046-SLLR-SLLR-2003-1-AMARASENA-AND-OTHER-v.-JAYARATNEM-OFFICER-IN-CHARGE-MT.-LAVINIA-POLICE-.pdf
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Amarasena and another v. Jayaratnem, Officer-in-Charge,
Mt. Lavinia Police Station and others (Silva. CJ)
385
AMARASENA AND ANOTHERv.
JAYARATNEM, OFFICER-IN-CHARGE, MT.LAVINIA POLICESTATION AND OTHERS
SUPREME COURTS.N. SILVA, CJ.
BANDARANAYAKE, J. ANDEDUSSURIYA, J.
SC (FR) APPLICATION NO. 290/200211TH SEPTEMBER, 2002
Fundamental Rights – Attempt by police officer to apprehend petitioners on acomplaint given by mistake – Resistance by the petitioners – Articles 11, 13(1)and 13(2) of the Constitution – Prohibition on police against detaining a sus-pect for an unreasonable period without producing him before Magistrate.
The 1st and 2nd petitioners were proceeding in a three wheeler to theTelecommunications office, Ratmalana when the police attempted to arrestthem on information given by a person that they were concerned in an offence.It appeared that the informant was misled as to the identity of the petitioners.When a police officer attempted to apprehend them, the 1 st petitioner becameviolent and bit off a portion of the police officer’s ear lobe. The 2nd petitioneralso got involved in the fray. They were both arrested for obstructing the policeofficer from discharging his functions and for causing grievous hurt to a con-stable. They were arrested at about 1.00 p.m. on 04.05.2002, detainedovernight at the police station and produced before a Magistrate at noon thenext day. The police had to use reasonable force in arresting them. Medicalevidence disclosed an abrasion on the 1 st petitioner.
Held:
1. The alleged infringement of Articles 11 and 13(1) were not established onthe facts of the case. However, the arrest of the petitioner for obstructionand causing grievous hurt did not warrant the detention of the petitionersat the police station overnight. Such detention was unreasonable.Investigations could have been concluded swiftly and the petitioners pro-duced before the Magistrate on the same day. There was a duty to pro-duce the petitioners before a Magistrate within a reasonable time notexceeding 24 hours.
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2. In the circumstances there was an infringement of the petitioners’ rightsunder Article 13(2) of the Constitution.
APPLICATION for relief for infringement of fundamental rights.
J.C. Weliamuna with Lavangi Weerapana and Charika Samarakoon for peti-tioners.
N. Srikantha with C. Jeya Devi Royappu and K.S. Balakrishnan for 1 st, 2nd,3rd and 4th respondents.
Viveka Siriwardene de Silva, State Counsel for Attorney-General.
Cur.adv.vult.
April 4, 2003
SARATH N. SILVA, C.J.
The 1st petitioner is an Electrical Superintendent, employed inthe Ceylon Electricity Board and the 2nd petitioner is a person whois working under him in a private capacity. The petitioners havebeen granted leave to proceed in respect of alleged infringement oftheir fundamental rights, guaranteed by Articles 11,13(1) and 13(2)of the Constitution.
The incident, which is the subject matter of this applicationtook place on 4.5.2002. The 1st petitioner finished his work at alocation in Wattala and came with the 2nd petitioner who is workingas a cleaner in a lorry owned by him, to the Liberty Plaza ShoppingComplex at Colpetty, at about 12 noon to get a switch key cut forthe lorry. Thereafter he went to the Billing Centre at the Telecomoffice at Ratmalana. That being a Saturday, the Billing Centre wasdue to close at 1.00 p.m. and the petitioner had to rush to thatplace. He states that after parking the vehicle when he was walk-ing hurriedly towards the gate of the Telecom office, a tri-shaw thatwas heading towards Moratuwa slowed down and a person askedwhether he signalled before parking. He identified the 2nd respon-dent Sgt. Ediriweera as the person who spoke to him in this man-
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Amarasena and another v. Jayaratnem, Officer-in-Charge,
Mt. Lavinia Police Station and others (Silva. CJ)
ner. He claims that he answered the respondent saying that he didin fact signal and rushed towards the Telecom office. Before hecould reach the gate of the Telecom office, he was apprehended bythe 2nd respondent. At this stage he stated that he bit the ear of the2nd respondent to free himself and the 1st and 3rd respondentscame and assaulted him.
The version of the respondents presents a different aspect.The 1st respondent being the Officer – in – Charge of theIntelligence Unit of the Mt.Lavinia Police, has stated that he wasengaged in an investigation to apprehend two suspects, namelyAsiri Fernando and ‘Army Jagath’, who were wanted in connectionwith a number of robberies of motor vehicles. He received informa-tion that these two persons have been sighted and he set offtogether with the 2nd and 3rd respondents in a 3 wheeler to appre-hend them. Whilst going along Galle Road they met the informantwho stated that a person resembling the said Asiri Fernando wasseen at the Liberty Plaza a short while earlier and was seen gettinga key cut. The informant gave the number of the vehicle in whichthe wanted suspects were alleged to be travelling as 58-3264.When they were proceeding further along Galle Road, they saw thevehicle bearing that number near the Telecom office at Ratmalana.
The 3rd respondent signaled the driver to stop the vehicle buthe did not heed the signal. They overtook the vehicle and stoppedahead of it. According to the 1st respondent, a person whom hesubsequently identified as the 1 st petitioner hastily got down fromthe vehicle and rushed towards the Telecom office. They pursuedthe 1st petitioner. Then the 2nd respondent asked him to stop,which was ignored by the 1 st petitioner. Then the 2nd respondentcaught him by the hand and showed his official identity card.According to the respondents the 1 st petitioner grappled with the2nd respondent, biting off a portion of the left ear lobe of the 2ndrespondent ancl spitting it out.
The 1 st respondent states that at that point he delivered ablow on the 1st petitioner and since he was behaving violently usedforce to bring him under control. He explained to the 1st petitionerthat he is being arrested for the offence of voluntarily obstructing apublic servant in the discharge of his public functions. The 2nd peti-tioner who joined in the fray was also arrested on the same charge
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. and they were brought to the Mt.Lavinia Police Station in the three-wheeler.
According to the petitioners none of the police officers were inuniform. However, according to the police, the 3rd respondentbeing a police constable, was in uniform and others being officersof the Intelligence Unit were not clad in uniform.
The 1st and 2nd petitioners were produced before the ActingMagistrate on the following day and were released on bail around1.30 p.m.
The hospital ticket R2 issued by a doctor at the Police Hospitaland the Medico Legal Report Examination form 2R1 issued by adoctor at the Colombo South Hospital disclose that the 2nd respon-dent had a cartilage laceration on his left ear and that a portion ofan ear lobe was missing. The injury is described as been grievous.The Medico Legal Report P10 in respect of the 1st petitionerreveals that he had one abrasion of 1/2 centimeter over the lateralaspect of the left upper neck, probably caused by a finger nail. TheConsultant’s opinion noted in the report is that the 1st petitioner suf-fered acute stress reaction due to assault. The medical report P10does not support the allegation of the 1st petitioner that he wasseverely assaulted in the three wheeler and later at the police sta-tion, causing him' to bleed from the nose and mouth.
The facts presented above disclose a misapprehension onboth sides. The 1st petitioner had legitimately engaged in hischores and was rushing towards the Billing Center of the Telecomoffice to get there before closing time. The 1st, 2nd and 3rd respon-dents being officers of the Intelligence Unit were checking on infor-mation that had been received about 2 persons who were wantedin connection with several robberies of vehicles. It is probable thatthe informant was misled by the fact that the 1 st petitioner got a keycut and hurriedly went towards Ratmalana.
The 1st respondent and the other officers had reasonableinformation to apprehend the 1st petitioner to check his identity.The 1st petitioner on the other hand being innocent of any offencewas rushing towards the Billing Center and would very probablyhave brushed aside the police officer in plain clothes, who was try-ing to apprehend him. However, from that point onwards the reac-
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Amarasena and another v. Jayaratnem, Officer-in-Charge,
Mt. Lavinia Police Station and others (Silva, CJ)
389
tion of the 1st petitioner descends to a level of being inhuman. Hisbiting off of the ear lobe of the 2nd repondent and spitting it out inthe manner graphically described by the respondents is somethingthat cannot be condoned. If he paused for a while and revealed histrue identity, subsequent events could have been avoided. Policeofficers should in the discharge of their duties take every step todetect offences and apprehend persons who hav^ committed suchoffences. In this instance, it is clear that the officers of theIntelligence Unit had been following the information given by one oftheir informants. Considering the type of offences that were beinginvestigated they could not possibly have used normal police vehi-cles or been clad in uniform. They had to take action swiftly, forwhich they cannot be faulted.
In the circumstances I am of the view that the 1st and 2ndrespondents had reasonable grounds to arrest the petitioner.Admittedly, at the time of arrest the 2nd respondent had suffered agrievous injury which had been inflicted when they were discharg-ing their official duties. There is no basis to doubt the version ofthelst respondent that the petitioners were informed of the reasonsfor the arrest. In the circumstances I am of the view that there hasbeen no infringement of the fundamental right guaranteed by Article13(1) of the Constitution.
As regards the infringement of Article 11, the allegation of the1st petitioner is that he was assaulted severely at the place of thearrest, in the trishaw and thereafter at the police station. On theother hand the respondents have stated that they used force onlyat the place of arrest and that too after the 2nd respondent sufferedinjuries. The medical report P10 as noted above reveals only oneinjury, an abrasion 1/2 centimeter in the region of the neck whichcould have been caused by finger nails. This is supportive of thefact that the respondents used reasonable force to apprehend the1 st petitioner.
The opinion of the consultant that the 1st petitioner sufferedacute stress due to assault does not take into account the fact thatthe 1 st petitioner himself had bitten off a portion of the police officer’sear. That by itself is totally irrational behaviour. The mental stressreferred to in the report is probably the cumulative result of the entireincident in which the 1st petitioner caused the more serious injury. In
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the circumstances I am inclined to accept the version of the respon-dents regarding the injury that was inflicted on the 1st petitioner in thecourse of the arrest. There is no basis to come to any finding as toan infringement of Article 11 of the Constitution.
I have now to deal with the alleged infringement of Article13(2) of the Constitution. Article 13(2) guarantees to every personheld in custody* the fundamental right to be brought before theJudge of thb nearest competent court according to the procedureestablished by law. The procedure established by law is containedin section 37 of the Criminal Procedure Code Act, No. 15 of 1979,which reads as follows:
“Any peace officer shall not detain in custody or otherwiseconfine a person arrested without a warrant for a longer period thanunder all the circumstances of the case is reasonable, and suchperiod shall not exceed twenty-four hours exclusive of the time nec-essary for the journey from the place of arrest to the Magistrate.”
The petitioners were arrested at 1.00 p.m. and were broughtbefore the Magistrate at about noon on the next day. They weredetained overnight at the police station. When the facts relevant tothe arrest and detention are objectively viewed, it is seen that the1st petitioner was apprehended by the 1st respondent to verify hisidentity on the basis of information received with regard to a want-ed.suspect. However, the arrest was in connection with the offence: of obstructing a public servant in the discharge of his public func-tions. In addition there is the offence of causing grievous hurt inview of the injury suffered by the 2nd respondent. It would havebeen obvious to the respondent that the initial apprehension wason the basis of mistaken identity. Therefore the subsequent deten-tion is warranted only for the purpose of investigating the offencesunder Sections 183 alnd 316 of the Penal Code.
These offences are alleged to have been committed in respectof police officers and the investigation could have been concludedswiftly. The limit of 24 hours laid down in section 37 of the Code ofCriminal Procedure is the maximum period of detention. However,the section clearly provides that a person should not be detained incustody for more than the period that is reasonable under the cir-cumstances of the case. In this instance, as noted above, the
Abeyaratne v Janatha Fertilizer Enterprises Ltd. and.
SC Others {Yana, J.)
investigation did not involve any ramifications and should havebeen concluded within a few hours. The petitioners could then havebeen produced before the Magistrate on the same day. It appearsthat the respondents have exceeded this period and kept the peti-tioners in custody overnight at the police station. This in my viewamounts to an infringement of the fundamental right guaranteed tothe petitioners under Article 13(2) of the Constitution and I grant adeclaration to that effect. Considering the facts and circumstancesof the case and in particular the conduct of the 1st petitionerreferred to above, I am of the view that the petitioners are not enti-tled to any compensation in the matter. Further considering the factthat the 1 st to 3rd respondents have acted in the lawful dischargeof their functions and the nature of the infringement in respect ofwhich a declaration is granted, I have to place on record that thegranting of the declaration by itself will not affect the careers of the1st to 4th respondents.
The State will pay a sum of Rs. 5000/- as costs to the peti-tioners.
BANDARANAYAKE, J. -1 agree.EDUSSURIYA, J. -1 agree.Relief granted