By Shehan Chamika Silva
Refusing the request made by defence to release former SDIG Anura Senanayake due to unlawful detain in custody for a period exceeding twelve months from the date of his arrest, Colombo Additional Magistrate Jeyaram Trotsky today ascertained that he has no judicial power to do so and further remanded suspect till June 15.
At the onset of the inquiry, President's Counsel Anil Silva who appeared on behalf of former SDIG Anura Senanayake moving a special submission held that court cannot order for any further detention on the suspect, since the time period (12 months) of lawful custody of a suspect in remand was over on May 23, 2017, thereby, ex- SDIG should be released without any bail conditions as per section 16 of No. 30, 1997 Bail Act.
He said Attorney General had not made any application in High Court to detain suspect more in excess of twelve months as provided by law under the section 17 of the Bail Act. Therefore keeping him in custody without any legal reason would be a breach of his constitutionally protected human rights, he said.
Defence counsel further argued that Anura Senanayake was first arrested and remanded on May 23, 2016, therefore being kept in custody unlawfully for seven days to date was a violation of section 16 of Bail Act.
However, Deputy Solicitor General Dilan Ratnayake appeared for the Attorney General said that the Magistrate cannot make such releasing decision on the suspect since the allegations leveled against suspect fell under 113 (Conspiracy), 32 (Common intention), 289 and 296 (Murder) of the Penal Code, where section 13 of the Bail Act stated that a suspect with such charges shall not he released on bail except by a Judge of the High Court.
Subsequently, Colombo Additional Magistrate Jeyaram Trotsky adjourned court for few hours in expectation of delivering a judgment over the crucial legal issue.
Later, the Magistrate delivering the judgment ascertained that it was an obvious legal issue because at this instance the suspect was in remand custody for murder charges (non bailable by a magistrate) and his lawful custody of remand exceeded while prosecution fails to extend it as per section 17 of the Bail Act.
The Magistrate said according to the Supreme Court judgments a bail could be considered in such circumstances by the appropriate court which could consider it.
Thereby, according to the section 13 of bail act the appropriate court to consider suspect's bail was High Court.
And also considering that suspect’s revision bail application would be considered today in high court, the Magistrate held that exceed of lawful detention time period of the suspect should be considered by High Court, where High Court could consider granting bail on suspect due to the breach of law by the prosecution.
The Magistrate citing various superior courts’ precedents and other British legal academically quotations observed that legislature’s intention of creating section 13 of Bail Act would be infringed if he releases the suspect with no judicial power to do so.
Former SDIG Anura Senanayake and former Narahenpita Crimes OIC Sumith Perera had been charged under Sections 113 (Conspiracy) and 32 (Liability for act done by several persons in furtherance of a common intention) of the Penal Code by the prosecution.
They were also charged with causing the disappearance of evidence, fabricating false evidence, using it to shield the offender and conspiring under Clauses of 189,198 and 296 of the Penal Code
However, first suspect, Sumith Perera was granted bail by the Colombo High Court on earlier occasion following a revision application filed on behalf of the suspect.
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