LAKMALI

Vs.

OFFICER-IN-CHARGE, CRIME BRANCH, EMBILIPITIYA POLICE STATION AND OTHERS

SUPREME COURT
DEHIDENIYA, J.
FERNANDO, J.
THURAIRAJA, J.
SC/FR/577/2010
SEPTEMBER 30, AUGUST 28, 2019

Fundamental rights-Articles 11 and 13(4) of the Constitution-Right to life as a fundamental right-Death under police custody-Police department standing orders

The deceased was arrested by a team of police officers led by the 1st respondent, the OIC of the crime branch of the Embilipitiya police station, and he died when he was kept in the police station under a detention order. The explanation given by the respondents was that when the deceased, alleged to be a hardcore criminal, was taken out of the police station at night on the fateful day to recover a weapon hidden in the deceased's garden, the deceased struggled with the 3rd respondent police officer to snatch his rifle and, in the melee, the gun went off accidentally.

Held:

1. Section 8(b) of the Police Department Standing Order A20 (Rules with regard to persons in the custody of the police) requires police officers to provide sufficient security where there is a possibility that the suspect might escape or become hostile. Section 8(1) stipulates that a person in police custody should not be sent out for further inquiry from the station except for very good reason and then only with an escort sufficient to ensure his safe custody. If the deceased was a hardcore criminal, there was no explanation why he was taken out at night without handcuffs with only three officers, in a van which did not have even a door.

2. Although the right to life is not expressly recognised as a fundamental right, that right is impliedly recognised as such inter alia in Article 11 read with Article 13(4) of the Constitution. Article 11 provides that no person shall be subjected to torture or

cruel, inhuman or degrading treatment or punishment, and Article 13(4) provides that no person shall be punished with death or imprisonment except by order of a competent court. The fact that the right to life is recognised in our Constitution is reinforced by international conventions ratified by Sri Lanka.

Cases referred to:

1. Jeganathan v. Attorney General [1982] 1 Sri LR 294
2. Wotff v. McDonnell 418 US 539, 555-6 (1974)
3. Sriyani Silva v. lddamalgoda, OIC, Police Station Paiyagala and others (2003] 2 Sri LR 6 at 76 - 77

APPLICATION under Article 126 of the Constitution for infringement of fundamental rights.

Saliya Pieris, P.C., with Lisitha Sachindra for the Petitioner.

Dharmasiri Karunaratne for the 1st and 2nd Respondents.

Ranjan Nayakaaratne with Kumar Gunatilake for the 3rd and 4th Respondents.

Chrisanga Fernando, S.C., for the 5th, 6th, 7th, 8th and 10th Respondents.

cur. adv. vult.

December 17, 2019

THURAIRAJA, J.

This fundamental rights application was filed by the wife of the deceased, Rathnayake Tharanga Lakmali, on behalf of her husband Ranamukage Ajith Prasanna who died on the 18th of September 2010 in the custody of the police. The Petitioner pleads that one or more or all of the Respondents and the State have infringed the fundamental rights of her husband guaranteed to him under Article 11 and 13(1) of the Constitution.

When this matter was supported on the 25th of October 2010, this Court, upon an application made by the Petitioner, ordered that the body of the deceased be exhumed and be sent to the Judicial Medical Officer (JMO) of the Karapitiya Teaching Hospital to conduct a fresh Post Mortem Examination. On the 5th of May 2011, Court granted leave to proceed for alleged violation of fundamental rights guaranteed under Articles 11 and 13(1) of the Constitution. On the same day, the learned counsel for

the Petitioner moved to amend the caption excluding the 9th Respondent from the case. Of consent, the 9th Respondent was discharged from the proceedings. On the 22nd of September 2011, the Attorney General informed t