| Case Reference/File No | [1984] 2 SriLR 153 |
| Case Name | Kapugeekiyana v. Hettiarachchi and two others |
| Court | Supreme Court |
| Date of judgement | 2nd, 3rd, 6th, 7th and 8th Aug 1984 |
| Judges | Samarakoon J Wimalaratne J Colin-Thome J |
| Parties | Petitioner Kapugeekiyana Vs Respondents 1st and 2nd respondents – police officers |
| Keywords | Articles 11, 12(1), 13(1), 13(2), 13(3) and 14 (1)(g) of the Constitution – illegal arrest and detention – right to be defended by a lawyer |
| Head note | |
| Brief facts | The petitioner, a suspect of a murder of one Shyama Dedigama, states that his house was searched on 13.6.1984 and that he was later taken into custody. According to the petitioner, both the arrest and the search was done without warrant. The petitioner’s version was that he was kept on the 4th floor of the CID until 17.6.1984 and was subjected to harassment, assault, torture, duress, humiliation and barbaric treatment and was left to starve from 14.6.1986. His family members were denied access to see him and on 19.6.1986 when the case was called the petitioner met his Attorney-at-Law and gave him a note of instructions which the 1st respondent demanded to be shown to him. The Attorney-at-Law refused to do so wherefore the petitioner alleges that he was subjected to “an attempt to deny the petitioner the unfettered right to be freely defended by an Attorney-at-Law”. The Court held that the petitioner had not established a violation of Article 13(1) and held that Article 11 and 14 (1) (g) of the Constitution also were not violated. However, the Court held that his fundamental Rights under Article 13(2) have been violated. |
| Judicial Precedence | The Court was of the opinion that the statutory rights in relation to the “procedure established by law” under Article 36 and 37 have been made constitutional rights thus cannot be cut down by judicial constructions unless there are compelling reasons. The court held that Article 14 suggests a legal capacity to exercise the rights guaranteed under the such provision so far as a person has his freedom. The court accepted the contention of the learned counsel for the petitioner and held that “even a suspect on the blackest criminal charges is entitled to his fundamental rights and that communications between clients and Attorneys are privileged wherefore the 1st respondent demanding the note of instructions is violative of the petitioner’s right to have a fair trial. |
| Legislation Title | The Constitution of the Democratic Socialist Republic of Sri Lanka 1978 |
| Area | Articles 11, 12(1), 13(1), 13(2), 13(3) and 14 (1)(g) of the Constitution; Sections 32(1)(b), 36, 37, 115(4) of the Code of Criminal Procedure Act, No.15 of 1979; Section 41(1) of the Judicature Act, no. 02 of 1978 |