025-SLLR-SLLR-1993-1-RATNAPALA-v.-DHARMASIRI-HEADQUARTERS-INSPECTOR-RATNAPURA-AND-OTHERS.pdf
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RATNAPALA
v.DHARMASIRI, HEADQUARTERS INSPECTOR,RATNAPURA AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
SC APPLICATION 162/91.
MARCH 01, 1993.
Fundamental Rights – Torture – Article 11 of the Constitution – Responsibilityof superior officers for acts of subordinate officers – Factors affecting relief.
The 3rd (S.l. Samaratunga), 5th (Sgt. Tillekeratne), 6th (P.C. Waduge), and 7th(P.C. Jayaratne) respondents had assaulted and brutally tortured the petitionerover a period of three weeks. The injuries suffered by the petitioner wereirreparable, particularly in view of the fact that one of his lungs had to be surgicallyremoved. The 1st (Hector Dharmasiri, Headquarters Inspector) and 2nd (I.P.Gunasekera, officer-in-charge), respondents deliberately encouraged, toleratedand acquiesced in the acts of torture and inhuman treatment inflicted on thepetitioner on whom the J.M.O. found 26 injuries. Hence the 3rd, 5th, 6th and7th respondents who have been identified by the petitoner along with their superiorofficers the 1st and 2nd respondents are personally responsible along with theState.
The State and the 1st, 2nd, 3rd, 5th, 6th and 7th respondents must paycompensation to the petitioner.
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Per Kulatunga, J.
‘ So it seems to me that despite so many decisions, torture at police stationscontinues unabated, in utter contempt of fundamental rights guaranteed by theConstitution. In granting relief this Court must necessarily have regard to thisdevelopment *.
Cases referred to :
Sirisena v. Perera [1991] 2 Sri LR 97.
Amal Sudath Silva v. Kodituwakku [1987] 2 Sri LR 119.
Geekiyanage Premalal Silva v. Rodrigo, SC Appl. No. 24/89 SC Minutesof 05.09.90.
Jayaratne v. Tennakoon, SC Appl. No. 18/89 with No. 10/89 SC Minutesof 04.07.91.
Gamlath v. Neville Silva, SC Appl. No. 78/90 SC Minutes of 27.08.91
Wimal Vidyamani v. U. Col. Jayatilleke, SC Appl. No. 852/91 (Spl.) SCMinutes of 22.07.92.
Ratnasiri v. Devasurendra, SC Appl. No. 4/91 with No. 3/91 – SC Minutesof 21.10.92.
Weerakoon v. Weeraratne, SC Appl. No. 42/92 SC Minutes of 16.11.92.
APPLICATION for infringement of fundamental rights.K. Thiranagama for petitioner.
Anil Silva for 1st to 7th respondents.
Hector Yapa, D.S.G. for 8th and 9th respondents.
Cur. adv. vult.
April 28, 1993.
KULATUNGA, J.
The petitioner was 23 years of age at the time of his arrest onsuspicion of having been a party to a robbery of cash, gold andjewellery worth Rs. 704,400 alleged to have been committed on
from the residence of a Thai national, within the RatnapuraPolice area. At the hearing before us Counsel for the petitionerinformed us that he would not press the alleged violation of Articles13 (1) and (2) but would confine the petitioner's case to the allegedviolation of Article 11. The relevant facts are as follows
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In the course of investigations into the said robbery, the policerecorded the statements of suspects Sarath Perera (2R3) and UpulNisantha (2R4), on 21.07.91. They implicated the petitioner (a residentof Kalutara) in the commission of the alleged robbery. According tothe said statements the petitioner was armed with a knife whilst theother suspects were armed with a gun and a pistol. They overpoweredthe inmates of the house, committed robbery and later shared theloot among themselves. Thereafter, the Ratnapura Police were lookingfor the petitioner. On 18.08.91 they visited his residence, but foundhim missing. He was then employed at a hotel in Kollupitiya. Thepetitioner alleges that the police took away three of his brothers andan uncle as hostages to compel him to surrender; this informationwas conveyed to him by his mother.
The petitioner states that on 24.08.91 he reported to the RatnapuraPolice accompanied by one of his uncles and surrendered to the 1strespondent (Headquarters Inspector) whereupon his brothers and theuncle who had been detained as hostages were released ; the 1strespondent then asked the petitioner whether he had brought Rupees2 1/2 lakhs to which he replied that he was unaware of it. Thereafter,the petitioner was taken to the crime branch. At about 8.00 p.m.,the 2nd respondent (Officer-in-Charge of Crimes) produced thepetitioner before the 1st respondent on whose orders the petitionerwas stripped and put into the cell. At about 10.00 p.m., the 3rd respondent(a Sub-Inspector of Police) and another police officer made him tosquat and tied his hands and legs together. He was then hung withhis head downwards on a pole (passed behind his knees) the twoends of which were placed on two tables. Whilst the petitioner wasin that position, the 3rd respondent assaulted him with a club andalso kicked him.
On 26.08.91 the petitioner was again tied up and the 4th respondent(a Police Constable) assaulted him with a club. On 03.09.91 the 3rdrespondent assaulted the petitioner with a club whilst the 4threspondent and other officers joined in the assault. The 5th respondent(a Police Sergeant) sprinkled the petitioner's face with chilly powder.On 06.09.91 the 5th respondent and the 6th and 7th respondents(Police Constables) assaulted the petitioner with clubs and rubber hosepipes. On 8th or 9th September, the 5th, 6th and 7th respondentsassaulted him with hose pipes and leather belts. The 2nd and 3rdrespondents were present at the said assault. The 3rd respondent
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questioned him where he had hidden the money; the 7th respondentsqueezed the petitioner's penis ; the 5th and 7th respondents alsokicked him. On 15.09.91 the 5th respondent struck the petitioner'shead with a brass padlock and caused injuries. On 17.09.91 thepetitioner was shown to a foreigner and some other persons and hisstatement (2R5) was recorded. On the same day the petitioner wasproduced before a Magistrate and was remanded pursuant to whichhe was sent to Welikada prison on 18.09.91.
Continuing the narrative of events, the petitioner states that on19.09.91 the prison doctors treated him and as his conditiondeteriorated he was admitted to the prison hospital on 22.09.91. Ashis condition became worse he was admitted to the General Hospital,Colombo on 04.10.91. During his treatment there, he was given salineand blood transfusions. A tube was inserted to his chest and fluidwas extracted from his lungs. On 22.10.91 the petitioner was sentback to the Prison Hospital.
According to a report made to this Court by the Prisons Hospitaland information submitted to us by Counsel for the 1st to 7threspondents, on 23.10.91 the petitioner was referred to the J.M.O.Colombo and was examined by the J.M.O. on 26.10.91. Thereafterthe petitioner was brought back to the Prison Hospital and treatedfor an infected wound and fever. On 09.11.91 he was readmitted tothe General Hospital as pleural effusion continued. On 08.01.92 oneof his lungs was removed by surgery. On 11.02.92 he was sentback to the Prison Hospital and on 13.02.92 he was transferred tothe Welisara chest hospital.
While he was at the General Hospital on 18.11.91 the petitionerfiled his application alleging infringement of his fundamental rightsand sought to be excused for the delay in filing this application onthe ground that due to serious illness he had not been able to obtainlegal assistance sooner. In the circumstances, Mr. Anil Silva, learnedCounsel for the respondents quite properly did not press theobjection that the application is time barred. Counsel conceded thatin view of the medical evidence he cannot refute the allegation thatthe petitioner was assaulted whilst in police custody ; he, however,argued that the evidence is insufficient to fix personal responsibilityon any police officer; he submitted that it is improbable that thepetitioner could have remembered the identity of the police officers
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who assaulted him ; that it is possible that the petitioner has falselyimplicated the respondents after obtaining their names through hisbrother who (according to his statement 2R5) is a Reservist PoliceConstable; that, in any event, according to the police recordssome of these respondents had been on duty away from theRatnapura Police Station at the time the petitioner is allegedto have been assaulted ; that this clearly shows that the petitionerhas falsely implicated the said respondents; and hence his evidenceagainst individual police officers is not worthy of credit.
Mr. Hector Yapa, Counsel for the 9th and the 10th respondents(The Inspector-General of Police and the Attorney-General respec-tively) said that he did not wish to make any submissions.
In the circumstances, the infringement of the petitioner's rightsunder Article 11 is established. This leaves us with only two questionsnamely ; (a) whether personal responsibility of the respondents hasbeen established and (b) the relief to which the petitioner is entitled.In the consideration of these questions, I shall first refer to the relevantmedical evidence appearing in the following reports
Report dated 10.12.91 made by the Medical Officer, Welikadaprison hospital.
Report dated 29.02.92 made by the Director, GeneralHospital, Colombo, with copy of Bed Head Ticket showingtreatment given to the petitioner in wards 49 and 34.
Report dated 17.06.92 made by the Judicial Medical Officer,Colombo containing the record of the examination of thepetitioner on 26.10.91 and the J.M.O's observations as to thecause of injuries.
These reports have been made in compliance with the directionsof this Court.
The report of the prison hospital supports the history deposed toby the petitioner and states, inter-alia, that the petitioner was admittedto that hospital on 22.09.91 with a history of assault and withcough, haemoptysis and difficulty in breathing. He had contusionsof front of chest, back of chest and lower back and suspected ribfractures on the right side.
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According to the report of the General Hospital, Colombo, thepetitioner was transferred from the Prison Hospital with suspectedmultiple contusions of the right lung and multiple rib fractures ; hewas in a very poor general state. His breathing was short and rapiddue to pain. He was given blood transfusions, saline, dextrose,vallium and antibiotics. After resuscitation he was transferred to thesurgical ward where he continued to be treated with antibiotics until
22.10.91.
He had pleural effusion and a fracture of the metacarpal bonesof the left hand. A tube was inserted and fluid removed from hislungs throughout this period.
I reproduce in full the report of the J.M.O. which is asfollows
Examination and Report on K. V. RatnapalaHistory
Assaulted by Sgt. Tillakaratne, P.C. Baduge, P.C. Jayaratneand S.l. Samarakoon of the Ratnapura Crime Branch from24.08.1991 to 11.09.1991 with clubs and rubber hoses.
Examination
The scars and marks of the following injuries were present
Linear scar 3/4" obliquely placed lateral to the left sideeyebrow on the left forehead.
Swelling with blackening below the left eye.
Elongated scar 1" x 1/4" and linear scar 3/4" long, placedobliquely one below the other on the left side of the face,between the eye and ear.
Six, oval, circular and elongated scars, varying from 1/4" to3/4" in size, on the left side of the face.
Swelling with blackening below the right eye.
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Eight, circular scars about 1/4" diameter on the right side face.
Three circular scars, each about 1/4“ diameter on the leftside of the neck, antero-laterally.
Depigmented scar 1“ x 3/4" on the root of the left side ofthe neck, above the outer third of the collarbone.
Elongated depigmented scar 7" x 1/2" on the front of the rightupper chest, below the collarbone, extending downwardsand medially across the midline, to the front of the left upperchest.
A little to the left of the midline, on the lateral border ofthe breast-bone, were two elongated scars, each about1,1/4" x 1/4“ obliquely and parallely placed across theearlier mentioned scar.
Depigmented scar 1" x 3/4" front of the left lower chest.
Depigmented scar 1" x 1/2" across the back of the right. lower chest, overlying the shoulder spine.
Mark of a contusion 2“ x 1/2" obliquely placed on the backof the right upper chest, placed below injury No. 11 overlyingthe shoulder blade.
Mark of a contusion 3“ x 3/4" obliquely across the backof the left mid chest.
Depigmented scar 1, 1/2“ x 1/2“ across the back in theupper left loin area.
Semicircular depigmented scar 3“ x 1/2" across the backin the midline, overlying the spine.
Mark of a contusion 6“ x 1/2" obliquely placed on the backin the right loin area, extending downwards and mediallytowards the hip.
Small scar, dosum of the left hand, on the middle phalanxof the left middle finger.
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Small scars of the left palm of the hand, on the terminalphalanx of the left ring finger.
19 – 21. Three small scars of the right palm of the hand, onthe base of the ring finger, proximal phalanx of the littlefinger and middle phalanx of the middle fingers.
Mark of a contusion 2, 1/2" x 3/4" across lateral upper rightupperarm.
Mark of a contusion 2“ x 3/4" postero-lateral lower rightupperarm.
Elongated scar 2, 3/4" x 1/2" across the dorsum of theright wrist.
25 & 26. Two marks of contusions each about 3" x 3/4“ onthe lateral upper left thigh.
27. Scar of an injury, following the insertion of an intercostaltube.
Conclusions
Scars and marks of injuries :
1, 2, 3, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,21, 22, 23, 25, and 26 are those that could be caused byblunt trauma.
Scars and marks of injuries 9, 12, 13, 15, 16, 22, 23, 15 and26 are consistent with those caused by elongated bluntweapons like clubs, rubber hoses, batons and like weapons.
Scars and marks of injuries grouped under 4, 6 and 7 couldbe those of bums caused by a lighted cigarette.
Scars of injury No. 24, could be caused by the application ofa ligature around the wrist.
It is not possible to explain the totality of the injuries as a resultof a fall or falls for the following reasons :
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Very many of the scars and marks of the injuries havebeen identified as those likely to have been caused by bluntweapons, lighted cigarettes and application of ligatures.
No scars or marks of injuries have been identified asthose characteristic of fall/falls.
e.g. like grazed abrasions on projecting surfaces of the body.
Injuries individually are non-grievous, but taken collectivelyare of a grievous nature.
Dr. L. B. L. de AlwisDeputy J.M.O., Colombo.
PERSONAL RESPONSIBILITY OF THE RESPONDENTS
The petitioner told the J.M.O. that he was assaulted by the 3rd,5th, 6th and 7th respondents. He has failed to mention the 4threspondent who is alleged to have assaulted him on 26.08.91 and
These are the officers who are alleged to have subjectedthe petitioner to actual physical assault. In his petition, the petitionerhas also joined the 1st and the 2nd respondents as beingresponsible for such assault in view of alleged orders or other conducton their part amounting to deliberate encouragement, tolerance oracquiescence in relation to such assault or other treatment violativeof Article 11 of the Constitution. I am of the view that in the lightof Article 4(d) which provides that fundamental rights shall berespected, secured and advanced by all organs of government, suchconduct should also be construed as giving rise to personalresponsibility for infringement of Article 11. I shall examine theavailable evidence against the respondents in that light.
The 1st respondent admits that the petitioner surrendered to theRatnapura Police on 24.08.91 and that the 2nd respondent arrestedhim for committing robbery of cash and jewellery from the residenceof a Thai national. He states that there are 4 cases pending in theMagistrate's Court wherein the petitioner is charged with criminaltrespass, mischief, theft of a cow, unlawful assembly and robbery,respectively. Copies of the relevant proceedings have beenproduced marked 1R1, 1R2, 1R3 and 1R4. He has also produced
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from the Kalutara Police a list of complaints made against thepetitioner by a number of persons for alleged insult and intimidation(1R5). The 1st respondent states, in view of the use of firearms incommitting the robbery in question and the possibility of a J.V.P.connection he obtained a detention order dated 24.08.91 underRegulation 19(2) of the Emergency Regulations (1R8), to detainthe petitioner in his (2nd respondent's) custody at the RatnapuraPolice Station. It was under the said order that the petitioner wasdetained there until 17.09.91. He, however, denies having orderedthe petitioner to be stripped and put into the cell on 24.08.91. Hestates that from 6.30 p.m. on the 24th until 4.30 a.m. on the 25thhe was not at the Police Station but on mobile duty in connectionwith the Ratnapura Saman Devale Perahera and has produced insupport a copy of his notes marked 1R6.
The 2nd respondent admits having arrested the petitioner on hissurrender on the 24th but denies complicity in the alleged torture.According to his notes (2R1) the petitioner had scars of healed injurieson his chest and hands and adds that the petitioner informed thathe suffered from a heart disease for which he had taken treatment.The 2nd respondent further states that he too was on mobile dutyin connection with the Saman Devale Perahera from 6.30 p.m. onthe 24th until 4.10 a.m. on 25th and has produced in support a copyof his notes marked 2R2.
The 3rd, 4th, 6th and 7th respondents have filed a joint affidavitdenying the alleged torture by them. The 3rd respondent in particularstates that from 5>.00 p.m. on the 24th until 3.00 a.m. on the 25thhe was on mobile patrol duty in the town dose to KahangamaDevale as per his notes 3R1, and on 03.09.91 from 9.00 a.m. to6.45 p.m. he was on mobile patrol duty in Malangama, Lellupitiyaareas, as per his notes marked 3R2.
The 5th respondent denies having participated in torturing thepetitioner. He states that in consequence of the petitioner'sstatement 2R5 which he recorded on 16.09.91, he visited thepetitioner's residence and recovered a wrist watch and a pair of sunglasses. As per information book extracts 5R1, 5R2 and 5R3, the5th respondent was accompanied by the 6th and 7th respondents.They took with them the petitioner in a private vehicle. On their return,there was a tyre puncture. While they were repladng the tyre, the
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petitioner jumped out of the vehicle and tried to escape and felldown over some rocks. He got up and attempted to run away butgot entangled with some thorny creepers and fell down. They liftedhim and loosened his handcuffs which had become too tight as aresult of the fall. The petitioner sustained abrasions of chest, stomachand legs and swellings on his head. He was limping but said thathe did not wish to have his injuries treated.
The position taken in the affidavits of the 1st – 7th respondentsis that whilst the petitioner had some scars of old injuries at the timeof his arrest, more injuries were sustained by his falling when heattempted to escape. They also allege that the petitioner is atuberculosis patient, presumably to explain pleural effusion and thedisease of his lungs. Learned Counsel for these respondents veryproperly did not press this version. (So the question is whether theabove evidence is cogent enough to fix personal responsibility onthe respondents and to make them also liable in addition to the State.The existence of such liability has been reaffirmed in the recentdecision of this Court in Sirisena v. Perera (1).
In considering whether the evidence of the petitioner as to theidentity of the respondents is credible it is relevant to observe :
that the petitioner was in continuous detention at theRatnapura Police for 3 weeks and thus had the opportunity ofcoming to know their names and the positions held by each ofthem ;
that being the victim of brutal acts of torture, he had astrong motive to remember the identity of his assailants ;
that this was not his first experience with police officersin that admittedly he had many brushes with the law ; and thatsuch a person is more likely to remember the identity of hisassailants than a novice who first comes into contact with thepolice ;
that the petitioner has mentioned to the J.M.O. the namesand ranks of four out of five officers who he alleges to have joinedin the physical assault on him. It is to be noted that in naming
the respondents the petitioner does not give their initials or the
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distinctive numbers. On the other hand, he appears to have namedthem following the form used by the respondents themselves inaddressing one another. The references to the 6th and 7threspondents illustrate this. Thus the full name of the former isGalwaduge Karunasena whilst that of the latter is MarasingheMudiyanselage Jayaratne. In the notes of the 5th respondent theyare referred to as " Waduge ” and “ Jayaratne " respectively andthat exactly is how the petitioner refers to them. These circum-stances tend to negative the submission of Mr. Anil Silva thatthe petitioner had obtained the names of the respondents throughhis brother who is a Reservist Police Constable ;
that the 1st and 2nd respondents (though they are notalleged to have personally assaulted the petitioner) were the twomost senior officers who, from the moment of the petitioner'sarrest, directed the investigations into the alleged robbery.
that the notes 1R6 made by the 1 st respondent, 2R2 madeby the 2nd respondent and 3R2 made by the 3rd respondent byway of proving an alibi, consist of their out and in entries on therelevant dates. Such brief entries on the basis of which they assertthat they were on mobile duty away from the Police Station donot necessarily show that they had no opportunity (by reason ofsuch duty) to have been at the Police Station when the petitionerwas tortured ;
that whilst the evidence establishes beyond a reasonabledoubt that the petitioner was mercilessly assaulted and subjectedto cruel, inhuman treatment whilst in Police custody, therespondents have (relying upon the self serving notes made bythe 2nd and 5th respondents) falsely alleged that the petitioner'sinjuries were sustained either prior to his arrest or by a fall whenhe attempted to escape from police custody.
In the circumstances, I am satisfied that the 3rd, 5th, 6th and 7threspondents took part in assaulting the petitioner and earned out thevarious acts of torture attributed to them. However, the evidence againstthe 4th respondent is not cogent because the petitioner has failedto mention his name to the J.M.O. and has joined him under thename of " PC Sisira Kumara “ when his correct name (as per hisaffidavit) is Sisira Senaratne. As such, the allegation against himhas not been established.
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I am also satisfied that the 1st and the 2nd respondents diddeliberately encourage, tolerate and acquiesce in the acts of tortureand inhuman treatment inflicted on the petitioner. It is incredible thatthese two respondents were not responsible for such treatmentwhich went on for a period of 3 weeks. By the time the petitionerwas remanded and admitted to the prison hospital, he was in a poorstate and but for the immediate treatment given to him at the GeneralHospital, Colombo, the petitioner may well have died. Even thoughhis life was saved, one of his lungs had to be removed. If the injuriesto the petitioner were inflicted by subordinate police officers withoutthe complicity of the 1st and 2nd respondents one would haveexpected these two respondents to have sent the petitioner formedical treatment. The failure to do so confirms the allegation thatthe petitioner was tortured on their orders or instigation. What isworse, they have stated to this Court that the petitioner did not wishto have his injuries treated, which is still more incredible. I, therefore,hold that the 1st and 2nd respondents were also personallyresponsible and are liable for the torture of the petitioner.
RELIEF TO THE PETITIONER
In considering the relief to be granted to the petitioner I considerit appropriate to reiterate the repeated condemnation of torturecontained in the pronouncements of this Court in Amal Sudath Silvav. Kodituwakku « ; Geekiyanage Premalal Silva v. Rodrigo w ;Jayaratne v. Tennakoon (4>; Gamalath v. Neville Silva <*> ; WimalVidyamani v. Lt. Col. Jayatilleke (6> ; Ratnasiri v. Devasurendra m ;and Weerakoon v. Weeraratne(8). The judgment in the last-mentionedcase, stated that it was the worst case of torture which came beforethis Court since the decision in Amal Sudath Silva's case ;but the instant case surpasses that case in that the injuriessustained by the petitioner are irreparable, particularly in viewof the fact that one of his lungs had to be surgically removed intreating his injuries. So it seems to me that despite so many decisions,torture at police stations continues unabated, in utter contempt offundamental rights guaranteed by the Constitution. In granting reliefthis Court must necessarily have regard to this development.I grant the petitioner
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a declaration that his rights under Article 11 of theConstitution have been infringed by executive or administrativeaction ;
compensation in a sum of Rupees seventy five thousand(Rs. 75,000) together with costs in a sum of Rupees fivethousand (Rs. 5,000) payable by the State ;
compensation in a sum of Rupees nine thousand (Rs. 9,000)payable by the 1st respondent and a sum of Rupeeseight thousand (Rs. 8,000) payable by the 2nd respondent;
compensation in a sum of Rupees six thousand (Rs. 6,000)payable by the 3rd respondent and a sum of Rupees fivethousand (Rs. 5,000) payable by the 5th respondent ;
compensation in a sum of Rupees two thousand (Rs. 2,000)payable by the 6th respondent and a sum of Rupees twothousand (Rs. 2,000) payable by the 7th respondent.
I direct the State and the said respondents to makepayment accordingly and further direct the 8th respondent (TheInspector-General of Police) to take steps for ensuring that thecompensation awarded herein is paid to the petitioner expeditiouslyand to take such other action as the 8th respondent may considerappropriate.
The application against the 4th respondent is dismissed, but withoutcosts.
The 8th respondent is also directed to make a report to this Courton or before 1st July, 1993 as to what steps have been taken byhim.
G. P. S. DE SILVA, C.J. – I agree.
RAMANATHAN, J. – I agree.
Relief granted.