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Case No. 61; Punchi Hewage Chandrapala Vs.1. Nimal Bandara, Officer in Charge, PoliceStation, Hanguranketa and others
IN THE SUPREME COURT OFTHE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.
In the matter of an application under Article 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka.
SC Application No. 105/94
Punchi Hewage Chandrapala Pujitha
Kumbalgamuwa, Walapane.
Petitioner
Vs.
1. Nimal Bandara, Officer in Charge, Police Station, Hanguranketa.
2. Police Constable 20125 Saman Priyankara
3. Police Constable 20139 Sampath Naulla
4. Police Constable R19284 Sirirul Moobin
5. Police Constable R15425 R.N. Fernando
All of Police Station, Hanguranketa.
6. Inspector General of Police, Police
Headquarters, Colombo 1
7. The Attorney General, Attorney General's Department, Colombo 12.
Respondents
BEFORE: Amerasinghe J, Perera J and Wijetunga J.
COUNSEL: L.W.A. de Vas Goonewardene for Petitioner
Dr. Jayatissa de Costa with E.A.Upatissa for 2nd to 5th Respondents
D. Weerasuriya SSC for 6th and 7th Respondents.
ARGUED ON: 28.07.94
DECIDED ON: 23.09.94
Wijetunga J.
The petitioner who is a bus driver attached to the Walapane Peoplised Transport Service complains of the violation of his fundamental rights guaranteed by Article 11 of the Constitution by the 2nd, 3rd,4th and 5th respondents who are police officers attached to the Hanguranketa police station. He states that on 17.12.93 at about 10.50am he drove bus No. 61-1134 from Colombo bound for Walalpane. At about 3.40 pm he saw a van with its headlights on, tooting the horn and following the bus. At this stage, the bus had proceeded about one mile beyond the Rikillagaskada Bazaar. He allowed the van to overtake the bus. The van having overtaken the bus stopped in front of it. Four police constables armed with guns alighted from the van and two of them entered the bus from the front entrance and the other two from the rear. The 2nd respondent demanded the ignitionkey of the bus from the petitioner. But as the bus was in his charge and his personal keys also in the key-tag, the petitioner refused to comply. Then while the petitioner was still seated in the driver\s seat, the 2nd respondentin the presence of the passengers, held him by the collar of his shirt stating that the petitioner was 'too much' and dealt a blow on his shoulder with the butt of his T-56 gun. He dealt the petitioner a second blow but it struck a passenger S.G. Karunasena who was close to the petitioner and Karunasena started bleeding from his head. The passengers began to shout that if there was any fault on the part of the driver, he should be dealt with according to law. Then the 2ndrespondent pointed the gun at the passengers and threatened to shoot them if they tried to interfere. Thereafter the petitioner was taken out of the bus, placed against it and assaulted by the four police officers (i.e. the 2nd, 3rd, 4th and 5th respondents) with their guns and also kicked with their boots on. The petitioner was also put on the ground and subjected to a further assault on his face and chest for about 4 or 5 minutes. Even at that stage the passengers in the bus, including two Buddhist monks appealed to the police officers not to assault the petitioner but they threatened to shoot them if they obstructed them in their 'duties'. The petitioner was then dragged towards the van and put inside it. The van was turned back and the petitioner was taken to the Hunguranketa police station. While the petitioner was lying in the van, he was subjected to further blows with the gun and also kicked by the police officers. After, the petitionerwas brought to the Hanguraketa police station; he was produced before the Officer in Charge, the 1st respondent alleging that the petitioner was after liquor. The 1st respondent having examined him was satisfied that the petitioner had not taken any liquor and blamed the police officers for what they had done. He had further said that what they had done was improper and that they would be transferred out. By this time some of the passengers who were in the petitioner's bus had also come to the police station looking for him. They had told the 1st respondent what actually took place. The 1st respondent had informed that he had settled the matter and that the petitioner would not face any problems and had obtained the signatures of one R.M. Piyaseeli and another, who were passengers as witness to the matter having been settled. The petitioner and the passengers who had come to the police station had then left for Walapane in another bus. Even at that stage, the bus driven by the petitioner was at the place of the incident. That night the petitioner had started vomiting and also developed chest pain. Early next morning the petitioner had gone to the Walapane police station and having reported the incident that took place the previous day, had obtained a police ticket and entered the Walapane government hospital. By then his face had swollen and became disfigured. Two of his teeth had also been injured. He was an inmate of Ward No. 6 of the Walapane hospital from 18.12.93 to 24.12.93 and was treated by the District Medical Officer. The injuries caused to his teeth were attended to by the Dental Surgeon. The petitioner's version of this incident is amply corroborated by the affidavits of four passengers of the bus. One of them is S.G. Karunasena, the passenger who suffered head injuries as a result of a blow directed at the petitioner by the 2nd respondent alighting on him. Consequently, Karunasena too had been treated at the Walapane hospital where he was admitted on a police ticketissued by the Walapane police. He states that the injury sustained by him on the head had to be sutured. He has produced the tickets issued to him and his daughter for the journey, in proof of the fact that he was a passenger of this bus at the time of the incident. P.R.M. Piyaseeli, W.M. Hinnimahatmaya and Ven. Ambanwelle Gnanaratna Thero who were passengers of the bus at the relevant time have also submitted affidavits, annexing thereto the tickets issued to them for the journey. They too corroborate the version of the petitioner on all material particulars.
The Medico-Legal report submitted by the District Medical Officer, Walapane shows that the petitioner on admission to the hospital had given a history of assault by four police officers the previous afternoon with guns and clubs. The Doctor has found five injuries caused by blunt weapons, which are consistent with such an assault. The report of the Dental Surgeon also indicates a similar history given by the petitioner and he too concludes that the injuries to the petitioner's teeth and to his upper and lower lips are consistent with the use of blunt force.
The 1st respondent who is the Officer in Charge of the police station, Hanguranketa to which the 2nd to 5th respondents are attached, has not filed an affidavit. The 2nd, 3rd,
4th, and 5th respondents state that they signaled the petitioner who was the driver of bus No. 61-1134 which was proceeding towards Nuwara-Eliya at about 3.40 pm at Rikillagaskada but the driver proceeded without paying heed to the signal. They therefore had to request the assistance of a private van to chase after the bus, which they overtook at Denipe and stopped, whereupon two of them boarded the bus from the front and the other two from behind. According to them, they did so having explained to the petitioner that what he did was wrong. Having thus boarded the bus, they requested the petitioner to vacate the driving seat, but he refused to do so. Then the 4th respondent caught the petitioner by the shoulders and took him out of the bus and they searched the bus. They claim that only 'reasonable force' was used in this regard and the petitioner was neither assaulted with any weapon nor was any injury caused to him or any other passenger was threatened by them that he would be shot, or that any Buddhist monk was threatened or ordered let them to do their duty. They further state that, there were no suspecting items (sic) in the bus, but since the driver (the petitioner) appeared to be under influence of liquor and as there would be allegations against them, they took him in the same private van in which they gave chase, to be produced before the 1st
respondent, the Officer in Charge of the police station. They deny that the 1strespondent found fault with them as stated by the petitioner, but the petitioner having been subjected to a breathalyzer test by the 1strespondent was released by him, having explained to him that he should obey orders given by the respondents. They deny having noticed any injury on the petitioner. The notes made by the 2nd to 5threspondents or the 1st respondent as Officer in Charge of the policestation, have not been produced, nor has there been and denial by the 1strespondent of the averments made by the petitioner and his witnesses in regardto this incident. On the other hand, the affidavits of the 2nd to 5th
respondents support the position of the petitioner as regards the incident, except that they claim that only 'reasonable force' was used on him. Admittedly, these respondents did overtake and stop the bus which the petitioner was driving and they took him out of the bus forcibly. They claim that they did so as he failed to obey asignal given by them at Rikillagaskada.
Even assuming that the petitioner did in fact fail to obey the respondents signal as alleged, the conduct of the 2nd to 5th respondents after stopping the bus is wholly unwarranted in the circumstances. They say that they searched the bus for suspicious items but found nothing. The averment that the driver appeared to be under influence of liquor is clearly not borne out by the results of the breathalyzer test which the petitioner had been subjected to by the 1st respondent soon thereafter, in consequence of which the respondents themselves admit that the petitioner was released by the 1st respondent. On the other hand, if the petitioner had at least been smelling of liquor, the 1st respondent would undoubtedly have made a note to that effect, even if the breathalyzer test proved negative, particularly as it was his own subordinate officers who had produced the petitioner on an allegation of having been under the influence of liquor. But, for reason best known to them, neither the 2nd to 5th respondents nor the 1st respondent has thought prudent to produce any of the information book extracts relating to this matter. The inference, therefore, is irresistible, that had such extracts been produced, they would manifestly be unfavorable to the 2nd to 5th respondents. The petitioner's witness including a Buddhist monk who were passengers in the bus at the time of the incident, had no reason whatsoever, in my view, to fabricate evidence against the respondents whom they did not even known previously.
The affidavit of Sinhasanage Karunasena who himself received head injuries when a second blow directed at the petitioner with the butt of a gun alighted on him, further substantiates the petitioner's version of the incident.
To say the least, this is a most highhanded act on the part of the 2nd to 5t respondents who have grossly soused their powers as police officers. The allegation that the petitioner appeared to be under the influence of liquor, is undoubtedly false and is a vain ex post facto attempt on their part to find an excuse to justify their conduct.
Though not directly relevant to the application before us, it must also be mentioned that these police officers have acted in total disregard of the plight of the passengers
of the bus, who numbered about a hundred according to the affidavit of Ven. Gnanaratana Theror.
The passengers were consequently stranded midway, the driver of the bus having been forcibly taken away by the four police officers concerned. The pleas of the passengers not to assault the petitioner only brought forth threats to about them too if they interfered and was followed by a torrent of abuse in the foulest terms.
Their conduct vis a vis the passengers of the bus too calls for the most severe condemnation. On the material before us, I do not have the slightest hesitation in rejecting the version of the 2nd to 5th respondents as being deliberately false. In fact, their futile attempt to exonerate themselves lends further credibility to the
petitioner's complaint, which as stated earlier is amply supported by other independent evidence.
I hold, therefore that the 2nd to 5th respondents by their acts aforesaid have
violated the petitioner's fundamental rights under Article 11 of the Constitution.
Accordingly I award the petitioner a sum of Rs. 25,000/- as compensation of which Rs 10,000/- is payable by the State. Having regard to the decisively more prominent role played by the 2nd respondent, I direct him to pay the petitioner Rs 4,500/- as compensation. The 3rd, 4th and 5th respondents will also pay compensation in Rs 3,500/- each to the petitioner I also award the petitioner a sum of Rs 5,000/- as costs payable by the State.
The Registrar is directed to forward a certified copy of this judgment together with certified copies of the petition, affidavits and other documents to the Inspector General of Police for appropriate action.
The Inspector General of Police is directed to report to this Court on or before 15th
December, 1994 as to what action he has taken.
JUDGE
OF THE SUOREME COURT
Amerasinghe J.
I agree
JUDGE OF THE SUPOREME COURT
Perera J.
I agree JUDGE OF THE SUPREME COURT