Case Reference/File No	[1987] 2 SriLR 119
Case Name	Amal Sudath Silva v. Kodituwakku, Inspector of Police and others
Court	Supreme Court
Date of judgement	5th May, 1987
Judges	Sharvananda CJ Atukorale J L.H. De Silva J
Parties	Petitioner Amal Sudath Silva Vs Respondents 1st respondent – Kodituwakku, Inspector of Police 2nd to 4th respondents – police officers, Police Station, Panadura 5th respondent – Inspector General of Police
Keywords	Fundamental rights guaranteed under Article 11 of the Constitution – the liability of the police to pay compensation
Head note
Brief facts	On 9.10.1986 the petitioner was arrested by the police as a suspect of a theft of side mirrors of several motor vehicles. Thereafter he was taken to the Panadura police station and was detained there for five days during which he was severely assaulted by the respondents and was tortured by being hung to a beam at the police station and his penis was crushed as result of being put into a drawer and closed causing unbearable pain and suffering. Within this time, he was not produced before a Magistrate. He asked for water; was given water mixed with chili powder which he was forced to drink. The petitioner in this application seeks relief for alleged infringements of Article 11, 12 and 13 of the Constitution. The counsel for the petitioner however limited his case at the hearing to the alleged violation of Article 11 only, given that there were sufficient materials before court to establish that the petitioner was subjected to torture and/or to cruel, inhuman or degrading treatment. The four respondents denied the allegations and submitted that the police had to use a certain amount of force that was reasonably necessary under the circumstances when the petitioner was being arrested. The Court pointed out the facts that the petitioner was taken to the Panadura Hospital to be presented before the DMO and since the DMO was unavailable, he was taken to the MO, Bandaragama who reported that the petitioner has sustained no external injuries. Then he was remanded after being produced before the Magistrate. The following day, the Attorney-at-law of the petitioner motived the court requesting a report of a government doctor on the injuries of the petitioner. Thereafter the Magistrate ordered medical reports and the petitioner to be produced before Court which the respondents neglected until 29.10.1986 when the Court itself paid much attention to the way that the petitioner walked up when the case was called. Based on the medical evidence presented, the court held that the petitioner’s injuries have been caused within the time he was in police custody. Therefore, the State is liable to compensate the petitioner as the actions of the respondents constitute executive or administrative action. The Court held that the report of the MO Bandaragama cannot be accepted and observed his lack of responsibility and dereliction of duty.
Judicial Precedence	The court was of the view that it would be preposterous for any medical officer before whom a person in police custody is produced for medical examination, to expect him that he would reveal his injuries caused by police assault with the presence of the police officers themselves especially when such person is presented to the medical officer by the police themselves and not on court order. The court held that Article 11 of the Constitution is an absolute fundamental right subject to no restrictions and limits whatsoever. The court also condemned the third degree methods used by the police officers as barbaric, savage and inhuman which will only breed contempt for the law. The article 11 of our Constitution mandates that no person shall be subjected to torture, or cruel, inhuman or degrading treatment or punishment. It prohibits every person from inflicting torture some, cruel or inhuman treatment on another. It is an absolute fundamental right subjected to no restrictions or limitations whatsoever. Every person of this Country, be he a criminal or not, is entitled to this right to the fullest content of its guarantee Constitutional safeguards are generally directed against the State and its organs. The police force being an organ of the State is enjoyed by the Constitution to secure and advance this right and not to deny, abridge or restrict the same in any manner and under any circumstances. Just as much as this right is enjoyed by every member of the police force, so is he prohibited from denying the same to others, irrespective of their standing, their beliefs or antecedents. It is therefore the duty of this Court to protect and defend this right jealously to its fullest measure with a view to ensuring that this right which is declared and intended to be fundamental is always kept fundamental and that the executive by its action does not reduce it to a mere illusion. This Court cannot, in the discharge of its Constitutional duty, countenance any attempt by any police officer. However high or low, to conceal or distort the truth induced, perhaps, by a false sense of police solidarity by certain police officers on suspects held in police custody can only be described as barbaric, savage and inhuman. They are most revolting to one’s sense of human decency and dignity, particularly at the present time when every endeavour is being made to promote and protect human rights. Nothing shocks the conscience of a man so much as the cowardly act of a delinquent police officer who subjects a helpless suspect in his charge to depraved and barbarous methods of treatment within the confines of the very premises in which he is held in custody. Such action on the part of the police will only breed contempt for the law and will tend to make the public lose confidence in the ability of the police to maintain law and order. The petitioner may be a hard-core criminal whose tribe deserves no sympathy. But if constitutional guarantees are to have any meaning or value in our democractic set-up, it is essential that he be not denied the protection guaranteed by our Constitution.
Legislation Title	The Constitution of the Democratic Socialist Republic of Sri Lanka 1978
Area	Article 11 of the Constitution