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.
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