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Case No:- 48 Mohamed Faiz Vs Jayasekara, HQI, Plonnaruwa Police and others
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.
In the matter of an application under Article 126 of the Constitution.
S.C. Application No. 1989/911
Mohamed Faiz
Department of Wildlife Conservation,
82, Rajamalwatta Road, Battaramulla.
Petitioner.
vs.
1.Attorney General, Attorney General’s Department, Colombo.
2. A.C. Jayasekara, HQI, Plonnaruwa Police. Station. Polonnaruwa.
3. Police Constable 18000, Police Station,Polonnaruwa.
4. Reserve Police Constable 16640, Police Station,Polonnaruwa.
5. H.G.P. Nelson, 24A, Summit Flats, Keppitipola Mawatha, Colombo 5
6. C.S. Sooriyaratchi, MP. Parliament Building,Sri Jayawardena Pura.
7.Keerthiratne, Provincial Councillor, NorthCentral Provincial Council, Anuradhapura.
Respondents.
BEFORE:FERNANDO J., GOONEWARDENA J. AND PERERA J.
COUNSEL: R.K.W. Goonasekera with Lalanath de Silva and J. Gunawardena for the petitioner.
Upawansa Yapa PC Additional Solicitor General for the 1-4 respondents.
L.C. Seneviratne PC with Ronald Perera for the 5 and 6 respondents.
ARGUED ON: 23.08.93, 24.08.93 and 06.09.93.
DECIDED ON: 19.11.93.
Application for violation of Fundamental Rights under Article 11, 12, 13(1) and (2) of the Constitution.
Fundamental Rights -- Refusal to release persons arrested for illicit felling of timber – Executive and Administrative action – Instigation or participation of persons not agents of the executive or administration – Illegal arrest and unlawful detention – Cruel and degrading treatment – Deprivation of equal protection of the law – Failure to record complaint – Section 109 (1) to (5) of Criminal Procedure Code – Article 11, 12, 13(1) and (2) of the Constitution.
On 26 April 1991 about 9.30 a.m. the petitioner along with 4 game guards had arrested several persons who had been detected illicitly felling timber in the Minneriya – Gritale Native Reserve and taken into custody, a hand tractor and some carts loaded with logged timber and was bringing them along when the 6th respondent C.S. Sooriyaratchi a Member of Parliament for the Polonnaruwa District came travelling in a jeep and intercepted the petitioner at a place called Deke Ela and wanted the men released. The petitioner said he was only doing his duty and suggested that the 6th respondent speak to the Assistant Director. The 6th respondent left the place in a huff. In the jeep the petitioner identified the 7th respondent Keerthiratne who was Provincial Councilor of the North Central Provincial Council and several others. The petitioner proceeded a little further and when he was approaching the water tank at Deke Ela he saw the same jeep halted at a distance and several persons standing on the road. When the hand tractor which was at the vanguard of the procession reached this spot the persons standing near the 6th respondent’s jeep, surrounded the tractor and stopped. The petitioner had his official knife issued to him by his Department tucked in his belt and an iron rod for his protection. The 6th respondent grabbed the iron rod and hit the petitioner with it several times. The petitioner suffered incised injuries in the region of his left eyebrow and on the left shoulder. The 7th respondent also attacked him joined by the other persons in the crowd. The 6th respondent then ordered the suspects whom petitioner had arrested to take the hand tractor and carts and escape. Some of the suspects were being brought by the petitioner in his jeep and they escaped. The game guard who had been entrusted with the hand tractor brought the tractor with its load of timber to the office of the Assistant Director. In the mean time the petitioner too reached the office of the Assistant Director who however was not in the office. The petitioner instructed a game guard to keep the tractor with its timber load at the office of the Assistant Director and to inform the Assistant Director of the incident when he returned. The petitioner proceeded to the Polonnaruwa Police Station with the rest of his staff. Still bleeding from his injuries he arrived at the Police Station and saw the 6th and 7th respondents and several others already there. The petitioner wanted his statement recorded but the Police Officer on duty
said this would be done after the 6th respondent’s statement was recorded. About 6.30 p.m. the 3rd respondent (Police Constable 18000) directed the petitioner to sit inside the charge room and not to leave. At this point of time the 3rd respondent arrested him giving no reason or the charge. Thereafter the 5th respondent H.G.P. Nelson also an MP for Polonnaruwa District and a State Minister came to the Police Station and along with the 6th and 7th respondents entered the charge room where the petitioner was seated. The 5th respondent using the iron rod which the 6th respondent had taken from the petitioner, assaulted the petitioner with it while the 6th and 7th respondents and the 6th respondent’s brother assaulted the petitioner using their hands and feet. The petitioner began to bleed afresh from the injuries on the left eyebrow and shoulder. The 3rd and 4th respondents (Reserve Police Constable 16640) were present and did not intervene.
Thereafter the 5th, 6th and 7th respondents with the brother of the 6th respondent entered the office room of the 2nd respondent A.C. Jayasekera HQI Polonnaruwa. Within a few minutes the 5th and 6th respondents came back to the charge room and directed the 4th respondent to remove the belt and knife of the petitioner and the 4th respondent complied. The 4th respondent produced the petitioner before the 2nd respondent. Several others were present in the room. The 5th respondent asked the petitioner whether he was drunk. The petitioner said he did not consume liquor as he was a Muslim. The 5th, 6th and 7th respondents and their companions left the Police Station. The petitioner wanted his complaint recorded but was told it would be recorded later. About 8.30 p.m. the petitioner was taken to the medical officer at Welikanda Hospital. He was examined by the Doctor and brought back to the Polonnaruwa Police Station about 10.30 p.m. The Doctor noted the injuries and did not find him smelling of liquor. The petitioner requested the 2nd respondent to record his statement. The 2nd respondent replied he was leaving station and would record the statement on his return. The petitioner spent the night of the 26th April at the Police Station. On the next day 27th April his statement was recorded with reference to 6th respondent’s complaint but it was backdated to 26th April. On the evening of 27.04.91 the petitioner was produced by Polonnaruwa Police before the Acting Magistrate with an application for remand for two weeks but the Magistrate remanded him till 3rd May, 1991. He spent the night of 27th April, 1991 in the Polonnaruwa lockup. Up to this he received no treatment for his injuries. On 29th April, 1991on an application by the Assistant Director of Wild Life the petitioner was bailed out to appear in Polonnaruwa Courts on 03 May 1991. After he was released, he made a detailed complaint on 30.04.1991. at the Police Head Quarters relating to the incident of the assault on him.
On 17th May 1991, he filed plaints against the suspects he had taken into custody on 26.04.1991 under the provisions of the Fauna and Flora Ordinance and all the accused pleaded guilty to the charges in the Magistrate’s Court of Polonnaruwa.
The 6th respondent complained that when he asked the petitioner to release the men as they had only collected firewood, the petitioner had attempted to strike him with the iron rod and later tried to stab him when the crowd wrenched iron rod. A melee ensued. The petitioner was drunk and fell in the melee and the injuries were attributed to the fall.
The Court however accepted the petitioner’s version.
HELD:-
Goonewardene J. Dissenting on the question of detention under Article 13(2) of
the Constitution. (1)Section 109 of the Criminal Procedure Code makes it mandatory for a police officer to record any information relating to the commission of an offence in the information book. Subsection 4 of this section requires a police officer who receives such information. If he is not the office in charge of the Police Station to forthwith report such facts to the officer in charge of the station. Further in terms of section 109(5) if from the information received the officer in charge of the police station has reason to believe the commission of a cognizable offence he is required forthwith to send a report to the Magistrate’s Court having jurisdiction and to proceed in person or to delegate one of his subordinate officers to proceeded to the spot to investigate the facts and circumstances of the case and to take such measures as would be necessary for the discovery and arrest of the offenders.
The second respondent admits that he arrived at the police station by 6.15 p.m. that is within a few minutes of the arrival of the 6th respondent and the petitioner at the police station that day. If the second respondent had on his arrival complied with the imperative provisions of the Criminal Procedure Code set out above it would have been very clear to him that the arrest and detention of the petitioner was absolutely unwarranted.
(2)The arrest and the subsequent detention of the petitioner from 26.04.91 to 27.04.91 by the 2nd and 3rd respondents were unwarranted in law and are violative of Article 13(1) and 13(2) of the Constitution by executive or administrative action.
(3)Having regard to all the pleadings filed in this case the 3rd and 4th respondents by their strange and inexplicable inaction permitted the 5th, 6th and 7th respondents to subject the petitioner who was at that stage in the custody of the police to cruel and degrading treatment and thereby infringed the Fundamental Rights of the petitioner guaranteed by Article 11 of the Constitution by executive or administrative action.
(4)There is substance in the complaint of the petitioner that on the day in question he was deprived of the equal protection of the law by executive or administrative action. No meaningful action whatsoever was taken against the 5th, 6th and 7th respondents who had committed such a serious offence inside the police station itself up to date. The petitioner has established beyond doubt that his Fundamental Right guaranteed by Article 12(1) of the Constitution has been infringed by the 2nd and 3rd respondents by executive or administrative action.
(5)It is true that a denial of equal protection has hitherto been largely confined to affirmative acts of discrimination. The denial of equal protection has now been recognized by the United State Supreme Court as well. It is clear that Article 126(4) gives this Court very wide powers in this regard. The responsibility under Article 126 would extent to any respondent who has no executive status but is proved to be guilty of impropriety, connivance or any such similar conduct with the executive in wrongful acts violative of fundamental rights.
(6)In the present case the 5th, 6th and 7th respondents were guilty of impropriety or connivance with the executive in wrongful acts or omissions violative of the petitioner’s fundamental rights under Article 11, 12(1) and 13(2) of the Constitution.
(7)Petitioner’s fundamental rights under Article 11 have been violated by the 5th –7th respondents. Although not per se executive or administrative action that violation was made possible by executive or administrative action by the 3rd and 4th respondents. Therefore the violation was by ‘executive or administrative action’ within the meaning of Article 126 and the 3rd to 7th respondents are reasonable.
(8)Petitioner’s fundamental rights under Article 13(1) and (2) have been violated by the 3rd respondent by executive or administrative action. The 3rd respondent also violated the petitioner’s fundamental rights under Article 12(1) by denying him equal treatment, vis-à-vis the 5th to 7th respondents and their associates who were neither arrested nor detained.
(9)The 2nd respondent failed to release the petitioner and thereby deliberately acquiesced in and condoned the arrest and detention of the petitioner in violation of Article 12(1), 13(1) and 13(2), he is also responsible for the violation.
(10) The violation was induced or instigated by the 5th to 7th respondents who aretherefore also responsible for the violation.
Per Fernando J.
1.‘It is not possible to treat the assault as being a transaction entirely distinct and separate from the arrest and detention. It was inextricable linked to the previous and subsequent events. There is no doubt that immediately after the assault the 2nd to 4th respondents acted in a manner plainly partial to the 5th to 7th respondents and inexcusably hostile to the petitioner’.
2.‘The acts of the 5th to 7th respondents considered in isolation cannot considered to be ‘executive or administrative action’ the question is whether the nexus between those acts, and the acts and omissions of the 2nd to 4th respondents was sufficient to alter what would otherwise have been purely private action into ‘executive or administrative action’. That phrase does not seek to draw a distinction between the acts of ‘high’ officials (as being ‘executive’) and other officials (as being ‘administrative’). ‘Executive’ is appropriate in a Constitution and sufficient to include the (official) acts of all public officers, high and low and to exclude acts which are plainly legislative or judicial (and of course purely private acts not done under colour of office). The need for including ‘administrative’ is because there are residual acts which do not fit neatly into this three-fold classification’.
3.‘Article 126 speaks of an infringement by executive or administrative action. It does not impose a further requirement that such action must be by an executive officer. It follows that the act of a private individual would render him liable. If in the circumstances that act is ‘executive or administrative’. The
act of a private individual would be executive if such act is done with the authority of the executive, such authority transforms an otherwise purely private act into executive or administrative action, authority may be express or implied from prior or concurrent acts manifesting approval, instigation, connivance, acquiescence, participation and the like (including inaction in circumstances where there is a duty to act) and from subsequent acts which manifest ratification or adoption. While I use concepts and terminology of the law relating to agency and vicarious liability in delict, in my view responsibility under Article 126 would extend to all situations in which the nexus between the individual and the executive makes it equitable to attribute such responsibility. The executive and the executive officers from whom such authority flows would all be responsible for the infringement. Conversely, when an infringement by an executive officer by executive or administrative action, is directly and effectively the consequence of the act of a private individual (whether by reason of instigation, connivance, participation or otherwise) such individual is also responsible for the executive or administrative action and the infringement caused thereby. In any event this court would have power under Article 126(4) to make orders and directions against such an individual in order to afford relief to the victim’.
Per Perera J.
In the present case I am satisfied that the 5th, 6th and 7th respondents were guilty of impropriety or connivance with the executive in the wrongful acts or omissions violative of the petitioner’s Fundamental Rights under Articles 11, 12(1) and 13(2) of the Constitution.
In the circumstances, I hold that:-
1.Petitioner’s fundamental right under Article 11 has been violated by the 5th – 7th respondents. Although not per se executive or administrative action, that violation was made possible by executive or administrative action by the 3rd and 4th respondents. Therefore the violation was by ‘executive or administrative action within the meaning of Article 126 and the 3rd – 7th respondents are responsible.
2.Petitioner’s fundamental right under Article 13(1) and (2) have been violated by the 3rd respondent by ’executive or administrative’ action. The 3rd respondent also violated the petitioner’s fundamental rights under Article 12(1) by denying him equal treatment vis-à-vis the 5th to 7th respondents and their associates who were neither arrested nor detained.
The 2nd respondent failed to release the petitioner and thereby deliberately acquiesced in and condoned the arrest and detention of the petitioner in violation of Article 12(1), 13(1) and 13(2) he is also responsible for the violation.
The violation was induced or instigated by the 5th to 7th respondents who are therefore also responsible for the violation.
In considering the relief to be granted in this case one has necessarily to be mindful of the fact that the petitioner’s predicament on this day was entirely attributable to his endeavour to perform his official functions without fear or favour. This Court would be failing in its duty if public servants are not given every possible encouragement to perform their functions in an impartial manner without any inhibitions. We also take into account the fact that the violations did not occur under conditions of war, insurrection or emergency.
I would accordingly grant the petitioner the following reliefs:
1.In respect of the violation of the petitioner’s rights under Articles 11, 12(1), 13(1) and 13(2):
(a) the State is ordered to pay compensation in a sum of Rs. 10,000/- and costs in a sum of Rs. 5,000/-
(b) the 5th -7th respondents are each ordered to pay compensation in a sum of Rs. 10,000/-
2.In respect of the violation of the petitioner’s right under Article 11, the 3rd and 4th respondents are each ordered to pay compensation in a sum of Rs. 2,000/-
3.In respect of violation of the petitioner’s right under Article 12(1), 13(1) and 13(2) the 2nd respondent is ordered to pay compensation in a sum of Rs. 4,000/- and the 3rd respondent is ordered to pay compensation in a sum of Rs. 2,000/-.
The petitioner will thus receive a sum of Rs. 50,000/- as compensation and Rs. 5,000/- as costs.
Fernando J.
I entirely agree with the findings and order of my brother Perera J. whose judgment I have had the advantage of reading.In view of the importance of the questions of law involved I wish to set down my reasons in some detail.
I trust that the IGP will give appropriate instructions to officers in charge of police stations as to the care and courtesy which public officers and private persons having legitimate business in police stations are entitled to receive, even without a specific direction from this court.
Goonawardana J.
There is no material in the present application upon which to hold that the petitioner had been detained in police custody beyond the period allowed by law prior to his being produced before the Magistrate. I would therefore hold that there has been no violation of Article 13(2) of the Constitution.
While so holding in regard to Article 13(2) I would go along with the conclusion reached by Perera J. as to the violation of the other Articles referred to by him. As respects the relief granted to the petitioner, I would concur with Perera J. and order he has ordered despite there being no violation of Article 13(2).
Relief granted
Compensation Ordered.