Landmark Judgment

Landmark Judgment

By Ishara Rathnakara-2015-10-09

Additional Magistrate of Colombo Nishantha Peiris

ordered the Financial Crimes Investigation Division (FCID) yesterday (8) to
inform Court why former President's Secretary Lalith Weeratunga and
former Chairman of the Telecommunications Regulatory Commission
Anusha Pelpita, who had been clearly identified as suspects in the case of
misappropriating Rs 600 million from the Sri Lanka Telecommunications
Regulatory Commission for a programme where sil clothing had been
distributed, had not been produced before a Magistrate.
Accordingly, the Additional Magistrate issued notice to the Officer-In-Charge
of the FCID to be present in Court on 5 November.

While the FCID had informed the Colombo Magistrate's Court that further
investigations are being carried out into this incident, the Attorney General
had filed a case on certain charges against Lalith Weeratunga and Anusha
Pelpita, at the Colombo High Court. When this case was taken up for
hearing on Wednesday (7) at the Colombo High Court, bail had been
granted to these two defendants.
Submitting facts on behalf of the plaintiff, Inspector of Police Sajith said:
"Charges were filed on instructions received from the Attorney General
under Case No. 8026/15. Accordingly this case was taken up for hearing on
18 September and summons were issued to the two defendants Anusha
Pelpita and Lalith Weeratunga. Then the Case was called up for hearing at
the Colombo High Courts complex, at Court No. 5, on 7 October. When the
defendants appeared in Court they had been released on bail. Accordingly a
request has been made to complete the hearing of this Case. At the same
time an Injunction was obtained banning travel abroad for Anusha Pelpita. A
request was made to remove this ban.
Additional Magistrate Nishantha Peiris declared in Open Court that he will
study the Case file regarding the request of the FCID and issue a suitable
Injunction based on equity and justice.
Accordingly, the special verdict consisting of 41 pages of Additional
Magistrate Nishantha Peiris also stated:
"The offence engaged in by the defendants under the subject of public
property is considered an offence under the Public Property Act No. 12 of
1982, Article 5 (1). It has been disclosed in the FCID final report that
Secretary to the former President Lalith Weeratunga and former Chairman
of the Telecommunications Regulatory Commission, Anusha Pelpita had
used Rs 600 million of government money in a criminal manner and
fraudulently. According to the facts mentioned thus, the police have stated
that it was public property that was misused."
"The FCID has the ability to file legal action under misuse of State property,
that is under the Public Property Act and produce suspects. According to the
Criminal Procedure Code Act, investigating officers (Police/CID/FCID) should
have produced the suspects in a Magistrate's Court. There is no provision
beyond that in the Criminal Procedure Code that they should be produced
elsewhere."

"Accordingly, it is apparent that, if investigations have been completed, and

that the report on investigations had stated that investigations had been
completed on 15 September, no steps had been taken to produce the
suspects. Court especially considers the legal provisions regarding the
responsibility of the Attorney General."
"Accordingly, once the FCID had completed investigations and if the
suspects had been identified without delay as a step forward they should
have definitely produced the suspects in Court."
"These suspects in relation to this incident have not been produced in Court
so far. Who are the suspects who were revealed during the investigations in
connection with the Case? The Magistrate has a right to know of this.
Accordingly, the responsibility of the plaintiff is to disclose all important
facts."
"It is also the opinion of Court that one should arrive in Court with clean
hands."
"According to the experience of Court, under the Public Property Act, police
should file legal action in a Magistrate's Court. The plaintiff does not have
the ability to act beyond the Criminal Procedure Code and the Police Act."
"The High Court, relevant to this case had requested on 14 September the
initial file. The letter requesting this file was received on 15 September.
Police have also submitted a further report on this day. However, the
plaintiff had not disclosed to this Court whether charges had been filed
against the suspect on this date. If charges had been filed in the High Court,
it should have been done either on 14 September or on a date prior to that.
However, this fact was not declared in Court on 15 September."
"A Magistrate is a Judge according to the Criminal Procedure Court Act
Article No. 2. According to the declaration of Lord Denin "The civilized
social existence depends on his role", that task is assigned to the
Magistrate. Accordingly there is a possibility of asking the Officer-In-Charge
of the FCID why the suspects in this case were not produced before a
Magistrate."
"Accordingly, the responsibility of Court is to act in finding out whether the
police/FCID have acted properly in relation to this case. According to that,
the FCID can be considered to be a part of the Police Department."
"The basic law is the Constitution of Sri Lanka. It is relevant to all citizens

and they have to be under this. According to the Public Property Act, all
suspects should be produced before a Magistrate without any
differentiation. According to Article 12 (1) of our Constitution, everyone is
equal in the face of the law."
"Accordingly, being equal in the face of the law means, the opportunity of
producing citizens in Court should be equal for all."
"The Police Department/FCID does not have the authority to act in a
manner that diminishes the pride of the Magistrate's Court or to make the
Judicial authority of Magistrate's Courts a misconception either. At the same
time, while clear provisions have been provided through statutory laws
there is no room to act in a manner that demeans the powers provided to a
Magistrate under many Acts and the Constitution."
"There is no provision that states that one can go beyond a Magistrate's
Court and produce a suspect in another Court premises or that they should
do that. Thus, if Judicial procedure is not followed, it would be a case of not
taking into consideration the Magistrate's Court."
"Accordingly, when the suspects are identified, the responsibility of the
plaintiff is to first, without any delay, produce them in Court. The plaintiff
does not have a right to not produce the suspects before a Magistrate.
The FCID, which is the plaintiff in this case, should have produced the
suspects in Court, after the investigations. It is a task for the Court to
decide whether to release the suspects on bail or to remand them."
"The FCID does not have the authority under statutory law not to produce
suspects before a Magistrate. According to the Criminal Procedure Code Act
a suspect or suspects should be produced during the investigation stage
before a Magistrate."
"Accordingly, when suspects are produced in Court, they should be
remanded if bail is set at over Rs 25,000, according to Article 8 in provisions
on granting bail. Bail can only be given under extraordinary circumstances.
Thus a Magistrate's or a High Court can't grant bail to a suspect unless
under extraordinary circumstances, even if there is no objection from the
plaintiffs. Court must see if the plaintiff does not object because of
collaboration with the defendant. Thus a Court can hold a suspect in
custody until the end of the proceeding."
"Although investigations in this Case had been completed, the two suspects

in this Case have not been produced in a Magistrate's Court up until today."
"Police can't not produce suspects in Court, subsequent to taking into
custody, who have been accused of serious offences. Police should directly
produce the suspects before a Magistrate. Then they should be included in
the Case. The plaintiff cannot follow any other methods. Since the
certificate regarding the value of the property is submitted by the
Magistrate's Court, suspects too should be produced in a Magistrate's
Court. If the plaintiff does not follow this correct procedure, the Attorney
General's Department should intervene and ensure that the proper
procedure is followed."
"The plaintiff is now requesting Court to remove the ban imposed on one of
the suspects, Anusha Pelpita. However, without taking into consideration on
what conditions the High Court granted bail, I cannot grant a verdict. Such a
move would ultimately pervert the legal process."
"According to basic law adopted by Parliament and the Judicial Organization
Act, the authority that remains with a Magistrate's Court should not be
demeaned nor undermined.
I hereby issue notice on the OIC of the FCID to answer to Court the question
why the suspects in this case were not produced in Court.
A certified copy of this order should be sent to the relevant OIC, to the
Senior Superintendent of Police in charge of the North in the Western
Province and the Deputy Inspector General in charge of the Western
Province."
Subsequent to Additional Magistrate Nishantha Peiris declaring his verdict,
all lawyers who were present in Court at that moment, rose from their seats
as a sign of respect for the landmark verdict.
Posted by Thavam