S.C. (FR) Application No. 148/99 - Case of Nayana Kumudini Lasanthi Vidanage

S.C. Application FR No. 148/99

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:
Nayana Kumudini Lasanthi Vidanage, " Sandya ", Magaltota, Koggala, Habaraduwa.

Vs.

Respondents
1. Udaya Seneviratne, Inspector of Police, Police Station, Meetiyagoda.
2. Inspector General of Police, Police Head Quarters,
3. Attorney General, Attorney General's Department, Colombo 12.

Before:
SILVA, C. J.
BANDARANAYAKE, J.
EDUSSURIYA, J.

Counsel:
R. ABEYNAIKE, For the Petitioner
M. Gopallawa, S. C., For the Respondents

Argued on: 11. 07. 2001.
Decided on: 26. 09. 2001

EDUSSURIYA, J.

The petitioner who was at the relevant date employed as an Assistant Manager of an industrial concern known as Uniplast ( pvt. ) Ltd., complains that when she was on duty on 8 th. January 1999 at about 4.00 p.m. a Police Inspector, a Police constable and a Woman Police Constable came in a blue colored vehicle bearing the marking Meetiyagoda Police and went into General Manager's Office, and that a short while later the General Manager had sent for and told her " this is the Officer- in -Charge of the Meetiyagoda Police, Seneviratne, " and he has come to take you to record a statement and to go with him, at which stage the Petitioner had asked whether the statement could not be recorded then and there to which the 1 st. Respondent had replied " we record statements where we want, now you come with us " and when the Petitioner had said that she cannot go to the Police Station without a reason the 1 st. Respondent had said " you talk too much, if you can't come I will drag you by the ear and put you in the jeep and take you ". The Petitioner had then said that she cannot go to the Police Station alone and if necessary would go with a member of her family or if not with a co-worker, and the 1 st. Respondent had abused her in vile language in the presence of other co-workers and ordered her to get into the jeep.

The Petitioner complains that on the way to the Police Station the 1 st. Respondent scolded her in vile language and had proceeded to the house of one Udugampola and while she was in the jeep with the Woman Police Cons-table, she had heard the 1 st. Respondent who had got down from the jeep and gone into the house speaking in a raised voice and after a while came out and had told Udugampola's mother that if she does not produce her son she would be taken away. Further, that before the jeep left, one Kumara Gunawardene had come out of the house. Thereafter they started off and stopped the jeep near the house of one Hilda Chandrani and the 1 st. Respondent had asked " where is your man Thilak " and Hilda Chandrani had replied that Thilak was not her husband but was her sister's husband and that he had gone to work. Thereafter, after the jeep the jeep had been driven onto the Galle Road the 1 st. Respondent had asked the Petitioner whether she had a handbag and when she replied that the handbag was at the factory they had gone back to the factory and the 1 st. Respondent had told the Police Constable to bring the handbag, and the telephone operator Malini had brought the handbag. Thereafter the Petitioner had been taken to the Meetiyagoda Police Station and manacled to a hook on a door on the instructions of the 1 st. Respondent. The Petitioner states that she had been seated on a bench till about 12.00 midnight when the 1 st. Respondent got the key from the Police Constable, removed the manacles, taken her to his office and scolded her in degrading language and started questioning her regarding the robbery of the factory employees' pay. The Petitioner had also stated that the 1 st. Respondent had dealt her a few blows on her cheek and when she cried out she was taken back and once again handcuffed to a hook on the door. According to the Petitioner, her brothers who had come to see her on the night of 8 th. January and 9 th. and 10 th. had not been allowed to speak to her but later, on Attorney - at - law Gunawardene who had been retained by her brothers making inquiries from the Police, she had been produced before the Bala-pitiya Magistrate at her residence at about 3.30 p.m. on 10 th. January and although bail had been endorsed, bail could not be furnished as it was holiday and she was remanded till the following day when the bail had been furnished.

The Petitioner thus claims that the 1 st. Respondent has thereby infringed the fundamental rights guaranteed to her under Articles 11, 12(1), 13(1) and 13(2).

The Petitioner has filed several affidavits from co-workers to substantiate her story that she was taken into custody on 8 th. January 1999 and also affidavits to corroborate her story that after she was taken into custody the 1 st. Respondent went to Udugampola's house in search of him. The Petitioner has also filed a photocopy of a page of a register maintained by the security officer at the entrance to the factory premises of Uniplast (Pvt.) Ltd., in which said register the entry and exit of persons were entered.

The 1 st. Respondent has in his in his affidavit denied the allegation that he took the Petitioner into custody on 8 th. January and also denied the allegation that he thereafter went in search of Udugampola on the same day and denied as well the allegation that the 1 st. Respondent had along with the Petitioner gone back to the factory premises of Uniplast (Pvt.) Ltd., to fetch the Petitioner's handbag. The 1 st. Respondent has also denied that the Petitioner was assaulted, abused in vile language and kept manacled to a hook on a door at the Police Station and produced before the Magistrate on 10 th. January more than twenty four hours after the Petitioner was taken into custody.

The 1 st. Respondent has in fact categorically stated in his affidavit that he went in search of Udugampola on 10 th. January 1999.

Although there is no entry in the G.C.I.B. of his having gone in search of Udugampola on 09 th. January 1999, there is an entry by the 1 st. Respondent in the G.C.I.B. to the effect that he had gone in search of Udugampola on 8 th. January but that he was not at his house. It is also very significant that according to that entry the 1st. Respondent had been accompanied by a Police Constable and a Woman Police Officer and according to the affidavit of the petitioner, on 8 th. January when she was taken into custody the 1 st. Respondent was accompanied by a Police Constable and a Woman Police Officer and admittedly by the 1 st. Respondent ( paragraph 5 ( c ) of the affidavit ) he was accompanied by a Police Constable and a Woman Police Officer at the time he arrested the Petitioner on January 9 th., but according to the entry 1R4 which was purportedly made after the arrest and on arrival at the Police Station on 9 th. January the 1 st. Respondent was accompanied by a Police Constable, a Woman Police Officer and a Sub-Inspector named Sujeewa at the time of the arrest. It must also be mentioned that, the entry of the 8 th. January referred to above was not a complete one regarding what had occurred allegedly on 8 th. January since the 1 st. Respondent had stated therein that he would enter his notes later. However there is no such entry or notes made thereafter. This confirms that much more happened on 8 th. January and that he was not making a complete entry at that stage. It is also significant that the 1 st. Respondent was not quite certain in his mind as to what time he was going to enter in the G.C.I.B. on 9 th. January as he had first written 10.00 hours and then altered it to 18.00 hours by adding a zero on top of the zero in "10". This is clearly evident to the naked eye. The 1 st. Respondent had even altered the time relating to the earlier entry. He had written the numeral "1" and then altered the numeral "1" to read "0" so as to make it read as "08.00" hours.

Thereafter according to the G.C.I.B. the 1 st. Respondent had on 9 th. January at 22.10 hours made an entry to the effect that having set out of the Police Station as per entry made in the M.O.I.B. which entry has not been placed before this Court, that he had taken the Petitioner into custody. All this removes any doubt which may have arisen in my mind in respect of the alterations in the numbers of the entries in document "Z1" and also by the failure to produce the original thereof. It appears that the security officer at the en-trance to Uniplast (Pvt.) Ltd., had mistaken "741" to "74" and proceeded thereafter to number the entries from 75 onwards and later realizing the error had corrected it.

Although in view of what I have stated hereinbefore there is no doubt that the Petitioner was taken into custody on 8 th. January as alleged by the Petitioner, this document further confirms that fact by the entries therein relating to the arrival Police Party at Uniplast (Pvt.) Ltd., on 8 th. January and leaving with the Petitioner, then coming back again and leaving again. There is also a very significant entry therein to the effect that the Petitioner's brothers had come to Uniplast (Pvt.) Ltd., at 5.36 p.m. to inquire about the Petitioner. Undoubtedly several similar errors are found in the said Register. But more glaring are the entries in the G.C.I.B. relating to the arrest of some of the suspects pay-role robbery of Uniplast (Pvt.) Ltd.

The first respondent had filed along with his affidavit the statements of Tirimedura Nihal Silva (1R2) and the statement of Sampath Karunaratne (1R3) wherein they have confessed to committing the robbery and 1R2 and 1R3 have been made on 20 th. December 1998. However according to the Register of Arrests they have been taken into custody on 30 th. December 1998. This is so, also, according to the notes of the 1 st. Respondent relating to their arrests, which said notes have been pasted on 2 nd. January 1999. On the G.C.I.B. at pages 03, 04 and 05 as well as the notes allegedly made on 30 th. December 1998 from page 379 onwards in the previous G.C.I.B.

However on examining the G.C.I.B. maintained from 08/ 10/ 1998 to 01/01/99 I found that the dates on pages 375, 376, 381, 388 have been altered. Even the day has been entered incorrectly since 30 th. December 1998 was a Wednesday and not a Tuesday. Since these are trained Police Officers can it be said that these alterations were necessitated by genuine mistakes made in entering the dates in the G.C.I.B.? Besides, the 1 st. Respondent has examined the entries in the G.C.I.B. and initialed them as being correct whereas, as stated above even the day is entered incorrectly.

For the above-mentioned reasons I do not think that it is necessary to dwell any further on the case of the Petitioner. I am therefore convinced beyond any manner of doubt leave alone on a balance of probabilities that the Petitioner was arrested by the 1 st. Respondent on 8 th. January 1999. The affidavit of the Matron who is alleged to have looked after the Petitioner after her arrest relates to 9 th. January and is therefore of no consequence. Further, according to that affidavit the Petitioner was seated throughout the night of 9 th. January on a bench and had not been handcuffed or manacled. However according to the Register relating to arrests the Petitioner had been "locked up" at 22.10 hours.

In the face of this material and the pack of false-hoods relating to the arrest of the Petitioner, the alterations in the G.C.I.B. and the false entries therein and the false entries in the Register relating to arrests, the fact that the Petitioner did not tell Attorney-at-Law Gunawardene or the Magistrate that she had been slapped several times and abused in vile language pales into insignificance, since the rest of the Petitioner's story has been established beyond doubt. The 1 st. Respondent has therefore not only infringed the Petitioner's fundamental rights guaranteed by Articles 13(1) and 13(2) but has also had the audacity to file in this Court a false affidavit, in an attempt to mislead this Court, which is even more grave an offence than the violation of the fundamental rights of the Petitioner.

I must not fail to mention that although according to the affidavit of the 1 st. Respondent, it is apparent that the Petitioner was arrested because of an alleged friend-ship with one R.L. Udugampola to whom the Petitioner was alleged to have conveyed the particulars regarding the time at which the vehicle carrying the salaries of employees of Uniplast (Pvt.) Ltd., was leaving Colombo etc., the 1 st. Respondent himself has stated in his affidavit that the said R.L. Udugampola had been released by the Balapitiya Magistrate after the said Udugampola had surrendered before the Magistrate, Balapitiya, as it was found that he was not wanted by the Police in relation to the robbery. This shows how the 1 st. Respondent had on wrong assumptions drawn hastily, arrested the Petitioner on 8 th. January 1999.

There was therefore no reason for the 1 st. Respondent to throw his weight around as far as the Petitioner, a woman, was concerned. It is high time that 1 st. Respondent realized that Police investigations should be done intelligently and not with fisticuffs. It has often been repeated that Police investigations are for men with brains rather than brawn.
This Court therefore orders the 1 st. Respondent personally to pay the Petitioner compensation and costs In a sum of Rs. 20,000/-. This sum should be paid before 31 st. December 2001. It is needless to say that if not so paid other consequences will follow.

It must also be mentioned that it is highly disturbing to know that the people of this country are at the mercy of such errant police officers who disregard the law with impunity.

JUDGE OF THE SUPREME COURT

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

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