|Case Reference/File No|| 3 SriLR 331|
|Case Name||Nalika Kumudini Attorney-at-Law (on behalf of Malsha Kumari) v. Nihal Mahinda, OIC Hungama Police and other|
|Date of judgement||30th Oct 1996 and 28th Aug 1997|
|Judges||Fernando ACJ |
Ananda Coomaraswamy J
Nalika Kumuduni (on behalf of Malsha Kumari)
1. Nihal Mahinda, OIC Hungama Police
2. The Inspector General of Police
|Keywords||Fundamental rights – Articles 11, 13(1) and (2) of the Constitution – effective relief for violations of fundamental rights|
|Brief facts||Malsha Kumari, a minor girl of 16 years was arrested for an alleged theft of a gold chain, she was assaulted at the time of arrest and also while in custody at the Hunugama Police with a hose-pipe. Then she was taken to the house where the alleged theft took place, hung from a tree and was beaten and brought back to the police station and was released at night asking her mother to take the girl to an ayurvedic physician, not to a hospital. Later the 1st respondent and others tried to persuade them to withdraw legal proceedings regarding the matter. |
Overruling the preliminary objection, the Court held that the petitioner’s application was not time-barred and that she came to Court within one month of recovering from the disabilities caused by the conduct of the respondents. The unjustified detention without producing the girl before a Magistrate and torture, cruel, inhuman and degrading treatment to make the girl admit to the alleged theft was held to have violated her fundamental rights protected under Articles 11, 13(1) and (2) of the Constitution.
|Judicial Precedence||The arrest and detention without producing the suspect, before the Magistrate were unlawful and that she was also subjected to torture. The 1st respondent acquiesced in and condoned the said acts which infringed her rights under Articles 11, 13(1) and 13(2) of the Constitution. |
In all the circumstances, the petitioner came to court within a month of becoming free of the disability caused by the infringement of her rights. Hence her application id not time marred.
When has to be considered a minority of the petitioner, while it may be that minor is not entitled to wait until majority to institute proceedings, minority is at least relevant deciding whether the effect of force, duress, injury and the like has worn off.
|Legislation Title||The Constitution of the Democratic Socialist republic of Sri Lanka 1978|
|Area||Effective relief for violations of fundamental rights; Articles 11, 13(1) and (2) of the Constitution|