By Ishara Rathnakara
Additional Magistrate of Colombo Nishantha Peiris ordered the Financial Crimes Investigation Division (FCID) yesterday (8) to inform Court why former President’s Secretary Lalith Weeratunga and former Chairman of the Telecommunications Regulatory Commission Anusha Pelpita, who had been clearly identified as suspects in the case of misappropriating Rs 600 million from the Sri Lanka Telecommunications Regulatory Commission for a programme where sil clothing had been distributed, had not been produced before a Magistrate.
Accordingly, the Additional Magistrate issued notice to the Officer-In-Charge of the FCID to be present in Court on 5 November.
While the FCID had informed the Colombo Magistrate’s Court that further investigations are being carried out into this incident, the Attorney General had filed a case on certain charges against Lalith Weeratunga and Anusha Pelpita, at the Colombo High Court. When this case was taken up for hearing on Wednesday (7) at the Colombo High Court, bail had been granted to these two defendants.
Submitting facts on behalf of the plaintiff, Inspector of Police Sajith said: “Charges were filed on instructions received from the Attorney General under Case No. 8026/15. Accordingly this case was taken up for hearing on 18 September and summons were issued to the two defendants Anusha Pelpita and Lalith Weeratunga. Then the Case was called up for hearing at the Colombo High Courts complex, at Court No. 5, on 7 October. When the defendants appeared in Court they had been released on bail. Accordingly a request has been made to complete the hearing of this Case. At the same time an Injunction was obtained banning travel abroad for Anusha Pelpita. A request was made to remove this ban.
Additional Magistrate Nishantha Peiris declared in Open Court that he will study the Case file regarding the request of the FCID and issue a suitable Injunction based on equity and justice.
Accordingly, the special verdict consisting of 41 pages of Additional Magistrate Nishantha Peiris also stated:
“The offence engaged in by the defendants under the subject of public property is considered an offence under the Public Property Act No. 12 of 1982, Article 5 (1). It has been disclosed in the FCID final report that Secretary to the former President Lalith Weeratunga and former Chairman of the Telecommunications Regulatory Commission, Anusha Pelpita had used Rs 600 million of government money in a criminal manner and fraudulently. According to the facts mentioned thus, the police have stated that it was public property that was misused.”
“The FCID has the ability to file legal action under misuse of State property, that is under the Public Property Act and produce suspects. According to the Criminal Procedure Code Act, investigating officers (Police/CID/FCID) should have produced the suspects in a Magistrate’s Court. There is no provision beyond that in the Criminal Procedure Code that they should be produced elsewhere.”
“Accordingly, it is apparent that, if investigations have been completed, and that the report on investigations had stated that investigations had been completed on 15 September, no steps had been taken to produce the suspects. Court especially considers the legal provisions regarding the responsibility of the Attorney General.”
“Accordingly, once the FCID had completed investigations and if the suspects had been identified without delay as a step forward they should have definitely produced the suspects in Court.”
“These suspects in relation to this incident have not been produced in Court so far. Who are the suspects who were revealed during the investigations in connection with the Case? The Magistrate has a right to know of this. Accordingly, the responsibility of the plaintiff is to disclose all important facts.”
“It is also the opinion of Court that one should arrive in Court with clean hands.”
“According to the experience of Court, under the Public Property Act, police should file legal action in a Magistrate’s Court. The plaintiff does not have the ability to act beyond the Criminal Procedure Code and the Police Act.”
“The High Court, relevant to this case had requested on 14 September the initial file. The letter requesting this file was received on 15 September. Police have also submitted a further report on this day. However, the plaintiff had not disclosed to this Court whether charges had been filed against the suspect on this date. If charges had been filed in the High Court, it should have been done either on 14 September or on a date prior to that. However, this fact was not declared in Court on 15 September.”
“A Magistrate is a Judge according to the Criminal Procedure Court Act Article No. 2. According to the declaration of Lord Denin – “The civilized social existence depends on his role”, that task is assigned to the Magistrate. Accordingly there is a possibility of asking the Officer-In-Charge of the FCID why the suspects in this case were not produced before a Magistrate.”
“Accordingly, the responsibility of Court is to act in finding out whether the police/FCID have acted properly in relation to this case. According to that, the FCID can be considered to be a part of the Police Department.”
“The basic law is the Constitution of Sri Lanka. It is relevant to all citizens and they have to be under this. According to the Public Property Act, all suspects should be produced before a Magistrate without any differentiation. According to Article 12 (1) of our Constitution, everyone is equal in the face of the law.”
“Accordingly, being equal in the face of the law means, the opportunity of producing citizens in Court should be equal for all.”
“The Police Department/FCID does not have the authority to act in a manner that diminishes the pride of the Magistrate’s Court or to make the Judicial authority of Magistrate’s Courts a misconception either. At the same time, while clear provisions have been provided through statutory laws there is no room to act in a manner that demeans the powers provided to a Magistrate under many Acts and the Constitution.”
“There is no provision that states that one can go beyond a Magistrate’s Court and produce a suspect in another Court premises or that they should do that. Thus, if Judicial procedure is not followed, it would be a case of not taking into consideration the Magistrate’s Court.”
“Accordingly, when the suspects are identified, the responsibility of the plaintiff is to first, without any delay, produce them in Court. The plaintiff does not have a right to not produce the suspects before a Magistrate.
The FCID, which is the plaintiff in this case, should have produced the suspects in Court, after the investigations. It is a task for the Court to decide whether to release the suspects on bail or to remand them.”
“The FCID does not have the authority under statutory law not to produce suspects before a Magistrate. According to the Criminal Procedure Code Act a suspect or suspects should be produced during the investigation stage before a Magistrate.”
“Accordingly, when suspects are produced in Court, they should be remanded if bail is set at over Rs 25,000, according to Article 8 in provisions on granting bail. Bail can only be given under extraordinary circumstances. Thus a Magistrate’s or a High Court can’t grant bail to a suspect unless under extraordinary circumstances, even if there is no objection from the plaintiffs. Court must see if the plaintiff does not object because of collaboration with the defendant. Thus a Court can hold a suspect in custody until the end of the proceeding.”
“Although investigations in this Case had been completed, the two suspects in this Case have not been produced in a Magistrate’s Court up until today.” “Police can’t not produce suspects in Court, subsequent to taking into custody, who have been accused of serious offences. Police should directly produce the suspects before a Magistrate. Then they should be included in the Case. The plaintiff cannot follow any other methods. Since the certificate regarding the value of the property is submitted by the Magistrate’s Court, suspects too should be produced in a Magistrate’s Court. If the plaintiff does not follow this correct procedure, the Attorney General’s Department should intervene and ensure that the proper procedure is followed.”
“The plaintiff is now requesting Court to remove the ban imposed on one of the suspects, Anusha Pelpita. However, without taking into consideration on what conditions the High Court granted bail, I cannot grant a verdict. Such a move would ultimately pervert the legal process.”
“According to basic law adopted by Parliament and the Judicial Organization Act, the authority that remains with a Magistrate’s Court should not be demeaned nor undermined.
I hereby issue notice on the OIC of the FCID to answer to Court the question why the suspects in this case were not produced in Court.
A certified copy of this order should be sent to the relevant OIC, to the Senior Superintendent of Police in charge of the North in the Western Province and the Deputy Inspector General in charge of the Western Province.”
Subsequent to Additional Magistrate Nishantha Peiris declaring his verdict, all lawyers who were present in Court at that moment, rose from their seats as a sign of respect for the landmark verdict
Courtesy:Ceylon Today