091-NLR-NLR-V-77-GUNASENA-Petitioner-and-THE-ATTORNEY-GENERAL-Respondent.pdf
Ounasena v. The Attorney-General
533
Present : Walgampaya, J. Rajaratnam, J. andVythialingam, J.GUNASENA, Petitioner and THE ATTORNEY-GENERAL
Respondent
S. C. 435/74 M. C. Nuwara Eliya, Case No. 50249
Administration of Justice Law—S. 77 (3)—Power of the Director ofPublic Prosecutions to order the discharge of a suspect beforethe receipt of the report—Validity of the order—Effect of S. 82(1)—Order not a final order.
S. 77 (3) of the Administration of Justice Law provides that“ upon the report of any investigation being forwarded to theDirector of Public Prosecutions, the Director shall, after consi-dering the material submitted to him :
indict the suspect fcfr trial before a High Court or a District
Court of appropriate jurisdiction, or
order the discharge of the suspect, who, if he is custody
in connection with the offence investigated, shall bereleased therefrom. Before acting under this subsection,the Director may, if he considers it expedient to do so,direct further investigations to be made in regard to anymatter which may be specified.”
534
WAT,HAM PAY A, J.—Ounasena v. The Attorney-General
Where, before the receipt of the report contemplated in section77 (3), the Director of Public Prosecutions ordered the dischargeof a suspect detained on a charge of murder,
Held :
The order discharging the suspect is valid. The Director neednot have waited for a report on the investigations as contemplatedin S. 77 (3). It is sufficient if he had examined the record of theinvestigations.
Held further :
The order made by the Director of Public Prosecutions is nota final order, for it is open to the Attorney-General to act if newmaterial is available under S. 82 (1) of the Administration otJustice Law. It is also open to the petitioner to make represen-tations to the Director of Public Prosecutions and furnishadditional material for his information.
A-PPLICATION in revision.
S. K. Sangakkara with Lai Wijenaike and W. M. G. Wijekoon,for the petitioner.
R. S. Wanasundera, Acting Attorney-General with Ian Wik-remanayake, Director of Public Prosecutions ; Priyantha Perera,Senior State Counsel ; and Tivanka Wickremasinghe, StateCounsel, for the respondent.
Cur. adv. vult.
April 2, 1975. Walgampaya, J.—
This is an application in revision made under Sections 11 and354 of the Administration of Justice Law No. 44 of 1973, inrespect of Magistrate’s Court, Nuwara-Eliya, case No. 50,249.
In her petition and affidavit dated 7th May, 1974, the petitionersubmitted to this Court that on 15th April, 1974, the Officer-in-Charge of the Agarapatana police station, Mr. D. F. W. A.Silva, filed a report under Section 75 (1) of the Administrationof Justice Law No. 44 of 1973, in the Magistrate’s Court, Nuwara-Eliya, case No. 50,249, and asked for an order to detain oneP. A. D. N. Basnayake for committing the murder of HeratgeGunasena who was the legal husband of the petitioner.
The petitioner stated that on 13th April, 1974, at 8.15 p.m.when her husband was at home, watcher Sinniah came and in-formed him that he was wanted by the Superintendent,Basnayake, at the factory with the checkroll. The deceased thenleft and subsequently the petitioner was informed that herhusband had been shot by Basnayake.
The petitioner further stated that there was ill-feelingbetween Basnayake and her husband in proof of which positionshe has handed over certain documents to the police.•
WALGAMPAYA, J.—Gunasena v. The Attorney-General
535
The petitioner stated that she had certain witnesses who couldspeak to the circumstances in which her husband sustained hisfatal injuries.
Further, according to the report under Section 75 (1) of theAdministration of Justice Law filed in this case by the police,Basnayake has admitted to the police that he shot the petitioner’shusband. Basnayake was produced by the police before theNuwara-Eliya magistrate on 15th April, 1974 and he was re-manded till 30th April, 1974 as the Coroner had returned averdict of homicide.
The gravamen of the averments in the petition and affidavitare that ^vhile the said Basnayake was on remand the Directorof* Public Prosecutions had visited Nuwara-Eliya on 24th April,1974 and sent a letter to the Magistrate, Nuwara-Eliya, orderinghim to discharge the suspect. The petitioner states in her affi-davit that there is no authority in law for the Director of PublicProsecutions to visit a police station to examine the record ofan investigation in a case which is not triable by the Magistrateuntil the police on their own complete investigations and senda report to him under Section 77 (1 )(b) of the Administrationof Justice Law.
On receipt of the letter from the Director of Public Prosecu-tions on 24th April itself the learned Magistrate discharged thesuspect as requested. The petitioner’s position is that it was anillegal order unwarranted by law.
Further the petitioner states that the procedure adopted bythe Director of Public Prosecutions had deprived her of produc-ing witnesses before the Magistrate, although she had retainedan Attorney-at-Law to watch the interests of the deceased on30th April, 1974.
Annexed to her application the petitioner has filed two docu-ments marked PI and P2. PI' is an affidavit of one Jayatillekawfierein he states, inter-alia, that he was acting Factory Officerof l^raemore Estate, Agarapatana and on 13th April, 1974 atabout 8.15 p.m. when he was still on duty the Superintendent,Basnayake. dealt a blow on his face with the butt of a gun andhe fell down and was subsequently warded at the Agarapatanahospital. Then he heard the repo-t of a gun, and in view of analleged statement by Basnayake saying:“Jayatilleka, don’t
come out, I will shoot you also ” he ldbked himself up in hishouse. He further states in his affidavit that he was aware thatthere was displeasure between the field officer, the deceased,Ounasena and Basnayake.
536
WALGAMPAYA, J.—Ounaaena, v. The Attorney-General
P2 is a copy of a report made to Court by Inspector Silva of theAgarapatana police station under Section 75 (I) of the Adminis-tration of Justice Law. It states, inter alia, that the Superinten-dent of Braemore Estate, had complained on 13th April, 1974 thatas there were frequent thefts of tea from the estate factory, heused to visit that place regularly and on 13th April, 1974 at8.45 p.m. he saw unnoticed by the others the assistant tea-makerJayatilleke, driver Piyadasa, and the deceased Gunasena with abag full of tea. He got out and held the three of them. They wereabout to assault him, and in the exercise of the right of privatedefence he waved the gun he had in his hand, the gun struckJayatilleka’s face and when the deceased was about to strike himwith an iron rod he fired at him. He took the injured man to theAgarapatana hospital and as his condition was serious he hatlbeen transferred to the Nuwara Eliya hospital where he haddied. He then recorded all available statements and arrestedBasnayake on a charge under Section 296 of the Penal Code.He moved for the remand of Basnayake till the 30th of April,1974.
When this matter came up first on 10th May, 1974 before aBench of which Justice Wijayatilake was the President, the Pre-sident of the Court had made an order that notice should beissued to the Attorney-General, and the record called for fromthe Magistrate’s Court, Nuwara Eliya. That order was made inconsequence of submissions made by Mr. Sangakkara, Counselfor the petitioner that the report contemplated under Section 77(1) (b) of the Administration of Justice law which the Officer-in-Charge of the police station of investigation has to forward tothe Magistrate had not been received by the Magistrate. There-fore, the question arose whether the Director of Public Prosecu-tions had the necessary jurisdiction to act under Section 77 (3)of the Administration of Justice Law.
The main argument adduced by Counsel for the petitioner wasthat the letter written by the Director of Public Prosecutionsto the Magistrate of Nuwara Eliya stating : “ Police have comple-ted inquiries into the above case. I have examined the record ofinvestigations and am satisfied that there are no grounds forproceeding against the suspect. He may be discharged fromcustody,” was not an order which the Director of Public Prose-cutions could have made under Section 77 (3) of the Administra-tion of Justice Law, and was therefore ultra-vires.
WALGAAIPAYA, J.—Qunasena v. The Attorney-Generalfi37
Section 77 (3) states as follows : “ Upon the report of any in-vestigation being forwarded to the Director of Public Prosecu-tions, the Director shall, after considering the material submittedto him :
indict the suspect for trial before a High Court or a Dis-
trict Court of appropriate jurisdiction, or
order the discharge of the suspect, who, if he is in custody
in connection with the offence investigated shall be re-leased therefrom. Before acting under this sub-section,the Director, may, if he considers it expedient to do so,direct further investigations to be made in regard to any.'matter which may be specified. "
The main question, therefore, is whether the Director of PublicProsecutions should have waited for a report of investigationsas contempleted in Section 77 (3) referred to above, before hegave the order to the Magistrate to discharge the suspect.
It is my view that the Director of Public Prosecutions neednot necessarily have waited till the report reached him. It is suffi-cient if. as in this case, he has examined the record of investiga-tions. Furthermore, according to the affidavit filed by Mr. Silva,Inspector of Police, Agarapatana, dated 16th June, 1974, there isa statement that, “ on the 23rd April, 1974 I forwarded certifiedcopies of the information book extracts together with a reportin terms of Section 77 (1) of the Administration of Justice Lawto the Assistant Superintendent of Police, Nuwara-Eliya, to beforwarded to the Director of Public Prosecutions. On 30th April,1974 I proceeded to the Magistrate’s Court of Nuwara-Eliya inconnection with this case as the suspect was to be produced bythe jail authorities before the Magistrate on that date. 1 intendedto file a report in terms of Section 77 (1) of the Administrationof Justice Law before the Magistrate on that day. However, I'found that the Magistrate had already discharged the suspectupon an order made by the Director of Public Prosecutions onthe 24th day of April; 1974, and the Magistrate informed me so.In the circumstances, I felt that it was not necessary for me tofile a report in terms of Section 77 (1) of the Administration of
Justice Law in Court as the matter had reached a finality. ”
•
This averment in the affidavit of the Inspector is prima facieproof that the report contemplated Section 77 (3) of the Ad-ministration of Justice Law was ready on the 23rd of April, and..in my view the Section contemplated a report and it was presu-mably perused by the Director of Public Prosecutions. It cannot,
538
WALGAMPAYA, J.—Gunn send v. The Attorney-General
therefore, be said that the letter sent by the Director of PublicProsecutions to the Magistrate was ultra vires, or that it was notin conformity with the provisions of Section 77 (3).
Further, Section 77 (2) (a) states : “If, however, for reasonsto be recorded by him the Magistrate considers it expedient todetain a suspect in custody pending the consideration of theaforesaid report by the Director of Public Prosecutions, he may,by warrant addressed to the Superintendent of any Prison, autho-rise the detention of the suspect for a period not exceeding threemonths in the aggregate. ”
That paragraph strengthens me in the view that the ultimatedecision for the release or otherwise of the suspect is with theDirector of Public Prosecutions. 1 arn, therefore, of the view thatthe order of the Director of Public Prosecutions conveyed byletter dated 24th April, 19.74 to the Magistrate, Nuwara-Eliya,was in conformity with the provisions of Section 77 (3).
During the course of the argument, the Attorney-Generalinformed Court that the order made by the Director of PublicProsecutions and conveyed to the Magistrate is not a final order,for the Attorney-General will act if new material is available,and he has powers under Section 82 (1) of the Administration ofJustice Law to so act. Further, the Attorney-General has sub-mitted that it is open to the petitioner to make representationsto the Director of Public Prosecutions and furnish additionalmaterial for his information.
The Attorney-General also assured Court that State Counselwill assist in the Magistrate’s Court of Nuwara-Ejliya, when thecharge of theft against the deceased, Jayatilleka and Piyadasa,in Magistrate’s Court, Nuwara-Eliya, case No. 50250 is takei* upfor trial.
The application in revision is refused.
Rajaratnam, J.— I agree.
VYTiriALiNGAM, J.—I agree.
Application refused.