296 Murder, 298 Criminal Negligence in contention

By Shehan Chamika Silva

Former IGP Pujith Jayasundara and former Defense Secretary Hemasiri Fernando were ordered to be released on bail by the Colombo Chief Magistrate. They were released on one surety bail of Rs. 500,000 for each.

Delivering a lengthy order with regard to the maintainability of the case under Section 296 of the Penal Code and granting bail over the suspects, Chief Magistrate Lanka Jayaratne held that there is no sufficient facts against the suspects to constitute the murder charge under section 296 of the Penal Code.

The Magistrate considered that the failure to react based on the information received over the attack is not amounting to an omission which is so imminently dangerous that it must in all probability cause death under section 294(4) of the Penal Code, therefore does not constitute the intention of the murder charge.

The Chief Magistrate also considered the inclusion of the section 298 (criminal negligence) against the suspects over their alleged omission and said that such inclusion is also questionable to maintain in this criminal inquiry as there is no cogent evidence to prove such negligence on their part.

The Court also considered the remoteness of the incident and the suspects' alleged omission to determine the 'causal relationship' with the incident and said that the court cannot see,through the facts before court, over any close proximity in connection with the alleged omission of the suspects as public servants and the Easter terrorist attack.

Firstly, the Magistrate considered that this criminal investigation was commenced after the interim report of the 'Special Board of Inquiry appointed to inquire the Easter Attack', which recommended an inquiry into the matter. However this special board of inquiry did not have judicial capacity as it was not appointed under the existing Acts relating to the appointment of Presidential Commission of Inquiry, said the Magistrate.

Therefore, the Court considered that such Board of inquiry can be regarded as the 'first information', based on what this criminal investigation initiated by the CID. Hence, the Court observed what ever the statements given to that Board of Inquiry cannot be considered in the court of law.

The Magistrate said this after considering the fact that the prosecution had failed to record statements of the suspects before arresting them over the incident. The Magistrate observed that it was not appropriate to arrest and produce the suspects over the murder charge without listening to their side of story and hence all the other legal arguments should be considered by the Court on that background that their statements have not been recorded before the arrest.

Addressing the legal question as to the inclusion of both Section 296(Murder) and Section 298 (Criminal Negligence), the Magistrate considered that inclusion of both murder and criminal negligence suggests the hesitation of the prosecution over including charges against the suspects. In such situation of ambiguity, the less magnitude of offence should be adopted considering the individual freedom, Magistrate said.

Considering the facts of this incident over the intelligence information which is said to have received by the suspects, the Magistrate first said that in order to establish the liability of murder charge, the element of intention has to looked into. The prosecution had brought this element of intention under section 294(4) where the phrase 'if the person committing the act or omission knows that it is so imminently dangerous that it must in all probability cause death' has to be proven.

The Magistrate citing various precedents observed that the 'knowledge' in this phrase should not be a mere knowledge that causing the death, but the knowledge of high probability of causing the deaths. 'There is a difference between mere possibility and the probability, the Magistrate said.

And observing the information that said to have received by the suspects on April 9, 18, 20 21, 2019 from the head of intelligence, the Magistrate said most of them except April 20 Whatsapp message are not certain about a imminent terror attack or did not recognize any possible attack in near future by the Intelligence.

The Magistrate also considered about a Whatsapp message received by the suspect Hemasiri Fernando on April 20 via Whatsapp, and said even though that message was of some clarity about the incident it was not the appropriate way of communicating such information to a person of suspect's position.

The Magistrate said the Court also has to consider the fact of the time period during which this information was received as it was clearly of different to the time as of now and the court cannot act like visitors from outer space in deciding the intention of the suspects over their alleged omission or failure to take precautions with regard to the terror attack without considering the extrinsic nature of the attack at that time period.

The Magistrate also held that there was no evidence so far to suggest that the suspects' alleged omissions could amount to criminal negligence under section 298 of the Penal Code as they have apparently acted hundred per cent sufficiently according to their positions.

Addressing the question as to why the suspects have not declared such intelligence information to the public, the Magistrate observed that such declaration was not practical at that time considering the uncertainty of the information received and the nature of the day itself as it was the Easter celebration of Catholic.

And the Court also observed that mere carelessness would not suffice to bring charges against suspects under 298 as very high degree of negligence is required to prove such offence.

The Court also observed that the mere failure of public servants in preventing such suicidal bomb attacks would not amount to murder or criminal negligence offences.

Failure to take necessary precautions forms Murder charge: DSG, No certain Intelligence infor over the attack: Defense

-CMC to decide maintainablity of the case and bail on July 9

-Pujith, Hemasiri re-remanded

By Shehan Chamika Silva

Former IGP Pujith Jayasundara and former Defense Secretary Hemasiri Fernando were ordered to be further remanded till July 9 by the Colombo Chief Magistrate after considering the evidence presented during the magisterial inquiry against the IGP and Defense Secretary who were charged with criminal negligence, murder and failure to prevent or at least minimise the damage caused during the Easter Sunday terrorist attacks.

Colombo Chief Magistrate Lanka Jayaratne also fixed July 9 for an order to be delivered on the maintainability of the case under Section 296 of the Penal Code and granting bail to the suspects.

The Court directed the Prisons Authority to produce the suspects who are currently receiving treatment at two hospitals, before Court on the next hearing date.

Both the Defense and Prosecution were directed to file written submissions over the legal meaning covered under Section 296 (murder charge) and Section 294 (4) of the Penal Code whether the phrase "if the person committing the act or omission knows that it is so imminently dangerous that it must in all probability cause death" can be proven in this case.

At the onset of the inquiry, Deputy Solicitor General Thusith Mudalige explained as to how the prosecution brings up the particular allegations against the two suspects based on the series of omissions of the suspects.

DSG Mudalige said that this criminal investigation commenced after the interim report of the 'Special Board of Inquiry appointed to inquire into the Easter attacks', which recommended a possible criminal investigation against the two suspects.

The DSG elaborated on how the series of omissions transpired on the suspects' part referring to the events that took place prior to the April 21st attacks.

He said that the Head of Intelligence had sent a letter to the former IGP on April 9, 2019 mentioning the possibility of a suicide attack being carried out in the near future. The DSG explained that the warning had included information on the nature and the possible targets of the terrorists. However, according to the DSG the former IGP had copied that letter to four DIGs but failed to share the information with other relevant officers.

The DSG said that the Head of Intelligence had informed the Defense Secretary of the possibility of an attack taking place as far back as April 4, 2019. According to him, a meeting of the Intelligence services, comprising the three forces commanders, took place thereafter on April 9. The two accused had also participated in the discussions.

However, the DSG revealed that the suspects had not brought up the possibility of a terror attack during the council meeting and the terror warnings were thus ignored.

Submitting details about another failure of the suspects, the DSG pointed out that there was a bomb blast that took place targeting a motorbike in the Kattankudy area on April 16 evening, which was subsequently informed to the former IGP on April 17, 18, 19 by the Kattankudy Police and the Head of the Intelligence service.

The DSG said that the Head of Intelligence had informed the IGP about a possible link between the bomb blast and a future terror attack as it's nature was identified by the investigation as a preparation for such an attack.

The DSG also revealed that the Head of Intelligence, writing another letter on April 20, 2019, had informed about other suspicious individuals who could be part of a plan to attack certain targets.

However, the IGP had not taken any action regarding the letters or information he received on April 17,18,19, and 20 over the possibility of a terror attack, the DSG said.

He also said that there was enough evidence to suggest that Head of Intelligence had informed the IGP about the attack on April 20, 2019 evening and April 21 morning via WhatsApp.

The DSG said that based on the above evidence it could be understood that the suspects had failed to take precautions to prevent a probable attack having been in possession of sufficient information of such an attack taking place, causing the deaths of so many innocent persons.

Therefore, he said the prosecution had brought charges against the two suspects after taking the facts in their possession.

Appearing for the suspects, President's Counsel Anuja Premaratne rejected the prosecution's argument saying this 'terrorist attack information' was first received by the Sri Lankan Intelligence officials from Indian Intelligence on April 4, 2019 and based on that the State Intelligence service acted on the information by informing the IGP on April 9, 2019.

Mr. Premaratne PC said that the first suspect, former Defense Secretary Hemasiri Fernando, had not received any letters from the Intelligence Services but came to know about the warnings on April 8, 2019.

He also said the letter received by the IGP on April 9, 2019 from the Head of the Intelligence Service was not a letter written with much certainty as it had a phrase which read 'investigation has not observed so far over the alleged suspicious acts relating to Zahran'.

He said also the IGP had taken all the possible steps that he could have taken after that letter was received by him, as he had copied it to the Western Province SDIG, DIG STF, Director TID and DIG under whom the PSD and JSD comes.

He also pointed out that the letter dated April 9 which carried the warnings of a possible attack was also copied to the SDIG of the CID, which is now conducting the criminal investigation into the Easter Sunday attacks and it is apparent that they had also known about the warnings but did nothing to prevent it.

Mr. Premaratne also argued that the letters passed on to the IGP on April 17,18,19,and 20 did not contain substantial information over the April 16 motorbike bomb blast and such letters did not refer to the possibility that this blast had anything to do with a possible terror attack in the future as suggested by the prosecution.

He also pointed out that a letter dated April 25, 2019 sent by DIG Deshabandu Thennakoon (Western Province) to the IGP mentioning how he acted upon the IGP's instructions in informing the relevant police officials, particularly the OIC of the Katuwapitiya Police Station to be vary of a possible terror attack.

The SDIG had also stated in that letter that the OIC of the Katuwapitiya Police Station had not considered the Katuwapitiya Church as a possible target and as a result no special security was provided. Mr. Premaratne therefore said it was the OIC who should have been arrested for negligence and not his client.

Mr. Premaratne also said that there was no Security Council meeting called by the President since February 19, 2019 and furthermore the second suspect, the IGP, had not been called upon to participate in such meetings since October, 2018.

He said the practice of the Head of the Intelligence was to inform the matters directly to the President, who was the Defense Minister. Therefore, neither the former Defense Secretary or the IGP could be held responsible for the terror attacks as they had all that could be expected of them based on the information supplied to them by the Intelligence Services.

AG directs criminal inquiry against Defense Secretary over Easter Sunday attack

By Shehan Chamika Silva

Considering the recommendations in the final report of the 'Special Board of Inquiry Appointed to Inquire the Easter Attack", Attorney General Dappula de Livera has instructed the acting IGP to initiate criminal investigations against former Secretary of the Ministry of Defense, Hemasiri Fernando over his failure to prevent or minimize the terrorist attack, Coordinating Officer to AG, SC Nishara Jayaratne told Dailymirror.

Three former LTTE members indicted over killing 26 SL war prisoners in 2009

By Shehan Chamika Silva

The Attorney General had indicted three former LTTE members in Vavunia High Court over killing 26 Sri Lankan Army and Navy officers, who were kept as war prisoners by the LTTE during the last phase of the war.

Accused Irasathurai Thiruwarul, Madiarasan Sulakshan and Ganeshan Darshan were indicted under sections 2(1)(a) - 'Causing the death of persons', 2(2)(1) - and 3(b) of the Prevention of Terrorism Act and Sections 113(b)- 'Conspiracy' and 102- 'Abetment' of the Penal Code.

The Prosecution alleged that the accused, combining with other persons unknown to the prosecution, had killed and set fire to the 18 Navy and 8 Army personnel, during the last phase of the war, on January 16, 2009 in Wallipuram area, within a camp, where LTTE had secretly kept prisoners of war.

The trial of the case will commence from tomorrow (25) before Vavunia High Court Judge Ramanathan Kannan.

Easter Attack: AG directs criminal investigations against IGP, Ex Defense Sec, State Intelligense Chief, STF CO, West Province SDIG

Shehan Chamika Silva

The Attorney General has directed the Acting IGP to initiate a criminal investigation conducted by the CID against the Inspector General of Police, Ex Defense Secretary, State Intelligence Chief, Commanding Officer of the Special Task Force and the Senior DIG of the Western Province.

AG has also directed Acting IGP to further refer the matter to the National Police Commission, in order that disciplinary action be taken against them for their lapses in duty.

According to State Counsel Nishara Jayaratne, the Co-ordinating Officer to the Attorney General, the AG has directed Acting IGP (By letter dated 07 -05.2019) to cause a comprehensive Criminal investigation against the IGP expeditiously and had further directed Acting IGP to forward to investigative material pertaining to the said investigation to him for consideration.

AG has also directed Acting IGP (By letter dated 14 -05.2019) to cause a comprehensive investigation by the Criminal Investigation Department against the Ex Defense Secretary, State Intelligence Chief, Commanding Officer of the Special Task Force and the Senior DIG of the Western Province.

the AG has made these directions after considering the two interim reports and its recommendations of the board of inquiry appointed by the President relating to the series of incidents relating to the explosions that occurred at several places in the island on 21st of April.

Central Bank bond case accussed Aloysius, Palisena released on bail

*Magistrate considered the following as exceptional circumstances:

- Postnatal mental condition of Mr. Aloysius' wife

- The well-being of the children

- Medical recommendations on the illness caused to the children by the loss of her husband's emotional support

- Mr. Palisena's wife gave birth to a premature infant and the resulting complications

- Medical recommendation that the intensive intervention of the parents is required for the well- being of the baby

- Oppressive delay in the investigation

- Unpredictability of the conclusion of the investigation as the first suspect Arjun Mahendran is still not arrested

- The suspects already in remand for ten months

* Each released on a cash bail of Rs.1 Mn with four sureties of Rs.2 Mn each

* Unpredictability of the conclusion of the investigation as the first suspect Arjun Mahendran is still not arrested

By Shehan Chamika Silva

Perpetual Treasuries Ltd owner Arjun Aloysius and CEO Kasun Palisena, accused of conspiring with the then Central Bank governor Arjuna Mahendran to misappropriate public funds worth Rs.688 million at the bond auction on February 27, 2015, were yesterday released on bail under exceptional circumstances by Colombo Chief Magistrate Lanka Jayaratne.

They were each released on a cash bail of Rs.1 million with four sureties of Rs.2 million each and imposed a travel ban. The suspects were ordered to report to the CID every Sunday.

In her bail order, the Chief Magistrate observed that there were sufficiently exceptional grounds under the Section 8(1) of the Public Property Act to consider bail for the two suspects.

Rationalizing the exceptional circumstances submitted on behalf of the suspects, the Magistrate rejected two of the exceptional circumstances that of his third child's health condition as there was insufficient evidence to support it.

The Magistrate found the post-natal mental condition of Mr. Aloysius' wife that she was suffering from depression and anxiety after the birth of their third child and the loss of the emotional support of the husband for the newly born infant and other two children as exceptional circumstances.

The Magistrate said Mr. Aloysius' wife had suffered from this post-natal mental condition twice at the previous births of their children but on those occasions her husband was there to support her. She observed that it cannot be rejected that after the birth of their third child her postnatal condition had worsened due to her husband being remanded.

The Magistrate considered the medical recommendations submitted by specialist doctors and said that a father's presence was important for the well-being of the newly born baby and other two children and in this instance it can be considered an exceptional circumstance.

Going through the medical recommendations relating to infant born to Mr. Palisena's wife the Magistrate said that the premature birth of the infant with an extremely low weight and the diagnosis of cerebral Paracelsus of the child that such a child is required intensive early intervention of the parents and this could be considered an exceptional circumstances.

Citing various precedents, and legal doctrines relating to the consideration of bail, the Magistrate also observed that when bail was considered under exceptional circumstances, the delaying of investigation has to be considered on the basis whether such delay was an oppressive delay to the suspect. Quoting a precedent Magistrate said "Justice delayed, justice is denied."

The Magistrate also considered the unpredictability of the conclusion of the case based on the fact that the first suspect Arjun Mahendran was still not arrested.
Considering the above circumstances and that of the suspects being in remand for ten months, the Magistrate released them on conditional bail.

Meanwhile, Mr. Aloysius and Mr. Palisena were also released on bail by the Chief Magistrate in the parallel magisterial inquiry (which is conducted on bailable offences) in the bond scam relating to the deletion of phone call data from the PTL voice recording system and fabricating evidence to the Bond Commission.

They were each released on a cash bail of Rs.25,000 with two sureties of Rs.500,000 each.

The cases was fixed for further inquiry on February 25, 2019.

President's Counsel Anil Silva, Senior Counsel Jeewantha Jayathilake, Counsel Sajitha Jayawardena and Counsel Ralitha Amarasena appeared for the suspects.