IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application under and in terms of Article 126 read with Article 17 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Herath Mudiyanselage Podi Kumarihami, No. 237, Pooja Nagaraya, Mahiyanganaya.

Petitioner SC (FR) Application No. 184/2018 Vs.

1. Officer-in-Charge, Mahiyanganaya Police Station, Mahiyanganaya. 2. Senadheera, Police Officer, Mahiyanganaya Police Station, Mahiyanganaya. 3. Wimalasena, Police Officer, Mahiyanganaya Police Station, Mahiyanganaya.

4. Senior Superintendent of Police, Office of the Senior Superintendent of Police, Badulla.

5. Pujith Jayasundara, Inspector General of Police, Police Headquarters, Colombo 01.

6. Hon. Attorney General, Attorney General’s Department, Hulfsdrop, Colombo 12.

Respondents Before: Justice L.T.B. Dehideniya Justice A.L. Shiran Gooneratne Justice Janak De Silva Counsel: Ms. Ermiza Tegal with Ms. Thiagi Piyadasa for the Petitioner.

Ravindranath Dabare with Ms. Savanthi Ponnamperuma and Arundathi Divisekara for the 1^st to 3^rd Respondents.

Dr. Avanti Perera, SSC for the 4^th and 6^th Respondents.

Argued on: 23/03/2021 Decided on: 10/11/2021 A.L. Shiran Gooneratne J.

The Petitioner, a street vendor aged 52, by Application dated 07/06/2018, invoked the jurisdiction of this Court, inter alia, seeking a declaration that the actions and/ or inactions and/ or conduct of the 1^st to 4^th Respondents and/ or the State resulted in the infringement of the Petitioner’s fundamental rights guaranteed under Article 11 and 12 (1) of the Constitution. The Petitioner was granted leave to proceed as prayed for in the Petition.

Provisions of Article 11 of the Constitution entrenches that “No person shall be subject to torture or to cruel inhuman or degrading treatment or punishment”.

The Petitioner contends that, when she intervened and resisted the arrest of her daughter Chamila Malkanthi, by the 1^st to 3^rd Respondents, the 1^st Respondent slapped, trampled and kicked her chest several times followed by a kick to her abdomen and another kick to her left elbow. The severity and unbearable pain caused by the assault, made her urinate in her clothes. When the Petitioner knelt and pleaded with the 1^st Respondent to spare her daughter from arrest, she was kicked in the back by the 2^nd Respondent. The 3^rd Respondent had grabbed her hair and pushed her causing her head to hit against the wall and threatened that she will be shot.

The Petitioner has attached 3 witness affidavits marked ‘P4’ to ‘P6’ in support of her contention. In paragraphs 8 and 13, of the affidavits marked, ‘P5’ and ‘P6’ respectively, Sandya Kumari, a neighbor and the estranged husband of the Petitioner, describes the incident that took place on 17/08/2017, as an inhuman assault on the Petitioner. However, in the affidavit marked ‘P4’, the daughter of the Petitioner Chamila Malkanthi, on whose behalf the Petitioner intervened and resisted arrest, does not speak to an assault at the time of her arrest by the Officer in Charge of the Mahiyangana Police and two other officers. The affidavits filed by the estranged husband and the neighbor of the Petitioner gives a verbatim account of the events which took place as narrated by the Petitioner, which led to the arrest of Chamila Malkanthi.

According to Paragraph 12 of the Petitioner’s affidavit, on 17^th August 2017 night, having taken instructions from a lawyer in Kandy, the Petitioner admitted herself to the Kandy Teaching Hospital. The Petitioner contends that she was discharged from the hospital on or about 19/08/2017. However, there is no independent evidence before Court to confirm the date of discharge of the Petitioner. The Petitioners diagnosis card is marked ‘P1’ and the Medico Legal Report (MLR) is also filed of record.

The Petitioner in support of her claim to the violation of Article 11 and 12(1) of the Constitution, has tendered affidavits marked ‘P4’, ‘P5’ and ‘P6’, the diagnosis card marked