S.C. Application FR No. 860/99 - Case of Pushpa Priyantha Dias

S.C. Application FR No. 860/99

In the Supreme Court of the Democratic Socialist Republic of Sri Lanka

Colombo 12.

In the matter of an application under Article 126 of the Constitution

Petitioner:
Pushpa Priyantha Dias, Abeysekera Jayawardene, No. 333/3, Habarakada, Homagama.

Vs.

Respondents:
1. Ekanayake, RPC No. 17766, Police Station, Polpithigama.
2. Jayatilleke Bandara, RPC No. 10550, Police Station, Polpithigama.
3. B. L. V. de S. Kodituwakku, Inspector General of Police, Police Headquarters, Colombo 1.
4. The Attorney General, Attorney General's Department, Colombo 12.

Before:
S. N. SILVA, C. J.
PERERA, J.
SHIRANI A. BANDARANAYAKE, J.

Counsel:
K. Tiranagama, For the petitioner
R. Abeysuriya, SC, For the 4 th. respondent
1 st. and 2 nd. respondents were present in person

Argued on: 23. 01. 2001
Decided on: 27. 03. 2001

SHIRANI A. BANDARANAYAKE, J.

At the time material to this application, the petitioner was a 42-year-old schoolteacher attached to the Kattamberiya Yaya Vidyalaya in Makulpotha. Around 4.30 p.m. on 02. 09. 1999, the petitioner, along with the Principal of the said school walked towards the Kattamberiya Junction to board a bus. While waiting for a bus, they saw two policemen, ( subsequently identified as the 1 st. and 2 nd. respondents ) on a motorcycle entering the premises of one Peter Mudalali. They also witnessed the policemen inquiring something from one Indra Kumari. Thereafter the policemen came towards the petitioner and inquired about some person to which the petitioner replied in the negative as he was not from the area. The 1 st. respondent queried as to where the petitioner is residing and the petitioner stated that he is a teacher attached to Kattamberiya Vidyalaya. At this point the police officer wanted to know as to why he does not know about the village, if he is a teacher of that school. He further queried from the petitioner as to whether he is a Singhalese. The petitioner answered in the affirmative and further stated that he is from Homagama. Thereafter the police officer wanted to know of the place of birth of the petitioner. When the petitioner informed them that he was born in Batticaloa the 1 st. respondent immediately responded by stating that the petitioner must be a 'tiger' and asked for his National Identity Card. Simultaneously, the I st. respondent pulled the petitioner by his shirt collar and searched for his National Identity Card in his shirt pocket. When the petitioner informed the 1 st. and 2 nd. respondents that his National Identity Card is in school, they assaulted him stating that he is a 'tiger' and ordered him to get on to the motorcycle to take him to the police station.

While the 1 st. and 2 nd. respondents were assaulting the petitioner, the principal tried to intervene and explain that the petitioner was a teacher attached to his school, which is from Homagama and to refrain from assaulting him, 1 st. and 2 nd. respondents were visibly angry about this intervention and had nearly assaulted the principal as well.

The petitioner refused to get on to the motorcycle as he had not committed any offence. The 1 st. and 2 nd. respondents again assaulted the petitioner and got him to sit on the motorcycle. Whenever the 1 st. and 2 nd. respondents made the petitioner sit on the motorcycle, he managed to get off and by this time a large number of villagers were gathered there. The petitioner became embarrassed of the situation and told the 1 st. and 2 nd. respondents that if a helmet is given to him, he would get on to the motorcycle. The 1 st. respondent rode the motorcycle and the petitioner sat between the 1 st. and 2 nd. respondents.

After the motorcycle proceeded a short distance, the I st. respondent hit the petitioner hard on his stomach with his right elbow, scolded him in filth and ordered him to remove the helmet. The petitioner removed the helmet and gave it to the 2 nd. respondent. While the motorcycle was moving, the 2 nd. respondent hit the petitioner hard on his mouth, both ears and the sides of the upper body.

After a while, the 1 st. respondent told the 2 nd. respondent to hold the petitioner hard, as there is a possibility that the petitioner might try to run away. The 1 st. respondent threatened him that he will not allow the petitioner to continue with his employment and that they will introduce a parcel of cannabis and send him to jail. The 1 st. respondent inquired from the petitioner whether he is a graduate. When the petitioner replied in the negative, the 1 st. respondent said that if he had been , they would have killed him on the spot. Whenever the petitioner tried to explain that he was innocent and had committed no offence, the 1 st. respondent informed him that he will use this opportunity to show the petitioner the capabilities of the police officers.

When they came to the deserted area near the Teak forest at Makulpotha, the 1 st. respondent stopped the motorcycle and ordered the petitioner to get off from the cycle. Even before the petitioner could do so, the respondents started assaulting him. The petitioner was pleading with them not to assault him, but they did not accede to his request. Blood was oozing out of the petitioner's nose and mouth due to the assault. At that time there was a cyclist on the road and the 1 st. and the 2 nd. respondents stopped assaulting the petitioner. Using that opportunity, the petitioner ran away from the scene. The 2 nd. respondent grabbed the cycle from the cyclist and came after the petitioner. The petitioner ran across the teak forest and reached the house of the Community Health Field Officer of Kosgaha Ela and informed him as to what had taken place. In the meantime the Principal of Kattamberiya Yaya School along with the Principal of Nikawahara Vidyalaya, who were in search of the petitioner, sent him to the Polpithigama District Hospital.

The petitioner submitted that the 1 st. and 2 nd. respondents had infringed his fundamental rights guaranteed under Articles 11 and 13 (1) of the Constitution.

This Court granted leave to proceed in respect of the alleged infringement of Articles 11 and 13 (1) of the Constitution.

Article 13 (1) of the Constitution states that,

No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest."

The 1 st. and 2 nd. respondents who were present in Court and appeared in person submitted that the petitioner was taken into custody on suspicion as there had been many robberies In the area. The 2 nd. respondent submitted that when the petitioner was asked to give details of himself he had not come out with the necessary information.

However, there were no supportive affidavits or documents to substantiate the version given by the 1 st. and 2 nd. respondents. Moreover, there was no evidence to show that the petitioner had either committed any breach of the peace in the presence of the 1 st. and 2 nd. respondents or was concerned in the commission of any cognizable offence. There was no evidence to indicate that there were reasonable complaints or a reasonable suspicion which existed against the petitioner.

The petitioner had along with his petition and affidavit tendered affidavits from the Principal of Kattamberiya Yaya Vidyalaya in Makulpotha, who was with him at the time of the arrest of the petitioner by the 1 st. and 2 nd. respondents ( P1 ) and by Community Health field officer of Kosgaha Ela ( P2 ). The petitioner had taken refuge at the latter's house after escaping from the 1 st. and 2 nd. respondents. Both these affidavits confirm the position taken up by the petitioner.

The 1 st. and 2 nd. respondents were unable to explain the need to check the identity of the petitioner or to know his place of birth.

In these circumstances, considering the two versions given by the petitioner and the 1 st. and 2 nd. respondents, I do not hesitate in accepting the allegation of the petitioner that he was arrested by the 1 st. and 2 nd. respondents without any basis whatsoever. I accordingly hold that the 1 st. and 2 nd. respondents had violated the petitioner's fundamental rights guaranteed under Article 13 ( 1 ) of the Constitution.

The petitioner was warded in the District Hospital, Polpithigama from 02 nd. to 06 th. September thereafter he was warded in the Teaching Hospital, Kurunegala, he was examined by the Acting Judicial Medical Officer, Kurunegala. On a direction given by this Court, the Medico - Legal Report was submitted by the Acting Judicial Medical Officer. In a diagram attached to the Medico - Legal report, dated 07. 09. 1999, it is revealed that the petitioner had 23 injuries all over the body. These injuries included 22 abrasions and 1 laceration. The abrasions were on the forehead, chest, upper and lower left arm and the right arm, upper left and right and legs and the lower abdomen. The sizes of the abrasions range from 0.5 cm x 0.25 cm to 5 cm x 0.5 cm. The single laceration which was 1 cm x 0.5 cm was on his penis. These injuries are consistent with the description given by the petitioner as to the inhuman and degrading treatment meted out to him by the 1 st. and 2 nd. respondents.

In addition to the injuries sustained by the petitioner, in the circumstances of this case, the suffering occasioned by him, in my view, was of an aggravated kind which no doubt humiliated the petitioner.

I accordingly declare that the petitioner's fundamental right guaranteed under Article 11 of the Constitution has been violated by the 1 st. and 2 nd. respondents.

It is clear that the 1 st. and 2 nd. respondents have under the color of office, pounced upon and unleashed their fury on a teacher who had been peacefully waiting near a bus halt with the Principal of his school. Their conduct displays a total lack of discipline and an alarming tendency towards sadism. If Police Officers, who are the guardians of the law unleash their fury in this manner on the very persons whom they are duty bound protect and safeguard, a dismal picture would emerge as to what passes for law and order. Further, the immediate reaction of the 1 st. and 2 nd. respondents that any person born in Batticaloa should be a 'tiger', is a sad reflection of their mental make up. Such attitudes engender hatred and not peace. I have thought it fit to note these comments so that persons responsible for recruitment and discipline of law enforcement officers would instill a higher degree of sensitivity and restraint in those who are clothed with awesome power of armed law enforcement personnel.

I direct the 1 st. and 2 nd. respondents to pay the petitioner a sum Rs. 5000/- each as compensation and costs ; the State will pay the petitioner Rs. 20,000/- as compensation and costs. In all the petitioner will be entitled to a sum of Rs. 30,000/- as compensation and costs. These amounts must be paid within three ( 3 ) months from today.

The Registrar of the Supreme Court is directed to send a copy of this judgment to the Inspector General of Police.

JUDGE OF THE SUPREME COURT

S. N. SILVA, C. J.
I agree.
CHIEF JUSTICE

PERERA, J.
I agree.
JUDGE OF THE SUPREME COURT