G. A. D. SENEVIRATNE, Petitioner, and THE ATTORENY- GENERAL and 2 others, Respo

092-NLR-NLR-V-71-G.-A.-D.-SENEVIRATNE-Petitioner-and-THE-ATTORENY-GENERAL-and-2-others-Respo.pdf


TENNEKOON, J.—Seneviratne v. The Attorney-General
439
1968
Present: Tennekoon, J.
G. A. D. SENEVIRATNE, Petitioner, andTHE ATTORNEY-GENERAL and 2 others, Respondents
8. C. 28-29/1967—Application for Revision in J. M. C. Colombo6,653jB and Application for a Mandate in the nature of a Writ ofCertiorari on the Colombo Joint Magistrate and others
. Inquest of death,—Nature of proceedings—Finding of Magistrate or inquirer—Whethercertiorari or application in revision lies to quash the, finding—Criminal ProcedureCode, 88. 9, 120, 148 (1) (6), 148 (I) (c), 356, 361, 362, 363, 364 (1)—CourtsOrdinance,.s. 19.
Neither Certiorari nor an Application in Revision lies to quash a findingmade by a Magistrate or an inquirer at the conclusion of a purported inquestof death held under the provisions of Chapter 32 of the Criminal ProcedureCode.
The functions of a Magistrate or an inquirer holding an inquest- of deathare of a non-judicial character.
Api
^PLICATIONS for a writ of certiorari and in revision in respect
of an order made by the Joint Magistrate’s.Court, Colombo.
George E. Chitty, Q.C., with R. A. Kannangara, A. M. Coomarasioamy,C. A. Amerasinghe and Miss Mano Barr-Kumarahulasinghe, for thePetitioner.
Colvin R. de Silva, with Sidat Sri Nandalochana, S. S. Sahabandu,Mr8. Sarath Muttetuwegama and S. S. WijercUne, for the 2ndRespondent.
. V. S. A. PuUenayegum, Crown Counsel, with R. Abeysuriya, CrownCounsel, for the Attorney-General.
Cur. adv. vult.
May 23,1968. Tennekoon, J.—
These two applications were heard together as they relate to theidentical matter, and the parties are substantially the same.The application No. 28/1967 is an application in revision, andapplication No. 29/1967 is one for a mandate in the nature of a Writof Certiorari. Substantially the relief claimed in both applications isthe same, viz.: The quashing of a finding made on the 15th of September1966 by the Joint Magistrate, Colombo, at the conclusion of a purportedinquest held under Chapter 32 of the Criminal Procedure Code.
The circumstances in which the “ verdict ” came to be pronounced areas follows:—On the 16th of April 1966 a letter was received by theMagistrate from the Officer-in-Charge, Fort Police Station, which stated
.440
TENNEKOON, J.—tieneviraine v. The Attorney-General
that “ one Lokugama Vidanalage Podi Appuhamy alias Do damp©Mudalali of No. 228, Main Street, Ratnapura, who was brought to theC. I. D. Office for questioning in connection with the suspected coupd’etat had leapt out of the C. I. D. Office window at the NewSecretariat Building at about 2.30 a.m., and that he had died at theGeneral Hospital after admission ”. Officer-in-Charge, Fort PoliceStation, requested that a Magisterial inquiry be held into this death.This letter was received at 10.30 a.m.; the Magistrate visited the placewhere the death had occurred at 1 p.m. Here he inspected the room fromwhich the deceased was alleged to have leapt out. . This was on the 4thfloor. He also examined the place near the foot of the building where thedeceased had lain fallen. The Magistrate then proceeded to the hospitalmortuary, and viewed the body of the deceased L. V. Podiappuhamy.He noted that the deceased was bleeding from his mouth, had multiplegrazed abrasions on the right groin, and thigh, and on the inner side of theleft upper arm. He also noted the presence of scattered abrasions onthe back of the left leg and also some abrasions on the inner side of theleft leg; also an abrasion on the scrotum. The Magistrate ordered the
J.M. O. to hold a post mortem examination. He then proceeded to recordevidence of witnesses. A Crown Counsel appeared at this stage claimingto be amicus curiae, assisted by the police. Another Counsel watched, theinterest of the relatives of the deceased. Crown Counsel called certainPolice Officers, and also the J. M. 0. who had held the post mortermexamination. The substance of the evidence of the Police Officers wasthat the deceased had been brought by the Police, under what powers it isnot disclosed, all the way from Ratnapura to Colombo for purposes of‘ interrogation ’ in connection with a suspected conspiracy to over-throwthe Government by use of criminal force. He was alleged to have beenbrought to the C. I. D. Office at about 2.20 p.m. on 15th April, 1966 ;
S.G. Sananayake, a Sub-Inspector of Police of the C. I. D., startedquestioning him at 11 p.m. on 15th April 1966 ; Inspector C. Weeratungaand I. M. R. de Silva also came into the room off and on during theinterrogation which was held on the 4th floor of the New SecretariatBuilding. Sub-Inspector Senanayake stated that about 2.15 a.m. on the16th of April he was alone with the deceased, interrogating him ; and thatthe deceased suddenly darted across to one of the open windows, and goton to the ledge, and leapt out; he had no chance of stopping him, becauseit happened so suddenly. The deceased had first landed on an asbestospoof of a garage and had crashed through that to the ground. Thedeceased was then rushed to the General Hospital. The House Officer at♦he Casualty Ward at the General Hospital stated that the deceased wasbrought to the Casualty Ward of the General Hospital at 3 a.m., he wasalive, but in a state of shock. He asked him what had happened to him,but the deceased did not answer that question, but only asked for somewater. The J. M. O. stated that externally he found multiple abrasions ;internally he had a fracture of the 7th to 12th ribs on the right side,laoeration of the lower lobe of the right lung, laceration of the right lobeof the liver, laceration of the right kidney, and laceration of the adrenal
TENNEKOON, J.—Senemratne v. The Attorney-General
441
gland. He was of opinion that death was due to shook and haemorrhagefrom multiple injuries, and that the injuries could have been caused by afall from great height, and the grazed external injuries were consistentwith the body passing through broken asbestos sheeting.
Crown Counsel after having called the Police evidence, and the twodoctors, stated that, that was all the evidence available. The Magistratecalled upon any persons present in Court who could give any evidenceregarding the death of the deceased to come forward, and give evidence, but .no one came forward. He then stated that he would deliver his “ verdict ”on the 18th of April. On 18.4.63 the Magistrate inquired whether therehad been any non-police persons in the C. I. D. Office capable of givingany relevant evidence. The Police stated that there were, and theMagistrate fixed the matter for further inquiry for 20th April 1066.On that day Crown Counsel again appearing as amicus curiae calledone Bopattevidanalage Dingiri Mahatmaya. He was also apparentlya person brought-in for questioning, but he added nothing to theevidence already given before the Magistrate. All he said was that hesaw the deceased in a certain room in the C. I. D. Office mid that when hewas taken away for questioning to another room he fell asleep on a benchand did not wake till about 5.30 or 6.00 a.m. on 16.4.1966. CrownCounsel also called the Superintendent of Police Special Branch, C. I. D.,the petitioner in these two applications who was in charge of theinvestigations into the alleged coup. He himself was in another roominterrogating one Sergeant Hondamuni. He had sent for the deceasedat about 11 pjn. in the course of interrogation of Sergeant Hondamuniand the deceased had been brought into his room in order to beconfronted with some things that Sergeant Hondamuni was alleged tohave stated. He then says that at about 2.30 a.m. on 16.4.66 he hearda sound like that of an explosion, and some one came into his room,and informed him that Dodampe Mudalaly had jumped out of thewindow. On this material the Magistrate made the following finding :—
f
“ On the evidence available in this case I accept the position thatthe deceased has leapt out of the window on his own. Why thedeceased took this step could only be a matter of speculation.According to the medical evidence the death was due to shock andhaemorrhage resulting from injuries the deceased has sustained as aresult of a fall. On the evidence before me I hold this is to be a caseof suicide.”
The record was then in accordance with the usual practice forwarded tothe Attorney-General. About 3& months later, that is, on 3rd of August1966, an affidavit was tendered to the Magistrate from one L. V. Stephen,a brother of the deceased, asking for a fresh inquest. The affidavitstated that the deponent had “ read in the newspapers, of statementsmade at the opening of the non-summary inquiry into the allegedconspiracy against the Government, that lawyers representing certainof the accused have stated that their clients were in a position to give
442TENNEKOON, J.—Seneviratne v. The Attorney-General
evidence regarding the manner of my brother’s death A furtheraffidavit was filed on the 12th of August 1966. This affidavit stated thatfive persons—(1) Sergeant Hondamuni, (2) Sergeant Sirisena, (3) CorporalSilvester Batuwatte, (4) Corporal D. M. Wijeratne, and (5) SergeantHendrick Singho, all under detention under Emergency Regulations, atthe New Magazine Prison, were in a position to throw fresh light on themanner of L. V. Podiappuhamy’s death. On 22.8.66 the Magistrateproceeded to hear the evidence of the new witnesses. An advocate,instructed by a proctor, stated that he was watching the interests of thepetitioner, that is of the deponent. A Crown Counsel was also presentin Court, and stated that he was available to assist Court if necessary.The advocate who was watching the interests of L. V. Stephen calledSergeant Hondamuni and examined him. Crown Counsel was permittedto suggest further questions. On a farther date this advocate calledand examined A. D. Sirisena, W. M. Wijeratne, and M. Hendrick Singho.Crown Counsel was permitted to suggest further questions to thesewitnesses. The Magistrate thereupon proceeded to pronounce a fresh“ verdict ” on 15th September 1966 in the course of which he said :
“ The evidence that has been made available to court since thereturning of the verdict of suicide in this case makes it necessary toconsider whether the earlier verdict could be allowed to stand.
At the earlier stage of the inquiry S. I. Serianayake testified to havingseen the deceased jumping out of a window on the 4th floor of thebuilding. The evidence of H. M. Hondamuni and A. D. Sirisena whichwas subsequently recorded is in conflict with the earlier evidence.H. M. Hondamuni states that when he was being questioned by S. P.Seneviratne he heard sounds of assault and cries of murder from theadjoining room, and that a little later when he happened to open thedoor of thi.t room he saw the deceased Dodampe Mudalali lying nakedinside the coom on the floor with his face upwards. He adds that heheard S. P. Seneviratne saying ‘ put him on the roof ’. According toH. M. Hondamuni sometime after he had heard the “ crash ” S. P.Seneviratne gave orders first to I. P. Fa reed and then to I. P. RahulaSilva to go down and see whether the deceased was dead.
Sirisena’s evidence is that he heard sounds of assault and cries ofmurder from the room into which he had earlier seen the deceased beingtaken and that later when he himself was taken into that room he sawthe deceased lying naked inside the room. Sirisena states that he sawthree officers inside the room and one of them raised the deceasedinto a sitting position and questioned the deceased, struck him on hisneck, pushed him violently into a prone position and kicked him.
It may be noted that M. H. Hondamuni and Sirisena were notcross-examined to test the credibility of their evidence. At anyinquiry of this nature the law does not expect the Court to satisfyitself that a crime has boon committed. The court is required only to
TENNEKOON, J.—Seneviratne v. The Attorney-General
443
ascertain whether the evidence discloses a “reasonable suspicion”that an offence has been committed as contemplated under section362 (3) of the Criminal Procedure Code.
In my view the evidence available to court now is sufficient to createsuch. “ reasonable suspicion I therefore act on that “ Reasonablesuspicion ” and alter the verdict of suicide to one of culpablehomicide.”
On the 17th of September 1966 Crown Counsel moved that in view ofthe finding of culpable homicide the Magistrate do take steps underChapters 15 and 16 of the Criminal Procedure Code. The learnedMagistrate stated that he has already forwarded the record to theAttorney-General, and declined to take any further steps on the groundapparently that the Attorney-General was free to initiate criminalprocedings if he thought fit. Thereafter on the 12th of November, 1966,the present petitioner applied to the Magistrate to lead further evidencetouching the death of Dodampe Mudalali, and the Magistrate made orderon the 12th of Decomber 1966. This was to the effect that “ theapplication to reopen the inquest proceedings is refused
At the hearing of these two applications before this Court, Counsel for
V. Stephen (2nd Respondent in Application No. 28 of 1967 and 3rdRespondent in Application No. 29 of 1967) submitted that neither revisionnor certiorari was available to quash the proceedings relating to an inquestof death whether the inquest was held by an ordinary inquirer or by aMagistrate. Crown Counsel appearing for the Attorney-General (who isnamed as 1st Respondent in Application No. 28 of 1967 and as 2ndRespondent in Application No. 29 of 1967) stated that the positionof the Attorney-General was that it was not within the jurisdiction of .theSupreme Court to exercise powers of revision over proceedings at aninquest of death; he however contended that certiorari lay.
It is necessary before considering this part of the case to examine thenature of an inquest of death contemplated by law as set out in theCriminal Procedure Code.
Chapter 32 of the Criminal Procedure Code is headed “ inquests ofdeaths section 361 states that no inquests of deaths shall beheld except under the provisions of this Code. Section 362 provides asfollows:—
“ 362 (1) Every inquirer on receiving information that a person :—
(а)has committed suicide ; or
(б)has been killed by an animal or by machinery or by an accident;
or
(c) has died suddenly or from a cause which is not known, shallimmediately proceed to the place where the body of suchdeceased person is and there shall make an inquiry and drawup a report of the apparent cause of.death, describing such
444
TENNEKOON, J.—SenevircUne v. The Attorney-General
wounds, fractures, bruises, and other marks of injury, as maybe found on the body and such marks, objeots and circumstancesas in his opinion may relate to the cause of death and stating inwhat manner such marks appear to have been inflicted.
The report shall be signed by such inquirer and shall be forthwithforwarded to the nearest Magistrate.
If the report discloses a reasonable suspicion that a crime hasbeen committed the Magistrate shall take proceedings under ChaptersXV and XVI.
Nothing herein contained shall preclude a Magistrate from forth-
with holding an inquiry under the powers vested in him by section 9 ofthis Code, whenever -any of the events mentioned in paragraphs (a),(6) and (c) of subsection (1) of this section have been brought to hisnotice.”~“-
The 4th paragraph of section 9 of the Criminal Procedure Code reads asfollows :—
“ Every Magistrate’s Court shall have .jurisdiction,
under and subject to this Code, to inquire into all cases in whichany person shall die in any prison or mental or leprosy hospital orshall come to his death by violence or accident, or when death shallhave occurred suddenly, or when the body of any person shall befound dead without its being known how such person came by hisdeath.”
Section 363 reads as follows:—
363 (1) When any person dies while in the custody of the police or ina mental or leprosy hospital or prison the officer who had the custody ofsuch person or was in charge of such hospital or prison, as the casemay be, shall forthwith give information of such death to a Magistrateof the Magistrate’s Court within the local limits of whose jurisdictionthe body is found, and such Magistrate or an inquirer authorized byhim shall view the body and hold an inquiry into the cause of death.
(2) For the purposes of an inquiry under this section a Magistrate orinquirer shall have all the powers which he would have in holding aninquiry into an offence.
Section 364 (1) then goes on to state that the Magistrate or inquirerholding an inquiry prescribed under this Chapter shall record the evidenceand his findings thereon.
It is not disputed in this case that the Magistrate was acting undersection 363 (1) of the Criminal Procedure Code. It is conceded on allsides that although the deceased was not under arrest at the time of hisdeath, he had been taken in for questioning, removed far away from
TENNEKOON, J.—Seneoiratne v. The Attorney-General
445
home. Mends, relations, and advisers, and was under the complete midcompulsive control of the police, and consequently waa de facto if notde jure in the custody of the police.
The duty of the Magistrate upon being informed of a death of a personwhilst in police custody is to view the body, and to hold an inquiryinto the cause of death.
It seems to me that the main purpose of both sections 362 and 363 isthat where the death has occurred in the circumstances or in the placesmentioned in these two sections that there should be an immediate viewof the body prior to burial or cremation, and that there should come intoexistence a record of any wounds, fractures, bruises, and other marks ofinjury as may be found on the body and Buoh marks, objects and circum-stances as may relate to the cause of death, so that burial or cremation orthe lapse of time may not obscure the cause of death. These provisionsoccurring as they do in a code dealing with the investigation and punish- -ment of crimes, appear to be directed largely to the prompt securing ofmaterial as to the cause of the death of a human being in unusualcircumstances or places so that this material will be readily availablein case such death was the result of an act of another amounting to anoffence.
However, it must be noted immediately that the function of aninquirer or a Magistrate acting under Chapter 32 of the CriminalProcedure Code is not to investigate an alleged crime or offence. Indeedthe whole inquiry proceeds upon the basis that the cause of death is yet tobe ascertained. The learned Magistrate was mistaken when in his second* verdict1 he stated—“ The court is required only to ascertain whetherthe evidence discloses a '* reasonable suspicion ” that, an offence has beencommitted ”. It is clear from the sections of law quoted above that thefunction of an inquirer or Magistrate under Chapter 32 is to hold anenquiry into the cause of death and to state as a finding what in hisopinion was the cause of death. The recording of the finding concludesthe inquest of death. If the finding of an inquirer forwarded to aMagistrate under section 362 (2) or of a Magistrate acting under section9 or 363 of the Code gives rise in the Magistrate’s mind to a reasonablesuspicion that the crime has been committed, the Magistrate mayassume the powers of a Magistrate’s Court under section 148 (1) (c)and initiate criminal proceedings himself, But the right to initiatecriminal proceedings that is available to an inquirer under section 148
(6) and to a Magistrate under section 148 (1) (c) cannot alter thenature of an inquest of death that may precede such initiation ofcriminal proceedings; it only emphasises the investigative nature of thoseproceedings.
Does certiorari lie to quash such a finding ? I am of opinion it does not.The Magistrate or inquirer holding an inquest is not called upon todetermine any question affecting the rights of the subject. He is onlycalled upon to enter upon a voyage of discovery; there are no parties
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TENNEKOON, J.—Seneviratne v. The Attorney-General
before him claiming any right or liberty and no proposition advanced byany person the correctness or otherwise of which he is called upon topronounce upon definitively. A person who is examined by the inquireror Magistrate at an inquest and who gives evidence tending to show thatthe cause of death was suicide or homicide or accident cannot be regardedas a party propounding a question for determination by the investigator.It was submitted by Counsel for the petitioner that certiorari jlies for thefollowing reasons:(i) that it is a Magistrate, i.e., a judicial officer who
held the inquest, (ii) that the word jurisdiction is used in section 9 of theCriminal Procedure Code in referring generally to the powers of a Magis-trate to inquire into cause of death in unusual circumstances and places,
that the Magistrate has in fact found the cause of death to be theoffence of culpable homicide which in the context of his ‘ verdict * impliedthat the petitioner was a party or abettor of that offence.
As to (i) I think it is a mistake to lay too much stress on the office heldby the person against whom certiorari is sought. It is more importantto have regard to the nature of the function with which the law hasinvested him. As to (ii) the use of the word jurisdiction is a neutralfact having regard to the different meanings that that word can have indifferent contexts. In the 4th para, of section 9 of the Criminal ProcedureCode there is to my mind no doubt that the word is used in sense of apower or authority rather than of a judicial function. In this context itmust be borne in mind that the authority to hold an inquest of death is onethat Magistrates share with inquirers who under our law are not judicialofficers at all. They are persons appointed not by Judicial ServiceCommission but by the Minister of Justice under section 120 of theCriminal Procedure Code for the investigation of alleged, offences. Eventhe inquests under section 363 (1) which Magistrates are speciallyrequired to hold are capable of being delegated by them to an
inquirer : Vide the words “ . and such Magistrate or an inquirer
authorised by him shall view the body and hold an inquiry into the causeof death ” appearing in section 363 (1) of the Criminal Procedure Code.
As to the third ground on which it is contended that certiorari lies, thetrue test to my mind of whether the writ lies is what kind of function thelaw has imposed upon the authority when acting within its statutorypowers and not what it has actually done acting outside of its powers.If the answer to that question is that the function imposed by law isjudicial in character the writ will lie to quash determinations or ordersmade outside or in excess of its statutory authority, or in breach of therules of natural justice or where there is error of law on the face of therecord. Where the function is not judicial in character, whatever otherremedies may be available, the prerogative writs of certiorari or pro-. hibition will not be available to question acts of such authority whichare ultra vires of its legal powers. The existence of the right to summonwitnesses and to examine them on oath can never by itself be conclusive ofthe question whether a statutory function is judicial. The more reliabletest is to inquire to what end or purpose these powers are given. If the
TENNEKOON, J.—Seneviratne v. The Attorney-General
447
legislature gives such powers in order to facilitate the making of deter-minations which are intended by the law to affect the rights of subjects,then the writs are available. To my mind the functions of a Magistrateor inquirer holding an inquest of death are of a non-judicial character.In the ordinary progression of a criminal case from initiation of criminalproceedings, non-summary inquiry, indictment, trial and appeal, theinquest of death finds no place ; if at all it precedes or is concurrent withthe investigation of a crime. It seems to me that the duty to inquireinto the ‘ cause of death ’ is no* different from the functions of acommission appointed under the Commissions of Inquiry Act. TheWrits of Prohibition and certiorari do not issue to such commissions—see N. Q. Dias v. C. P. O. Abeywardene1, and the cases cited therein ;nor in my opinion can they, by a parity of reasoning, issue toproceedings of an Inquirer or Magistrate holding an inquest of death.
A submission was also made that in England the Writ of Certiorariissues to a Coroner’s Court. While it is correct that the law in relation tocertiorari to be applied by our courts is that which prevails in England,the constitution and functions of a Coroner’s Court and of an Inquirer orMagistrate holding an inquest of death are materially different. There isno power in an Inquirer or Magistrate to pronounce any * verdict ’ ;his duty is only to record a finding of the cause of death ; the finding byitself does not automatically initiate any legal proceedings as does the« inquisition ’ of a Coroner’s Court in England.
The next question for consideration is whether this court can exerciseits powers of revision over an inquest of death when a Magistrate holdssuch inquest, it being conceded and rightly conceded that revision doesnot lie when an inquirer holds such inquest.
Section 356 of the Criminal Procedure Code reads as follows :—
“ The Supreme Court may call for and examine the record of anycase, whether already tried or pending trial in any court, for thepurpose of satisfying itself as to the legality or propriety of any sentenceor order passed therein or as to the regularity of the proceedings ofsuch court.”
In the case of Attorney-General 1. Kanagaratnam 2 Nagalingam, J. saidof this section:
“ I should myself construe the words “ pending trial ” in this sectionas the equivalent of “ not finally disposed of by an order of acquittal,conviction or discharge ”, and to embrace every stage of the case fromthe presentation of a report to Court, and in the case of a non-summaryoffence through the entire gamut of non-summary proceedings inthe Magistrate’s Court, and in respect of both summary and non-summary oases to the final order made by a Magistrate or by a higherCourt, ending in a verdict of acquittal or conviction or in an order ofdischarge.”
1 (1966) 68 N. L. B. 409.* (1950)52 N. L. B. 121’
448
TENNEKOON, J.—Seneviratne v. The Attorney-General
It is I think obvious that even on this very wide and liberal inter-pretation of the words “ pending trial ”, an inquest of death is notcaught up by them. It is suggested, however, that the revisionary powersof the Supreme Court are wider than those set out in section 356 of theCriminal Procedure Code. Reliance is placed on section 19 of the CourtsOrdinance the relevant portions of which in relation to Criminal Courtsread as follows :—
“ The Supreme Court shall have and exercise sole and exclusivecognisance by way of appeal and revision of all …. prosecutions
matters and things of which such original court may have takencognisance.”
The word * court ’ is*defined as follows :—
“ * Court * shall denote a Judge empowered by law to act judicially. alone, or a body of Judges empowered by law to act judicially asa body when such Judge or body of Judges is acting judicially.”
For reasons already stated, I do not think that a Magistrate holdingan inquest of death, any more than an inquirer performing the samefunctions, is acting judicially. Some assistance was sought to be derivedfrom the words “ matters and things ” appearing in section 19 of theCourts Ordinance. These words to my mind are used only to make itclea/ that the appellate and revisionary powers of the Supreme Courtin criminal matters were not confined to * prosecutions * but wouldextend to certain other proceedings in which the court is called upon toact judicially. Some of these are set out at pages 125 and 126 of JusticeNagalingam’s judgment in Attorney-General v. Kanagaratnam and do notneed repetition here. These words are, however, insufficient to bring withinSupreme Court’s appellate or revisionary powers inquest proceedingseven when held by a Magistrate.
Before concluding this judgment I feel constrained to pass somecomment upon the manner in which the inquest of death was heldin this case.
It is fairly obvious that when section 363 (1) enacted in effect thatwhere “ any person dies while in the custody of the police or in a mentalor leprosy hospital or prison ” the inquest shall be held by the " Magis-trate or an inquirer authorised by him ” the legislature was takingspecial care that the inquest should be carried out by a person of; responsi-bility and experience because the opportunities for concealing the realcause of death, if the persons in charge of and employed at these institu-tions were so disposed, are greater than in the ordinary case. It is thereforesomewhat regrettable that when the Magistrate first held his inquest inthe present case he did little or nothing towards making this inquiry assearching and thorough as possible ; instead he seems to have surrenderedhis functions to ' Crown Counsel assisted by the Police The selection of
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TENNEKOON, J.—Seneviratne v. The Attorney-General
persons to be questioned was thus left entirely to the police; the Magis-trate himself seems to have sensed the dangers of this procedure whenhe at one stage said he would like to examine at least one non-policewitness. But even here he left the selection of that person to the police.In the result the findng of suicide made by the Magistrate leaves theimpression that, he remained a passive instrument in the hands of thepolice anxiously—though perhaps honestly—wanting such a finding.When in August 1967 the inquiry was re-opened the Magistrate againrepeated his performance; ho adopted a procedure which resulted inhis reaching a finding devoutly to be wished for by those agitating fora re-opening of the inquiry. At this stage the Magistrate left the selectionof persons to be examined in the hands of the advocate watching theinterests of L. V. Stephen and briefed .to establish the allegation madeby certain coup suspects that Dodampe Mudalali was assaulted by thepolice in the course of an interrogation and thrown out of the 4thfloor window to his death. There was no attempt, particularly in theface of his own previous finding of suicide, to probe the evidence ofthe witnesses who were paraded before him ; the Magistrate did not eventhink it fit in the face of this new material to recall and re-examine thepolice witnesses who had made statements at the earlier stages of theinquest. The whole inquiry was at this stage channelled for him by theAdvocate who called the witnesses and was intent on establishing a case•against the police. Here again-his finding was a foregone conclusion.
The appearance of lawyers pedalling a case for some client and directingthe course of the inquiry is something which no inquirer should permit.The term amicus curiae can sometimes be only a Latin guise for a Greekfriend. It is of course permissible for a lawyer to appear, declare hisinterest and suggest any questions or line of inquiry for the inquirer toadopt in his discretion. In the present case while it was quite proper forGrown Counsel to appear and ask that the evidence pertaining to certainmatters be taken in camera ‘in the interests of a pending investigation’it was unfortunate that the Magistrate substantially left the course of theinquiry in the hands of Grown Counsel, as though he were one appearingat a non-summary inquiry; his appearance was marked amicus curiaeassisted by the police. It is also unfortunate that the Magistrate didnothing to pursue obvious lines of inquiry. What for instance didInspector Senanayake mean by the word ‘ interrogating ’ particularlywhen this was carried out for no stated reason in the small hours of themorning while the rest of the City was asleep ? Was it merely questioningor did it involve the use of certain other methods which our police arenot unknown to use in the course of their investigations. Hie Magistratealso became aware that there were a number of non-police persons in theC.I.D. premises at the time of the incident; yet he left it to the policeto select one from among them to be called and thatcme only stated thathe heard and saw nothing. One is left with the impression that GrownCounsel was in reality there to watch the interests of the police. It ishardly necessary to add that the Attorney-General’s Department (and its..
PP 006137 (98/08)
450
Kathiresu v. Sinniah
members) should avoid, at the early stages of any death in. unusualcircumstances, allying itself with any persons who are interested inestablishing a particular cause as the cause of death ; this can only leadto stultifying that department, much to the public disadvantage, in theperformance of any duties that may arise for it under the CriminalProcedure Code in relation to that death. If a police officer or grouppolice of officers wish to have their interests watched at an inquest theyshould retain private counsel for that purpose.
The two findings, first of suicide and. later of ‘ culpable homicide ’ arethus upon an examination of the whole of the proceedings at the inquestutterly unreliable and unconvincing. It is with regret, therefore, that Ihave reached the conclusion that in these proceedings the law does not• permit me to quash either of these findings.
My order in respect of each of the applications is as follows :—
S. C. Application No. 28/67 (Revision) is dismissed.
S. C. Application No. 29/67 (Certiorari) is also dismissed.
There will be no order for costs in either case.
Applications dismissed.