| Case Reference/File No | S.C (FR) Application 136/2014 |
| Case Name | Sarath Kumara Naidos Vs. Inspector Damith, Police Station, Moratuwa and others |
| Court | Supreme Court |
| Date of judgement | 19.01.2017 |
| Judges | K. Sripavan C.J. Priyantha Jayawardena P.C., J. & Anil Gooneratne J. |
| Parties | PETITIONER Sarath Kumara Naidos 312/51, Moragodawatte Kesbewa, Piliyandala Presently at Remand Prison, Welikada. Vs. RESPONDENTS 1. Inspector Damith Police Station Moratuwa. 2. Police Constable Kavinda Police Station Moratuwa. 3. Officer In Charge Police Station Moratuwa. 4. Superintendent of Police Moratuwa Division Office of the Superintendent of Police, Moratuwa. 5. The Inspector General of Police Police Headquarters Colombo 1. 6. Hon. Attorney General Attorney General’s Department Colombo 12. |
| Keywords | Torture, prisoner, basic constitutional safe guards |
| Head note | |
| Brief facts | The Petitioner was a ‘Mason’ and a married person with young children. He was charged and convicted of possession of ‘ganja’ 3 to 4 years ago to which charge he pleaded guilty. On 5th July 2008 the Petitioner was working at a site at Samagi Mawatha, Koralawella, 1st and 2nd Respondents arrived in a three-wheeler with two other police officers and took him to the police station. According to the petitioner, he was not given any reason to arrest and he was assaulted when asking for reason. The Petitioner was taken to the Crimes Division of the Moratuwa police and he was detained in the custody from 5th to 13th July 2008 and assaulted by the 1st, 2nd Respondents and some other police officers. He was questioned about a house breaking incident. Petitioner denied such a house break-in incident. Petitioner informed his wife, sister and brother-in-law about the assault when they visited him. 1st Respondent also threatened the Petitioner and informed him that a bomb would be introduced in order to keep the Petitioner in prison for a longer period. Petitioner was unable to bear he being assaulted, and informed the police he could return a gold chain. Petitioner told his wife who visited him to hand over a gold chain which belongs to his son, in order to obtain his release. On 7th and 12th two separate Attorneys-at-Law visited him at the police station. On 8th or 9th July 2008 the Superintendent of Police of the area visited the Moratuwa Police Station. The Petitioner was hidden inside the police mess. Petitioner verily believes that Superintendent’s visit was as a result of a complaint lodged at the Superintendent’s office, by his sister. On 10.07.2008 he was produced to the house owner whose house was, alleged to be broken-in. Petitioner denied any involvement. On 13.07.2008 Petitioner was examined by District Medical Officer, Moratuwa Hospital. Medico Legal Report does not indicate any injuries. On the same day Petitioner was produced before the Magistrate, Moratuwa on two charges. One was on theft and the other for possession of heroin. The Petitioner never complained of any assault to the Magistrate when he was produced in court on 13.07.2008. Hence, the allegations of assault and torture are denied by the Respondents. They stated that the Petitioner was charged for theft and possession of 30 mg. of heroin and convicted by the Magistrate’s Court of Maligakanda and Colombo respectively. Moratuwa Police Station received a complaint of house breaking and death threat on 11.06.2008. The 1st Respondent arrested the Petitioner accordingly by explaining the reason for arrest. At the time of arrest the Petitioner had with him a quantity of heroin, a gold chain and a pawning receipt. It is the position of the 1st Respondent that having handed over the Petitioner to the Reserved Officer of Moratuwa Police station he is unaware as to what happened thereafter. It is further pleaded that the Reserved Officer, Gamini has testified by an affidavit that there was no assault, torture or any harassment caused to the Petitioner. The Judgments delivered by the Magistrate fortify the position of the Petitioner. Medico Legal Report and the prisons hospital treatment sheets described injuries consistent with the physical acts of assault or torture complained by the Petitioner. Trial Judge disbelieved the evidence produced by the witness No. 1 and Occupier of the house as they were unable to answer several questions in trial. Trial Judge holds that the 1st Respondent has given false evidence before the Magistrate’s Court. Magistrate concluded that having considered the evidence of the Medical Officer who gave evidence for the Petitioner from the prison hospital, it is well established that injuries were caused to the Petitioner and he was treated for same as an indoor patient at the prison hospital. Evidence led before the Magistrate, reveal that the Petitioner was not produced before court within the time frame permitted by law. The Police made every effort to hide the truth. The court held that even a criminal and a prisoner would be entitled to basic constitutional safe guards provided by the Constitution. The material placed before this court by the Petitioner, establish without any doubt that the police subjected the Petitioner to torture and cruel, inhuman degrading treatment. The Court concluded that the 1st Respondent was responsible for such inhuman acts, but he alone cannot be held responsible as there were other police officers who assisted and took part to cause injuries to the Petitioner. Hence, both 1st and 2nd Respondents have infringed the Petitioner’s fundamental rights guaranteed under Articles 11 and 13(2) of the Constitution. |
| Judicial Precedence | Even a criminal and a prisoner would be entitled to basic Constitutional safe guards provided by the Constitution. A prisoner may be an outcast of society but he remains entitled to all his civil rights in so far as they are not taken away by legislation |
| Legislation Title | Constitution of Sri Lanka |
| Area | Fundamental Rights, Torture |