Non summary - delay
Petitioners who are the mother, brother and
sister of one Rumesh Liroshan Fernando had filed the present application before
this court alleging, that their Fundamental Rights guaranteed under Article 12
(1) and Article 11 had been infringed by the 1st, 2nd, 3rd
and/or 5th Respondents and /or any person acting under their
supervision, direction and/or command.
When this matter
was supported on 29th October 2015, Court after considering the
matters placed, had granted leave to proceed for alleged infringement of
Articles 12 (1) and 11 of the Constitution.
As submitted on behalf of the Petitioners, one Rumesh Liroshan Fernando who was only 20 years at the time of his untimely demise, was a victim of a stabbing which took place on 24th October 2010. The victim had succumbed to his injuries at Kalubowila Hospital, and the Police Officers who investigated into the death of the above named deceased, had reported the facts before the Hon. Magistrate of Moratuwa on 25.10.2010 under B Report No 1677/10. The 4th Respondent to the present application namely Widanalage Amesh Asantha de Mel who is said to have stabbed the deceased, was arrested by the police and produced before the Magistrate and remanded to the fiscal custody on 26. 10. 2010.
The complaint of
the Petitioners before this court is based on the subsequent investigation
carried out by the police, and the failure by them to expeditiously prosecute
the case against the suspect before the Magistrate’s Court of Moratuwa or
in other words inaction by the police officers who investigated into the said
offence to prosecute the offender.
In this regard, the Petitioners
have placed the following material before this court.
b) When the case was called before the Magistrate Court on 23.06.2011, police had informed the Learned Magistrate that they were filing the investigation reports and plaint and the Learned Magistrate had thereupon made order fixing the matter for inquiry on 07.07.2011
c) When the case was called before the Hon. Magistrate on 07.07.2011, the Learned Magistrate found that the police had not forwarded the reports and were not ready for the inquiry and therefore the matter was re-fixed for inquiry on 21.07.2011.
d) On 21.07.2011 the police once again moved for further time to obtain instructions from the Hon. Attorney General, and the Learned Magistrate made order allowing the said application
e) Since then, the case was called before the Magistrate Court of Moratuwa on several dates over a period of 4 ½ years, to obtain the instructions from the Attorney General, the 5th Respondent to the present application.
f)
At the time the present application was filed before
this court, i.e. on 25th September 2015, the matter before the
Magistrate Court of Moratuwa, was still pending for Attorney General’s Advice.
In addition to the sequence of events which took place from the untimely death of the deceased Rumesh Liroshan Fernando referred to above, the Petitioners have further submitted that, the said delay in prosecuting the offenders before the appropriate court had resulted,
a) The deceased’s father W.W. Philip Ranjan Fernando, gradually losing faith in the System of Justice as the case was unduly being prolonged, become ill and prematurely passed away on 05.08.2012 at the age of 65 years
b)
The three Petitioners before this court suffered
severe mental stress, trauma due to the non-effective prosecution of the murder
of their close relative for almost 6 years
When the notices
were sent on the Respondents, the 1st Respondent who came before this
court, had tendered his objection along with a document produced marked 1R1. By
the said document 1R1 the Hon. Attorney General on 30th November
2015 had directed the Head Quarters Inspector of Moratuwa to commence a Non
Summary Inquiry against the suspect Amesh Asantha de Mel under section 296 of
the Penal Code for the murder of Rumesh Liroshan Fernando.
When the matter
was taken up for argument before this court, the Learned Deputy Solicitor
General who represented the 1st to the 3rd and the 5th
Respondents had submitted that, the Non Summary Inquiry has now commenced
before the Magistrate Court of Moratuwa, after receiving the instructions from
the Attorney General. Learned Deputy Solicitor General, referring to the
journal entries
filed before this court had further submitted that, the decision to refer the
extracts for the advice of the Attorney General was taken by the Magistrate,
and the said decision by the Magistrate cannot be questioned in the present
proceedings since it amounts to a Judicial action.
In this regard the Learned Deputy Solicitor General, drew our attention to the journal entry dated 21.07.2011 to the effect “kS;sm;s Wmfoia i|yd fhduq lrus” and submitted that the said decision to refer the matter for Attorney General’s advice was reached by the Magistrate, and therefore it amounts to a judicial decision, to which the Respondents cannot be held liable. With regard to the investigations carried out by the officers of the Moratuwa Police Station, the Learned Deputy Solicitor General submitted that,
a)
Immediately after the receipt of the first complaint
from one Malinda Harshana Fernando on 24th night, officers attached
to Moratuwa Police Station had commenced the investigations into the said
complaint, visited the scene of crime and steps were taken to
i.
record statements from the witnesses
and
ii.
arrest the suspect
the
said facts were reported before the Magistrate of Moratuwa on 2010.10.25.
b)
The person who was suspected for the above crime, one
Vidanalage Amesh Asanka de Mel was arrested immediately thereafter on
25.10.2010 and based on his statement, a knife too was recovered.
c)
During the said investigations, statements of the
following eye witnesses were also recorded
i.
Lankawarige Harsha Fernando
ii.
Hettiyakandage Sumudu Buddika Fernando
iii.
Muthuthanthrige Gayan Danushka Peiris
and the items recovered were sent to the Government Analyst to obtain his
reports through courts.
d)
The Learned Magistrate of Moratuwa decided to refer
the matter for the Attorney General’s Advice, since there was confusion with regard to the involvement of few others, whose statements had been
recorded as witnesses, and in the circumstances, the said decision by the
Magistrate of Moratuwa was taken with the intention of identifying the correct
suspects before commencing the Non Summary Inquiry.
Having considered
the material placed before this court by both parties, I will now proceed to
analyze whether the above conduct of any one of the Respondents or their agents
as alleged by the Petitioners, violated the Fundermental Rights guaranteed under
Article 12 (1) of the Constitution of the Democratic Socialist Republic of Sri
Lanka.
Article 12 (1) of the
Constitution reads thus,
Article 12 (1) - All persons are equal before the law and are entitled to
the equal protection of the law
Article 17 which
refers to the remedy for the infringement of Fundermental Rights had restricted
such remedies only to executive action as follows;
Article 17- Every person shall
be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the
infringement or imminent infringement, by executive or administrative action of
a Fundermental Right to which such person is entitled under the provisions of
this chapter
Article 126 which
deals with the Fundermental Rights jurisdiction of the Supreme Court, refers to
the said jurisdiction as follows;
Article 126 (1) - The Supreme Court shall have sole and exclusive
jurisdiction to hear and determine any question relating to the infringement or
imminent infringement by executive or administrative action of any Fundermenral
Right or Language Right declared and recognized by chapter (iii) or chapter (iv)
When going
through the above, it is clear that the alleged infringement of Fundermental
Rights by Legislative Action or Judicial Action has been left out from the
scope of Article 17 and therefore under 126 as
well.
Wrongful exercise
of Judicial Discretion under Article 17 was questioned in the case of Dayananda
V. Weerasinghe (Fundermental Right Decision (2) 292) and in the said
case the Supreme
Court held that, “the judicial order in question was made in the exercise of
the Magistrate’s discretion and as such
it was not the consequence of Executive Action.”
As referred to
above, the main contention of the Learned Deputy Solicitor General, who
represented 1st to 3rd and the 5th Respondents
was, that the action and/or inaction referred to by the petitioners before this
court, comes within the Judicial Action and therefore it does not amount to
executive action by the 1st to 3rd and the 5th
Respondents and/or any one of them on the directives of the said respondents.
However as
observed by me, the Petitioners before this court have not complained of any
violation of their Fundermatal Rights guaranteed under Article 12 (1) by the
Judicial Action, but it is the position taken by the Respondents, that the
alleged violation was resulted due to “Executive Action” and not by the “Judicial
Action”.
When considering
the above, I would now like to refer to the chronology of events that took place
after the death of Rumesh Liroshan Fernando on 24th October 2010.
a)
Rumesh Liroshan Fernando had received stab injuries
and died at Kalubowila Hospital on 24th October 2010.
b) Facts were reported before
the Magistrate, Moratuwa on 25.10.2010.
c)
Suspect Widanelage Amesh Asanka de Mel was produced
before the Magistrate and remanded for Fiscal Custody on 26.10.2010.
d)
Inquest proceedings were commence before the Magistrate
of Moratuwa on 26.10.2010 by Moratuwa Police and further inquest proceeding
were held on 04.11 2010 and the Magistrate had called for a short medical report.
e)
Matter was once again called on 18. 11.2010 for remand
extension and for orders to the Judicial Medical Officer
f)
When the matter was once again called on 02.12.2010
for remand extension, police filed a
special report with regard to certain incidents which took place after the
alleged murder, from Moratumulla Police and reported that the law and order in
the area is maintained.
g)
Since then the matter was called every 14 days for
remand extension until 09.06.2011 and the Police too had filed further reports
on those days informing that the investigations were in pregress.
h)
On 23.06.2011 when the matter was once again called
for the remand extension, court recorded that the plaint was filed and issued
summons on witness 1, 2, 3, 19 and 20 for 07.07.2011.
i)
On 07.07.2011 court re-issued summons on the above
witnesses for 21.07.2011 and on 21.07.2011 being the 2nd date for
inquiry, court made order referring the matter for Attorney General’s Advice.
j)
Since then the matter was called every 14 days until
27.10.2011 for remand extension of the accused and
it was recorded every day that
the court is awaiting Attorney General’s Advice. In between, on 10.08.2011 court receives the Government Analyst’s Report and
on 13.10.2011 directs the police
to submit the Attorney General’s Reference Number in order to send a reminder to
the Attorney General
k)
When the matter was called on 27.10.2011 the accused
was enlarged on bail on the directives of the High Court of Panadura
l)
The matter was once again called before the Magistrate
on 24.11.2011, 19.01.2012 and 14.06.2012 for Attorney
General’s Advice.
However the
court subsequently made order on 14.06.2012 to release the extracts filed in
the case record to SI Kannangara to be delivered to the Attorney General and
the matter was fixed for 30.08.2012 for the police
to submit Attorney
General’s Reference Number.
m)
Police failed to submit Attorney
General’s Reference Number on 30.08.2012 but on the next date i.e. on 18.10.2012
submits the Attorney
General’s Reference Number as NWP/S/42/2012
n)
Since then the matter had gone down for several dates
until the present application was filed before the Supreme Court on 25.09.2015
o)
By letter dated 30.11.2015 (after the leave was
granted by the Supreme Court on 29.10.2015) the Attorney General directs the
police to commence a Non Summary Inquiry against the suspect
When considering
the facts referred to above with the material placed before this court on
behalf of the Respondents, it is revealed, that the alleged offence of murder,
was based on direct evidence, and the said material was available with the
police within few days from the incident. The
rest of the investigation was limited to obtaining the Government Analyst’s Report and the Post Mortem Report. However
as referred to above, the police had taken over 08 months to conclude the said
investigation and file the plaint before court.
After filling
plaint and referring the matter
by the Magistrate for Attorney
General’s Advice on 21.07.2011 the case has gone
down until 14.06.2012, for nearly 11 months until the court realized that the
police had not forwarded the extracts to the Attorney General, as directed by
court on 21.07.2011. When the court directed the police to deliver the
extracts, which were filed of record, police took nearly 4 months to submit the
reference number before court.
When considering
the provisions of chapter XV of the Code of Criminal Procedure Act No 15 of
1979 which deals with the procedure in conducting Non Summary Inquires, it is
observed that the legislature had expected such inquiries to be concluded
within one month from the date, the plaint is filed before court, and that
clearly indicates the importance the legislature had imposed on Non Summary
Inquiries. Even though there is no specific provision in the Code of Criminal
Procedure Act restricting the period of investigation, it is observed by me
that the legislature does not expect the investigating arm to act in lethargic
manner taking months and months either to complete investigation or to submit
extracts to the Attorney General, as taken in the present case.
This clearly
indicates the inaction by the police, when considering the facts of the present
case which were discussed above. In the said circumstance I observe that the
inaction referred to above amounts to the violation of the equal protection
guaranteed under Article 12.1 of the Constitution.
The Petitioners
next complaint before this court is based on the violation of the Fundermental
Rights guaranteed under Article 11 of the Constitution.
Article 11 of the Constitution
read as follow;
Article 11; No person shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.
As submitted by
the Petitioners and revealed by the material placed before this court, the
Petitioners are not complaining of any cruel or inhuman physical attack or
punishment against the Petitioners but, the complaint was that, the severe
mental suffering and trauma under gone by the Petitioners as well as the late
father of the deceased, due to the undue delay in prosecuting the suspect,
violated the rights guaranteed under the said
Article.
In this regard
the Petitioners heavily relied on the decision in Adhikary V. Amerasinghe reported
in [2003] 1 Sri LR at 270, where Shirani Bandaranayake J (as she then
was) had gone in to the question of Psychological suffering of a victim when
granting relief for violating the Fundermental Rights guaranteed under Article
11 of the Constitution.
In the said case
Bandaranayake J when arriving at the decision stated that, “….. the
protection in terms of Article 11 would not be restricted to the
physical harm caused to a victim, but would certainly extend to a situation where a person
had suffered psychologically due to such
action” she had discussed the circumstances under which she
reached the said decision, whilst referring to a few other decisions where this
court reached the same conclusion on different circumstances.
Before analyzing
the circumstances under which the said decisions were reached, I would now
proceed to analyze the complaint of the Petitioners before this court. As
observed by me, the Petitioners’ complaint before this court is twofold,
Firstly, they
complained of the suffering the late father of the deceased Rumesh Liroshan
Fernando namely W.W. Philip Ranjan Fernando had to undergo due to the delay in
prosecuting the suspect, finally ended up with a premature death who died at
the age of 65.
Secondly, they
complained of the mental stress and trauma under gone by them, due to the non
prosecution of their close relation’s death.
As observed by me
the first complaint of the Petitioners referred to above is unfounded. It may
be true that the father of the deceased Rumesh Liroshan Fernando was interested
is seeing justice being done to his deceased son, but in the absence of any material
before us to say that his premature death was due to his mental suffering, I am
reluctant to agree with the said submissions of the Petitioners.
In support of
their second argument the Petitioners have produced marked X-15 a report issued
by Professor Harischandra Gambheera Consultant Psychiatrist at National
Institute of Mental Health with regard to his examination of the three
Petitioners namely, M.W. Leelawathie Hariot Perera, W.W. Raj Lakmal Fernando
and W.W. Roshini Shivanthi Fernando.
At the outset, it
is important to note that, the report produced mark X-15 is dated 9th
December 2015 and was not available at the time the papers were filed before
this court on 5th September 2015. According to the said report, the
three examinations were carried out on 24th November 2015 on the
request of an Attorney at Law.
After his
observations and findings, the Consultant Psychiatrist had submitted his
conclusion as follows;
“The history and the mental state examination of all three members of the family of Liroshan Fernando revealed that they are suffering from Psychological distress following the death of Mr. Fernando. Both his mother and the sister is suffering from depression and prolonged abnormal grief as a consequences of sudden unexpected death of their loved relative. Their depression and pathological grief remain unresolved due to non prosecution of the murder of Rumesh Liroshan Fernando five years ago. The current social circumstances where the murder suspect who lives in the same area and their unacceptable behaviour is also responsible for the maintaining of the distress and the grief.”
When going
through the said conclusions it is further observed by this court, that
according to the Consultant Psychiatrist, the main reason for suffering is the
unexpected death of their loved relative, but the depression and Pathological
grief remain, due to two reasons, firstly due to non prosecution for five years
and the unacceptable behaviors of the suspect who lives in the same area.
With regard to the
second reason referred to above, I observe that, other than a complaint
produced marked X-9, said to have made by a witness against the relatives of
the suspect in the Magistrate’s Court proceedings on 15.11.2015, there is no proof
of any unacceptable behavior either by the suspect or the members of his family
as referred to in the report X-15.
In the said
circumstances it is clear that the depression and prolonged abnormal grief said
to have suffered by the 1st and the 3rd Petitioners are
due to 3 main factors, out of which there is no proof of any material with
regard to the 3rd factor. The first factor being the unexpected
death of the close relative, has no bearing on the present case.
With regard to
the observations and findings of the Consultant Psychiatrist, I further
observe, that some of the complaints of the 1st and 3rd
Petitioners are unfounded as well. In addition to the document produced marked
X-15, the report from the Consultant Psychiatrist, there is no material placed
before us to establish whether the said Petitioners were subject to any treatment
during the period
relevant to the present case. The Petitioners have failed to place any material
to show, any reprimand and/or attendance sheets as referred to in the
observation by the consultant with regard to the 3rd Petitioner.
Having considered
the nature of the complaint before this court, I will once again proceed to
analyze the legal basis under which Bandaranayake J (as she then was) declared
the violation under Article 11 expanding to a situation where a person had
suffered psychologically.
Whilst
reaching the said decision Bandaranayake J was also mindful of the decision in W.M.K.
de Silva V. Chairman Ceylon Fertilizer Corporation (1989) 2 Sri LR 393 where
Amarasinghe J had said in the said judgment,
“I am of
the opinion that the torture or cruel, inhuman or degrading treatment or
punishment contemplated in Article 11 of the Constitution is not confined to
the realm of physical violence. It would embrace the sphere of the soul or mind
as well”,
and the case of Kumarasena V. S.I. Sriyantha and Others (SC
Application 257/93 Supreme Court minutes of 23.05.1994) where the Supreme Court
held that the suffering occasioned was an aggravated kind and attained the
level of severity to be taken cognizance of a violation of Article 11 of the
Constitution, in the absence any physical impairment or disability with the
victim.
When considering
the decisions referred to above and the facts and circumstances of the case in hand, Bandaranayake J observed that the
test which had been applied by our courts was that, “whether the attack on the victim
is Physical or Psychological, a violation under Article 11 would
depend on circumstances of each case.
The Petitioners
main complaint before this court is the inaction which resulted long delay in
prosecuting the suspect, who said to have killed their close relative. This
court has already concluded that the said delay and/or the inaction by the 1st
to the 3rd Respondents and/or their agents had violated the
Fundermental Rights guaranteed under Article 12 (1) of the Constitution.
However, from the material already discussed, it is also clear that the
Petitioners have not being able to establish that the suffering and the trauma
complained by them was in fact faced by them as a result of the inaction by the
1st to 3rd and 5th Respondents.
In the said
circumstances I am not inclined to declare that the Fundermental Rights
guaranteed under Article 11 had been violated by the inaction complained by the
Petitioners.
I hold that the
Fundermental Rights guaranteed under Article 12 (1) of the Constitution had
been violated by the conduct of the 1st to the 3rd
Respondents and/or by their agents. In the said circumstances I make order
directing the state to pay Rs. 50,000/- as compensation to each Petitioner.
Judge of the
Supreme Court
Eva Wanasundera PC J
I agree,
Judge of the Supreme Court
Priyantha Jayawardena PC J
I agree,
Judge of the Supreme Court
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application under Articles 17 and 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka
1. M.W. Leelawathie Hariot Perera,
2. W.W. Raj Lakmal Fernando
3. W.W. Roshini Shivanthi Fernando All of No 12, Kithalandaluwa Road, Willorawatte, Moratuwa.
SC /FR/ Application No 372/2015
Vs,
1. N.K. Illangakoon,
Inspector General of Police, Police Head Quarters, Colombo 01.
1A. P. Jayasundera,
Inspector General of Police, Police Head Quarters, Colombo 01.
2. Officer-in- Charge, Police Station, Moratuwa.
3. Officer-in- Charge, Police Station, Moratumulla.
Petitioners
4. Widanalage Amesh Asantha de Mel,
No. 04/03, 1st lane, Kithalandaluwa Road, Willorawatte, Moratuwa.
5. Hon. Attorney General,
Attorney General’s Department, Colombo 12
Respondents
Before: Eva Wanasundera PC J
Priyantha Jayawardena PC J Vijith K. Malalgoda PC J
Counsel: Chrishmal Warnasuriya with Anslam Kaluarachchi and Priyanka Thevendrean instructed by Induni Wijesinghe for the Petitioners
Thusith Mudalige Deputy Solicitor General for the 1st to 3rd and 5th Respondents
Argued on: 13.07.2017 and 04.09.2017
Judgment on: 17.11.2017
Vijith K. Malalgoda PC J
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