KUMARA vs. SILVA, SUB-INSPECTOR OF POLICE ,WELIPANNA AND OTHERS

028-SLLR-SLLR-2006-V-2-KUMARA-vs.-SILVA-SUB-INSPECTOR-OF-POLICE-WELIPANNA-AND-OTHERS.pdf


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KUMARAVS.SILVA, SUB-INSPECTOR OF POLICE, WELIPENNA AND OTHERSSUPREME COURT.
BANDARANAYAKE, J.
WEERASURIYA, J. ANDUDALAGAMA.J.
SC(FR) APPLICATION No. 121/2004.
1ST FEBRUARY, 17TH JUNE, 15TH SEPTEMBER AND 3RD, 9TH, AND24TH NOVEMBER, 2005.
Fundamental Rights – Articles 11, 13(1) and 13(2) of the Constitution – Violationof only Article 11 of the Constitution -1 st respondent's version as to Article 13(1)and 13(2) fully accepted.
Petitioner who claimed to be an artisan who agreed to paint the policeemblem for the Independence Day Celebrations was taken to the WelipennaPolice on 03.02.2004 at about 8.30 a.m. by the 1st respondent sub inspector ina jeep. He said that on the way he was assaulted by the 1 st respondent whoalso arrested one Don Shantha. He sustained injuries. At the Police Stationthe petitioner was taken to the 1st respondent’s room and assaulted with awicket on his shoulders, neck, arms and knees over 80 times.
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The 1st respondent introduced a hand grenade and forced the petitioner toplace his thumb impression on wax and to sign a statement falsely. Around5.30 p.m. on 06.02.2004, the petitioner was produced before the Magistrateand was remanded.
The 1st respondent's version in his affidavit supported by I. B. extracts wasthat he arrested the petitioner, Don Shantha and others on a complaint of anarmed robbery at Pareigama Stores. 1st respondent was accompanied byother police officers. As the Petitioner was pulling his pocket the 1 st respondentstruck him with a baton. The arrest on information was supported by I. B.extracts. It was referred on 05.02.2004 at about 6.45 p.m. As the petitionerstarted grappling with another police officer the 1st respondent struck again tocontrol him. The 1 st respondent denied the alleged assault at the police station.
The 1 st respondent’s version in respect of the arrest was corroborated byIB extracts and affidavits of two witnesses as against the petitioners versionwhich is supported only by Don Shantha’s statement. The petitioner wasproduced before the Magistrate on 06.02.2004 within 24 hours. However, thealleged assault at the police station is proved by medical evidence which gave32 injuries including a fracture of the left ankle joint. The allegation ofresponsibility of the 2nd respondent, Inspector of Police was contradicted byevidence which shows that the 2nd respondent had given evidence in a courtcase on that day.
HELD:
The alleged infringement of Articles 13(1) and 13(2) were not proved;but the evidence including medical evidence proved infringement ofArticle 11 of the Constitution by the 1 st respondent.
The 2nd respondent, Inspector of Police was not responsible for theinfringement of the rights of the petitioner.
APPLICATION for relief for infringement of fundamental rights.
Cases referred to:
Eshugbabai vs. Government of Nigeria 1931 Ac 238
Kapugeekiyana vs. Hettiarachchi 1984 2 SLR 153
Malinda Channa Pieris vs. A.G. and Others 1994 1 Sri LR 1
Fillastre vs. Bolivia (HRC. 5.11.1991) UN Committee on Human rights
Amal Sudath Silva vs. Kodithuwakku – 1987 2 Sri LR 119
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Sanjeewa Weerawickrama with Ravindra Jayalath for petitioner.
Nuwan Dissanayake with Anurada Megawaruna, Sanjeewa Edirisinghe andKrishanthi Fernando for 1st respondent.
A.S.M. Perera, P.C. with Neville Ananda for 2nd respondent.
cur. adv. vult.
17th February, 2006.
SHIRANI BANDARANAYAKE, J.
The petitioner, who was 31 years of age at the time the incident inquestion took place, complained of violation of his fundamental rightsguaranteed in terms of Articles 11,13(1) and 13(2) of the Constitution forwhich this Court had granted leave to proceed.
I now proceed to set out the facts placed before this Court by thepetitioner.
The petitioner, who was an Artisan by profession skilled in paintingsand carvings, had returned home from Galle on 2nd February, 2004. The1st respondent, with four other police officers, had come to his residencearound 8.30 a.m. on 03.02.2004 and had wanted the petitioner to come tothe Police Station to assist them to paint the police emblem for theIndependence Day celebrations. The petitioner had agreed to accompanythe 1st respondent and no sooner he got near the police jeep, the 1strespondent had hit the petitioner with his pistol on his chin thrice afterwhich, blood started oozing from that wound. Thereafter the 1 st respondenthad kicked the petitioner with his boots and had pushed him into thepolice jeep. The said police officers thereafter had proceeded towards thePolice station and at Galathara Junction they had arrested one DonShantha. Both of them were brought to the Welipenna Police Station.
At the Police Station the petitioner and Don Shantha were taken to the1st respondent’s room and the 1st respondent had started hitting thepetitioner with a wicket on his shoulders, neck, arms, head, spine and onhis knees over 80 times. Whilst hitting the petitioner, the 1st respondenthad told Don Shantha that this would be the manner in which others alsowould be treated and in the process of assaulting the petitioner, the 1strespondent had told the petitioner to hand over the bombs and the weaponswhich were in his possession and to confess about the robberies he had
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carried out. The petitioner had denied any knowledge of bombs, weaponsor the robberies. According to the petitioner, this had continued for abouttwo hours and thereafter at the intervention of about 8 police officers andafter one of those officers pulled the wicket from the 1st respondent’shand he had stopped assaulting the petitioner.
The 1 st respondent thereafter brought a person known as Sarath, whowas suferring from Tuberculosis. The 1 st respondent had got the petitionerto open his mouth and told the said Sarath to spit into petitioner’s mouth.In the process, the 1 st respondent had told the petitioner that this wasdone so that the petitioner would die of the disease. On seeing this thepolice officer, who had intervened earlier to stop the assault, had brought abottle of water and got the petitioner to wash his mouth.
The petitioner was kept in the police cell for about 3 days and on thethird day the 1st respondent again assaulted the petitioner by punchingon his chest several times and one of the punches had hit his face causinginuries. Later on that day the petitioner was taken by some police officersto the Iththapana District Hospital and was shown to a doctor. Afterexamining the petitioner, he had refused to admit him to the hospital dueto the serious nature of the injuries. The petitioner was brought back to thePolice Station and later taken to the same hospital and was shown to alady doctor. She too had refused to admit the petitioner to the hospital.Then the petitioner was taken to the Weththewa Government Hospital andthereagain the hospital authorities had refused to admit the petitioner.
That night the 1 st respondent had come to the police cell with a grenade.It was taken out from a packing and the petitioner was forced to place histhumb impression on wax which was thereafter placed on the grenade.The 1 st respondent had obtained the signature of the petitioner to a writtenstatement without reading it out to him and the petitioner states that hehad done it for the fear of getting assaulted by the 1 st respondent.
On 06.02.2004 the petitioner was once again taken to WeththewaHospital where the police had spoken to a gentlemen wearing a pair ofshorts and obtained his signature for some documents. Thereafter he wasbrought to the Police Station.
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Around 5.30 p.m. on 06.02.2004, the petitioner was produced beforethe acting Magistrate, Mathugama where the petitioner had stated aboutthe assault and the thumb print that was taken on the grenade. The petitionerwas thereafter taken to Kalutara Remand Prison and later admitted to theKalutara Prison Hospital.
The 1st respondent in his affidavit averred that one Dharmasena, theowner of ‘Pareigama Stores’, had made a complaint at the WelipennaPolice Station regarding a robbery that had taken place at his shop by agang of armed men around 9.30 p.m. on 18.01.2004. Whilst in the processof investigating, he had received information from independent sourcesand suspects already in custody, that the petitioner was involved in thesaid armed robbery. Acting on that information, the 1st respondent, alongwith several other police officers, had arrested Don Shantha and severalothers on suspicion for armed robbery (1R1 and 1R2). In the course of theinterrogation, the suspects who were arrested had revealed that thepetitioner was in possession of fire arms and other offensive weapons.Thereafter the 1 st respondent had arrested the petitioner at his residenceon 05.02.2004, for being in possession of a live hand grenade (1R3).
The 1 st respondent had further averred in his affidavit that the group ofpolice officers had reached the residence of the petitioner around 6.45p.m. on 05.02.2004, and while the 1st respondent was armed with hisservice revolver and the baton, the other officers were armed with theirrespective service weapons. The 1st respondent had advised the otherofficers to proceed with care as the information he had received had indicatedthat the petitioner could be dangerous. As they approached the petitioner’shouse, the 1 st respondent had seen a person clad in sarong and a T-shirtwalking towards them. At that time RPC Thushara who was seated closeto 1 st respondent, had identified that person as the petitioner and the 1 strespondent had moved towards him. According to the 1 st respondent, nosooner the petitioner saw the group of police officers he had reached for aweapon and therefore the 1 st respondent had to react immediatly. As thepetitioner was pulling his hand out of his pocket, the 1 st respondent haddealt him with several blows to his hand with his baton. This made theobject in his hand to fall to the ground and the 1 st respondent had noticedthat it was a hand grenade. When the grenade fell to the ground thepetitioner tried to retrieve it and the 1st respondent continued to hit himwith his baton as he had feared that if he succeeded in retrieving the
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grenade and used it, that would cause harm to all the police officers inthat team.
At that stage, police Sergeant Asoka, who was within reach of thepetitioner, had held him in an attempt to subdue him. However, when theystarted grappling with each other, the 1 st respondent had dealt a fewmore blows to the petitioner’s arms and shoulders. Thereafter the 1strespondent had arrested the petitioner (1R4 and 1R5). Later the petitionerwas taken to D.M.O. of Weththewa Hospital and produced before theMagistrate, Mathugama from where he was sent to the Remand Prison, atKalutara.
Accordingly, the 1st respondent denied that tie had assaulted thepetitioner at the Police station or that he was subjected to any form oftorture. Further the 1 st respondent averred that the said Sarath was arrestedonly at 7.45 p.m. on 09.02.2004 and by that time the petitioner was alreadyin remand custody. Therefore the contention of the 1 st respondent is thatthere was no possibility for the said Sarath to have spit in the mouth of thepetitioner.
Since this Court had granted leave to proceed in terms of Articles 11,13(1) and 13(2) of the Constitution let me now deal with each violation thepetitioner has complained of, separately.
Articles 13(1) and 13(2) of the Constitution refer to the freedom fromarbitrary arrest and detention. These two Articles are in the following terms:“13(1) – No person shall be arrested except according toprocedure established by law. Any person arrested shall beinformed of the reason for his arrest.
13(2) – Every person held in custody, detained or otherwisedeprived of personal liberty shall be brought before the judge ofthe nearest competent court according to procedure establishedby law, and shall not be further held in custody detained ordeprived of personal liberty except upon and in terms of theorder of such judge made in accordance with procedureestablished bylaw.”
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In terms of Article 13(1) of the Constitution, it is clearly a requirementthat an arrest of a person should be according to procedure establishedby law. According to the Code of Criminal Procedure Act, No. 15 of 1979an arrest could be either with or without a warrant. Arrest without a warrantmay be made by any peace officer, viz., a police officer or a Grama SevaNiladhari appointed to perform police duties of a person against whom areasonable complaint has been made or credible information has beenreceived or a reasonable suspicion exsits of his having been so concerned.The command described in Article 13(1) of the Constitution requires thatno police officer could act ad arbirium, but only in terms of the procedurelaid down by law. However, it is to be borne in mind, that Article 13(1) isnot a prohibition that no arrest could be made by police officers. What ithas stated is that, arrests which would be arbitrary and against theprocedure established by law would be violative of the provisions of theConstitution. Artcle 13(1) of our Constitution reflects the principle statedby Lord Atkin in Eshugbhaiv s. Government of Nigeria™ which was to theeffect that-
“in accordance with British jurisprudence no member of theexecutive can interfere with the liberty or property of a Britishsubject except on the condition that he can support the legalityof his action before a court of law.”
In the instant case the 1 st respondent’s position was that the petitionerwas arrested on the information received by Galatharage Don ShanthaKumara, Weligama Hewage Roshan Prasad ar.d WaiakuluarachchigeChandana Pushpa Kumara aii^s AnandJ. The 1st Respondent had alsostated that he had received information from an informant that the petitioneris in possession of dangerous weapons. The 1st respondent had in factreferred to this information in his notes (1R3).
Accordingly, it is apparent that the 1 st respondent had arrested thepetitioner as he had received credible information that the petitioner is inpossession of dangerous weapons and that a reasonable suspicion hadarisen as to the possibility of the petitioner having participated in the robberywhere a complaint was made by the owner of the shop, one Dharmasena.In such circumstances it is evident that the arrest of the petitioner had notbeen in contravention of the provisions of Article 13(1) of the Constitution.
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(Shirani Bandaranayake, J.)
The next question that has to be considered is whether the petitionerwas brought before the judge according to procedure established by law interms of Article 13(2) of the Constitution.
According to section 33 of the Code of Criminal Procedure Act, No. 15of 1979, a person who has been arrested shall within twenty-four hoursfrom the arrest exclusive of the time necessary for the journey be takenbefore the nearest Magistrate’s Court.
The petitioner’s contention is that the 1 st respondent arrested him around8.30 a.m. on 03.02.2004 and that he was kept in his custody until 5.30p.m. on 06.02.2004 thereby detaining the petitioner for over 81 hours clearlyviolating the provisions stipulated in Article 13(2) of the Constitution.However, except for an affidavit of Galatharage Don Shantha (P1) there isno other material submitted by the petitioner to support his contentionthat he was kept in custody by the 1 st respondent for over 81 hours. The1st respondent to the contrary, had contended that he had arrested thepetitioner around 6.45 p.m. on 05.02.2004 and that he was produced beforethe Magistrate, Mathugama on 06.02.2004.
In these circumstances, the question of proof has to be given carefulconsideration. This aspect was considered in Kapugeekiyana vs.Hettiarachchii2) where Wimalaratne, J. observed that-
“In deciding whether any particular fundamental right hasbeen infringed I would apply the test laid down in Velmuruguthat the civil, and not the criminal standard of persuasion applies,with this observation, that the nature and gravity of an issuemust necessarily determine the manner of attaining reasonablesatisfaction of the truth of that issue.”
In Malinda Channa Pieris vs. AG. and Others (3) it was stated thatunless the petitioner had adduced sufficient evidence to satisfy the Court,he will fail to obtain a declaration of a violation of his fundamental rights.This has been the accepted norm in International Courts as in Fillkastrevs. Bolivia(4) the U.N. Committee on Human Rights had held that therewas no violation because the allegations had not been substantiated orcorroborated.
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The petitioner, as stated earlier, has not filed any material other thanthe affidavit of Galathatrage Don Shantha in support of his averments. The1 st and 2nd respondents on the other hand had submitted notes and I.B.extracts pertaining to the information received by them about the petitionerand his subsequent arrest. According to the said information the petitionerwas arrested at 6.45 p.m. on 05.02.2004 (1R1,1R2 and 1R3) This positionhad been substantiated by the affidavits filed by Hema Thushara (1R4)and Gunawardana Ashoka (1R5).
The petitioner along with the others, who were arrested were producedbefore the Magistrate at Mathugama Magistrate’s Court on 06.02.2004.Thus according to the 1st respondent’s version, the petitioner had beenproduced before the Magistrate within 24 hours of the arrest. On aconsideration of all the facts and circumstances of this application I aminclined to accept the version given by the 1 st Respondent and hold thatthe 1 st respondent had acted according to the procedure established bylaw in terms of Article 13(2) of the Constitution. In such circumstances,considering the material placed before this court, it is apparent that therehas been no violation of Article 13(2) of the Constitution.
Having dealt with Articles 13(1) and 13(2) of the Constitution, let menow consider the question of whether there was any violation of Article 11of the Constitution.
Article 11 of the Constitution deals with freedom from torture and readsas follows:
“No person shall be subjected to torture or to cruel, inhumanor degrading treatment or punishment.”
It is to be noted that Article 11 refers to torture separately from cruel,inhuman or degrading treatment or punishment similarly to Article 5 of theUniversal Declaration of Human rights, Article 7 of the International Covenanton Civil and Political Rights as well as Article 3 of the European Conventionwhich had referred to torture separately from inhuman, degrading treatmentor punishment. The importance of the right to protection from torture hasbeen further recognized and steps had been taken to give effect to theuniversally accepted safeguards by the Convention Against Torture AndOther Cruel, Inhuman or Degrading Treatment or Punishment signed in
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New York in 1984, which has been accepted in Sri Lanka by the enactmentof Act No. 22 of 1994 on the Convention Against Torture And Other Cruel,Inhuman Or Degrading Treatment Or Punishment.
Thus it is evident that notwithstanding the provision made in theConstitution regarding fundamental right on freedom from torture, in termsof Act, No. 22 of 1994, torture is to be an offence and any person whotortures any other person shall be guilty of an offence under the said Act.
The petitioner’s complaint was that the 1 st respondent had assaulted-him mercilessly using a wicket after he was brought to the WelipennaPolice Station.The contention of the 1 st respondent was that, at the timehe had arrested the petitioner he had reached for a weapon and thereforehe had dealt several blows to his arms with his baton. This had caused theobject in his hand to fall to the ground. After seeing that it was a handgrenade and that the petitioner was trying to retrieve it the 1 st respondenthad continued to assault him with his baton on his hands and shoulders.
The contention of the 1 st respondent is therefore that he had used‘minimum force’ to apprehend the petitioner. It is not disputed that use ofminimum force will be justified in the lawful exercise of police powers.However, the force used in effecting an arrest should be proportionate tothe mischief it is intended to prevent. Notwithstanding the aforementionedit would also be necessary to consider the injuries sustained by the petitionerin comparison with the version given by the 1st respondent.
The petitioner was examined by the Assistant Judicial Medical Officerof the General Hospital of Colombo on the orders made by the Magistrate.The Report of the Assistant Judicial Medical Officer dated 11.06.2004,contained 32 injuries which I reproduce below:
" 2 Examination :
General examination :
He is conscious and rational, but looks anxious. Hewalked into the examination room limping. His respiratory,cardiovascular and nervous systems are clinicallynormal.
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Injuries :
2.2.1 Head and neck :
Healing laceration, liner, 2cm long, is situated in left ear lobe in itsupper 1/3, involving the margin.
Resolving contusion, dark bluish purple in colour, 4 x 5.5cm, is situatedin left side of the scalp, just behind the posterior attachment of earlobe.
Tram line contusion, dark bluish purple in colour, 6x2cm size, is situatedin the right side of the neck, in its lower 1/3 posterolaterally and obliquely.
Two healing spilt lacerations, each 2cm long, linear, are situated inright side of the jaw over its bony edge, in its front 1/3.
Chest and abdomen :
Resolving contusion, irregular shaped, 15×1 Ocm, is situated in leftside of the shoulder.
Resolving contusion, irregular shaped, 12×1 Ocm, is situated in rightside of the shoulder.
Tram line contusion, dark bluish purple in colour, 10×2 cm size, issituated in the left side of the back, over the shoulder blade in its upper1/2 obliquely.
Tram line contusion, dark bluish purple in colour, 8x2cm size, is situatedin the left side of the back, over the shoulder blade in its lower 1/2obliquely.
Tram line contusion, dark bluish purple in colour, 22×2.5cm size, issituated in the left side of the back, over the shoulder blade extendingup to the midline obliquely.
Tram line contusion, dark bluish purple in colour, 15×2.5cm size, issituated in the left side of the back, over the shoulder blade extendingup to the midline above the injury No. 09, obliquely.
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Tram line contusion, dark bluish purple in colour, 15×2.5cm size, issituated in the left side of the back, lateral to the shoulder bladeextending downwards obliquely.
Tram line contusion, dark bluish purple in colour, 8×2.5cm size, issituated in the right side of the back, above the shoulder blade extendingup to the midline, obliquely.
Two tram line contusions, dark bluish purple in colour, 10×2.5cm size,are situated in the right side of the back, on the shoulder bladeextending parallel to each other, obliquely.
Two tram line contusions, dark bluish purple in colour, 18 x2cm size, issituated in the right side of the back, on the shoulder blade crossing ofinjuries No. 13, obliquely.
Tram line contusion, dark bluish purple in colour, 18x2cm size, issituated in the right side of the back, below the shoulder blade extendingdownwards from the lower ends of injuries No. 13, obliquely.
Tram line contusion, dark bluish purple in colour, 9×2.5cm size, issituated in the right side of the back, extending from the midline,obliquely. Its upper end is abraded and shows healing with pale scar.
Three healing abrasions, with dark scab formation and peripheralwhite margins, measuring 2×1.5cm, 2x1cm and 1×1.5cm are situatedin left side of the shoulder in its back.
Tram line contusion, dark bluish purple in colour, 5×2.5cm size, issituated in the left side of the chest, over the lower margin of rib cage,extending obliquely.
2.2.3. Upper limbs :
Resolving contusion, dark bluish purple in colour, 18x6cm, is situatedin right forearm laterally in its upper 1/3.
Tram line contusion, dark bluish purple in colour, 4×2 cm size, is situatedin the right forearm, in its upper 1/3 posteromedialy and obliquely.
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Seven tram line contusions, dark bluish purple in colour, eachmeasuring 6×2.5cm size, are situated in left upper arm laterally. Someof them are directed obliquely and some are horizontal.
Resolving contusion, dark bluish purple in colour, 18 x 6cm, is situatedin right forearm laterally in its upper 1/3.
Resolving contusion, dark bluish purple in colour, 10x5cm, is situatedin right upper arm medially in its upper 1/3.
Tram line contusion, dark bluish purple in colour, 4x2cm size, is situatedin the right upper arm, in its lower 1/3 medially and obliquely.
Resolving contusion, dark bluish purple in colour, 15×7 cm, is situatedin left forearm posteriorly in its lower 1/3.
Tram line contusion, dark bluish purple in colour, 1,5x2cm size, issituated in the right hand, in its back, obliquely.
Abraded contusion, 2×1 cm, irregular shaped, is situated in rightforearm, posteriorly, just above the wrist joint.
2.2.4 Lower limbs:
Tram line contusion, dark bluish purple in colour, 7×2.5cm size, issituated in the right thigh, laterally, in its middle 1/3, obliquely.
Tram line contusion, dark bluish purple in colour, 6.5×2.5 cm size, issituated in the left thigh, laterally, in its middle 1/3 obliquely.
Tram line contusion, dark bluish purple in colour, 7.5×2.5 cm, size, issituated in the left leg, laterally, in its upper 1.3, obliquely.
Tram line contusion, dark bluish purple in colour, 8 x 2.5cm size, issituated in the left leg, laterally, in its middle 1/3, obliquely.
Split laceration, 1.5×0.5cm., irregular shaped, is situated in left anklejoint laterally, just above the outermost bony prominence. Underlyingbone is fractured.
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Investigations and referrals :
X-ray of the skull, chest and left ankle joint were taken and werereferred to the Consultant Radiologist, National Hospital, Sri Lanka,Colombo (No. 4892)
Report revealed fracture in the lower end of left fibula bone. (Legbone,)
He was referred to the Consultant ENT Surgeon, National Hospital,Colombo to get his opinion regarding the tinnitus of his left ear.
Report revealed normal ear drum in left ear.
Further, he was referred to the Consultant Psychiatrist, NationalHospital, Colombo to get his opinion regarding his mental statesubsequent to the assault. Reports revealed that his mental stateat the time of examination was normal.
Conclusions and opinions :
Injuries No. 01-31 are non-grievous.
Injury No. 32 is grievous under limb (g) of section 311 of the PenalCode.
All injuries have been caused by a blunt weapon/weapons.
They could have been sustained in the manner as described bythe examinee in the history.
Since I have to review this patient to examine whether he has beeninfected with tuberculosis, due to the forceful ingestion of sputumof a person believed to be infected with tuberculosis, please sentthis victim to the Office of the J.M.O. Colombo."
When one compares the version given by petitioner as to what tookplace at the Police Station with the position taken by the 1st respondentin the backdrop of the contents of the Medico-Legal Report, it is my viewthat the petitioner’s version is more probable than the contention of the 1 st
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respondent. If it was a mere assault to apprehend the petitioner with theminimum force used as described by the 1 st respondent, there could nothave been so many injuries on the petitioner. More importantly the A.J.M.O.had observed in his report that the petitioner could have sustained theinjuries in the manner described by him. It is to be borne in mind that whenthe petitioner was arrested on 05.02.2004 as stated by the 1 st respondent,he was not directly taken to the Magistrate, Mathugama. Firstly he wasbrought to the Welipenna Police Station. The petitioner had to spend thatnight in the Police Station and he was taken to the Magistrate, Mathugamaonly on following day, that being, 06.02.2004. Therefore there was everypossibility that the petitioner was assaulted in the way he had describedat the Police Station not on 03.02.2004, but on 05.02.2004 and the positiontaken by the petitioner regarding the assault is thus substantiated andcorroborated by medical evidence.
Assuming that the petitioner was carrying a hand grenade in hispossession as contended by the 1 st respondent, would it be possible forthe 1 st respondent to submit him to torure, infringing his fundamental rightguaranteed in terms of Article 11 of the Constitution ? Moreover, if the 1 strespondent had to use ‘minimum force’ in order to apprehend the petitionercould that be used with such force to have caused 32 injuries includingone grievous injury to the petitioner? My answers to these questions arein the negative as although it is necessary in certain instances to useminimum force in order to apprehend a suspect, such force has to beused with restraint, not subjecting the person in question to torture, or tocruel and inhuman treatment. This view is clearly supported by the decisionof Atukorala, J. in Amal Sudath Silva vs. KodituwakkdS) where it wasstated that-
“ Article 11 of our Constitution mandates that no personshall be subjected to torture, or to cruel, inhuman or degradingtreatment or punishment, It prohibits every person from inflictingtorture, cruel or inhuman treatment on another. It is an absolutefundamental right subject to no restrictions or limitationswhatsoever. Every person in this country, be he a criminal
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or not, is entitled to this right to the fullest content of itsguaranteeThe petitioner may be a hard-core
criminal whose tribe deserves no sympathy, but if
constitutional guarantees are to have any meaning or value inour democratic set-up, it is essential that he be not denied theprotection guaranteed by our Constitution (emphasis added).”
Moreover, on a comparison of the injuries suffered by the petitioner withthe versions given by the petitioner and the 1st respondent, it is obviousthat the probabilities are more in favour with the version given by thepetitioner.
Accordingly, it is clearly evident that the petitioner’s fundamental rightguaranteed in terms of Article 11 of the Constitution was violated.
There is only one other matter I have to deal with, before I part with thisjudgment. The petitioner whilst submitting that the 1st respondent hadassaulted him severely, had averred that the 2nd respondent as the Officer-in-charge of the Police Station was also responsible for the violation of hisfundamental rights.
The 2nd respondent had in its affidavit averred that he had left the PoliceStation on 02.02.2004 in order to be present at the Magistrate’s Court,Ampara to give evidence in M.C. Ampara Case No. 60735. He had obtainedthe necessary approval from the Senior Superintendent of Police. He hadsubmitted a copy of the proceedings dated 03.02.2004 of M.C. AmparaCase No. 60735 (2R2). After attending to the said official duties, he hadreported for duty only on 05.02.2004 (2R1). Further in his affidavit thepetitioner had stated that when the petitioner was brought before him on05.02.2004, the 2nd respondent had directed that the petitioner be producedbefore the D.M.O. of Weththewa Hospital and thereafter the petitioner wasproduced before the Magistrate. It is to be borne in mind that the petitionerin his counter affidavit dated 28.10.2004 had stated that-
“I am aware that he (2nd respondent) was absent at
the time I was brought to the Police Station initially by the*! st
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respondent and tortured and kept in detention in the manner I
have described in my petition.”
It is therefore evident that the 2nd respondent had not taken part inany kind of assault on the petitioner nor had he connived with the 1strespondent in any manner in such assault. In the circumstances, it willnot be correct to come to the conclusion that the 2nd respondent wasinvolved in any kind of activity leading to the violation of petitioner’sfundamental rights guaranteed in terms of Article 11 of the Constitution.
Accordingly, I hold that the 2nd respondent had not infringed thepetitioner’s fundamental rights guaranteed in terms of Article 11 of theConstitution.
On a consideration of the totality of the circumstances of thisapplication I hold that the petitioner has not been successful in establishingthe violation of Articles 13(1) and 13(2) of the Constitution. However, I holdthat the 1 st respondent had violated the petitioner’s fundamental rightguaranteed in terms of Article 11 of the Constitution. I direct the 1strespondent to pay the petitioner a sum of Rs. 5,000 personally ascompensation and costs and the State to pay a sum of Rs. 20,000 ascompensation and costs. Accordingly, the petitioner will be entitled to atotal sum of Rs. 25,000 as compensation and costs. These amounts tobe paid within 3 months from today.
The Registrar of the Supreme Court is directed to send a copy of thisjudgment to the Inspector General of Police.
WEERASURIYA, J .—I agree.
UDALAGAMA, J.—(agree.
Relief partly granted.