037-SLLR-SLLR-2004-V-1-ERANDAKA-AND-ANOTHER-v.-HALWELA-OFFICER-IN-CHARGE-POLICE-STATION-HAKMAN.pdf
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ERANDAKA AND ANOTHERVHALWELA, OFFICER-IN-CHARGE,POLICE STATION, HAKMANA AND OTHERSSUPREME COURTS.N.SILVA, CJ.
BANDARANAYAKE, J. ANDJAYASINGHE, J.
S.C.(SPECIAL) NO.63/2001 (FR)
28TH OCTOBER, 25TH NOVEMBERAND 1 ST DECEMBER, 2003
Fundamental Rights – Article 11 of the Constitution – No evidence establish-ing individual liability – Assault during remand custody proved – State liabilityfor torture upheld.
The two petitioners were arrested on the morning of 14.8.2001 by the 2nd and3rd respondent police officers and other police officers for alleged theft of awater pump. They were examined by a medical officer of a hospital at noon thesame day who found no injuries on them. The same day they were producedbefore a Magistrate who remanded them until 23.8.2001. Thereafter they com-plained to court that they were assaulted by the 2nd and 3rd respondents andanother police officer at the police station and also by prison guards includingthe 7th respondent. The petitioners were examined on 22.8.2001 by theJudicial Medical Officer on the order of the Magistrate. The medical reportfound 8 injuries on the 1st petitioner and 3 injuries on the 2nd petitioner, most-ly contusions.
There was no evidence to establish individual liability of any police officer orprison officer, to the satisfaction of the court. But it was clear that the petition-er had been assaulted whilst in prison.
Held:
The petitioner’s rights under Article 11 of the Constitution had been infringedwhilst in prison custody, for which the State is liable.
Cases referred to
Senthilnayagam v Seneviratne- (1981) 2 Sri HR 187
Amal Sudath Silva v Kodituwakku- (1987) 2 Sri LR 119
Jeganathan v Attorney-General – (1982) 1 Sri LR 294
Velumunasinghe v Attorney-General – (1981) FRD 180
Erandaka and another v Halwela, Officer-in-Charge Police Station
SCHakmana and others (Bandaranayake, J.)269
Thadchanamoorthi v Attoreny-General – (1980) FRD 129
Goonewardene v Perera – (1983) 1 Sri LR 305
Kapugeekiyana v Hettiarachchi – (1984) 2 Sri LR 153
Malinda Channa Peiris v Attorney-General ~ (1994) 1 Sri LR 1
APPLICATION for relief for infringement of fundamental rightsA.H.H. Perera for petitioners
D.Akurgoda with Gamini Peiris for 1 st, 2nd and 3rd respondents.
P. Ranasinghe, State Counsel for 4th, 5th and 8th respondents.
Rohan Sahabandu for 6th and 7th respondents.
Cur.adv.vuit
February 27, 2004
SHIRANI BANDARANAYAKE, J.The two complainants are brothers who were residing with their 01mother at Hakmana. The younger brother who was born inNovember 1984 was a minor at the time material to this applicationand was represented by his mother and therefore is the 2nd peti-tioner in this application.
According to the petitioners, in the early morning of 14.08.2001,the 2nd and 3rd respondents together with some other members ofthe Hakmana Police Station came to the residence of the petition-ers. The two brothers (hereinafter referred to as the 1st and 2ndpetitioners) were taken in a police vehicle to the Hakmana Police 10Station. At the Police Station the two petitioners were assaulted bythe second, third and by another police constable whose identityand the regimental number are not known to the petitioners.Thereafter the petitioners were produced before the Magistrate on
and they were remanded until 23.08.2001. The peti-tioners alleged that, at the Remand Prison, they were assaulted bythree (3) Prison Officers at various times during the first three daysof their incarceration. The petitioners alleged that they were beatenwith short clubs similar to batons, that they were given blows withtheir fists handcuffed and water was poured on them during such 20beatings. The petitioners had identified the 7th respondent as oneof those persons who had assaulted them.
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When these assaults were brought to the notice of the petition-er mother, she had moved the Court by way of a motion and got thecase against the petitioners called on 16.08.2001 with a view toobtaining bail. This request for bail, however was refused on theplea that investigations were not concluded and the petitionerswere once again sent to the Remand Prison. The petitioners sub-mitted that as' a consequence of the aforementioned motion, thepetitioners were threatened and were subjected to further assaults.The mother had filed a further motion in Court on 20.08.2001 andbrought the aforementioned facts to the notice of the Magistratewhereupon an order was made to produce the two petitioners inCourt on 21.08.2001. When they were produced in Court, the mag-istrate had made order directing the two petitioner to be examinedby the Judicial Medical Officer, Matara. The two petitioners weregranted bail on personal bonds in a sum of Rs. 25,000/-.
The petitioner alleged that their fundamental rights guaranteedin terms of Article 11 of the Constitution was violated by the 2nd, 3rdand 7th respondents for which this Court granted leave to proceedunder Article 11 of the Constitution.
Learned Counsel for the 2nd and 3rd respondents, who arePolice Officers, submitted that the petitioners have not sufficientlyestablished their case against the 2nd and 3rd respondents andthat there is no material against these two respondents to show thatthey had assaulted the petitioners. Learned Counsel for the 7threspondent on the other hand contended that the 7th respondenthad no involvement in the incidents alleged by the petitioners.
It is not disputed that the petitioners were arrested by the 2ndand 3rd respondents. In fact the 1st, 2nd and 3rd respondents hadaverred that the petitioners were arrested on 14.08.2001 not at4.00 a.m. as claimed by the petitioners, but at 10.15 a.m. on a com-plaint made against the petitioners of an alleged theft of a waterpump, belonging to one Wijetilake. The 1st, 2nd and 3rd respon-dents have produced affidavits from one Woman Police Constable,Pathmawathie, who was on reserve duty at the time the petitionerswere handed over to the respondents (2R5) and an affidavit fromBorala Liyana Pathiranage Tissa, Reserve Police Constable No.11921 (2R6). Both have averred in their affidavits that the respon-dents did not assault the petitioners.
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Erandaka and another v Halwela, Officer-in-Charge Police Station
SCHakmana and others (Bandaranayake, J.)271
Soon after the arrest, according to the 2nd and 3rd respondents,the two petitioners were produced before the Medical Officer ofNarawelpita Government Hospital, wherein the Medico-LegalExamination Forms show that there were no injuries on the peti-tioners (1R2). According to these Medico-Legal ExaminationForms, the petitioners were examined by the Medical Officer at12.20 p.m. on 14.8.2001. It is common ground that the petitionerswere brought before the Magistrate on the same day, viz.,14.08.2001, around 2.00 p.m., where on the orders of theMagistrate the petitioners were sent to the Remand Prison.70
Considering the contents of the Medico-Legal ExaminationForm, it appears that the petitioners had not been subjected to anykind of torture until the time they were produced before the MedicalOfficer. Moreover, there is no material before this Court that at thetime the petitioners were produced before the Magistrate that theyhad informed the Magistrate that they were subjected to torturewhile they were at the Police Station. Except for the version givenby the two petitioners, there is no other material before this Courtin support of the petitioners that the 2nd and 3rd respondents hadassaulted them while they were at the Police Station. The Medical 80Report of the Medical Officer at Narawelpita Government Hospital,further strengthens the position of the 2nd and 3rd respondents thatthe petitioners were not assaulted at the Police Station. In such cir-cumstances I am of the view that the 2nd and 3rd respondents can-not be held responsible for the alleged infringement of the petiion-ers’ fundamental rights in violation of Article 11 of the Constitution.
The petitioners’ allegation on the assault while they were inPrison includes three prison officers, but they have named only oneofficer, viz., the 7th respondent (paragraph 20 of the petition).Learned Counsel for the 7th respondent contended that the peti- 90tioners have categorically stated that, they were assaulted by threeprison officers at various times during the first three days of theirincarceration. In fact paragraph 20 of the petition refers to thealleged assault being taken place during the first three days whichwould amount to be the 14th, 15th and 16th August 2001.
The submission of the learned Counsel for the 7th respondent isthat on the 14th of August the 7th respondent had reported to workat 6.00 a.m. and had signed off at 3.30 p.m. in the afternoon (7R1,
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7R2 amd 7R8). On 15.08.2001 the 7th respondent had reported forwork at 8.00 a.m., but had left at 9.10 a.m. Thereafter he had tooreturned at 5.20 p.m. and had signed off at 5.30 p.m. (7R3, 7R4and 7R7). On 16.08.2001 he had been on Parade Leave. Thereforelearned Counsel for the 7th respondent submitted that the 7threspondent could not have participated in the alleged assault,which according to the petitioners, had taken place on the first threedays of their incarceration.
The petitioners, it is to be noted, stated in their petition (para-graph 16) that at the Hakmana police station the 2nd and 3rdrespondents and another Police Constable whose identity and reg-imental number are not known, had assulted them. With regard to nothe assualt at the Remand Prison the petitioners’ position is thatthree Prison Officers including the 7th respondent assaulted themat various times during the first three days (paragraph 20).
In the aforementioned circumstances, it would be pertinent toconsider the Medico-Legal Report pertaining to the two petitioners.
Both petitioners were produced before the Judicial MedicalOfficer on 22.08.2001. In the short history given by the petitionersto the Medical Officer, the petitioners had categorically stated that,they were assaulted by the Police and not by the Prison Officers.
Notwithstanding the non availability of the identity of the persons 120who had assaulted the petitioners, the Medico-Legal Reports of thepetitioners reveal that both petitioners have sutained injuries. Aspointed out earlier at 12.30 p.m. on 14.08.2001, prior to the peti-tioners were produced before the Magistrate, they were examinedby the Medical Officer of the Government Hospital at Narawelpitaand according to those Reports (1R1 and 1R2) the petitioners hadnot sustained any injuries.
However, when the petitioners were examined on 22.08.2001 bythe Judicial Medical Officer, he had observed the following injuries:
1 st petitioner13(
Tram Line Contusion 6 c.m. x 1 c.m. in size was situated onthe upper region of the back of the left chest wall. It was intransverse position.
Erandaka and another v Halwela, Officer-in-Charge Police Station
scHakmana and others (Bandaranayake, J.)
Tram Line Contusion 5 c.m. x 1 c.m. in size was situated onthe back of the left upper arm 16 c.m. from the left elbowjoint.
Tram Line Contusion 5 c.m. x 1 c.m. in size was situated onthe back of the left upper arm, 11 c.m. from left elbow joint.
Tram Line Contusion 3 c.m. x 1 c.m. in size was situatedover the right upper scapular region. It was in transverse uoposition.
Tram Line Contusion 4 c.m. x 1 c.m. in size was situated overthe right lower scapular region. It was in transverseposition.
Tram Line Contusion 6 c.m. x 1 c.m. in size was situated overthe back of the right thigh 15 c.m. from the right knee joint. Itwas extended upward vertically.
Tram Line Contusion 3 c.m. x 1 c.m. in size was situated over
the emiterior aspect of the left upper arm 12 c.m. from theelbow joint.150
There was a facture of the crown of right central incisor toothin the upper law. This was confirmed by the Consultant,Dental Surgeon. (Report is annexed).
2nd petitioner
Tram Line Contusion 4 c.m. x 1 c.m. in size was situated overthe upper region of the back of the left chest-wall. It was intransverse position.
Tram Line Contusion 5 c.m. x 1 c.m. in size was situated inthe back of the right thigh, 13 c.m. above the knee joint.
There was tenderness over the nose. No evidence of fracture 160of the nasal bone.
Article 11 of our Constitution refers to freedom from torture andreads as follows:
“No person shall be subjected to torture or to cruel, inhuman ordegrading treatment or punishment’
The petitioners as submitted by the respondents were arrested
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by the Police on suspicion of a theft of a water pump.
When an allegation is made in respect of an infringement interms of Article 11 of our Constitution, it is not necessary for theCourt to take cognizance of the personal antecedents of the peti-tioner, but consider only of the circumstances the petitioner is com-plaining. In Senthilnayagam v Seneviratne <1> Colin Thome,J. wasof the view that,
“The Courts have been jealous of any infringement ofpersonal liberty and care is not be exercised less vigi-lantly, because the subject whose liberty is in questionmay not be particularly meritorious.”
In Amal Sudath Silva v KodituwakkiP> Atukorale, J. hasdescribed the protection guaranteed by Article 11, quite forcefully inthe following terms:
“It is therefore the duty of this Court to protect and defendthis right which is declared and intended to be funda-mental is always kept fundamental and that the executive
by its action does not reduce it to a mere illusionThe
petitioner may be a hard-core criminal whose tribedeserve no sympathy. But if constitutional guarantees areto have any meaning or value in our democratic set-up, itis essential that he be not denied the protection guaran-teed by our Constitution.”
It is therefore irrelevant to consider the circumstances in whichthe petitioners were taken into custody and consideration should begiven only to the question as to whether the petitioners had suf-fered any kind of cruel, inhuman or degrading treatment while theywere kept in the custody of the respondents.
It is well settled law in this country that no person shall be sub-jected to torture or to cruel, inhuman or degrading treatment orpunishment and thereby the protection in terms of Article 11 of theConstitution is guaranteed to all persons. When complaints aremade in respect of violation of Article 11 of the Constitution, suchallegations are levelled against Public Officers and if proved theycould carry serious consequences against them. Therefore it wouldbe essential that allegations that have been complained of be strict-
er)
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ly proved. In fact in Jeganathan v Attorney-General it was heldthat where public officers are accused of violating the provisions ofArticle 11, the allegations must be strictly proved. A series of decid-ed cases Velumurugu v Attorney-General, Thadchanamoorthi vAttorney-General*5>, Goonewardene v Perera<6>, Kapugeekiyana vHettiarachchPi, and Malinda Channa Peiris v Attorney-Generalhas clearly laid down the principle that the civil standard of persua-sion would apply and a high degree of certainty would be required‘before the balance of probability might be said to tilt in favour of apetitioner’ who has been attempting to discharge his burden inproving that his fundamental rights guaranteed in terms of Article 11had been violated by the respondents. However, as has been point-ed out in Malinda Channa Peiris v Attorney-General (supra) ‘unlessthe petitioner has adduced sufficient evidence to satisfy the Courtthat an act in violation of Article 11 did take place, the petitioner willfail to obtain a declaration that Article 11 was transgressed.’
In the instant case, although the petitioners have complained ofviolation of Article 11 against 2nd, 3rd and the 7th respondents,they have not adduced sufficient evidence to show that the threerespondents or some of them had subjected the petitioners to tor-ture or to cruel, inhuman and/or degrading treatment or punish-ment. In fact according to the material placed before this court itappears that the 2nd, 3rd, and the 7th respondents had not takenpart in the alleged assault. In such circumstances, the petitionershave not discharged their burden of proving that these 3 respon-dents or some of them were responsible for the alleged violation ofArticle 11 and I am of the view that without having sufficient mater-ial supporting the allegations against each individual respondent,viz. the 2nd, 3rd and the 7th respondents, they cannot be heldresponsible for the alleged violation.
However, as pointed out earlier the Medico-Legal Reportsreveal that both petitioners having been tortured had sustained aconsiderable amount of injuries. According to the Medical Reportsubmitted by the 1 st, 2nd and 3rd respondents at the time petition-ers were produced before the Magistrate they had no injuries. Insuch circumstances it is apparent that the petitioners have sus-tained these injuries while they were in Remand Prison and there-by although a particular respondent is not held responsible for the
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injuries sustained by the petitioners, the State would becomeresponsible for the violation of the petitioners’ fundamental rightguaranteed to them under Article 11 of the Constitution.
In the circumstances, I hold that the petitioners’ fundamentalrights guaranteed in terms of Article 11 were violated by executiveor administrative action. The state is directed to pay a sum of Rs.25.000/- each for the two petitioners as compensation. This amountto be paid within 3 months from today.
SARATH N. SILVA, C.J.I agree
JAYASINGHE, J.I agree
Relief granted