RAJAPAKSHA VS RATHNAYAKE & TEN OTHERS

RAJAPAKSHA
VS
RATHNAYAKE & TEN OTHERS

SUPREME COURT,
EVA WANASUNDERA, PC, J.
ALUWIHARE, PC, J.
SISIRA DE ABREW J.
SC FR 689/2012.
DECEMBER 08, 2015.

Fundamental Rights -Article 126 of the Constitution-Article 11,12,13(1) and 13(2) - Arrested - false case - physical and mental trauma - Producing a suspect on fabricated charges before a Magistrate - Is it cruel, inhuman and degrading treatment? Equal protection of the law -Evidence Ordinance Section 134 - Principles laid down.

The petitioner sought a declaration to the effect that his fundamental rights guaranteed under Article 11 have been violated by the 1st -6th Respondents, violations under Article 13(1) and 13(2) against 1st Respondent and Article 12 against 7th to 9th Respondents.

HELD:

[1] If a person is arrested and kept in the Police remand cell without any reasons and later a false case is fabricated against him, his personal liberty is restricted and such a person undergoes physical and mental trauma. In such a situation it can be concluded that he was subjected to torture, cruel, inhuman and degrading treatment and punishment.

[2] When a person is arrested without reasons by a Police officer acting in the discharge of his official duties or under the colour of his office and later produced him as a suspect before the Magistrate, such a person undergoes psychological trauma. In such a situation it can be

concluded that such a person was subjected to cruel, inhuman and degrading treatment and he has not received equal protection of law and the Police officer who committed the act has violated the fundamental rights of the victim guaranteed by Article 11 and 12 (1). -

[3] Torture in Article 11 covers both physical and psychological torture.

PER SISIRA DE ABREW, J.

"I am mindful of the principle laid down in Section 134 of the Evidence Ordinance. Courts should not fall into the trap of convicting an innocent person by strictly following the principles laid down in Section 134."

per Sisira de Abrew J.

Where the story of the Police is false, one Police officer may sometimes contradict the other Police officer. The Trial Judges must be extremely careful when they are called upon to act only on one Police officer's evidence when the Police claim that a team of Police officers conducted a raid and found contraband in the possession of the suspect. Because there can always be an introduction as happened in this case.

APPLICATION under Article 126 of the Constitution

1. Amal Sudath Silva Vs. Kodituwakku, Inspector of Police Officers 1987 2 Sri.LR, 118.
2. Mrs. W.M. K. De Silva Vs. Chairman, Ceylon Fertilizer Corporation 1989 2 Sri L. R. 303.
3. Adikary Vs. Amarasinghe 2003 - Sri L R. 270.

Nishantha Sirimanna for the Petitioner.
Saliya Peiris with Yohan Peiris for the 2nd Respondent.
Induni Punchihewa SC for the 8th and the 9th Respondents.

Cur.adv.vult.

March 28, 2016

SISIRA J. DE ABREW J.

The petitioner by this petition, inter-alia, seeks a declaration to the effect that his fundamental rights guaranteed under Article 11,12,13(1) and 13(2) of the Constitution have been violated by the 1st to 5th and/or 6th and/or 8th Respondents. This court, by its order dated 12.2.2013, granted leave to proceed for alleged violations of Article 11 of the Constitution against 1st to 6th Respondents; for alleged violations of Article 13(1) and 13(2) of the Constitution against the 1st Respondent and for alleged violations of Article 12(1) of the Constitution against the Respondents. The order made by the court states as follows:

This Court grants leave to proceed for alleged violation of Article 11 of the Constitution against 1st to 6th Respondents. The court also grants leave to proceed for alleged violations of Article 13(1) and 13(2) of the Constitution against the 1st Respondent. The court also grants leave to proceed against the other Respondents under Article 12(1) of the Const

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