DISSANAYAKE vs SAMURDHI AUTHORITY OF SRI LANKA AND ANOTHER

066-SLLR-SLLR-2005-V-2-DISSANAYAKE-vs-SAMURDHI-AUTHORITY-OF-SRI-LANKA-AND-ANOTHER.pdf


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DISSANAYAKEvs.
SAMURDHI AUTHORITY OF SRI LANKA AND ANOTHERCOURT OF APPEALSRIPAVANJ.
DE ABREW J„
CA WRIT APPLICATION 1939/2004FEBRUARY 15, 2005MAY 18, 23, 2005
Writ of Certiorari – Code of Criminal Procedrue – Sections 115, 115(1), 116(1),136(1)(d) – Institution of actions – Establishment Code – Cap. XLVIII – Section27:10 – Interdiction of Public Officer only after institution of Criminal proceed-ings – Filing of ‘B' Report – does it amount to an institution ?
The Petitioner sought to quash the decision of the Respondent to interdict himand to compel the Respondent to restore him to his earlier post. The Petitionerwas arrested by the Bribery Commission officials on an allegation of accept-ing a bribe on 10.02.2004, and was produced before the Magistrate’s Court ona ‘B’ Report. The Respondents interdicted the Petitioner.
The Petitioner contends that he could be interdicted only after institution ofproceedings and filing of a ‘B’ Report does not amount to an institution ofproceedings in the Magistrate’s Court.
HELD:
The OIC of the Open Investigating Branch of the Bribery Commissionfiled a Report setting out the fact that the Petitioner had committed anoffence under the Bribery Act.
Filing of a Report setting out the facts that a suspect has committedan offence does not amount to an institution of proceedings in theMagistrates Court. Equating a Report under Section 116(1) to an in-stitution of criminal proceedings is wrong.
Dissanayake vs. Samurdhi Authority of Sri Lanka and Others
389
CA
In order to interdict a State officer under Section 27:10 EstablishmentCode Cap. XLVIII Criminal proceedings must first be instituted againsthim – it is wrong to interdict a State Officer under the above Sectionwithout instituting criminal proceedings.
APPLICATION for Writs of Certiorai/Mandamus.«
Cases referred to:
1. Tunnaya vs. OIC Galewela 1993 1 Sri LR 61S. A. D. S. Suraweera for Petitioner.
Ms. Uresha de Silva, S. C. , for Respondents.
SISIRADE ABREW J.This is an application for writs of certiorari and mandmus to quash thedecision of the second respondent interdicting the petitioner and to compelthe second respondent to restore the petitioner to his earlier post. Thepetitioner, an employee of Sri Lanka Samurdhi Authority, was appointtedas a Manager of Samurdhi Authority with effect from nineteenth of June2002. He was attached to the Samurdhi Society of Kakirawa division ofKakirawa Divisional Secretariat at the time of his interdiction. The petitionerclaims that he was authorized by the Director General of Samurdhi, thesecond respondent to invest money belonging to the Samurdhi GeneralSociety and Samurdhi Bank societies in various banks including PramukaBank. The petitioner, having obtained the prior approval of the executivecommittee of the Samurdhi General Society of Kakirawa, deposited anamount less than 3 million of Rupees in Pramuka Bank by way of fixeddeposits. The petitioner states that he was arrested by the open investigationbranch of the Commission to Investigate Allegations of Bribery andCorruption (hereinafter referred to as the Bribery Commission) on anallegation of accepting a bribe of Rupees 18,500 from the Pramuka Bank.This arrest was made on the 10th of February, 2004. The petitioner wasproduced before the learned Magistrate of Kakirawa on a B Report. The
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second respondent, by his letter dated 31 st of March 2004 (P6), interdictedthe petitioner on the basis that proceedings had been instituted against inthe petitioner in the Magistrate’s Court of Colombo on a charge of acceptinga bribe.
Learned counsel for the petitioner contended that the said decision ofthe second respondent (P6) was arbitrary, capricious and unlawful as noproceedings had been instituted against the petitioner in the Magistrate’sCourt. Learned Counsel for the petitioner further contended that the secondrespondent would become entitled to interdict the petitioner under section27:10 of chapter XLVIII of the Establishment Code only after the institutionof proceedings against the petitioner in the Magistrate’s Court. The othercontention of the learned Counsel for the petitioner is that filing of a Breport does not amount to an institution of proceedings in the Magistrate’sCourt. In view of the above contentions it is necessary to examine whetherfiling of the report setting out the facts of the case, in the Magistrate’sCourt by the officer in charge of the open investigations branch of theBribery Commission amounts to an institution of proceedings. Undersection 136(1) of the Criminal Procedure Code, proceedings in theMagistrate’s Court can be instituted in one of the following ways. (1) On acomplaint being made orally or in writing to Magistrate of such court thatan offence has been committed which such court has jurisdiction eitherinquire into or try him:
Provided that such a complaint if in writing shall be drawn andcountersigned by a pleader and signed by the complainant; or (2) Onwritten report to the like effect being made to a Magistrate of such court byan inquirer appointted under chapter XI or by a peace officer or a publicservant or a servant of a Municipal Council or of an Urban Council or of aTown Council; or
Upon the knowledge or suspicion of a Magistrate of such court tothe like effect:
Provided that when proceedings are instituted under this paragraph theaccused or when there are several persons accused any one of them,
CA
Dissanayake vs. Samurdhi Authority of Sri Lanka and Others
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shall be entitled to require that the case shall not be tried by the Magistrateupon whose knowledge or suspicion the proceedings were instituted, butshall either be tried by another Magistrate or committed for trial; or
On any person being brought before a Magistrate of such court incustody without process, accused of having committed an offence whichsuch court has jurisdiction either to inquire into or try; or
Upon a warrant under the hand of the. Attorney General requiring aMagistrate of such court to hold an inquiry in respect of an offence whichsuch court has jurisdiction to inquire into; or
On a written complaint made by a court under section 135.
Under the above section it is possible to argue that filing of a report bya police officer in Magistrate’s Court amounts to institution of proceedings.In this connection, it is'pertinent to consider the decision of the SupremeCourt in Tunnaya vs. O. I. C. Galewela(1). In Thunaya’s case the suspectwas arrested and produced before the Magistrate who remanded him.After a lapse of three months i.e. on 20.12.89 an application for bail wasmade to the Magistrate. This application was refused by the learnedMagistrate on the footing that there was a report before the Magistratesetting out the facts which clearly shows that the suspect had committedan offence, and proceedings had therefore been instituted against thesuspect. An application made to the Court of Appeal to revise the aforesaidorder was refused. The Court of Appeal held that “the filing of a reportmaking a definite allegation that a suspect committed the offencecomplained of was sufficient to constitute to an institutiion of proceedingswithin the meaning of section 115 of the Criminal Procedure Code”. TheCourt of Appeal refused the application for bail made on behalf of thesuspect. The Supreme Court in appeal set aside the judgment of theCourt of Appeal and held that “as no proceedings were in fact institutedupon the report under section 116(1) the Magistrate had jurisdiction torelease the petitioner on bail on 20.12.89, subject to the terms of theprovisio to section 115(1) of the Code as a period of three months sincethe suspect’s arrest had expired”. In the said case Bandaranayaka J., at
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pg. 67 stated that “producing a suspect before the Magistrate’s Court incustody in terms of sectin 116(1) has nothing to do with the institution ofproceedings under section 136(1 )(d) of Chapter XIV or any other clause ofthat section Bandaranayaka J at pg 68 remarked as follows. “ The pointis that one is still at the investigative stage when a suspect is forwardedunder custody to the Court in terms of sectin 116(1). It is wrong to treat
it is an automatic institution of proceedingsEquating a report under
section 116(1) to an institution of criminal proceedings is wrong.”
It is manifest from the said judgment that filing of a report setting outthe facts that a suspect has committed an offence does not amount to aninstitution of proceedings in the Magistrate’s Court.
In the present case, the O. I. C. of the open investigation branch of theBribery Commission filed a report setting out the facts that the petitionerhad committed an offence under the Bribery Act. Applying the legalprincipals stated in the aforesaid decision, I hold that no proceedings wereinstituted against the petitioner in the Magistrate’s Court when he wasproduced before the Magistrate of Colombo. Therefore it has to be concludedthat no proceedings had been instituted against the petitioner when hewas interdicted by the second respondent. When one examines section27:10 of chapter XLVIII of the Establishment Code, in order to interdict astate officer under the aforementioned section criminal proceedings must,first, be instituted against him; it is wrong to interdict a state officer underabove section of the Establishments Code without instituting criminalproceedings. For the above reasons, I hold that the decision of the secondrespondent (P6) interdicting the petitioner is arbitrary and unlawful. I,therefore, issue a writ of certiorari, quashing the decision of the secondrespondent contained in P6 and direct the second respondent to reinstatethe petitioner in his earlier post as stated in the document marked P2.
There will be no costs.
SR I PA VAN J. — I agree.