BANDULASAMARASEKERA
VS.
VIJITHA ALWIS, O.I.C., GINIGATHHENA

POLICE STATION AND OTHERS
SUPREME COURT
DR. SHIRANI BANDARANAYAKE,J.
EKANAYAKE,J.AND
IMAM,J.
S.C. (FR.) APPLICATION NO. 107/2007
JANUARY 30TH,2009

Fundamental Rights-Article 11 - Freedom from torture or cruel, inhuman or discriminatory treatment or punishment -Article 13(1) Failure to communicate reason for arrest to arrestee - Article 13(2) -Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the Judge of the nearest competent Court.- Criminal Procedure Code - Section 32(1)b - An arrest could be made not on vague reasons, but only on a reasonable suspicion that the person in question has been concerned in a cognizable offence - Section 37 - Person arrested not to be detained more than 24 hours.

The petitioner had filed this application in the Supreme Court alleging that his fundamental rights guaranteed in terms of Articles 11, 12(1), 13(1) and 13(2) of the Constitution were violated by the 1st and / or 2nd Respondents.

The Supreme Court granted leave to proceed for the alleged infringement of Articles 11,13(1) and 13(2) of the Constitution.

Held:

(1) Section 32(1)b of the Code of Criminal Procedure Act, had clearly stipulated that an arrest could be made not on vague reasons, but only on a reasonable suspicion that the person in question has been involved in any cognizable offence.

(2) An arrest take place when a person is either taken into custody or placed under restraint.

Per Dr. Shirani Bandaranayake, J.

"Although Section 37 of the Criminal Procedure Code refels to a period of 24 hours as the period a person taken withoutla warrant could be kept in custody without, producing him before the Magistrate, this does not mean that a person could be kept for a maximum period of time under arrest without taking necessary steps to produce him before the learned Magistrate.What Section 37 of the Code of Criminal Procedure Act had contemplated is that, a person who has been taken into custody without a warrant should be produced before the learned Magistrate as early as possible and without any unnecessary delay. The time taken should be considered on the circumstances of each case.

(3) Where there is a complaint against a police officer alleging that the complainant had been assaulted, it cannot be rejected merely because the police deny such allegation. Whether any such allegation is in violation of Article 11 of the Constitution would depend on the facts and circumstances of the case.

Per Dr. Shirani Bandaranayake, J.

"However, in order to establish alleged allegation of torture it would be necessary for an aggrieved party to corroborate his averments against the respondents and for such corroboration it would be necessary .to produce evidence including medical evidence.

" It is the duty of a police officer to use his best endeavour and ability to prevent all crimes, offences and public nuisances and  more importantly to preserve the peace. In order to carry out his duties. efficiently and effectively, it would be necessary to have the trust and respect of the public. It is not easy to command that from the public and in order to earn such trust and respect, the police officers must possess a higher standard of moral and ethical values than is expected from an average person.

(4) The Petitioner's fundamental rights guaranteed in terms of Article 11,13(1) and 13(2) of the Constitution had been violated and the 1st Respondent is responsible for the said violation of Article 11 and 13(1) of the Constitution.

Cases referred to:-

(1) Kushan Indika V. Ranjan Wijesekera, D.LC. Police Station, Pitigala,

(2) S.C. (Application) No.129/2007- S.C. Minutes of 31.8.2009.

(2) Pelawattage (Attorney-at-law) for Piyasena V. D.Le. Wadduwa and Others- s.c. (Application) 433/93 - S.C. Minutes of31.8.1994.

(3) Gamlath Vs. Neville Silva and Others 1991 2 Sri L.R. 267

(4) Mu