ADASURIYA AND OTHERS

Vs.

OFFICER-IN-CHARGE, SLAVE ISLAND POLICE STATION AND OTHERS

SUPREME COURT
ALUWIHARE, J.
JAYAWARDENA, J.
MALALGODA, J.
SC/FR/192/2014 AND SC/FR/193/2014
SEPTEMBER 3, 2018

Fundamental rights-Articles 11 and 13(1) of the Constitution-Code of Criminal Procedure Act, No. 15 of 1979, sections 23(1), 32(1)(f), 53 and 59-Penal Code, section 69-Reasonable ground for arrest-Giving reasons for arrest-Mistake of fact-Personal liberty-Burden of proof

The police attempted to arrest the petitioner in SC/FR/192/2014 whilst he was on a bus heading to Fort after having taken part in a protest campaign in front of the University Grants Commission. This was despite the name on the warrant being different to the petitioner's name as found in his national identity card. The bus was diverted to the police station where the petitioner was arrested on the ground that he was the person depicted in a photograph under the name of the person against whom

the warrant had been issued. The other students who are the petitioners in SC/FR/193/2014 were arrested for obstructing the first arrest. The petitioners claim that some of them were dragged and assaulted and that their requests for medical treatment were ignored by the police.

Held:

1. Although a person should not be deprived of their personal liberty in derogation of the procedure established by law in a manner so as to place that person at a disadvantage, it does not prevent the arrest of a person when there are reasonable grounds to believe that the person in question is a person sought to be arrested by law enforcement authorities, particularly so from the perspective of the arresting officer. Section 59 of the Code of Criminal Procedure Act, No. 15 of 1979, provides for arrest by a police officer where he is not in possession of the warrant for the time being. The instructions of a superior officer, photographic evidence and confirmation from a member of the Intelligence Bureau could be considered reasonable grounds to arrest the petitioner.

2. The necessity to give reasons under Article 13(1)of the Constitution serves as a restraint on the exercise of power and ensures that power will not be arbitrarily employed. It is in the best interests of the person whose liberty is being curtailed to know the reason for his arrest.

3. In a fundamental rights application, the burden of proof is on the petitioner to establish the violation to the satisfaction of court and such proof is by a preponderance of probabilities, as in a civil case, and not proof beyond reasonable doubt.

Cases referred to:

1. Joseph Perera v. Attorney General [1992] 1 Sri LR 199
2. Emperorv. Gopalia Kallayia AIR 1924 Bomb. 333
3. Lawrence v. Hedge 3 Taunt 14
4. Channa Pierisand others v. Attorney General and others (Ratawesi Peramuna Case) [1994] 1 Sri LR 1 at 62
5. Nanayakkara v. Henry Perera [1995] 2 Sri LR 375
6. Mariadas Raj v. Attorney General FR (Vol 2) 397
7. Vivienne Goonewardene v. Hector Perera [1983] Sri LR 1 V 305

APPLlCATION under Article 126 of the Constitution for violation of fundamental rights.

J.C. Weliamuna, P.C., with Pulasthi Hewamanna for the Petitioners.

Upul Kumarapperuma with Muzar Lye for the 1st Respondent.

Sanjeewa Dissanayake, S.S.C., for the Attorney General.

cur. adv. vult.

October 30, 2019

ALUWIHARE, J.

The Petitioner in SC FR Application 192/2014, an undergraduate of the Allied Health Sciences Faculty, University of Peradeniya following a course in Laboratory Sciences complained of the violation of his fundamental rights under Article 10, 11, 12(1), 13(1), 13(2), 13(5) and 14(1)(a) of the Constitution primarily by the 1st Respondent, Officer-in-Charge of the Slave Island Police Station. Twelve other undergraduates following the same course, the Petitioners in SC FR Application 193/2014, complained of the violation of their fundamental rights under the identical Articles of the Constitution re