Sobhitha Rajakaruna J.

The 3^rd and 4^th Respondents on 16.09.2022 have filed a private plaint in the Fort Magistrate’s Court by way of the case bearing No. 23084/2022, in terms of Section 136(1)(a) of the Code of Criminal Procedure Act No. 15 of 1979 (‘CCPA’) against the Petitioner of the instant application. The said Respondents allege, inter alia, in the said complaint marked as ‘P3’ that the Petitioner has committed an offence under Section 298 of the Penal Code by doing negligent acts causing the death of the persons described in the 1^st Schedule to the plaint and also has committed an offence under Section 329 of the Penal Code by doing acts negligently causing grievous hurt to the persons described in the 2^nd Schedule to the Plaint. The draft charges are annexed to the said Plaint.

The learned Magistrate of the Fort Magistrate’s Court (‘the learned Magistrate’) having heard the oral submissions on behalf of the 3^rd and 4^th Respondents made an order, marked ‘P4’, on 16.09.2022 issuing summons on the Petitioner requiring the Petitioner to be present in the Magistrate’s Court on 14.10.2022. The Petitioner by way of this application is seeking to quash the said order, marked ‘P4’, claiming that the learned Magistrate has failed to exercise the discretion reposed in him in terms of Section 139(1)(ii) of the CCPA in failing to consider whether he should examine on oath the complainant or some material witness/witnesses before issuing summons against the Petitioner.

The primary argument of the Petitioner is that the learned Magistrate has formed an opinion acting on inadmissible material to issue summons against the Petitioner in pursuance to the private plaint filed by the 3^rd and 4^th Respondents. The Petitioner further argues that the learned Magistrate has failed to form an opinion that there is sufficient ground for proceeding against the Petitioner based on material evidence and instead has taken cognizance of the contents of the final report of the ‘Commission of Inquiry to Investigate and Inquire into and Report or Take Necessary Actions on the Bomb Attacks On 21.04.2019’ (‘COI’). The contention of the Petitioner is that the learned Magistrate is not authorized to act upon the material collected in the course of the investigations by the said COI and also that the learned Magistrate cannot form an opinion whether sufficient grounds are available to proceed against the Petitioner only based on the said Report or on the recommendations therein.

The learned President’s Counsel for the Petitioner submits that the complaint of the 3^rd and 4^th Respondents is entirely based on the aforesaid Report of COI and the learned Magistrate has failed to identify any offence under the Penal Code before issuing summons against the Petitioner. The learned President’s Counsel for the Petitioner heavily relies on the provisions of Section 24 of the Commissions of Inquiry Act (Chapter 393) as amended by Act No.16 of 2008 which reads;

“Notwithstanding anything to the contrary in the Code of Criminal Procedure Act, No. 15 of 1979 or any other law, it shall be lawful for the Attorney General to institute criminal proceedings in a court of law in respect of any offence, based on material collected in the course of an investigation or inquiry or both an investigation and inquiry, as the case may be, by a Commission of Inquiry appointed under this Act”.

Based on such provisions of the said Section 24, the learned President’s Counsel asserts that it is lawful only for the Attorney General to institute criminal proceedings in pursuance to a report of COI and however, even the Attorney General is empowered to institute criminal proceedings only on material collected in the course of an investigation by COI and not on any recommendations or the report of COI. The learned President’s Counsel referring to item Nos.11 and 12 listed under the matters to be inquired by the COI, as reflected in the warrant issued to the said COI by His Excellency the President (pub