Land Mark Case 01;- Mohamed Rameez of No. 219/3, Vidyalaya Road, Hanwella. Vs. 1. Ranasinghe, Prison Guard and others.

 

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

SC Application No. 483/93.

Sulaiman Thowfeek Mohamed Rameez of

No. 219/3, Vidyalaya Road, Hanwella.

Petitioner.

Vs.

 

1. Ranasinghe, Prison Guard attached to Prison Cell  Avissawella Court, Avissawella. C/o. The Commissioner of Prisons, Prison Headquarters, Colombo 9.

2.Dinesh, Prison Guard attached to Prison Cell, Avissawella Court, Avissawella.C/o. The Commissioner of Prisons, Prison Headquarters, Colombo 9.

3.The Commissioner of Prisons, Prison Headquarters, Colombo 9.

4.The Hon. Attorney General, Attorney General’s Department, Colombo 12.

Respondents.

BEFORE:G.P.S. de Silva C.J.,Kulatunga J. and Ramanathan J.

COUNSEL:K. Tiranagama for petitioner

Anil Silva for 1^st & 2^ndrespondents.

Palitha Fernando S.S.C. for 3^rd& 4^th respondents.

ARGUED ON:03.05.94

DECIDED ON:30.05.94.

Kulatunga J.

The petitioner alleges that on 24.11.93 the 1^st and the 2^ndrespondents (Prison Guards) assaulted him with a stick and hands whilst he was in the cell at the Avissawella Magistrate’s Court and in the prison cell close to the Court and thereby infringed his rights under Article 11 of the Constitution. On that day the Hanwella Police produced the petitioner along with one Sandya Kanthi Kumari and Vasantha Kumara before the Magistrate for an order in terms of S. 81 of the Code of Criminal Procedure Act that they be asked to show cause why they should not be ordered to execute a bond for keeping the peace. They were enlarged on cash bail in a sum of Rs. 500/- pending the order of the Court, and pending the petitioner furnishing the required bail, he was remanded. The alleged assault occurred before the petitioner was removed to the Welikada Remand Jail.

The petitioner has produced marked P1 the application dated 24.11.93 made to the Court by the police together with the relevant Information Book Extracts containing the statements of the petitioner and the other persons produced before the Court. These statements show that Sandya Kanthi Kumari’s husband had gone abroad for employment. The petitioner who was boarded at Sandya Kanthi Kumari’s house has developed an amorous relationship with her. This was disapproved by her mother and the other members of the family who insisted that the petitioner should leave the house, but he continued to live there. This led to protests by them and occasional fights. Vasantha Kumara is not one of the relatives of Sandya Kanthi Kumari, but he too had got involved by making derogatory remarks against her for carrying on with the petitioner. That incident occurred on 23.11.93 after which Vasantha Kumara had also caused damage to her house with a club. She made a complaint to the police whereupon the police decided to produce the parties before the Magistrate as aforesaid.

The petitioner states that when he was inside the cell at the Court premises the 1^strespondent struck him a blow with the hand on his chest. At the end of the day he was moved to the prison cell close to the Court pending his removal to Welikada Jail.Whilst he was at the said prison cell, the 2^nd respondent subjected him to a severe assault with a stick. The blows alighted on his left elbow, below the wrist, right shoulder and buttocks. The 1^st respondent also gave him several blows.

After the petitioner was released on bail on 26.11.93 he made a complaint to the Avissawella Police regarding the alleged assault (P2).That statement corroborates the version given in his petition to this Court except that at that time he did not know the names of his assailants. He said that they were in uniform and that he could not identify the officers concerned if seen. He also said that there were other prison officers but they did not assault him. At the end of the petitioner’s statement the police have noted the injuries on his body. He had contusions on his left elbow, left wrist, right shoulder and buttocks.

After recording the petitioner’s statement the police issued him a hospital ticket with which he got himself admitted to the Avissawella Hospital at 5.20 p.m. on 26.11.93. According to the Bed Head Ticket maintained by the hospital, the petitioner had pain of the outer chest, shoulder and forearm. Pain was observed on movement of these parts. He received treatment at the hospital until 01.12.93.

The 1^st and 2^nd respondents deny the alleged assault but neither their affidavits nor the other available evidence explain how the petitioner had received injuries. The 3^rd respondent (The Commissioner of Prisons) says in his affidavit that he is unaware of the alleged assault and received no complaint from the petitioner or anybody else of such assault. In the circumstances, learned Counsel for the 1^stand 2^nd respondents was content to submit that even assuming that the petitioner had been assaulted there is no cogent evidence to establish personal responsibility on the part of the 1^st and 2^ndrespondents for the alleged assault.

I am in agreement with the submission that personal responsibility for the assault on the petitioner has not been established. The petitioner has not given the names of the two prison officers who assaulted him. So it would appear that their names have been ascertained by subsequent inquiries and they have since been made parties to the petition as 1^stand 2^nd respondents. It is not possible to hold them personally responsible for the assault on the basis of such hearsay.

However I am satisfied that the petitioner was assaulted whilst in the custody of prison officers. There is no evidence that the petitioner had any injuries when he was produced in Court. He was taken charge of by prison officers and taken to the Welikada Jail on 24.11.93. At his release on 26.11.93 he was found with injuries. He made a prompt complaint to the police. His injuries have been observed by the police and recorded at the hospital. Further he must have been in a bad state to have been warded at the hospital for treatment until 01.12.93. As such, the State liability for the assault on the petitioner has been established.

It appears to me that there is no procedure in the Prison Department to ensure that persons admitted to the prison are examined for such injuries as were found on the petitioner. If there was such examination, the injuries found on the petitioner might have been detected. At the prison, the remandees are presumably checked before admission. However it is possible that in the absence of specific instructions the officers there do not take notice of injuries found on them. The 3^rd respondent says that he received no complaint of assault. But one cannot expect a remandee who has been assaulted to make a complaint due to fear. It is therefore the duty of the 3^rd respondent to take steps to ensure the safety of the prisoners.

For the foregoing reasons I hold that the fundamental rights of the petitioner guaranteed by Article 11 of the Constitution have been infringed. I consider it just and equitable to grant him compensation in a sum of Rs. 5,000/- (Rupees five thousand) together with costs fixed at Rs. 550/-(Rupees five hundred and fifty) payable by the State. The Registrar is directed to forward a copy of this judgment to the 3^rd respondent who is directed to take appropriate action in the light of my observations above. He is also directed to hold an inquiry into the alleged incident on 24.11.93 with a view to ascertaining responsibility for the alleged assault. My decision in respect of the 1^st and 2^nd respondents will not prejudice such inquiry and any disciplinary action which may fallow. The 3^rdrespondent is directed to report to this Court as to the action taken by him on or before 29.07.94.

S.C. application No. 483/93.

Sgd. Judge of the Supreme Court.

G.P.S. de Silva C.J.

I agree.

Sgd. Chief Justice

Ramanathan J.

I agree.

Sgd. Judge of the Supreme Court

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