed with the HabeasCorpus application in the circumstances mentioned above.
Before dealing with the Article 126(3) of the Constitution, I would liketo refer to the Articles 126(1) and 126(2) of the Constitution. Article 126(1)states as follows The Supreme Court shall have sole and exclusivejurisdiction to hear and determine any question relating to the infringementor imminent infringement by executive or administrative action of anyfundamental right or language right declared and recognized by Chapter IIIor Chapter IV.
Article 126(2) states as follows Where any person alleges thatany such fundamental right or language right relating to such person hasbeen infringed or is about to be infringed by executive or administrativeaction, he may himself or by an attorney-at-law on his behalf, within onemonth therof, in accordance with such rules of Court as may be in force,apply to the Supreme Court by way of petition in writing addressed tosuch Court praying for relief or redress in respect of such infringment.Suchapplication may be proceeded with only with leave to proceed first had andobtained form the Supreme Court, which leave may be granted or refused,as the case may be, by not less than two judges.
CAKarunathilake vs279
Liyanage and Others (Balapatabendi, J.).
Article 126(3) states as follows Where in the course of hearing in theCourt of Appeal into an application for orders in the nature of a writ ofhabeas corpus,certiorari, prohibition, procedendo,, mandamus or quowarranto it appears to such Court that there is prima facie evidence of aninfringement or imminent infringment of the provisions of Chapter III orChapter IV by a party to such application, such court shall forthwith refersuch matter for determination by the Supreme Court.
In support of his contention the Counsel for the Petitioner has citedthe decision of the Supreme Court in Shanthi Chandrasekeram vs D.B.Wijetunga{']In this case it was held that “Article 126(1) confers sole andexclusive jurisdiction in respect of infrigement of fundamental rights andArticle 126(2) prescribes how that jurisdiction may be invoked. Article126(3) is not an extension of or exception to those provisions. If a personwho alleges that his fundamental rights have been violated fails to complywith them he cannot smuggle that question into a writ application in whichrelief is claimed on different facts and grounds, and thereby seek a decisionfrom the Supreme Court. On the other hand, there could be transaction orsituations in which, on virtually the same facts and grounds, a personappears entitled to claim relief from the Court of Appeal through a writapplication under Articles140 or 141 and, from .this Court by a fundamentalrights application under Article 126. Since those provisions do not permitthe joinder of such claims the aggrieved party would have to institute twodifferent proceedings, in two different courts, in respect of virtually identical"causes of action” arising from the same transaction unless there is expressprovision permitting joinder. The prevention in such circumstances, of amultiplicity of suits (with their known concomitant) is the object of Article126(3). and also the decision of the Supreme Court in K.W. C. Perera Vs.Prof. Daya Edirisinghe<2> held that The fact that by entrenching thefundamental rights in the Constitution the scope of the writs has becomeenlarged is implicit in Article 126(3), which recognizes that a claim forrelief by way of writ may also involve an allegation of the infringement of afundamental right. While learned Senior State Counsel is correct insuggesting that the appellant may have sought redress under Article 126(2),she was also entitled to apply to the Court of Appeal for certiorari andmandamus, and when it appeared that there was, prima facie, aninfringement of a fundamental right, the whole matter could have beenreferred to this Court under Article 126(3).
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It is pertinent to note that, Article 126(1) confers sole and exclusivejurisdiction in respert of infringement of fundamental rights and Article126(2) prescribes how that jurisdiction may be invoked. Article 126(3) isnot an extension of or exception to those provisions (vide ShanthiChandrasekaramVs D.B. Wijetunga, (supra)).
In the instant habeas corpus application the Petitioner sought reliefunder Article of 126(3) of the Constitution after 49 days of alleged arrestand detention. Under Articles 126(1) and 126(2) of the Constitution theSupreme Court is vested with the jurisdiction to hear and determine thequestion of infringement of fundamental rights of the Petitioner only if thetime prescribed in Article 126(2) is complied with.
If the Petitioner failed to comply with the required time limit of onemonth as stipulated in Article 126(2) of the Constitution, it is my opinionthat the Petitioner cannot seek relief or redress under Article 126(3) of theConstitution, in the writ of habeas corpus application filed in this Court.
The other point to be considered is in the instant case there was nohearing of the writ of habeas corpus application of the Petitioner bythis Court, as the Petitioner did not proceed with the habeas corpusapplication. Further the allegation of assaulting the corpus with clubs bythe 1 st to 5th respondents have not been supported by a report of a medicalofficer or by any other means as to the injuries.
The only Medico-Legal report (R3) dated 04.07.2001 in respect ofthe corpus filed by the Respondents does not indicate any injuries on thecorpus.
In the case of Kunamani KrishnapillaiVs. O.l.C. Pettah131 S.N. Silva,C.J. observed as follows " We note that a reference could be made interms of Article 126(3) of the Constitution only if two conditions specifiedin the sub articles are satisfied, they are
There should be a hearing of the application in the Court of Appeal
In the course of such hearing, the Court of Appeal should find thatthere is prima facie evidence of an infringement or imminentinfringement of a fundamental right” by a party to such application."
sc
Kusalagnana Thero vs
Assaji Thero and others (Wimalachandra, J)
281
Thus we are of the opinion that the petitioner had failed to establishwith prima facie evidence that the assault of the corpus with clubs by the1st to 5th respondents, and there had been an infringement of his rightsunder Articles 11,13(1) and 13(2) of the Constitution.
For the reasons mentioned above, we refuse the application of thepetitioner to refer this matter to the Supreme Court under Article 126(3) ofthe Constitution.
WIMALACHANDRA,J. — I agree.
Application dismissed.