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2024 Supreme(SRI)(CA) 464
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
Sampath B. Abayakoon, P. Kumararatnam, JJ
The Director General Commissioner to Investigate Allegation of Bribery and Corruption – Appellant
Versus
Konara Mudiyanselage Dissanayake – Respondent
CA (PHC) APN 0013/24
Anusha Sammandapperuma, ADL with Eishika Ranathunga, LA and Gaya Rajapaksha, LA for the Petitioner. Shawn Thiseran with G.G.C. Godacumbura for the Respondent instructed by Anil Bandara.
The absence of a written directive from all CIABOC commissioners does not invalidate an indictment under the Bribery Act when properly authorized by statutory provision.
Headnote:(A) Bribery Act No. 11 of 1954 - Section 19(b), 19(c) - CIABOC Act No. 19 of 1994 - Section 2(8), Section 11, Section 12 - Indictment against respondent for bribery - The indictment withdrew and refiled, grounding the legality on directives from the commission. The trial court dismissed the indictment due to lack of compliance with directive requirements - The appellate court found that written sanction was unnecessary and reversed the trial court's order, directing a trial to commence. (Paras 8, 20, 25)
(B) Jurisdiction of Court - The High Court lacks the authority to question the validity of an indictment based on directives not being signed by all commissioners, underlined by the Supreme Court judgment in similar cases - The obligations to follow statutory provisions over reinterpreting procedural requirements were emphasized, reaffirming the proper mode of investigation and indictment. (Paras 12, 22)
Facts of the case:
The Respondent was accused of receiving gratification and a criminal investigation was initiated against him by CIABOC following a complaint and subsequent arrest. Preliminary objections raised by the defence pertaining to the procedural compliance led to the dismissal of the indictment by the trial court.
Findings of Court:
The Court found that the indictment's validity should not have been questioned in light of established legislative provisions, and that the directive requirement by all commissioners was neither explicit nor necessary.
Issues: The court primarily addressed whether the indictment could stand despite not being sanctioned by all CIABOC commissioners, examining statutory provisions and previous judgments regarding CIABOC's functioning.
Ratio Decidendi: The appellate court determined that statutory provision does not impose a written directive requirement from all commissioners, thus endorsing the Director General's authority in these proceedings and overruling the trial court's interpretation.
Result: The order was set aside; the trial should proceed expeditiously.
JUDGMENT
P. Kumararatnam, J.
The Accused-Respondent (Hereinafter referred to as the Respondent) was indicted in the High Court of Colombo for solicitation and acceptance of money as a gratification from a person called Senarath Mohottilage Nandana Dilshan Thilakarathne the virtual complainant, to perform his duty which is an offence punishable under Section 19(b) 19 (c) of the Bribery Act No. 11 of 1954 as amended.
According to the Complainant-Petitioner (Hereinafter referred to as the Petitioner) the offences with which the Respondent was charged were framed sequel to a Criminal Investigation conducted by the Commission to Investigate Allegations of Bribery or Corruption (Hereinafter referred to as CIABOC. The Information which prompted an investigation was received on 09.07.2013 and the Commission approved an Authorized Investigation Officer to conduct a criminal investigation against the Respondent.
The Investigation Officer having satisfied the statement recorded from the complainant, conducted a raid on 09.07.2013 and arrested the Respondent while he was accepting a sum of Rs. 8,000/- from the complainant. Upon consideration of the investigation notes pertains to this raid, the Petitioner had been directed on 11.11.2014 to institute criminal proceedings against the Respondent in the High Court, in terms of Section 11 of the CIABOC Act.
Due to the judgment of Anoma Polwatta v. The Commission to Investigate Allegation of Bribery and Corruption SC/Writ Application No.01/2011, the indictment was withdrawn on 06.12.2021 and refiled on 25.03.2022 under case No. HCB 151/2022. The indictment contained 04 charges levelled against him.
When the indictment was served on the Respondent on 20.06.2022, the defence Counsel informed Court that they were going to raise preliminary objections. As such the Learned High Court Judge directed the defence Counsel to file their preliminary objection in writing. Hence, the matter fixed to be called on 01.09.2022. Preliminary objections tendered to Court on that day and the Court directed the prosecution to file their written submission 21.10.3022.
The defence, placed their preliminary objection on the premise that, the all Commissioners of the CIABOC had not given directive to the Director General to proceed with the criminal investigation which caused the institution of criminal proceedings in this matter.
The defence, having referred to Anoma Polwatta v The Commission to Investigate Allegation of Bribery and Corruption SC/Writ Application No. 01/2011 contended that the indictment premised upon the said investigation is void in abinitio and urged the learned trial judge to dismiss the indictment.
In reply to the preliminary objection raised, the Petitioner submitted to Court that there is no single provision in the Bribery Act or CIABOC Act or any judicial pronouncement which made it mandatory for all three commissioners to give a directive to commence a criminal investigation. Hence, the Learned High Court Judge reserved his order on 17.01.2023.
In view of the Supreme Court Five Bench Judgment in the case of SC/TAB/1A-1B/2020 was delivered on 11.01.2023, the order was not delivered on 17.01.2023 by the learned High Court Judge. Instead of that both parties had been directed to file written submission regarding the five bench Supreme Court Judgment.
Both parties had tendered their written submission on 08.05.2023 and the order on preliminary objections was fixed on 26.07.2023.
Upholding the preliminary objection raised by the Respondent, the Learned High Court had dismissed the indictment discharging the Respondent.
The Petitioner had submitted following grounds and invoke the extraordinary jurisdiction of this Court.
i. The order dated 26.07.2023 is contrary to law.
ii. The said order is infested with illegality since learned High Court Judge has entailed sanctioning of criminal investigation by all three commissioners on a prerequisite to the institution of Criminal proceedings in the High Court which is n
