IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST

REPUBLIC OF SRI LANKA

In the matter of an application under

Article 17, 126, Article 11, 13(1) and

12(1), 14(g) and 14(h) of the

Democratic Socialist Republic of Sri

Lanka.

R.H. Iresha Lakmali,

CASE NO: SC/FRA/505/19
No. 57B, Palleliyaddewatte,
Ampe, Imaduwa, Galle.

PETITIONER

vs.

1. Major General Kamal Gunarathne,

The Secretary to the Defence,

The Ministry of Defence,

15/5, Baladaksha Mawatha,

Colombo.

2. Mr. K.W.E. Karalliyadda,

(Chairman)

3. Mrs. Savithri D. Wijesekara,

(Member)

4. Mr. Y.L.M. Zawahir, (Member)

5. Mr. Gamini Nawarathne,

(Member)

6. Mr. Thilak Collure, (Member)

SC/FRA/505/19 JUDGMENT Page 1 of 38

 7. Mr. Ashoka Wijethilaka, (Member)

8. Mr. G. Jayakumar, (Member)

9. Mr. Nishantha A. Weerasinghe,

(Secretary)

All of
National Police Commission,

Block 9, B.M.I.C.H,
Bauddhaloka Mawatha,

Colombo 07.

10. Mr. Chandana Wickramarathne

Inspector General of Police,

Police Headquarters,

Colombo 01.

11. Mr. Deshabandu Tennakoon

Senior DIG,

Colombo Crime Division,

Dematagoda,

Colombo 09.

12. Mr. G.J. Nandana, SP,

Colombo Crime Division,
Dematagoda,

Colombo 09.

13. Mr. Nevil Silva,

Colombo Crime Division,

Dematagoda,
Colombo 09.

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 14. Mr. A. Meththananda,
Chief Inspector,

Colombo Crime Division,

Dematagoda,

Colombo 09.

15. Hon. Attorney-General,

Attorney-General’s Department,
Colombo 12.

RESPONDENTS

BEFORE : S. THURAIRAJA, PC, J

MAHINDA SAMAYAWARDHENA, J AND

ARJUNA OBEYESEKERE, J

COUNSEL : Shiral Lakthilaka for the Petitioner

V. Hettige, SDSG for the Respondents

WRITTEN SUBMISSIONS : Petitioner on 16th January 2023 and 24th October 2023

Respondents on 19th June 2023

ARGUED ON : 10th October 2023

DECIDED ON : 31st May 2024

S. THURAIRAJA, PC, J.

1. On or about 15th December 2019, as an ordinary day came to an end for the Petitioner

and her family, she is visited by a group of officers attached to the Imaduwa Police
Station and the Colombo Crime Division, asking the whereabouts of her husband.

SC/FRA/505/19 JUDGMENT Page 3 of 38

2. The Petitioner, Ranepura Hewage Iresha Lakmali, wife to one Valawe Mahadurage
Dilum Thusitha Kumara and mother to a child who was but 23 months old at the time

of the incident, invoked the jurisdiction of this Court under Article 126 of the
Constitution alleging that her fundamental rights have been violated by the events

which transpired thereafter.

3. On 14th March 2022, the Counsel for the Petitioner was only able to establish prima

facie violations of Articles 13(1), 13(2) and 14(h) of the Constitution and leave to
proceed was granted accordingly.

FACTUAL BACKGROUND

4. In 2016, the Petitioner’s husband, who once worked as the driver of former Minister
Patali Champika Ranawaka, attached to the Ceylon Electricity Board (CEB), was

involved in an accident. We are told that some aspects of it are still pending before
courts to date. It was revealed that the impugned conduct of the police officers had

taken place pursuant to some ongoing investigations regarding the same matter.

5. On 15th December 2019, a group of police officers attached to the Imaduwa Police

Station and the Colombo Crime Division, some clad in police uniforms and others in
civil clothing, visited the residence of the Petitioner’s mother—where the Petitioner

was residing at the time with her toddler—looking for her husband.

6. The Petitioner and the Respondents have different versions of what transpired
thereafter. This being a case mainly dependent upon its surrounding facts, it is
apropos that we reflect on their versions separately.

Facts According to the Petitioner

7. The Petitioner states that her predicament began when the officers visited the said

residence around 9.30 p.m. inquiring about the whereabouts of her husband, at which
point she informed them that he works in Colombo. Thereafter, the officers had

SC/FRA/505/19 JUDGMENT Page 4 of 38

 informed her that they needed to take a statement from her husband and asked her
to contact him over the phone. As the Petitioner obliged and informed her husband

of this over the phone, one of the officers had spoken to him through her telephone.

8. At this point, the Petitioner states that she overheard her husband informing the

officer, upon being inquired as to his whereabouts, that he lives in Jayanthipura,

Battaramulla. In reply to this, the officer had said that he pities his wife and child

[ඔයාගේ වයිෆ් සහ ළමයා පව්], and had asked him to keep his mobile phone switched

on until they reach Colombo to take a statement from him.

9. During this conversation, the call had gotten disconnected. When the Petitioner called
her husband again, she had found the mobile phone to be switched off. The husband

of the Petitioner, by his affidavit marked ‘P5’, states that it was disconnected due to
his mobile phone battery running out.

10. Following this, the police officers had asked the Petitioner to accompany them to
Colombo as the Petitioner’s husband was no longer reachable over the phone. The

Petitioner states that she initially resisted this request stating that she could not
possibly leave her toddler at home. Thereafter, to her dismay, the officers had insisted
that she bring her toddler with her. When the Petitioner and her toddler—who needed
careful medical care and nourishment on account of her premature birth—prepared

to depart with the said police officers, the Petitioner’s mother, had reluctantly come
forward to accompany them.

11. The officers had departed the Petitioner’s residence at around 12.45 a.m., along with
the Petitioner, her mother and the toddler, huddled inside a police vehicle, which the

Petitioner colloquially referred to as a ‘Police Jeep’ in her affidavit. Around 4.30 a.m.,
the said vehicle had reached a place, which the Petitioner discerned to be

Jayanthipura, Battaramulla, from the conversations between the officers. The

Petitioner further states that the officers kept the vehicle parked in Jayanthipura for

SC/FRA/505/19 JUDGMENT Page 5 of 38

 roughly three hours, until around 7.45 a.m., before they were taken to an unknown
place, which the Petitioner later found to be the Colombo Crime Division in

Dematagoda. There, too, the officers had kept the vehicle parked outside for
approximately three hours. Thereafter, the officers had dropped the Petitioner, along

with her mother and child, at her home in Imaduwa at around 12 p.m. on 16 th
December 2023, having left Dematagoda at around 10 a.m.

12. On the very same day, the Attorneys-at-Law of the Petitioner had reported the
incident to the Colombo Additional Magistrate. The proceedings dated 16 th

December 2023 of the case bearing No. 23783/04 has been tendered before this
Court as proof of the same.

13. According to the sequence of events the Petitioner laid out, the officers had first
arrived at her residence around 9.30 p.m. on 15th December 2019, and thereafter she

had spent, with her mother and child, nearly 12 hours in police custody, viz., from
about 12.45 a.m. till 12 p.m. of the following day (16th December 2019). For the entire

duration of this ordeal, they had not been provided with food, water or lavatory
facilities. To make matters worse, the Petitioner had had to breastfeed her toddler in

this vehicle brimful of strangers.

Facts According to the Respondents

14. Riddled with clerical errors and serious incongruities—which I shall analyse later on—
the material submitted by the Respondents leave their account of the events in much
obscurity. Despite these shortcomings in sufficiently assisting this Court, we are able

to discern, in general, the following narrative by carefully studying the material before
us.

15. The 14th Respondent (Wedaralalage Ajith Shantha Meththananda, Inspector of Police
attached to the Colombo Crime Division, at all times material to this case) in his
affidavit dated 23rd July 2022, states that he met the 13th Respondent (Nevil Silva,

SC/FRA/505/19 JUDGMENT Page 6 of 38

 Chief Inspector and Acting Director, Colombo Crime Division, at all times material to
this case), upon the instructions of the 11th Respondent (Deshabandu Tennakoon,

Senior DIG, Colombo Crime Division, at all times material to this case). Thereafter, the
14th Respondent had gone to the Petitioner’s residence in Imaduwa along with SI

Maduranga (PC 91282) and Police Driver 89729, as instructed by the 13th Respondent.
Later on, Nirosha (WPC 3541) attached to the Imaduwa Police station, too, had joined

this investigation.

16. According to the Respondents, the officers had visited the said residence in relation

to an investigation regarding a motor vehicle accident which took place on 28 th

February 2016 within the Welikada Police Division, in which the Petitioner’s husband
was named as a suspect.

17. When inquired as to the whereabouts of the said suspect, his wife, the Petitioner, had

informed the officers that he works in Colombo. The Respondents state that the
Petitioner then insisted on accompanying them to Colombo as her husband asked

her to come to Battaramulla. Even when the 14th Respondent told her that they
needed the statement from her husband and not her, the Petitioner had still insisted

on setting out to Colombo with the police party. As they left Colombo, WPC 10248
and WPC 10554 of the Galle Police Station had joined the group of officers as Nirosha

(WPC 3541) could not travel to Colombo.

18. After they arrived in Battaramulla, the Petitioner had contacted her husband, at which

point he had instructed to Petitioner to wait where they were until he could arrive
there. Subsequently, the Petitioner’s husband had called the mobile phone belonging

to her mother, stating that his Attorney-at-Law wished to speak to the police officers.
An Attorney had informed the 14th Respondent officer that he would come to their

location with the Petitioner’s husband. Two persons, who identified as Attorneys-at-
Law, had so arrived at the place where they were, but without the Petitioner’s
husband. Respondents state that they were not dressed as Attorneys-at-Law and that

SC/FRA/505/19 JUDGMENT Page 7 of 38

 they refused to comply when asked to produce identification. They had informed the
Respondents that the Petitioner’s husband could be produced to the courts if

necessary.

19. The 14th Respondent had then informed the Attorneys of the presence of the

Petitioner and her mother, and they had threatened to take legal action against the
14th Respondent. According to the 14th Respondent, the Petitioner and her mother

were then taken back home to Imaduwa.

20. The essence of the Respondents’ contentions is that they had acted bona fide at all

times and that the Petitioner accompanied a group of police officers—most of whom
were men—with her 21-month-old daughter, in the dead of night, on her own

volition.

ANALYSIS

21. In the instant case, whether there has been a violation of the Petitioner’s freedom of

movement is dependent upon whether there has been an arrest in the first place, and,
if that question is to be answered in the affirmative, the legality of such arrest.

Therefore, I shall first dispense with the submissions relating to Article 13.

22. It is trite law that fundamental rights can only be circumscribed within the permitted

limits of Article 15. All paragraphs thereunder place special emphasis on the words
“as may be prescribed by law”. The Constitution has, in no unclear terms, declared that

fundamental rights may only be restricted as provided by law. In effect, peace officers,
whose sphere of activities has plenty to do with the fundamental rights of the

citizenry, have no authority whatsoever to act beyond their legal mandates in carrying
out their official duties.

SC/FRA/505/19 JUDGMENT Page 8 of 38

 Article 13(1): Arrest & Detention

23. Article 13(1) of the Constitution sets out that “[n]o person shall be arrested except

according to procedure established by law. Any person arrested shall be informed of the
reason for his arrest.”

24. Here, too, the framers of the Constitution leave no ambiguity in declaring that an
arrest can only be made “according to procedure established by law”. All peace officers

are required by the constitution to strictly follow established legal procedure in

effecting arrests, and in doing all other acts which may impinge upon personal

liberties. Individual dignity and liberty being at the heart of all fundamental rights, it
is imperative that we closely scrutinize this requirement whenever called upon.

25. Furthermore, Article 13(1) prohibits not only arrest, in the sense of taking one into
custody, but also the keeping of such person in a state of arrest by imprisonment or

other form of restraint except according to the procedure established by law. The
latter is often understood as falling within the scope of Article 13(2), which, as we shall

see, is a misapprehension of its ambit.

Was There an Arrest?

26. This Court has time and time again set out the legal parameters of arrest and

detention. The action of taking one into custody needs no formalities to amount to
an ‘arrest’ as contemplated in Article 13(1). The Explanation under Section 23 of the
Code of Criminal Procedure Act, No. 15 of 1979 makes this manifestly clear.

27. Section 23(1) of the Code of Criminal Procedure Act states,

“In making an arrest the person making the same shall actually touch or confine
the body of the person to be arrested unless there be a submission to the custody

by word or action and shall inform the person to be arrested of the nature of the
charge or allegation upon which he is arrested.

SC/FRA/505/19 JUDGMENT Page 9 of 38

 Explanation - Keeping a person in confinement or restraint without formally
arresting him or under the colourable pretension that an arrest has not been

made when to all intents and purposes such person is in custody shall be deemed
to be an arrest of such person.”

28. The Section further clarifies that there can be an arrest even when a person submits

to the custody of an officer with no physical compulsion. In fact, it is only when one

refuses to submit, and not otherwise, that an officer is empowered by law to touch or
confine the body of such person.

29. As per Lord Denning, “[w]hen a Police Constable says to a man ‘Come along with me.
I am taking you to the station’, that is an arrest. No matter if the man goes quietly or

resists with all his strength; it is an arrest.”1

30. As Amerasinghe J., opined in Mahinda Rajapaksa v. Kudahetti,2

“…in order to sustain the petitioner's claim that his fundamental right of freedom

from arrest guaranteed by Article 13 (1) of the Constitution has been violated,
[the petitioner] must establish that there was an apprehension of his person by

word or deed and an imprisonment, confinement, durance or constraint by

placing him, (such apprehension and placing having been signified by physical

action or by words spoken or by other conduct from which it might have been
inferred), in the custody, keeping, control, or under the coercive directions, of an
officer of justice or other authority, whether the purpose of such arrest was to
enable the petitioner to be available and ready to be produced to answer an

alleged or suspected crime or to assist in the detection of a crime or in the arrest

or prosecution of an offender or some such or other purpose of the officer making,

or authority ordering, the arrest. I do not intend this to be a definition of "arrest".

1
Lord Denning, The Due Process of Law (Butterworth 1980) at 103
2
[1992] 2 Sri L.R. 223 at 243

SC/FRA/505/19 JUDGMENT Page 10 of 38

 A definition, I suppose, must await the wisdom of the future. Nor is it an attempt
to lay down general guidelines concerning other situations not involved here. I do

not even suggest that a bright line can be easily drawn that separates the type of
deprivation of liberty within the reach of Article 13 (1) from the type without.

Close questions undoubtedly will sometimes arise in the gray area that necessarily
exists in between. Whether an act amounts to an arrest will depend on the

circumstances of each case.”

31. As His Lordship has stated, whether an act amounts to an arrest or not is greatly
dependent upon the circumstances of each case. However, what can be unequivocally

found is that, for an act to be an arrest, it does not require physical confinement nor
the observance of any formalities in effecting it. This Court has affirmed this time and

time again.3

32. In Namasivayam v. Gunawardena,4 a police officer required the petitioner to

accompany him to the Police Station to be questioned over suspicion of robbery. The
said petitioner was released after he gave a statement at the Police Station. Answering

the question where he was under arrest, Sharvananda C.J., with Atukorale and H.A.G.
de Silva JJ. agreeing, opined that;

“In my view, when the 3rd Respondent required the Petitioner to accompany him
to the Police Station and took him to the Police Station, the Petitioner was in law

arrested by the 3rd Respondent. The Petitioner was prevented by the action of the
3rd Respondent from proceeding with his journey in the bus. The Petitioner was

deprived of his liberty to go where he pleased. It was not necessary that there

3
Vide Piyasiri v. Fernando, ASP [1988] 1 Sri LR 173; Sirisena v. Ernest Perera [1991] 2 Sri L.R. 97;
Hettiarachchige Srimathi Devika Tissera & 2 Others v. Police Constable Madagammeddegedara Nirosha
Sanjeewa Jayasekara & 7 Others SC/FR No. 94/2013, SC Minutes of 30.06.2021; Karuwalagaswewa
Vidanelage Swarna Manjula and Another v. Pushpakumara, OIC, Police Station Kekirawa and Others S.C.
F.R. No. 241/14, SC Minutes of 18th July 2018
4
[1989] 1 SLR 394

SC/FRA/505/19 JUDGMENT Page 11 of 38

 should have been any actual use of force; threat of force used to procure the
Petitioner's submission was sufficient. The Petitioner did not go to the Police

Station voluntarily. He was taken to the Police by the 3rd Respondent, in my view
the 3rd Respondent's action of arresting the Petitioner and not informing him the

reasons for his arrest violated the Petitioner's fundamental rights warranted by
Article 13 (1) of the Constitution.” 5

33. Even where there is no physical or formal act of taking one into custody, there can be

an arrest by implication through subtle coercive means. Such coercive directions may
be verbal, non-verbal, direct or even constructive. If the circumstances are such to

place a reasonable person under the impression that he is able to not comply with
the directions of a peace officer and go about his way as he pleases, then it may be

said that there is no arrest. But, where the coercion of circumstances is such that a
person reasonably apprehends that he has no option but to comply, and his

autonomy is so deprived, there is most certainly an arrest as contemplated under

Article 13.

34. In their Written Submissions, the Respondents contended that there was no arrest nor
detention as the Petitioner voluntarily accompanied the officers on their journey to

Colombo for the purpose of meeting her husband.6

35. By Affidavit dated 23rd July 2022, the 14th Respondent submitted as follows:

“The Petitioner informed me that her husband the said Walluwe Mahadurage
Dilum Thusitha Kumara asked her to come to the place at Battaramulla.7

I informed the Petitioner that the statement I required was from Walluwe

Mahadurage Dilum Thusitha Kumara and not from the Petitioner, Yet the

5
ibid at 401
6
Written Submissions on behalf of the Respondents dated 19th June 2023 at 7
7
Affidavit of the 14th Respondent dated 23rd July 2022 at para 8(i)

SC/FRA/505/19 JUDGMENT Page 12 of 38

 Petitioner insisted that she too accompany us to the place where her husband is,
The notes of same dated 15.12.2019 are marked as 1R2 and pleaded as part and

parcel of this affidavit. 8 [sic]

…

I categorically state that the Petitioner was not arrested at any time. I further state
that the Petitioner came of her own volition, and as per the Petitioner upon

instructions of Walluwe Mahadurage Dilum Thusitha Kumara, her husband.” 9

36. The aforementioned notes marked 1R210 states as follows:

“ඔහු බත්තරමුල්ල පාලම ලග ජයන්ති මාවගත් නිවසක සිටින බවත් ප්‍රකාශයක් ලබා
දිය හැකි බවත් දැනුම්දී බිරිඳට ද එම ස්ථානයට පැමිණිය හැකිද කියා අසා ගහෝ
විමසා සිටියා. ඇය කියා සිටියා ඇයටද පැමිණිය හැකි බවත් එතනට ඇවිත් ඔහුගේ
ජංගම දුරකථනයට ඇමතුමක් ලබා ගත විට ඔහු එතනට එන්තනම්ද කියා දුරකථනය
විසන්ති කළා. පසුව තුසිතගේ බිරිඳ විසින්ත විමසා සිටියා තුසිත ඇයට එන්තන කියූ බවත්
ඇයට අප පැමිනි වහනගයන්ත එම ස්ථානයට යා හැකිද කියා විමසා සිටියා. මා ඇයට

පවසි [sic] සිටියා යාමට හැකි බවත් නමුත් ඔබ අවශය නැහැ. අපිට තුසිත ව සම්දබන්තධ

කළ හැකි නම්ද හැකිනම්ද [sic] එය ප්‍රමාණවත් බව කියා සිටියා. ඉන්තපසු ඇය පවසා

සිටියා එයා වැඩිය කාත් එක්කවත් කතා කරන්තගන්ත නැ එයාගේ හැටිය. මට එන්තන
කියන්තගන්ත එකයි කියා මට කිවුවා. මා ඒ සම්දබන්තධගයන ගකා.අ.ගකා. ස්ථානාිපිතුමා

[13th Respondent] ව දැනුවත් කළ අතර ඇයගේ ප්‍රකාශ සටහන්ත කර ගනාමැිනම්ද

අරගගන එන්තන කිව්වා. ඇය අප සමඟ පැමිණීමට සූදානම්ද වන විට ඇයගේ මව වන

රගන්තදුර ගහවගේ සුමනා වි යන ඇය ද ඇය සමඟ සමඟ [sic] පැමිණීමට අවශය

බව දැනුම්ද දුන්ත අතර ඔවුන්ත තම දැරුවාද රැගගන පැමිගණන බව කියා සිටියා. ඒ
සම්දබන්තධගයන්ත ප්‍රකාශය උ.ගපා.ප මදුරංග නිලධාරියාට සටහන්ත කරන ගලසට උපගදස්
ී අප බත්තර මුල්ල ජයන්ති මාවතට නිලධාරින්ත සමඟ පිටව යමි. 2019.12.16 දින

8
ibid at para 8(j)
9
ibid at para 8(t)
10
Excerpts of the Investigation Notes taken by 14th Respondent, Inspector Meththananda, from
Information Book of Colombo Crime Division Unit 1, p. 309, para 215

SC/FRA/505/19 JUDGMENT Page 13 of 38

 පැය .......... ගාල්ල ගපාලිස් ස්ථානගයන්ත මා උ.ගපා.ප මධුරංග ඉමදුව ගපාලිස් ස්ථානගේ
කා ගපා. ගකා. 3541 නිලධාරිනිය ද සමඟ ගපා ගකා.රි 89729 විසින්ත පදවන ලද අංක
WP CAY 0532 දරන රථගයන්ත පැමිණියා. අප සමඟ තුසිතගේ බිරිඳ මව හා කුඩා
දරුවා ද සිටි.

[He stated that he lives in a house near Jayanthi Mawatha, Battaramulla Bridge

and having informed that he can give a statement asked if his wife could come
to that location. She said that she could also come and stated that he would come

there when we called his cell phone after reaching there and hung up the phone.
Thereafter, Thusitha’s wife stated that Thusitha asked her to come and enquired

if she could accompany us in our vehicle. I told her that she could accompany us,
but also told her that she was not needed. I stated that it would be sufficient if we

could contact Thusitha. Then, she stated that he doesn’t talk much with anyone
and that it is his nature. And that is why he’s asking me to come, she told me. I

informed the same to Colombo Crime Division, Officer-in-Charge and he told to

bring her if a statement had not been taken. As she was getting ready to come

with us, her mother, Ranedura Hewage Sumanawathi, told that she also needed
to come and that they were bringing her child. Having instructed Sub Inspector

Maduranga to note the statement regarding this, we depart with the officers to
Battaramulla. We arrived in vehicle No. WP CAY 0532 driven by Police Constable

Driver 89729 on 2019.12.16 at ……... with Sub Inspector Maduranga of Galle

Police and WPC 3541 of Imaduwa Police Station. With us, Thusitha’s wife’s

mother and small child are present]”11

37. As previously noted, on the same day, i.e., 16th December 2019, the Attorneys-at-Law
of the Petitioner have reported the ordeal to the Magistrate Court of Colombo. The

Proceedings of the Magistrate Court, which the Petitioner submitted, reveals that the

11
An approximate translation to reflect the notes as closely as possible

SC/FRA/505/19 JUDGMENT Page 14 of 38

13th Respondent has made the following submission before the Hon. Magistrate in
response to the allegation:

“…ඒ වගේම උගත් නීතීඥ මහත්තයා පැහැර ගැනීමක් ගැන සඳහන්ත කලා. තුසිත
කුමාර යන අයගේ ප්‍රකාශයක් ලබා ගැනීමට අවශයතාවයක් ිබුණා ගම්ද විමර්ශනගේ.
අපි ඔහු ගැන ගසායා බැලුවා. ගසායා බලන අවස්ථාගව් ී ඔහුගේ ලිපිනයන්ත වශගයන්ත
සඳහන්ත වුගන්ත ගාල්ල ඉමදුව ප්‍රගේශගේ. පසුව ඉමදුව ප්‍රගේශයට ගියාම බිරිඳ හිටියා.
අපි ගිගේ අගේ ගපාලිසිගේ වාහනයකින්ත… අපි පිළිගන්තනවා ගමත්තානන්තද කියන ගපාලිස්
පරීක්ෂකවරයා ගියා ඒ නිවසට. නිවගස් බිරිඳ හිටියා, ඇයගේ මව හිටියා, කුඩා දරුවා
හිටියා. බිරිඳට දැනුම්ද දුන්තනා ඇයගේ දුරකථනගයන්ත තමන්තගේ පුරුෂයාට දුරකථන
ඇමතුමක් ලබා ගන්තන කියලා. ඇමතුම ලබා ගත්තට පසුව ඔහු කිව්වා, මම ඉන්තනවා,
එන්තන ජයන්තිපුර ප්‍රගේශගේ නිවසක කියලා. නමුත් ඒ ස්ථානය හරියට ඔහුට කියන්තන
බෑ කියලා දැනුම්ද දුන්තනා. ඒ අනුව ඔහුගේ ඉල්ීම මත බිරිඳ, ගපාඩි දරුවා අරන්ත
ගේතුව තමයි අම්දමත් එක්ක දරුවා එන්තන ඕනෑ, ඒ තැනැත්ියගේ, අපිට අවශය
ප්‍රකාශයක් ලබා ගැනීමට අවශය අයගේ බිරිඳගේ මවත් ඒ එක්කම ලබා ගත්තා. ඒ
අනුව ඔහුගේ කැමැත්ගතන්ත ගම්ද ගමන පිටත් වුගේ. ඒ අතගර් කාන්තතා ගපාලිස් නිලධාරීන්ත
ඒ අවස්ථාගව් ී හිටියා. විමර්ශනය සඳහා සහාය වීමක් සඳහා තමයි පැමිණිගේ. ඒ
අවස්ථාගව් ී ඔහු දුරකථනය විසන්ති කිරීම, ආගේ නැවත සන්ති කගල් නෑ. නමුත් ගම්ද
ගමාගහාත වන විටත් ඉතා නිරුපද්‍රිතව වගකීගමන්ත ගකාළඹ අපරාධ ගකාට්ඨාශගේ
ස්ථානාිපිවරයා වශගයන්ත සඳහන්ත කරනවා ඒ සඳහන්ත කල ිගදනා ගාල්ගල් ඉමදුව
නිවගස් ඉන්තගන්ත. අපි කිව්වා රෑ ගගනාවා කියලා. අපි කිව්ගව් නෑ ගගනාගව් නෑ කියලා.
අපි පිළිගන්තනවා විමර්ශනයක් සඳහා රැගගන ඇවිල්ලා ිගයනවා. අවශයතාවය ඉටු
වුගේ නෑ. නැවත අවශය ස්ථානයට ගිහිං අගේ ගපාගරාන්තදුව මත ඇයගේ ඉල්ීම මත
ආගව්. කිසිඳු ගහාරකමක් පැහැර ගැනීමක් නෑ. මවාපෑම්ද කරන්තන උත්සාහ කරන්තගන්ත.
අපි විමර්ශනයක් කරන්තගන්ත. පැහැදිලි විමර්ශනයක් කර ඔතුමියගේ අිකරණයට කවුද
සැකකරුවන්ත කියලා ඉදිරිපත් කිරීමට අපි සුදානමින්ත ඉන්තනවා. ඒකට නිසි විමර්ශනයක්
කරන්තන ඕනෑ. ඇත්ත තත්ත්වය ඒක. කිසිඳු පැහැ ර ගැනීමක් ගකාළඹ අපරාධ
ගකාට්ඨාශය විසින්ත සිදු කර නෑ. ගම්ද ගවනගකාටත් එම අය නිරුපද්‍රිතව එම නිවගස්
ඉන්තනවා. ගපාඩි දරුවා ගගනාගව් අම්දමත් එක්ක කුඩා දරුවා එන්තන ඕනෑ නිසා. මව
ගගනාගව් තවත් ආරක්ෂාව අවශය නිසා. කාන්තතා ගපාලිස් නිලධාරින්ත ගදගදගනක්

SC/FRA/505/19 JUDGMENT Page 15 of 38

 හිටියා… ගම්දක තමයි සතය කථාව තරගේ ප්‍රික්ගේප කරනවා උගත් නීතීඥ මහතුන්තගේ
ගම්ද ප්‍රකාශ. මිනිස්සු පැහැර ගත්ගත් ඔගහාම ගනාගව්. පැහැර ගන්තනවා නම්ද එළිපිට ජීේ

එගකන්ත ගිහිං පැහැර ගන්තගන්ත නෑ. අපි කිව්වා පැහැදිලිව අපි අරන්ත ආවා කියලා.12

[… and the learned Attorney-at-Law mentioned about an abduction. There was a

need to get a statement from Thusitha Kumara in this investigation. We looked

for him. At the time of investigation, his address was mentioned as Galle Imaduwa

area. Later, when we went to the Imaduwa area, his wife was there. We went in
our police vehicle… We accept that an inspector named Meththananda went to

that house; the wife was there, her mother was there, and the little child was there.
The wife was informed to make a phone call to her husband from her phone. After

making calls, he said, I am there, come to a house in Jayanthipura area. But it

was informed that he could not tell the exact location. Accordingly, upon his

request, the wife and the small child were taken, the reason being that the child
should come with the mother, of that lady, we needed to take a statement, along

with that took the wife’s mother of the person from whom we needed a statement.
Accordingly, we set out on this journey with his consent. During this, female police

officers were present. Was there to assist in the investigation. At that time he
disconnected the phone and did not connect again. But as of this moment, as the
Officer-in-Charge of the Colombo Crime Division, it is submitted that the three

mentioned are at Imaduwa's house in Galle. We said that we brought at night.

We did not say that we did not bring. We admit that they were brought in for

investigation. It wasn’t fruitful. Returned to the required place and came on her
request on our promise. There is no transgression or abduction. They are trying

to fabricate. We are doing an investigation. We are ready to conduct a clear

investigation and present the suspects to your Honour’s court. It should be

properly investigated. That is the real situation. No abduction has been carried

12
Proceedings dated 16th December 2019 of case bearing No. 23783/04 (Emphasis added)

SC/FRA/505/19 JUDGMENT Page 16 of 38

 out by the Colombo Crimes Division. Even at this moment, they are safe in that
house. Brought the child because a child should come with the mother. Brought

the mother [Petitioner’s mother] for further security. There were two women police
officers… This is the true story. We vehemently reject the statements of the learned

Attorneys-at-Law. It is not how people were kidnapped. If being abducted, they

won’t go out in the open in a jeep to abduct. We stated clearly that we brought]”13

38. It baffles me how a senior police officer could think this to be an appropriate

submission before a learned Magistrate. The derision pervading the words and the
nonchalance in the face of what should be considered serious misconduct are

damning indictments of the perilous attitude that is prevalent within many law
enforcement authorities.

39. To make matters worse, in their Written Submissions dated 19th June 2023, the
Respondents sought to argue that the Petitioner volunteered to accompany the

police officers in search of her husband as she is bound to assist the officers by virtue
of Section 19 of the Code of Criminal Procedure Act, No. 15 of 1979.

40. Section 19 of the Code of Criminal Procedure Act, No. 15 of 1979 states as follows:

“Every person is bound to assist a Magistrate or a peace officer reasonably

demanding his aid [inter alia] –

(a) in the taking of any other person whom such Magistrate or peace officer is
authorized to arrest”14

41. The Respondents in their Written Submissions contended as follows:

“It is the respectful submission of the respondents that when the Police are called
upon to investigate an alleged crime, the person who directs or commands the

13
An approximate translation to reflect the submissions before the Magistrate as closely as possible
14
Emphasis added

SC/FRA/505/19 JUDGMENT Page 17 of 38

 investigation shall first ascertain whether a crime had, in fact, been committed. If
so, then he shall proceed to investigate the case in order to discover any

reasonable material which points to the identity of the offender and to find out
other material which tends to corroborate or contradict the matters complained

of. In such circumstance the Police had to obtain a statement from Walluwe
Mahadurage Dilum Thusitha Kumara — the husband of the Petitioner. For which

activity the Petitioner volunteered to escort the Police officers.

It is reasonably expected that no person shall negligently fail or refuse to aid a

law enforcement officer, when called upon for assistance in preventing or halting

the commission of an offence, or in apprehending or detaining an offender, when

such aid can be given without a substantial risk of physical harm to the person

giving it.

The Petitioner is burdened by law to aid a law enforcement officer when, upon a
reasonable command by a person known to him to be a law enforcement officer,

to aid and assist such an officer — which in the present case the Petitioner did.

The Petitioner was bound to assist the Officers with regard to the statement of

her husband. It is the respectful contention of the respondents that the petitioner
voluntarily accompanied the Police officers in search of her husband.”15

42. The Respondents would have this Court believe that a woman, with her young

daughter, on her own volition came forward to travel hundreds of kilometres, in the
dead of night, cooped up in a police vehicle with a group of police officers—most of

whom were men unknown to her—so that she may help the officers find her own
husband.

15
Written Submissions on behalf of the Respondents dated 19th June 2023 at 5-6 (reproduced
verbatim for accuracy)

SC/FRA/505/19 JUDGMENT Page 18 of 38

43. In addition, is this Court to believe that a husband wished for his wife to accompany
such a group of officers, all by herself, leaving behind his daughter, who is but a

toddler? Need I even explain why this ludicrous version of events cannot stand the
test of probability?

44. Even if the Petitioner and her husband did, in fact, insist that she be taken on their
journey to Colombo for some asinine design, there was no reason for the officers to

comply with such requests. As I last saw it, public transport is not one of the functions
of a police officer. Had they been moonlighting for the Transport Board unbeknownst

to this Court, they should not have used a police vehicle in such ventures.

45. The position taken by the Respondents in defence is not only ludicrous but also an

insult to this Court’s common sense. This Court is not so detached from reality to
gobble up whatever the feeble excuses placed before it.

46. Upon perusal of the Investigation Notes of the 14th Respondent,16 the Court also
observes many instances where time slots are left blank. Considering this infirmity and

the aforementioned improbabilities, I see the evidence tendered by the Respondents

as sordidly unreliable. As such, common sense compels me to reject this preposterous

version of events in toto.

47. The Petitioner’s version was that the officers asked her to accompany them with her

child in a threatening manner and that her mother, too, came forward to join them

16
Investigation Notes taken by 14th Respondent, Inspector Meththananda, dated 23rd December
2019 as recorded in the Information Book of Colombo Crime Division Unit 1, p. 309, para 215,
produced marked 1R2 annexed to the Affidavit of the 14th Respondent dated 23rd July 2023

SC/FRA/505/19 JUDGMENT Page 19 of 38

 when the Petitioner had no option but to comply.17 This version is corroborated by
the Affidavits of her mother and husband.18

48. Regarding the contention as to Section 19 of the Code of Criminal Procedure Act, No.
15 of 1979, the interpretation so put forward by the Respondents, in my view, is

neither rational nor justifiable. The Respondents’ submission was that Section 19
imposes upon a person a duty to assist law enforcement officers except where there

is a “substantial risk of physical harm”.

49. I am not inclined to agree with this interpretation of Section 19 to any extent

whatsoever. Great emphasis must be placed upon the words “reasonably demanding
his aid”.

50. A person is bound to aid only when such demand, as well as the circumstances of
such demand, reasonably enables such person to aid. What is reasonable, of course,

depends on the circumstances of each case. What is most certainly not reasonable is
for peace officers to expect friends and family of a suspect to toil on their behalf. I

reject the contention of Respondents that the Petitioner was bound to assist the
officers in taking a statement from her husband for the comical absurdity it is.

51. I am of the view that the Respondent Officers, by requiring the Petitioner to
accompany them to Colombo, have restrained the Petitioner under a state of arrest

as contemplated within Article 13 of the Constitution.

17
Affidavit of the Petitioner dated 17th December 2019 marked P3 at paras 15-18
18
Affidavit of Ranepura Hewage Sumanawathi dated 17th December 2019 produced marked P4 at
paras 11-14; Affidavit of Walawe Mahadurage Dilum Thusitha Kumara dated 21st December 2019
produced marked P5

SC/FRA/505/19 JUDGMENT Page 20 of 38

52. Furthermore, it is clear, from the affidavits submitted attached to the Petition, that the
child was brought along only under the directions of the officers. In this regard, the

affidavit of the Petitioner states as follows:

“16. ඉන්තපසු මා කියා සිටිගේ, අත දරුගවකු සමඟ ගකාළඹ යාමට ගනාහැකි බව, බවත්
ප්‍රකාශ කර සිටිමි.

[I state that, thereafter what I said was that I cannot go to Colombo with an infant

child]”19

“17. නමුත් එගස් කළ ගනාහැකි බවත්, මාහට දරුවා සමඟ ගකාළඹ යාමට සිදුවන
බවත් තර්ජනය කළ බව ප්‍රකාශ කර සිටිමි.

[I state that, despite this, I was threatened that I cannot be so done and that I
have to come to Colombo with the child]”20

53. Moreover, the affidavit of the Petitioner’s mother states as follows:

“ඉන්ත පසුව මගේ දියණිය අත දරුගවකු සමග ගකාළඹ යෑමට ගනාහැකි බව ප්‍රකාශ
කළ නමුත් එගස් කළ ගනාහැකි බවත්, දියණියට දරුවා සමග ගකාළඹ යෑමට සිදුවන
බවට තර්ජනය කළ බවත්, ඉන්තපසු මගේ දියණිය තම දරුවා සමග ගකාළඹ යෑමට
ඉදිරිපත් වූ බවත් ප්‍රකාශ කර සිටිමි.

[thereafter, although my daughter stated that she cannot go to Colombo with a

toddler, she was told that it cannot be so and threatened that daughter has to go

19
Affidavit of the Petitioner dated 17th December 2019 marked P3 at paras 16 (Approximate
translation added to reflect the contents of the Affidavit as closely as possible)
20
ibid at para 17 (Approximate translation added to reflect the contents of the Affidavit as closely
as possible)

SC/FRA/505/19 JUDGMENT Page 21 of 38

 to Colombo with her child. Thereafter my daughter agreed to go to Colombo with
the child]”21

54. Though it may appear, prima facie, that all three of them—viz. the Petitioner, her
mother and her child—have been arrested, the Counsel for the Petitioner did not

move this Court with regard to the rights of the Petitioner’s mother and child. As a
result, the Respondents have not been given a fair opportunity to answer such

allegations. Therefore, I refrain from making any pronouncements in that regard.

Was the Arrest Legal?

55. As per Article 13(1), an arrest can only be legal if it is carried out “according to the

procedure established by law”, which means according to the procedure set out under
the Code of Criminal Procedure Act, No. 15 of 1979.22

56. Section 32 of the Code of Criminal Procedure Act, No. 15 of 1979 sets out when a
peace officer may arrest a person without a warrant. Section 32 states as follows:

(1) “Any peace officer may without an order from a Magistrate and without a warrant
arrest any person -

(a) who in his presence commits any breach of the peace;

(b) who has been concerned in any cognizable offence or against whom a

reasonable complaint has been made or credible information has been

received or a reasonable suspicion exists of his having been so concerned;
(c) having in his possession without lawful excuse (the burden of proving
which excuse shall He on such person) any implement of house-breaking;

(d) who has been proclaimed as an offender;

21
Affidavit of Ranepura Hewage Sumanawathi dated 17th December 2019 produced marked P4 at
paras 12 (Approximate translation added to reflect the contents of the Affidavit as closely as
possible)
22
vide Kapugeekiyanage v. Hettiarachchi [1984] 2 Sri L.R. 153

SC/FRA/505/19 JUDGMENT Page 22 of 38

 (e) in whose possession anything is found which may reasonably be suspected
to be property stolen or fraudulently obtained and who may reasonably

be suspected of having committed an offence with reference to such thing;

(f) who obstructs a peace officer while in the execution of his duty or who has

escaped or attempts to escape from lawful custody;

(g) reasonably suspected of being a deserter from the Sri Lanka Army, Navy

or Air Force;
(h) found taking precautions to conceal his presence under circumstances

which afford reason to believe that he is taking such precautions with a

view to committing a cognizable offence;
(i) who has been concerned in or against whom a reasonable complaint has
been made or credible information has been received or a reasonable

suspicion exists of his having been concerned in any act committed at any
place out of Sri Lanka, which if committed in Sri Lanka would have been

punishable as an offence and for which he is under any law for: the time
being in force relating to extradition or to fugitive persons or otherwise

liable to be apprehended or detained in custody in Sri Lanka.”

57. Needless to say, the Petitioner, being the wife of a suspect, by no means fall into any

of the categories aforementioned. This is a case of arresting a relative to induce a

suspect to surrender. Tragically, such cases are not uncommon.

58. In the case of Lakshman de Silva v. Officer-in-Charge, Kiribathgoda Police,23

which the Petitioner heavily relied upon, H.N.J. Perera J., as His Lordship was then,

opined as follows:

“Detention of the spouse or a family member or a relative of a suspect merely to

compel or to induce a suspect to surrender to the police cannot be a reasonable

23
SC FR Application No. 09/2011, SC Minutes of 03rd March 2017

SC/FRA/505/19 JUDGMENT Page 23 of 38

 reason for the Peace officer to arrest and detain such a person in police custody
under section 32(1)(b) of the Criminal Procedure Code. The arrest and detention

of a spouse or a family member or any other relative of a suspect by a peace

officer must be condemned and discouraged by Courts of law in this Country. The

arbitrary deprivation of the liberty of the 2nd Petitioner was caused by the
Respondents not because they bona fide suspected that the 2nd Petitioner was

involved in the commission of an offence, but for the wholly improper illegal
purpose of compelling the 1st Petitioner to surrender to the police. It is very clear

that the Respondents kept the 2nd petitioner at the police Station as a hostage in
order to compel the 1st Petitioner to arrive at the police station”24

59. It is very clear that the arrest of the Petitioner is an abduction of such nature as

described by His Lordship. This abhorrent practice of arresting relatives in order to

compel suspects to act in a certain way is one which all powers that be for the
protection of the Rule of Law must condemn in unison. Police officers have no legal

mandate to act like common thugs and terrorize relatives of suspects in furtherance
of their investigations. Such practices, repugnant not only to law but also to good

sense and morality, are, in fact, tantamount to state terrorism. Such reprehensible
practices have no place and must find no tolerance within a democratic state. This

applies across the board from the pettiest of offences to the most cruel and barbaric.
The fundamental rights of a person as recognized by law are inherent to their personal

dignity and exist quite independently from those to whom they may be connected or
related.

60. For the foregoing reasons, I find the arrest and subsequent detention of the Petitioner
unlawful and accordingly hold that the impugned actions amount to a violation of the

Petitioner’s fundamental rights as enshrined under Article 13(1) of the Constitution.

24
ibid at 12-13

SC/FRA/505/19 JUDGMENT Page 24 of 38

 VIOLATION OF ARTICLE 13(2)

61. Article 13(2) states that “[e]very Person held in custody, detained or otherwise deprived
of personal liberty shall be brought before the judge of the nearest competent court

according to procedure established by law and shall not be further held in custody,
detained or deprived or personal liberty except upon and in terms of the order of such

judge made in accordance with procedure established by law.”

62. Sections 36, 37 and 38 of the Code of Criminal Procedure Act, No. 15 of 1979 deal with

the detention of persons arrested without a warrant.

63. Section 36 states that,

“A peace officer making an arrest without warrant shall without unnecessary

delay and subject to the provisions herein contained as to bail take or send the

person arrested before a Magistrate having jurisdiction in the case.” 25

64. Section 37 provides that,

“Any peace officer shall not detain in custody or otherwise confine a person
arrested without a warrant for a longer period than under all the

circumstances of the case is reasonable, and such period shall not exceed
twenty-four hours exclusive of the time necessary for the journey from the place

of arrest to the Magistrate.” 26

65. Whereas Section 38 provides that,

“Officers in charge of police stations shall report to the Magistrates' Courts of their
respective districts the cases of all persons arrested without warrant by any police

25
Emphasis added
26
Emphasis added

SC/FRA/505/19 JUDGMENT Page 25 of 38

 officer attached to their stations or brought before them and whether such
persons have been admitted to bail or otherwise.”

66. As Amerasinghe J. has explained in Channa Peiris v. Attorney-General,27 while

illegal arrest makes subsequent detention ipso facto illegal, the fact that an arrest and
subsequent detention is illegal ‘does not carry with it the corollary that Article 13(2) is

violated.28

67. In Channa Peiris Amerasinghe J. opined:

“The provisions of both Articles 13(1) and 13(2) may be violated in a given case…

However, the fact that Article 13(1) is violated does not necessarily mean that
Article 13(2) is therefore violated. Nor does the violation of Article 13(2)

necessarily mean that Article 13(1) is violated. Arrest and detention, as a matter
of definition, apart from other relevant considerations, are "inextricably linked".

However, Article 13(1) and 13(2) have a related but separate existence. Article
13(1) is concerned with the right of a person not to be arrested including the right

to be kept arrested except according to procedure established by law and the right

to be informed of the reasons for arrest, whereas Article 13(2) is concerned with
the right of a person arrested to be produced before a judge according to

procedure established by law and the right not to be further deprived of personal
liberty except upon and in terms of the order of such judge made in accordance
with procedure established by law. Article 13(1) and 13(2) are no doubt linked:
For instance, the procedure under which a person is arrested may determine

the period within which a person has to be produced before a judge.

Moreover, as we shall see the lack of grounds for arrest or subsequent

cessation of reasonable grounds might well be important in deciding

27
[1994] 1 Sri LR 1
28
ibid at 95

SC/FRA/505/19 JUDGMENT Page 26 of 38

 whether an obligation arises to produce a person. Article 13(1) and (2) are
linked but not inextricably so.

The fact that Article 13(1) was not violated does not necessarily mean that Article

13(2) cannot be violated. For instance, a person may be arrested on grounds of

reasonable suspicion and given reasons for his arrest. However, if he is not
produced before a judge in accordance with a procedure prescribed by law - and

that is the matter dealt with by Article13(2) - there will be a violation of Article
13(2), although Article 13(1) was not violated.”29

68. While I concur with the observations of Amerasinghe J., I also see it necessary to take

due cognizance of cases such as Faiz v. Attorney-General & Others30 and Shantha
Wijeratne v. Vijitha Perera,31 in which this Court found violations of Article 13(2)

even with regards to detention within the twenty-four-hour period—with

Goonewardene J. disagreeing in both cases. In the former case, Fernando J. regarded

the detention as “unnecessarily prolonged”32 even in the absence of evidence that it

had been longer than twenty-four hours.

69. Amerasinghe J., in Channa Peiris (supra), referred to both the aforementioned
cases.33 In His Lordship’s appraisal, while some infirmities have been noted, I find no

material therein contradicting the dicta of Faiz v. Attorney-General and Shantha

Wijeratne v. Vijitha Perera.

29
ibid at 98-99 (Emphasis added)
30
SC Application 89/90, SC Minutes of 19 November 1993; now reported as [1995] 1 Sri L.R. 372
31
SC Application 379/93, SC Minutes of 02nd March 1994; now reported as [2002] 3 Sri L.R. 319
32
[1995] 1 Sri L.R. 372 at 379
33
For a detailed analysis of the law with regards to Article 13(2), vide Channa Peiris v. Attorney-
General [1994] 1 Sri LR 1, 92-101

SC/FRA/505/19 JUDGMENT Page 27 of 38

70. As can be seen from the language of Sections 36 and 37 of the Code of Criminal
Procedure Act, No. 15 of 1979, the former requires a police officer to take or send the

person arrest before a Magistrate “without unnecessary delay”, whereas the latter
states that a person shall not be detained for a period longer than “under all the

circumstances of the case reasonable”. The latter further states that such a period shall
not exceed twenty-four hours. What I have emphasized, in my view, are the operative

elements of the Sections.

71. The twenty-four-hour limit set out in Section 37 is a maximum threshold, subject to

such other provisions of law which may provide for extended detention—for instance,
the law may provide for further detention by virtue of detention orders. It does not
for a moment give carte blanch to police officers for twenty-four hours to do with an
arrestee as they please. In certain instances, depending on the circumstances of the

case, Article 13(2) may be violated where a person is kept in custody for a period
longer than reasonable—or for a period ‘unnecessarily prolonged’, in the words of

Fernando J.—without being produced before a judge, even where such period
amounts to less than twenty-four hours.

72. The analysis of Amerasinghe J. in Channa Peiris and the dicta of Faiz v. Attorney-
General and Shantha Wijeratne v. Vijitha Perera, to this extent, appear utterly

cogent and sound. Nonetheless, as I say this, I am struck with a sense of foreboding,
for this reasoning can easily be stretched to logical extremities resulting in the most

illogical of ends. Hence, I wish to place on record a word of caution.

73. It is a trite rule of interpretation that laws concerned with fundamental rights are to

be interpreted in a manner that would broaden and give meaning to such rights.
While that may be true, where police powers and the like are concerned, we ought to

consider if we are, by such interpretation, throttling the good and honest officers in
effectively and conveniently carrying out their duties. If we render such officers
virtually powerless in their pursuit of meting out justice and maintaining law and

SC/FRA/505/19 JUDGMENT Page 28 of 38

 order, that would stand equally inimical to the design of broadening fundamental
rights as narrowing down the rights themselves, for chaos stands noxious to individual

rights, and anarchy antithetical.

74. Lest we forget, from limited resources to hefty workloads, this good and honest officer

who works by the book is often set up for a battle uphill. Twenty-four hours means
little towards any thorough and genuine investigation. This is why the law itself

excludes the time necessary for the journey from the place of arrest to the Magistrate.
In this setting, keeping in custody a legitimate suspect for twenty-four hours in pursuit

of any well-founded investigation is almost always reasonable.

75. It is only in those extreme residual cases, with the most exceptional of circumstances,

does it become a violation of Article 13(2) where a person is held in detention for less
than twenty-four hours without producing before a judge.

76. Arresting a relative of a suspect who has nothing to do with transgressions under
investigation is most definitely so exceptional. The Petitioner of the instant application

had no involvement whatsoever in the case being investigated. She was merely
present at the time when several of the Respondents visited her home looking for a

suspect to whom she happened to be married. The 13th Respondent and his
subordinate officers have taken her well over 100 kilometres from the site of the

arrest, and kept her for over twelve hours along with her mother and child, forcing
them to endure the midnight cold and the dreadful warmth come midday cooped

inside a police vehicle, without so much as food, water or lavatory facilities. I wish to
also put on record that the Respondents have at no point denied the Petitioner’s

allegations in this regard.

77. An adult may be able to weather such conditions with difficulty, but to cause a child

of such tender age, whose mental faculties have only begun to develop, to undergo
such agony is nothing short of inhuman. Children so young should not be forced to

SC/FRA/505/19 JUDGMENT Page 29 of 38

 spend such long periods at a stretch in school, let alone in police custody under such
coarse inhospitable conditions. Needless to say, such trauma can have lasting effects

on a child’s mental and emotional well-being.

78. Expecting experienced law enforcement officers to comprehend such basic truths,

which any man with half a wit—let alone a reasonable man—can understand, is but
the bare minimum. As this Court was not moved apropos the fundamental rights of

the child, and we are therefore unable to make any pronouncements in this regard.

79. In light of this, I am of the opinion that the detention of the Petitioner for

approximately twelve hours inside the police vehicle was unnecessarily prolonged,
albeit it was for less than twenty-four hours; therefore, I hold that the Petitioner's

fundamental rights under Article 13(2) of the Constitution have been violated by the
impugned acts of the Respondents.

VIOLATION OF ARTICLE 14(1)(h): FREEDOM OF MOVEMENT

80. The scope of freedom of movement is seldom defined. This may be so due to the self-
explanatory nature of its application on one hand, and the resultant difficulty in

precisely articulating its scope on the other.

81. Article 14(1)(h) establishes that every citizen is entitled to “the freedom of movement

and of choosing his residence within Sri Lanka…”.

82. This right, in its essence, protects the autonomy of locomotion, or one’s liberty of

moving about as they please. It is implicit in this right that an individual also has the
freedom not to move from a space he or she has lawfully occupied. The freedom of

movement is equally violated by the unlawful compulsion of movement as by the

unlawful restriction of movement.

SC/FRA/505/19 JUDGMENT Page 30 of 38

83. In Rodrigo v. Imalka, Sub-Inspector of Police, Kirulapone,34 Sarath N. Silva C.J.
observed, obiter, even intermittent stoppage of traffic to permit ‘VIP movement’ to be

a violation of Article 14(1)(h). His Lordship noted;

“Counsel submitted that at times traffic is brought to a halt on principal roads at

peak hours causing severe congestion which in itself is a security threat… We have
to note that such measures deny to the people the equal protection of law. It has

to be borne in mind that our State is a Democratic Socialist Republic in which all
persons are equal. The obstruction of traffic on public roads and the consequential

restriction of the freedom of movement would be an infringement of the

fundamental rights of the citizens guaranteed under Article 14(1)(h) of the
Constitution.” 35

84. While I find no objection towards His Lordship’s reasoning, we must be mindful not

to stretch such reasoning to illogical and absurd ends. As colloquially said, my right
to swing my fist ends where your nose begins.36 A citizen’s freedom of movement

may be justifiably restricted in a multitude of ways in their day-to-day life, be it by

traffic restrictions, security restrictions and even by another’s property rights etc. As

provided by the Constitution, the freedom of movement under Article 14(1)(h) can be
restricted in the interest of national economy, according to Article 15(6), or in the

interest of national security, public order and the protection of public health or
morality, or for the purpose of securing due recognition and respect for the rights

and freedoms or others, or of meeting the just requirements of the general welfare of
a democratic society, in accordance with Article 15(7). But, such restriction can only

be done ‘as may be prescribed by law’.

34
[2007] 2 Sri L.R. 100
35
ibid at 115
36
Often attributed to Justice Oliver Wendell Holmes Jr.

SC/FRA/505/19 JUDGMENT Page 31 of 38

85. In this regard in Sarjun v. Kamaldeen,37 Sarath N. Silva C.J. opined as follows:

“A person freely moving on the road in compliance with the law could be stopped

and made to alight from the vehicle only on a reasonable suspicion of illegal
activity. Such suspicion would have to be justified in Court. Superior Officers who

do not take precautions to prevent any infringement by their subordinates who

are detailed for duty would themselves be liable for the infringement of the

freedom of movement…” 38

86. Conversely, a person standing by a road in compliance with the law cannot be

compelled to move unless upon lawful and objectively reasonable grounds. Such
grounds would have to be justified in court.

87. We have already found that the Petitioner was unlawfully detained by the police party
when the Petitioner was compelled to accompany them to Colombo in their Police

vehicle. The ludicrous justifications afforded by the Respondents are by no means

acceptable. As such, I find that the Petitioner’s freedom of movement as enshrined

under Article 14(1)(h) has been infringed upon by this compulsion of movement.

LIABILITY OF THE RESPONDENTS

88. The 14th Respondent has throughout been at the centre of these violations. He has

readily admitted his participation and involvement in the investigation by his Affidavit
dated 23rd July 2022.

37
[2007] 2 Sri L.R. 67
38
ibid at 74

SC/FRA/505/19 JUDGMENT Page 32 of 38

 13th Respondent

89. By his Affidavit, the 14th Respondent further established that he acted upon the
instruction of the 13th Respondent—ASP Nevil Virginton De Silva, CI and OIC of

Colombo Crime Division at the time material.39

90. Evidence placed before us indicated that the violations in question have been carried

out under the direct instructions, authority and supervision of the 13th Respondent.

91. The said Affidavit states as follows:

“…On 15.12.2019 upon the instructions of the 11th Respondent , I met the 13th

Respondent ,40

Upon the instructions of the 13th Respondent I with SI Maduranga, PC 91282,

Police Driver 89729 left for Imaduwa…[sic]”41

92. With regards to the involvement of the 13th Respondent, the notes state as follows:

“…මා ඒ සම්දබන්තධගයන ගකා.අ.ගකා. ස්ථානාිපිතුමා ව දැනුවත් කළ අතර ඇයගේ

ප්‍රකාශ සටහන්ත කර ගනාමැිනම්ද අරගගන එන්තන කිව්වා…

[I informed of the same to Colombo Crime Division, Officer-in-Charge and he told

to bring her if a statement had not been taken]” 42

93. ‘ගකා.අ.ගකා. ස්ථානාිපිතුමා’ (OIC, Colombo Crime Division) very clearly refers to the

13th Respondent. The Petition of the Petitioner at paragraph 6 and the affidavit of the

39
Affidavit of the 14th Respondent dated 23rd July 2022
40
Affidavit of the 14th Respondent dated 23rd July 2022 at para 8(a)
41
ibid at para 8(b)
42
Investigation Notes of the 14th Respondent Inspector Meththananda dated 23rd December
2019, as recorded in the Information Book of Colombo Crime Division Unit 1, p. 309, para 215,
produced marked 1R2 annexed to the Affidavit of the 14th Respondent dated 23rd July 2023
(Approximate translation added)

SC/FRA/505/19 JUDGMENT Page 33 of 38

 Petitioner at paragraph 7 very clearly identify the 13th Respondent as the Officer-in-
Charge of the Colombo Crime Division. The 14th Respondent has admitted to the

ranks of the officers so set out,43 which the 13th Respondent has not denied in his
affidavit.

94. Moreover, knowledge on the part of the 13th Respondent regarding these violations
is further evident from his submissions before the Magistrate Court of Colombo as

recorded in the Proceedings dated 16th December 2019 of case bearing No.
23783/04, which I have produced earlier in the judgement.

95. IGP’s Circular 2328/2011 dated 29th December 2011 (Safety of Persons in Police
Custody) states as follows:

“02. in making an arrest of a suspect, the police should comply with Section 23 of
the Code of Criminal Procedure Act No. 15 of 1979 and whereas –

…
XI. All the Officers- in - Charge are liable to work in a manner which ensure the

rights and protection of all persons who are being arrested. The officers in charge
of the District who are monitoring such places should strictly monitor the rights

and protection of the people who are under arrest.

04. It shall be the duty of all the officers in charge of the Districts cum
Divisions and the Deputy Inspector Generals who are in charge of Ranges to
execute constant monitoring process as to whether the said instructions are
properly carried in to effect and rights of the arrested suspects are properly

ensured.”

43
Affidavit of the 14th Respondent dated 23rd July 2022 at Para 6 – by paragraph 6, the 14th
Respondent, answering paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of the Petitioner’s affidavits, admitted
only the ranks contained therein.

SC/FRA/505/19 JUDGMENT Page 34 of 38

 96. All superior officers vested with supervisory authority have a special duty to make
certain that their subordinates act within the bounds of their legal mandates. Superior

officers cannot give orders or instructions to investigate and thereafter fall asleep on
the wheel. It is their duty to closely supervise and scrutinize the conduct of those

officers placed under their supervision.

97. Senior officers who do not take precautions to prevent any infringement of

fundamental rights by their subordinates and fail in their supervisory duty are as guilty
of such infringement as the subordinates who commit the acts themselves, unless

such supervising officers have distanced themselves from the violation by taking
necessary steps to hold offending subordinates accountable.

98. What is even more concerning is when superior officers, in the face of serious
fundamental rights infringements, fail to take appropriate steps to hold errant officers

accountable, thus leading to an environment of virtual impunity. Such failures of

senior officers to report fundamental rights violation and take disciplinary steps, on

its own, may even amount to a violation of the right to equality and equal protection
before the law.

99. I am of the view that the 13th Respondent, as an Officer-in-Charge, at the time
material, has failed to fulfil his duty as a supervising officer, thereby enabling the

violations of fundamental rights committed by his subordinates.

100. The Affidavit of the 14th Respondent further establishes the involvement of SI

Maduranga (PC 91282), Police Driver 89729, Nirosha of the Imaduwa Police Station
(WPC 3541), WPC 10248 and WPC 10554 of the Galle Police Station. However, these

officers have not been named as Respondents in the instant case. Therefore, I make
no orders against them, as they have not had the opportunity to plead their case in

defence before this Court.

SC/FRA/505/19 JUDGMENT Page 35 of 38

101. With regards to the National Police Commission, the Counsel for the Petitioner
submitted during the course of these proceedings that he does not intend to move

against its members. Despite this, we direct the National Police Commission to take
cognizance of the pressing need to improve the standards of the Police Force.

CONCLUSION & CONSEQUENTIAL ORDERS

102. The conduct of the Respondents, judged even by the lowest of standards, is a
magnificent failure of all that the Rule of Law stands for. They have no doubt acted in

a manner unbefitting of public office.

103. How are we to sympathize with their contention of bona fides when they have been

absolutely insensitive towards even the most basic needs of the arrestees? The fact
that the Petitioner had to breastfeed the child inside the vehicle tells us that the

Respondents have had scant regard towards her dignity and even the mere rudiments
of human decency.

104. What is worse, perhaps, is the Respondents’ abhorrent attempt to underplay the
Petitioner’s woes by suggesting that she had undergone all this trouble, while putting

her own child through the same, on her own volition.

105. In view of the aforementioned, I hold that the 13th and 14th Respondents, in this

extraordinary display of ineptitude and incompetence, have violated the fundamental

rights of the Petitioner guaranteed under Articles 13(1), 13(2) and 14(1)(h) of the

Constitution.

106. As the mother and child of the Petitioner are not party to this case and the Petition

of the Petitioner has not made any submissions vis-à-vis the rights of the Petitioner’s
mother and child, I make no orders in their regard.

107. Furthermore, I do not see it just and equitable to impose upon the taxpayer the
burden of compensating for the transgressions of dysfunctional public agencies,

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 seeing as they are already saddled with the burden of maintaining the same. In cases
of this nature, cursus curiae with regards to awarding compensation has been to direct

errant officers to personally make amends. This appears to me a fit case to make such
orders.

108. The Respondents are ordered to pay compensation to the Petitioner in the following
manner:

i. The State is ordered to pay as compensation a sum of Rs. 10,000/- (Rupees Ten
Thousand) out of the funds allocated to the Police Department, in view of the

institutional issues observed;

ii. The 13th Respondent is ordered to pay as compensation a sum of Rs. 250,000/-

(Rupees Two-Hundred Fifty Thousand); and

iii. The 14th Respondent is ordered to pay as compensation a sum of Rs. 250,000/-

(Rupees Two-Hundred Fifty Thousand).

109. The 13th and 14th Respondents are to pay the aforementioned sums, within six months

from the date of judgment, out of their personal funds.

110. Moreover, the National Police Commission is directed to take appropriate disciplinary

action against the Respondents found responsible for the violations set out
hereinabove.

Application Allowed.

JUDGE OF THE SUPREME COURT

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MAHINDA SAMAYAWARDHENA, J
I agree.

JUDGE OF THE SUPREME COURT

ARJUNA OBEYESEKERE, J
I agree.

JUDGE OF THE SUPREME COURT

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