Fort Magistrate questions unusual behaviour of Police in facts reporting

CDS Guneratne released on conditional bail

 -Fort Police has not investigated properly into the alleged threatening to a key witness by the CDS- Fort Magistrate

-Fort Magistrate decides to remove Fort police from investigating the alleged threatening to a key witness by CDS

-Magistrate Dissanayake questions Police whether they had given a great degree of care not to mention the offence in the facts report for some reason

By Shehan Chamika Silva 

Chief of Defence Staff (CDS) Ravindra Wijegunaratne who was arrested by the CID on the charge of harboring ‘Navy Sampath’ alias Chandana Parasad Hettiarchchi, who is the first suspect of the case on disappearance of 11 youths in 2008 and 2009 was today ordered to be released on conditional bail by Colombo Fort Magistrate’s Court.

   

The suspect was released on two sureties of Rs. one million by Fort Magistrate Ranga Dissanyake and directed not to breach any of the bail conditions of, not to interfere with witnesses or obstruct them, prevent him from obstructing the investigation, and not to use suspect’s office as a mean to intimidate any of the witnesses or investigative officers of the inquiry, as it could reverse the bail of the suspect.

The Magistrate also considering the another case which had filed by a key witness of the case on disappearance of 11 youth ‘Galagamage Laksiri’ observed that the Police has failed to inquire on the matter properly.

On an earlier occasion, Laksiri Galagamage, a key witness of the case on disappearance of 11 youths had made a complained to the Fort Police stating that CDS Ravindra Wijegunaratne and his aides had attempted to assault and shoot him.

Then the Fort Police filed a facts report about this incident in court and had sought several court orders on that regard.

At the onset of the yesterday’s inquiry (relating to the harboring of Prasad Hettiarachchi), appearing for the CID, Chief Inspector Thisera informed the Court about what transpired from the statements recorded by the CID with the Chief of Defense Staff Ravindra Guneratne in a recent interrogation.

Giving the statements, suspect Guneratne has denied the all allegations put forwarded against him saying that neither he did know Prasad Hettiarachchi (who was absconding the prosecution) nor was with the knowledge about any grant of money to him.

When Colombo Fort Magistrate Ranga Dissanayake questioned, the CID informed Court that it has no objections for granting bail under the section 14 of the Bail Act over the second Suspect on this occasion.

President’s Counsel Anuja Premaratne, Senior Counsel Asela Rekawa, with Counsel Sajitha Jayawardena appearing for the suspect apprised the court there is no reason to keep their client in remand custody if the prosecution is not objecting for the bail at this occasion.

However, at this moment, Fort Magistrate Ranga Dissanayake observed the relevancy of the related case to this inquiry (an alleged complained lodged by the key witness Galagamage Laksiri with the Fort Police over death threats and threats of abduction received by him from the suspect) for the consideration of the bail.

The Fort Police had reported facts about this threatening case in a ‘facts report’ to the Fort Magistrate’s Copurt.

The Magistrate perused the report and identified some flaws of the report as it had not mentioned the wrongdoing (offence according to the law) on which the inquiry has initiated by the Police and he observed that the police has indicated the suspect’s name (Ravindra Guneratne) as ‘respondent’ in to the inquiry, which is not accordance with the Criminal Procedure Code.

At this moment, the Magistrate Dissanayake questioned the police officer who was representing the Fort Police regarding possible reasons for the unusual way of the report.

Magistrate questioned whether the Fort Police had given a great degree of care not to mention the offence specifically or the suspects relating to the complaint for some reason.

However, the investigative officer relating to this incident was not present before the Court at this moment and the Court adjourned until the Officer in Charge of the Fort police arrives to the Court.

Fort Magistrate Ranga Dissanayake: On what basis you have indicated, Ravindra Gunaratne as a ‘respondent’ in this ‘facts report’, as there can be only suspects in such cases, only in Supreme Court Cases there can be respondents not in here?

Fort Police: We filed this facts report based on the initial complaint received to us from Galagamage Laksiri.

Fort Magistrate: Were you aware of the fact that, this complainant was a witness in another case and entitle to protection under the section 8 of the ‘Witness and Victim Protection Act 2015’?

Fort Police: Yes

Magistrate: What actions you took there after on that regard?

Police: We recorded statements from 14 individuals from that regard and have sent the CCTV footage relating to this threatening incident to the Government Analyst for further inquiry.

Magistrate: Now, tell me whether Ravindra Gunaratne can be included or named as a suspect based on the investigation that you have carried so far? Your answer is very decisive to the second suspect (Ravindra Guneratne) of the other case in order to consider grant him bail, therefore, reply with clarity.

Police: Based on the facts found so far, there is no sufficient evidence to name Ravindra Guneratne as a suspect in this threatening case.

At this moment Magistrate Ranga Dissanayake observing that the Fort Police is not conducting the investigation into this threatening case properly decided to act under the section 119 of the Criminal Procedure Code and removed the inquiry from the Fort Police.

And the Magistrate also directed the Western Province Senior Deputy Inspector of Police to transfer this threatening inquiry to a suitable division or body from the Fort Police.

The Fort Magistrate observed that he did not consider giving bail for the suspect on the earlier occasion, since there was possible interference with witnesses and the investigation by the suspect were transpired from the facts. However, on this occasion as the CID did not object for the bail and the Fort Police expressed no sufficient evidence against the other threatening case, the Magistrate granted a conditional bail for the suspect.

'Suspects incarcerated for ten months', an exceptional circumstance for bail'- Counsel

By Shehan Chamika Silva

In a bail application filed on behalf of suspect Kasun Palisena regarding the magisterial inquiry into the bond scam, Senior Counsel Jeewantha Jayathilake said today that both suspects being incarcerated for ten months is on its own sufficient to be considered an exceptional circumstance to grant them bail.

Citing a precedent he said when considering someone's bail application, granting bail should be the rule and refusing it the exception.

Counsel said the Court should not reject a person's bail application so as to punish him, as it would amount to a violation of the constitutionally protected right of 'presumption of innocence' of that person.

He said though both suspects could not be deemed to be guilty at this stage, they have been denied their rights by being incarcerated for ten months.

Observing that the Attorney General and the CID had ample time to inquire into the facts in this case, the counsel said his clients had nothing to do with the first suspect Arjuna Mahendran absconding court had no relevancy with regard to suspects Aloysius and Palisena.

He said during the revision bail application at the Court of Appeal, one of the reasons set out by the Court in rejecting the application was that the 'current stage is premature to decide or consider on the inclusion of the Public Property Act as the suspects were not yet charged in any court specifically as per Prevailing law'.

However, he brought two exceptional grounds on behalf of his client (Kasun Palisena) as the law requires for suspects who were remanded under the Public Property Act.

He said firstly, being incarcerated for ten months can be regarded as exceptional ground on the basis of objective observation as the suspects were remanded for a long time and secondly, he sought bail pointing to a situation that suspect Kasun Palisena was undergoing at the moment on humanitarian grounds.

The counsel said suspect Palisena's second child, who is nine months of age, is currently suffering from a special disability due to premature birth and as a result the child is in need of a great degree of interaction and support from parents while under treatment.

He said child's mother was also suffering from various health problems, which resulted in her being incapable of taking care of the child alone and that the situation was quite exceptional as the mother was jobless while her husbands bank accounts have been frozen due to the inquiry.

The counsel moved to consider the exceptional bail application on humanitarian basis as everyone in remand custody did not have children with a special need with similar conditions.

Colombo Chief Magistrate Lanka Jayaratne subsequently, directed the prosecution to file their written objections with regard to the bail applications filed on behalf of both suspects on or before December 18. 

Meanwhile, Perpetual Treasuries Ltd owner Arjun Aloysius and its CEO Kasun Palisena were also ordered to be re-remanded till December 18 by the Magistrate in the magisterial inquiry in which they are accused of conspiring with Arjuna Mahendran to misappropriate public funds to the value of Rs.688 million at the bond auction held on February 27, 2015.

Perpetual Treasuries Ltd de facto owner Arjun Aloysius, its CEO Kasun Palisena were also re-remanded by the Chief Magistrate till December 18 over the parallel magisterial inquiry into the Bond scam on deleting phone call data from Perpetual Treasuries Ltd voice recording system and fabricating evidence to the Bond Commission.

Court can’t rely on draft documents: Respondent's Counsel

*Parliamentary proceedings are admissible as evidence under the law and not impeachable by Court: K. Kanag-Iswaran PC

By Shehan Chamika Silva

President's Counsel Kushan de Alwis, Ali Sabri and Romesh de Silva -- appearing for the respondents in the Quo Warranto writ petition filed by 122 MPs questioning the legitimacy of Prime Minister Mahinda Rajapaksa and his government to hold office -- said the applications should be dismissed on the basis that the Hanzard produced as a supporting document was not a final thus not admissible in Court.

Kushan de Alwis PC said the petitioners had sought relief based on a document which can be corrected even tomorrow, because of a two-week time limit for the parliament proceedings as published in the Hanzard to be corrected if necessary.

He said the applications were filed in Court on November 23 based on the Hanzard prepared on the proceedings that took place in Parliament on November 14 and as such there was a question on the finality of the Hanzard, because as at that date it was an uncorrected document.

Counsel said the Hanzard on which the petitioners based their applications could not be admissible or entertained in Court because the Court could not rely on draft documents, which are yet to be finalised.

He said the burden of proof on whether the documents were final was the responsibility of the petitioners and that an application based on a draft document was sufficient enough to be dismissed.

President's Counsel Romesh de Silva said it was a misrepresentation of material facts by the petitioners because they had not informed Court that the Hanzard that they had relied upon was an uncorrected version.

President's Counsel Ali Sabri said the petitioners, in their application, despite challenging the appointment of the respondent as prime minister by the President in the first place, they are seeking relief only on the matters which took place on November 14 and onwards.

He said the manner in which the parliamentary proceedings took place on November 14 was nothing but a sham because the manner in which the motion to suspend the Standing Orders was decided and the no-confidence motion was voted on through a division of ‘Ayes and Noes' contradicted the parliamentary SOs.

Associating with the President's Counsel Gamini Marapana's earlier argument, Ali Sabri PC was of the view that the proclamation issued by the president on November 9, 2018 to dissolve parliament will stand dissolved despite the interim order given by the Supreme Court was not the final determination of the Court because when something is dissolved it cannot be suspended, and the interim order is prospectively effected, therefore the decision of dissolution stands and as such Parliament could not have even met on November 14.

Responding to the arguments by the counsel for the respondents, President's Counsel K. Kanag-Iswaran said the parliamentary proceedings were admissible as evidence under the law and not impeachable by Court.

He said the question here was about the respondent (Mahinda Rajapaksa) holding on to illegal power, as Prime Minister the concern should be on the illegality, because under the Article 48 when there is a no-confidence motion passed, the Cabinet stands dissolved.

Kanag-Iswaran PC said there could not be any dispute on the matter of the no-confidence motion because 122 parliamentarians had filed this petition.

MR and Cabinet restrained functioning

By Shehan Chamika Silva

Court of Appeal today issued an Interim Order restraining Mahinda Rajapaksa and Forty Eight other respondents from functioning in the offices of Prime Minister, Cabinet Ministers, none Cabinet Ministers and Deputy Ministers respectfully until the final hearing and determination of the Writ of Quo Warranto petition Writ filed by 122 Parliamentarians of diverse parties disputing the holding of offices.

The Bench comprising Justices P. Pathman Surasena (President/CA) and Arjuna Obeysekara also issued notices on the respondents returnable for December 12.

Petlitioners in their writ of Qou Warranto Petition requiring the Respondens to show in what authority they claim to function as Prime Minister and respective offices as Cabinet Ministers and non-Cabinet Ministers and Deputy Ministers.

Before making the order President of the Court Appeal, Prithi Pathman Surasena observed two aspects of the order.

He said when the Court is to make an order on issuing notices to the respondents in Quo Warranto Writ petition, the court is not bound to give reasons for its decision unless the petition is dismissed, yet he said that the Bench decided to set out reasons for their decisions.

He also said that when an Interim Order is granted that decision is not the final determination of the court, and one should bear in the mind that fact when interpreting the order without prejudicing the parties of the case.

Delivering the reasons, Judge Surasena observed that the matter is of national importance and has to be dealt with great care.

He explained that the petitioners, as 122 parliamentarians, have submitted in the petition arguing that they have twice passed  No Confident Motion in Parliament on November 14, 2018 and November 16, 2018 under the provisions of the Constitution.

In view of the fact that the petitioners have twice passed  No Confidence  Motion, Justice Surasena observed that under the Article 48 (2) of the Constitution, when a No Confidence Motion is passed in Parliament against the Prime Minister, the Cabinet of Ministers shall dissolve.

He also elaborated that the interim order is not restraining the functioning of the Prime Minister or Cabinet of Ministers in the Country, ‘but only restraining the respondents as individuals from functioning in those offices’.

He also observed the irremediable damages that could cause from this interim order. First he pointed out that the due to the interim order country may end with no Prime Minister and Cabinet. However, he said allowing the respondents to hold the offices would cause more damage than that of previous.

If these respondents were allow to exercise their functions until the matter is heard , the court is of the view, that considering Prime Ministers and Ministers are exercising very important public functions under the law, therefore, the court is able to see that balance or convenience is in favour of 122 petitioner Parliamentarians. 

K. Kanag Iswaran PC with Ikram Mohammad PC, A.M.Faiz, Viran Corea and Suren Fernando appeared for the Petitioners.

Gamini Marapana PC with Navin Marapana as well as Romesh de Silva PC, Manohara de Silva PC, Sanjeeva Jayawardena PC, Ali Sabry PC and Shaveendra Fernando PC appeared for the respondents.

FR against dissolving P'ment - Intervening parties’ submissions and counter arguments

By Shehan Chamika Silva

Making submissions on behalf of the intervening parties, President’s Counsel Sanjeewa Jayawardena, Ali Sabri PC, Gamini Marapana PC, Monohara de Silva PC and Canishka Vitharana were of the view that president’s decision to dissolve the parliament is not unconstitutional.

They said that the articles 33(2)c and 62(2) of the Constitution has given a substantive isolated power enshrined in the president to dissolve the parliament at any time. They said the phrasals used in Sinhala version of Articles 33(2)c and 62(2) of the 19th Amendment have different meanings compared to its English meaning and Sinhala.

Referring to the questioned of article 70(1), they elaborated that there are two chapters in the Constitution setting out powers vested in the Executive and the Legislature. Their argument is that the section 33(2)c is a standalone section set out under the executive powers chapter of the Constitution and the section 70(1), which describes about dissolution of parliament comes under the power of legislation chapter set out in the Constitution, ‘allowing the legislation to call upon president to dissolve the parliament’.

They argued that it is prima facie evident that the section 33(2)c is an unfettered provision which allowed the president to dissolve the Parliament at any time.  They said that people have elected the president and the sovereignty of people is with the president, and that cannot be curtailed. They also were of the view that the president prompted to take this decision as there was a breakdown in the government and the whole country, so the president has decided to dissolve the parliament which he lawfully could do, to uphold the sovereignty of the people because there is no better way other than to call upon an election to uphold the sovereignty of people.

They argued that article 33(2)c was introduced into the 19 Amendment deliberately as the legislature could not erode the executive powers set out in the Constitution (to dissolve the parliament) without a referendum, and therefore, article 70(1) only an inclusion to enhance the check and balances and that is a realignment of the legislation powers.

They said that the petitioners must prove that the decision of the president is arbitrary as to prove their case even though the president has made what is more sovereign friendly decision to hold an election.

However, making counter arguments into the hearing, President’s Counsel Kanagaiswaran, Thilak Marapana PC, Counsel Hijaz Hizbulla, and few other counsel also reiterated that the articles 33(2) c, 62(2) and 70(1) cannot be taken into consideration separately but have to be read harmoniously.

They argued that the article 33 or 62 has not mentioned how to dissolve parliament, only the article 70 provides as to how a proclamation is made so if the article 33 was to take in as a standalone provision , then president could dissolve parliament by just an order. But the president has issued a proclamation dissolving the parliament under the article 70 (5) and that means these provisions should be read harmoniously.

They said that the parliament’s intention was clear as it can be seen in the Hanzard. They explained it by reading  what  MP G.L.Peiris described about the outcomes of the 19 amendment in Parliament.

If a section should be read in isolation there are enough of articles in the constitution with the clause of ‘not withstanding’, which in this case not visible in either in article 33 or 62, hence,t they cannot be read in isolation at all, they said.

Further it was said that the dissolution of the parliament is not an exclusive executive plenary power but a power exercised by the head of the state not as an executive power as it can be seen even in the previous constitutions like 1972 and the Soulbury.

MP Sumanthiran also said that when there is an inconsistency in language, the practice is to read the both languages through which the Parliament passes acts, and those languages are not English and Sinhala but Sinhala and Tamil. So, if there is an ambiguity it should be read with Tamil version not English.

President’s Counsel Gomin Dayasiri making his submission said that the Supreme Court should ‘Let us go to the prorogation situation and elect a Prime Minister in Parliament’.

Giving false evidence at PCoI -- Ravi K can be a suspect: Chief Magistrate clarifies

By Shehan Chamika Silva

Colombo Chief Magistrate Ranga Dissanayake today clarified his order on Ravi Karunanayake being named as a suspect, observing that the order does not say he cannot be a suspect in the inquiry but questions the process by which he was named a suspect.

He said this when a motion was taken into consideration in the magisterial inquiry on former minister Mr. Karunanayake in connection with giving false testimony at the Presidential Commission of Inquiry (PCoI) on August 2 last year.

The Magistrate previously made an order on October 8 directing certain individuals and the Global Transportation & Logistic Ltd (GTL) to provide details requested by the prosecution on or before October 22. In this order the Magistrate had also observed the way in which Mr. Karunanayake had been named a suspect and that it was not legally correct.

Filing a motion at the outset of the inquiry, President's Counsel Shavendra Fernando, who appeared for GTL, which has connections to former Mr. Karunayake, requested Court to allow two more weeks to comply with the October 8 order directing GTL to provide details of bank statements, vouchers, fund transactions, decisions of directors, etc., between January 2015 and August 2017.

However, when the Chief Magistrate asked why time was needed, the defense counsel said they needed more time to obtain more legal advice because the prosecution's request for the details contained some confidential matters as well. The defense counsel said these details covered a period of more than two years and that was the reason for requesting for more time.

The Chief Magistrate observed that the court could not consider the need for more time on an order already given. He said if a party did not agree with the order, there is legal provision to file a revision application in the High Court and seek relief against the order.

Senior State Counsel Lakmini Girihagama who appeared for the Attorney General objected to the granting of two more weeks to provide the details. She said GTL was requesting for more time after nine days of the order though it was aware about the details even prior to the order being given.

SSC Girihagama said if GTL were to request more time, their motion should have contained comprehensive reasons to be considered as reasonable grounds to grant such time, because this could be an attempt to delay the investigation of the prosecution.

After considering the submissions made by both parties, the Magistrate granted GTL a week's time till October 29, to provide the details to the CID.

He said if the party subject to the order did not comply with it, the prosecution could file legal action under Section 185 of the Penal Code for disobeying court orders.

Amid heated arguments between SSC Girihagama and PC Fernando in connection with Mr. Karunanayake being named a suspect in the inquiry, the Magistrate intervened saying his previous order looked into the legal provisions set out in the Criminal Procedure Code to explain that Mr. Karunanayake could not be named a suspect considering the way in which this inquiry was being conducted.

"I did not mention that Mr. Karunanayake cannot be a suspect in this inquiry but during this inquiry, as per the law, he cannot be named as a suspect," the Magistrate said.

He said after the inquiry the prosecution couldn decide whether to institute proper legal action against him by making him an accused in a court case.

The CID had earlier initiated this magisterial inquiry on the Attorney General's directive to begin criminal action against Mr. Karunanayake, Steve Samuels (Aloysius’ personal assistant), Kasun Palisena and B.J.R. Sinnaih (Chief Finance Officer of Global Transportation & Logistics Pvt. Ltd) for giving false evidence at the PCoI inquiry.

Earlier, the Magistrate acceding to the prosecution's request had directed several mobile service providers to provide the required details on the mobile numbers that the CID required to proceed with the inquiry, and also allowed the prosecution to obtain bank statements of GTL, which is linked to Mr. Karunanayake. The Secretary GTL was also directed to provide documents relating to details of its Directors and their decisions.

AG files indictment in Special HC against Ali Roshan, six others

By Shehan Chamika Silva

The Attorney General has filed indictments in Colombo Special High Court against S.N. Roshan alias Ali Roshan and six others over illegal possession of four elephants during 2012-2015 without a valid license.

The prosecution filed the indictments based on 24 counts over the alleged offences under the Fauna and Flora Ordinance and Penal Code.

Other suspects are, H. Nishantha Dhammika, K. Chandana Kumara, G. A. Sashika Chanuka, P. G. Jayalath, H. Priyangika Sanjeewani, and Upali Padmasiri.

Death affirmed Duminda and two others

1st Accused Acquitted of all charges

Family, lawyers and Journos present left with no clarity in judgement

  

By Hafeel Farisz

In what was one of the most looked forward to Judgments in recent times, a five-judge bench of the Supreme Court headed by Chief Justice Priyasath Depp unanimously affirmed the death sentence imposed on Duminda Silva and two others whilst acquitting the first accused of all charges.

The Five Judge bench walked into room 502 at 2.48 PM, after which portions of the judgment were read out to a packed court house. The Appellants and their families, journalists and lawyers present were left making guesswork following the reading of the judgment having to untangle the nuances of it. The Lawyers of the Accused also remained committal only towards the essence of the judgment which affirmed the death sentence on the trio and the acquittal of the 1st Accused Police Constable Thushara De Mel.  However, in the judgment read out by the Chief Justice in what could be his final judgment before he retires, the 4 accused were acquitted of the charge of Joint Possession of Firearms and another charge.  The Judgment in full was not provided to those present. 

Justice Depp in arriving at the conclusion held that the Supreme Court justices believed the evidence of the 3 prosecution witness. They held that the most pertinent question before the court was the question of Unlawful Assembly an offence found in section 146 of the Penal Code for which they found the trio guilty of. " They prosecution proved the element of Unlawful Assembly beyond reasonable doubt" Justice Depp said.

Following the reading of the Judgment the Justices made their way to the Chambers a few minutes before 3 PM , resulting in families of the Appellants making their way to the Defense Lawyers to seek clarity. The team of Defense Counsel which included Presidents Counsels Anil Silva, Anura Meddegoda Shavindra Fernando, Shanaka Ranasinghe, and Anuja Premarathne informed the Appellants of the affirmation of the death sentence but were left with little choice in providing the nuances of judgment. The wife of Chaminda Ravi Jayanath alias ‘Dematagoda Chaminda began wailing as soon as she heard of the affirmation within the court house itself.

Deputy Solicitor General Thusith Mudalige who prosecuted at the Trial at Bar led the Attorney Generals team during the Appeal. 

The Colombo High Court, on September 8 2016,  sentenced to death four persons, including former MP Duminda Silva, for the murder of Baratha Lakshman on October 8, 2011, in a shoot-out in Mulleriyava.

 The accused were charged on 17 counts including committing and conspiring to commit murder of four individuals, inflicting gunshot injuries, unlawful assembly and criminal intimidation. The accused had been charged under Sections 296, 140, 146, 147, 486 and 300 of the Penal Code. They were further charged under the Offences of Firearms Act.

TThe Supreme Court reserved Judgment on  July 25th having heard arguments from the Appellants and the Respondent- Attorney General. Both parties filed written submissions thereafter following which the Judgment was delivered yesterday.  

Contempt of Court action filed against SLMC over non-registration of Saitm grad.

By Shehan Chamika Silva

Considering the Contempt of Court action filed against Sri Lanka Medical Council (SLMC) for disobeying the Supreme Court judgment, which affirmed the previous Court of Appeal decision allowing registration of a Saitm graduate as a medical practitioner under the SLMC, the Court of appeal today issued summons on the members of the Sri Lanka Medical Council to appear before Court on November 16, 2018.

A Saitm graduate (as a petitioner) initially instituted an action against SLMC on June 14, 2016 seeking a writ order from Court of Appeal to quash the SLMC's decision to refuse petitioner's registration under section 29(2) of the Medical Ordinance.

Then, on January 31, 2017, the Court of Appeal delivering an order decided to direct the SLMC to make the registration.

However, SLMC subsequently instituted a special leave to appeal before the Supreme Court in which certain medical students and GMOA have also appeared as intervening parties.

This special leave to appeal was allowed for the argument based on six questions of law by the Supreme Court.

Later, on September 21, 2018 (last month) the Supreme Court gave its judgement affirming the previous Court of Appeal order.

The petitioner in the Contempt of Court action alleged that following the Supreme Court recent order, her continuous attempts to provisionally register with SLMC were unsuccessful to date as SLMC has willfully neglected to register her without complying with the court order.

Therefore, the petitioner has sought from Court to take necessary actions against SLMC and its members over committing an offence fell under article 105(3) of the Constitution (Contempt of Court).

President's Counsel Romesh de Silva with Senior Counsel Sugath Caldera, Counsel Shanaka Cooray and Counsel Niran Ankatel appeared for the petitioner.

CA dismisses Bail application of Aloysius and Palisena

By Shehan Chamika Silva

The Court of Appeal today dismissed the revision bail application of Aloysius and Palisena stating that petitioners had failed to satisfy the Court to invoke revisionary powers of the Court under the Criminal Code Procedure.

The Bench comprising Justice Shiran Gunaratne and Prithi Padman Surasena (President) delivered this ruling considering the revision bail application filed on behalf of the two suspects.
The Court observed that petitioners (Arjun Aloysius and Kasun Palisena) had failed to satisfy the Court to invoke its revisionary powers set out in Section 164 of the Code of Criminal Procedure by proving any ground of illegality or impropriety of the previous Magistrate's order.

Considering the arguments placed before Court over the question of law under the Public Property Act (PPA), the Court also held that the current stage of the magisterial inquiry is premature to consider on charges under the PPA since still there were no specific chargers levelled against suspects in a High Court. Therefore, the ingredients to prove illegally of PPA being brought to the inquiry can be considered on a trial stage.

Thereby, the Court refused to issue notices on Attorney General as the respondent of the application and decided to dismiss the application based on the reasons set out in the judgement.

Senior Additional Solicitor General Yasantha Kodagoda and Senior Deputy Solicitor General Haripriya Jayasundara appeared for the AG in this petition, while President's Counsel Gamini Marapana and President's Counsel Kalinga Indatissa appeared on behalf of the petitioners.

Earlier, the Fort Magistrate remanded the suspects considering the allegations levelled against them under the Public Property Act. And later, the suspects went to the High Court as the magistrate could not release them on bail as per the PPA, where one who misappropriated public property causing more than Rs. 25, 000 damage to the State has no bail relief unless exceptional circumstances or by a high court judge.

However, Colombo High Court also refused to grant bail on suspects rejecting the suspects’ petitions. 

As a result, the suspects filed a revision bail petition in Court of Appeal to revise the bail order of the Magistrate and the decision of the High Court.