Court of Appeal yesterday further extended the Interim Order till 28 February, preventing the FCID from acting on the Certificate (B Report) under the offences against the Public Property Act in the Magistrate’s Court against former Defence Secretary Gotabhaya.
The Bench comprised Justices P. Padman Surasena (President/CA) and Shiran Gooneratne and the matter of extending the Interim Order is to be resumed on 17 February.
PC Romesh de Silva, appearing for the petitioner Gotabhaya at the invitation of the Court, suggested that the FCID should not file the certificate under the Public Property Act and that they can conduct the investigation and file charges under this Act if necessary.
He submitted that if the certificate is filed under this Act, under the Penal Code, Gotabhaya would have to be arrested and remanded by the Magistrate, as it is mandatory under this Act to do so if the alleged amount is more than Rs. 25,000.
He pleaded the court to consider the Balance of Convenience, as there is a move mala fide to arrest and remand the petitioner.
Senior Deputy Solicitor General Viraj Dayaratne informed the court that he has to consult the Attorney General and will inform the court.
When matter was taken up on 25 December 2017, Counsel Romesh de Silva submitted that it is a question whether to extend the Interim Order, and he maintained that the Interim Order granted is comprehensive one.
He submitted that the case of the petitioner is prima facie and the Court had issued notices and granted the Interim Order.
He pointed out now the court has to consider Balance of Convenience (the question is to balance the relief given to the party against the injury that will be done to it in light of the harm it would do to him/her) whether to extend the Interim Order given.
He said there is a purpose of mala fide (in bad faith; with intent to deceive) intention to arrest or remand the petition and that granting Interim Order is mandatory and is the inherent power of the Court.
He said there is no application to stay the proceedings in the Magistrate’s Court and there is mala fide intention to arrest him and his liberty is at stake.
He said petitioner is asking to prevent his arrest or remand but not is not seeking to prevent investigation or filing charges or indicting under the Public Property Act if the Attorney General thinks there are grounds.
He submitted the investigation was started since 1015 and no step has been taken to indict him.