S. G. P. DILSHAN TILEKERATNE & OTHER VS SERGEANT DOUGLAS & OTHERS

• Jurisdiction: Sri Lanka
• Court: Supreme Court (Sri Lanka)
• Citation: 2016SCLR578C2011Y
• Case Number: 2016SCLR578C2011Y
• Date: 14 January 2016
• Type of Document: Unreported judgment

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S. G. P. Dilshan Tilekeratne & other

vs

SERGEANT DOUGLAS & others

SC/FR No. 578/2011

In the matter of an application under and in terms of Articles 17 & 126 of the Constitution of the Republic of Sri Lanka

1. S. G. P. Dilshan Tilekeratne (minor)
Appearing through his next friend

2. H. M. Y. Kumarihamy (mother)

The Petitioners of No. 31,
Urulewaththa, Yatawatta Matale.

PETITIONERS
Vs.

1. Sergeant Douglas Ellepola

2. Police Inspector Bandara

3. Hettiarachchi

4. R. Nishshanka, Officer-in-Charge

The 1st to 4th Respondents of
Police Station, Yatawatta.

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5. Inspector General of Police,
Police Headquarters,
Colombo 1.

6. Hon. The Attorney General
Attorney General's Department,
Hultsdorp, Colombo 12.

RESPONDENTS

BEFORE: S. E. Wanasundera P.C.
Upaly Abeyratne J.
Anil Gooneratne J.

COUNSEL: Pulasthi Hewamanne for Petitioners

On behalf of Legal Aid Commission Sandamal Rajapakshe for 1st to 4th Respondents
I. Punchihewa S.C. for the Attorney General

ARGUED ON: 13.10.2015

DECIDED ON: 14.01.2016

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GOONERATNE J.

The 1st Petitioner was a minor 15 years of age and the 2nd Petitioner was his mother at the time of filing this Fundamental Rights Application. 1st Petitioner by his application complains of illegal arrest, detention and torture by the 1st to 4th Respondents all being Constables/Inspectors of Police station, Yatawatta. It is pleaded that on or about 25.06.2011 the 1st Petitioner was playing near his house and two other children Sahan and Chathura from the neighbor-hood had brought several items to the house of the Petitioner which includes a calculator, broken CDMA phone, torch, coconuts and toys which was stored inside the house. On the next date the said Sahan had come to the 1st Petitioner's house and given him three shopping bags. Petitioners state later on he became aware that these bags were hidden in the vicinity.

On or about 30.06.2011, it is stated by the Petitioner that a police party of six from the Yatawatta Police came to the Petitioner's house and had taken the 1st Petitioner to the police Station for investigations, in spite of the 2nd Petitioner's protest not to take him to the police. It is pleaded that the 1st Petitioner was threatened and assaulted at the police by the 1st & 2nd Respondents and

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thereafter handcuffed to a chair (3.30 p.m). At about 8.00 p.m 1st Petitioner was detained inside the police cell and at that time the 2nd Petitioner, visited the police station. It is stated that 1st Petitioner was not provided with meals or water whilst in police custody. The facts pertaining to assault and torture of the 1st Petitioner and police investigations and subsequent torture of the 1st Petitioner is more fully described in paragraphs 7 to 20 of the Petitioner's petition. On 01.07.2011 police party had taken the 1st Petitioner to recover the stolen items accompanied by the 1st to 3rd Respondents. Several items inclusive of the CDMA phone, sim card, calculator etc. had been recovered. In the process police party seems to have continuously threatened the 1st Petitioner and warned him that he would be killed if incident of assault were divulged. It is pleaded that the police party had also taken the 1st Petitioner to his school as the police wanted to gather more information of theft and house breaking involving other students and the 1st Petitioner. In support of the 1st Petitioner's case Medico Legal Report P2, and Medical Report P4 are also produced, along with the Petition, of the Petitioners.

In the petition filed before this court the 1st Petitioner demonstrates that the police party had been threatening, humiliating and assaulting him in order to get more information of the alleged theft. It is also stated that the 1st Petitioner was abused in derogatory contumelious language whilst in police custody.

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Emphasis is made in paragraph 15 of the petition relating to certain events that took place after being brought to the police station on 01.07.2011 at 11.00 a.m as follows:

(a) The 1st Petitioner was taken to the 4th Respondent OIC's room, and the several items 'recovered' by the police were then produced;

(b) The Petitioners state (on 01.07.2011), that the said Respondent O.I.C ., and the 1st and 2nd Respondents were present. Further, the owner of a grocery store, in the vicinity of the Petitioners' home was also present. The Petitioners are now aware, that Sahan had sold several plucked coconuts to the said owner;

(c) The 2nd Respondent then dragged the 1st Petitioner near the wall whilst kicking the said Petitioner several times on the back of his thighs continuously berating the said Petitioner for stealing. The 1st Petitioner states that the said assault caused a numbing sensation in his leg;

(d) Thereafter (on 01.07.2011), the 1st Petitioner's height, weight etc. were measured, and the said Petitioner was instructed to remove his shirt;

(e) On complying, the said Petitioner's body was checked for "identifying marks" at which point the 4th Respondent OIC, walked over to the said Petitioner and assaulted him several times on his back/shoulder area berating the said Petitioner for being involved in theft.

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(f) The Officers present were laughing and ridiculing the 1st Petitioner during these events, causing the said Petitioner to feel a deep sense of shame/humiliation;

(g) Thereafter (on 01.07.2011), for the first time since being taken into custody, the 1st Petitioner was given a meal.

On 16.01.2012, Supreme Court granted leave to proceed for alleged violation of Article 11 of the Constitution. The material placed before this court indicates that the 1st Petitioner was on 01.07.2011 produced before the Matale Magistrate. Petitioner had been charged before the Magistrate's Court for committing theft in a dwelling house and for retention of stolen property. The 1st Petitioner was granted bail on the said day by the learned Magistrate. Attorney-at- Law who represented the 1st Petitioner had on 26.07.2011 informed the Magistrate of the 1st Petitioner being assaulted by the police whilst in police custody. In paragraph 18 of the petition it is pleaded that Magistrate called upon the J.M.O to submit a report.

The Medico Legal Report (P2) indicates that the 1st Petitioner shows features of Post Traumatic Stress Disorder. In the said paragraph it is also pleaded that the learned Magistrate directed the Legal Aid Commission to take steps to file a Fundamental Rights Application (P3). The short history given by the patient demonstrates that the Respondents were responsible of ill treating the 1st Petitioner both physically and mentally, inclusive of causing harm to the genital region of the patient.

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The Respondent vehemently deny all allegations of assault, harm and torture alleged to be caused to the 1st Petitioner, and also...