Case Reference/File No

SC FR 531/2012

Case Name

Lakshika Dilani Kulathunga Vs Sisira OIC, Kottawa et al

Court

(Supreme Court/ Court of Appeal/High Court/)

Supreme Court of Sri Lanka

Date of judgement

06.12.2021

Judges

Jayantha Jayasuriya, PC, CJ

Mahinda Samayawardhena, J

Arjuna Obeyesekere, J.

Parties

Petitioner

Lakshika Dilani Kulathunga

Respondents

1.       Sisira,

Officer in Charge Community Police Unit police station Kottawa.

2.       Upali

Sub Inspector of Police Acting Officer in Charge police station Kottawa.

3.       Mr. Saliya de Silva

Senior Superintendent of Police Nugegoda Office of the Senior Superintend of Police Mirihana.

4.       Senapathi

Assistant Superintendent of Police Homagama South Office of the Assistant Superintend of Police Homagama.

5.       Inspector General of Police

Sri Lanka Police Headquarters Colombo 12.

Keywords

Freedom from Torture and Right to Equality

Head note

Brief facts

According to the petitioner, on or around 09th August 2012, around 5.00 pm she received a telephone call on her mobile phone. The caller who identified himself as an officer attached to Kottawa police station had informed that the brother of the petitioner had been admitted to hospital after meeting with an accident. However, when the petitioner inquired about the condition of the brother, the caller proceeded to inquire in turn from the petitioner details such as places the brother frequently visits, the family background and his place of abode; without disclosing the condition of the person who was claimed to have been admitted to the hospital. Furthermore, the petitioner had been asked to come to Kottawa police station without proceeding to the hospital. At the same time, a relative of the petitioner had called and informed that she also received a telephone call from an officer attached to Kottawa police station asking for details of the petitioner’s brother having informed that he had been hospitalized due to an accident. Simultaneously, the brother of the petitioner also had contacted her and informed that he had not met with an accident.

Having received this information, the petitioner had asked the caller who identified himself as an officer attached to the Kottawa police station as to the reason why she was questioned on the details of the brother. At that time the caller had asked her to come over to police station before 6.00 pm to get information about the brother. Despite the petitioner informed her difficulties to come over to the police station that evening, the caller had insisted that she should come over to the police station by 6.00 pm and any failure to do so would cause difficulties to her brother as well as to her family. The petitioner thereafter through fear, proceeded to the police station despite having had to pick her child from a child care centre by 5.30 pm. Her husband had been engaged with some prior business related commitments. At the police station the 1st respondent had identified himself as the person who called the petitioner. When inquired, the 1st respondent had informed that a complaint of harassment had been made against the brother of the petitioner and demanded that he be produced forthwith. The petitioner’s request for time till the following day had been denied and had been threatened with detention at the police station until the brother is produced.

The 1st respondent had threatened SCFR No 531/2012 4 “මල්ලී ප ොලීසියට අරපෙන එනකල් අපි යන්න පෙන්පන් නැහැ. ෙන්නවපන් පේක ප ොලිසිය. මල්ලීව පෙනාපේ නැත්නේ ස්පසේ හුඟක් කරෙර පවන්න පවයි.” Furthermore, the petitioner claims that she was subjected to humiliation and harassment due to the abusive conduct of a group of people who were present at the police station in the presence of the 1st respondent. The 1st respondent had demanded that the petitioner join with the said group of persons to go in search of her brother, in the police jeep. The petitioner claims that the 2nd respondent was present at the police station when these incidents took place. While the aforesaid events were in progress, an attorney-at-law related to the petitioner arrived at the police station after being informed by the relative who informed the petitioner over the phone regarding the telephone call she received from the police station. When the said attorney-at-law inquired for the reason for the arrest and detention of the petitioner at the police station, respondents had claimed that the petitioner was at the police station on her own volition. When inquired whether there is any complaint against the petitioner, two respondents had said that there is no such complaint. Thereafter, the said attorney-at-law had taken the petitioner away from the Police station.

At that stage the 2nd respondent is alleged to have remarked “ප ොලිසියට ාර්ට් ොපෙන එන එවුන්පේ අඬු කඩලා ොන්න ඕනි. තවම කවුරුත් ෙන්පන් නැහැ ප ොලිසිපේ තරම”. An affidavit of the said Attorney-at-Law is marked P3 and produced along with the petition and affidavit of the petitioner.

I am further of the view that securing the presence of a person at a police station through deception or through fear of harm to use as a hostage for the securing the presence of a possible suspect, without using due process of law by adhering to the relevant provisions of law which enables the securing the presence of a suspect for an investigation, is not only arbitrary but unlawful too. Any administrative or executive action tainted with such conduct warrants deterrent sanctions

Judicial Precedence

The test which has been applied by our Courts is that whether the attack on the victim is physical or psychological, irrespective of the fact that, a violation of Article 11 would depend on the circumstances of each case.

“ill-treatment per se, whether physical or mental, is not enough; a very high degree of mal-treatment is required”.

Legislation Title

Area

Article 11, 12(1) and 13(1) of the Constitution.