The Asian Human Rights Commission has learned of the decision of the Hon. Attorney-General to take over the prosecution of a Private Plaint filed in the Magistrate’s Court of Panadura, without the consent of the Complainant of the said case, upon an application and representations made by and on behalf of the Accused who is a Superintendent of Police. The case bears No. 92368 (Private Plaint)
The decision of the Attorney General was communicated to Court by the Senior State Counsel who appeared in Court on December 15, 2011, in the case referred to. When the Complainant of objected to the Attorney General’s decision the Court directed all the parties (the Accused, the Complainant and the Attorney General) to file written submissions on this issue.
The case was filed by and on behalf of M. Nishantha Fernando Jayawardena under and in terms of Section 136(1)(a) of the Code of Criminal Procedure Act No.15 of 1979 (commonly referred to as private plaint) against Lesly Hamilton Gregory Cooray who was the Superintendent of Police for Panadura area, at the time that the alleged incident took place.
There were three charges leveled against him SP COORAY in the said case:
(1) that on or about 04.06.2010 inside the Police Station of Panadura the said SP Cooray did voluntary cause hurt to the said Nishantha and thereby committed an offence punishable under Section 314 of the Penal Code (PC)
(2) On the same time place and during the course of the same transaction the said accused did threaten the said Nishantha of causing injury with an intent to cause fear and thereby committed Criminal intimidation an offence punishable under Section 486 of the PC.
(3) On the same time, place and during the course of the same transaction that the said accused did use Criminal Force to the said Nishantha otherwise than grave and sudden provocation given by said Nishantha and thereby committed and offence punishable under Section 343 of the PC.
02. The Background Situation/Facts which gave rise to this case are as follows:
(i) On 03.06.2010, the Panadura Police had left a massage (over the phone) with the Father-in-Law of the said Nishantha informing Nishantha to be present in the office of the Officer-In-Charge of the Special Crime Investigation Bureau of the Police Station Panadura, at 9.00am on the following day-04.06.2010 for an inquiry against Nishantha, upon a Complainant made by Shiromi Devika Peiris regarding a financial transactions.
The said message was conveyed to Nishantha on the same day itself.
(ii) On the 4th June 2010, the said Nishantha went to the Police Station of Panadura with his wife and met the O.I.C. of the Special Crimes Investigations Bureau (SCIB) of the Panadura Police Station. When Nishantha entered in to the office room of the O.I.C.-SCIB Panadura Police Station, he saw the said Devika was also present in the said office room.
When the O.I.C. – SCIB was about to commence the inquiry, another Police Officer came in to the room and informed that the “SP–1” wanted the said O.I.C. to see him at his office. Accordingly the O.I.C.–SCIB went out of his room and few minutes later came back and informed that the said inquiry would be held by the SP–1 at his office. The said O.I.C.– SCIB took both parties to the said SP–1 and left the said office room.
(The said Nishantha heard the word “SP-1” as “ASP-1”)
(iii) Thereafter the said SP–1 has shown a document to Nishantha and quarried whether he admits the signature contained in the said document. The said Nishantha explained as to why he placed his signature in the document shown and upon the reasons given by Nishantha the said SP blagarded him in filth and preceded to assault him.
The SP–1 tied/held Nishantha from his shirt collar and the neck and hit him to his chest area and to his face.
When Nishantha’s wife cried not to assault Nishantha the said SP pushed her out from her shoulder.
Thereafter said SP-1 called a Policeman and ordered Nishantha be arrested and locked up.
03. Accordingly, a Police Officer put Nishantha in to the Police cell and later a statement was recorded from him.
While the statement being recorded from Nishantha he informed of the said assault by the said SP–1. The Officer who recorded the statement from Nishantha refused to record the said information with the fact that the SP-1 had assaulted Nishantha, but he issued a Medico Legal Examination Form (MLEF) to Nishantha and took him to the Panadura Base Hospital.
Nishantha informed of the said assault to the doctor who examined him at Panadura Base Hospital.
According to the Medico Legal Report the injuries sustained by Nishantha are compatible with the history given by him.
The Medico Legal Report (MLR) issued from Panadura Hospital is annexed hereto marked as “A”.
04. Thereafter the Police produced Nishantha before the Learned Magistrate of Panadura with a Report in case bearing No.91879, accusing him for obtaining money worth of Rs.25 lacks from the said Devika and thereby committed the offences of Criminal misappropriation (Sec.386 PC), Criminal Breach of Trust
(Sec.389 PC) and cheating (Sec.400 of PC) and moved that Nishantha be remanded.
(Nishantha was subsequently discharge from the this case)
When Nishantha was produced in Court he informed that he was assaulted by said SP-1 Cooray and the Learned Magistrate promptly recorded the said (verbal) complaint of Nishantha in open Court.
As Nishantha had heard the word SP-1 as ASP-1, (as mentioned earlier) he referred the Police Officer who assaulted him as “ASP-1”.
The Court granted bail to the said Nishantha and further referred him to the Consultant Judicial Medical Officer of the Kalubowila Teaching Hospital and called for a MLR.
There again the opinion was that the injuries sustained by Nishantha are compatible with the history given by him.
A copy of the MLR issued by the Kalubowila Hospital is annexed hereto marked as “B”
05. After receiving the MLR from Kalubowila Hospital, the Learned Magistrate called for the evidence on behalf of the complainant (Nishantha) in order to determine whether there is sufficient evidence to identify the accused and to proceed against him under the provisions of section 139 of the Code of Criminal Procedure Act. (CCrPA)
(i) M. Nishantha Fernando Jayawardena and his wife M.Surangi Niroshini Salgado gave evidence and the Learned Magistrate after being satisfied himself of the evidence led on behalf of the complainant, decided to proceed the case against said SP-1.
(ii) Thereafter the Learned Magistrate referred the matter to the Mediation Board as required by law and subsequently the case was referred back to Court as the complainant Nishantha did not agreed to settle the matter in the mediation Board.
(iii) Upon the complainant filing a (draft) Charge Sheet and a List of Witnesses for the prosecution the Court issued summons on the said Lesley Hamilton Gregory Cooray (SP-1) to appear in Court.
A copy of the said section 139 of CCrPA is annexed hereto marked as “C”
06. On a later date, with 18.07.2011 the said SP-1 Cooray appeared in Court and moved on his behalf that the case be taken up in-camera (inside the Chambers of the Judge) as he was the Superintendent of Police for the Panadura area. With the consent of the complainant the case was taken up in camera but on a later date upon an objection raised by the Counsel for the complainant the Learned Magistrate decided to take the case up in open Court.
(i) On 18.07.2011, upon the accused (SP-1 Cooray) pleading not guilty to the charges leveled against him the case was fixed for trial and on the first date of the trial with 29.08.2011, a postponement of the trial was sought on behalf of the accused and accordingly the case was re-fixed for trial on 10.10.2011.
(ii) On the 2nd date of the trial, wit 10.10.2011 the accused moved for a postponement of the trial in this case again, on the ground that he had already made an application and representations to the Attorney General to take over the prosecution of this case without the consent of the complainant, acting under section 191(2) of the CCrPA.
Counsel for the Complainant objected to the said Application of the accused, but the Court re-fixed the matter for trial on 15.12.2011 and made it the final date for the accused.
07. On 15.12.2011 a Senior State Counsel appeared on behalf of the Attorney General informed Court that the Attorney General had decided to take over the prosecution of this case, acting under and in terms of section 191 (2) of the CCrPA.
A copy of the said section 191(2) of the CCrPA is annexed hereto marked as “D1” & the Section referred therein wit Section 136 of the CCrPA is annexed hereto marked as “D2”.
The Counsel for the complainant of this case objected to the appearance of the said Senior State Counsel and taking over the prosecution of this case on three grounds:
(a) that if the Learned Magistrate permits the Attorney General to take over the prosecution, the illegal act of assault committed by the said SP Cooray would be interpreted as a matter connected with or related to the discharge of the official duties of the said SP Cooray.
(b) that, after taking over the prosecution the Attorney General could arrive at the decision of nolle proseque in respect of this case.
(c) that if this decision of the Attorney General is implemented it would open “flood gates” for any police officer to freely use force, assault and even to torture not only a person who attends to a Police Station for an inquiry but also to a person taken in to custody by Police.
According to the oral submissions made by the Senior State Counsel and the Counsel for the accused, as the alleged act of the said SP-1 Cooray was committed while he was conducting an inquiry, in uniform and inside his office it should be considered as a matter connected with or related to the discharge of his official duties.
(Considering the facts of this case the above argument is untenable in law as well as on facts)
08. As the Counsel appearing for the complainant my considered view is that,
(i) we should proceed with our objections (by filing written submissions) in order to get an order of Court disallowing the Application made by the Attorney General before the Learned Magistrate.
(ii) apart from that, the said decision of the Attorney General ought to be challenged and quashed by invoking either the writ jurisdiction or the fundamental rights jurisdiction or by both in an appropriate forum.
The Asian Human Rights Commission condemns the use of the Attorney General’s Department for the sabotage of justice. In recent times the Attorney General’s Department has been used to help criminals by withdrawing criminal charges against some of them and even withdrawing charges after indictments have been filed in the High Courts. This has come under public criticism. However, the AG’s ignores such public criticism when acting to help corrupt politicians or powerful police officers who are charges with serious offenses. Besides this the Attorney General’s Department has now acquired a reputation for filing fabricated charges under the direction of the executive and the ruling party.
