FAKHIR

VS.

ATTORNEY GENERAL

COURT OF APPEAL
OBEYESEKERE, J. (PICA)
COREA, J.
CA/WRIT/74/2021
MARCH 10, 2021

Writ of certiorari-Code of Criminal Procedure Act, No. 15 of 1979, section 393-Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979, section 2(1)(h), 5(1)(a), 16(1)(a), 17-Evidence Ordinance, section 24-Prosecutorial discretion-Reasonableness

The petitioner and his wife were arrested by the Terrorism Investigation Division (TID) on suspicion of aiding and abetting the terrorist attacks on 21st April 2019. Both were detained at the TID for three months. Thereafter, the petitioner was produced before the Colombo Magistrate's Court and was remanded.

Upon completion of investigations, the Attorney General filed an indictment against the petitioner in the High Court of Gampaha. The petitioner preferred this application seeking a writ of certiorari to quash the decision to file an indictment against him.

Held :

1. While the Attorney General has the discretion to institute criminal proceedings, judicial review is available in respect of prosecutorial discretion in order to prevent any abuse by the prosecuting authorities.

2. The decision of the Attorney General to indict the petitioner is based on the contents of the confession that the petitioner is said to have made and such basis is reasonable. It is not a decision that attracts the definition of Wednesbury unreasonableness.

3. If it is the position of the petitioner that he did not make the confession or that the confession is not voluntary, he can object to the confession being marked before the High Court, which would then require the trial judge to determine the voluntariness and relevance of the confession at a voir dire inquiry.

4. The court cannot quash by certiorari the indictment issued by the Attorney General.

Cases referred to :

1. Victor Ivan v. Sarath N. Silva, Attorney General and another [1998] 1 Sri LR 340

2. Sarath de Abrew v. lddamalgoda and six others (SC/FR/424/2015, SC Minutes of 11.01.2016)

3. Sharma v. Deputy Director of Public Prosecutions and others [2006] UKPC 57

4. Ajahn Gardiye Punchihewa v. OIC, Financial Investigation Unit Ill and others (CA/WRlT/311/19, CA Minutes of 18.06.2020)

5. The King v. Fernando 8 NLR 354

6. The King v. Baba Singha 21 NLR 142

7. Velu v. Velu and another 76 NLR 21

8. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223

APPLICATION for Writ of Certiorari.

Ghazzali Hussain with Thusara Warapitiya for the Petitioner.

Sudharshana De Silva, D.S.G., for the Respondents.

cur. adv. vult.

March 26, 2021

OBEYESEKERE, J. (P/CA)

The Petitioner holds a Bachelor of Science Degree in Aircraft Maintenance Engineering from the University of Glamorgan and a Post Graduate Diploma in Business Management from the Cardiff Metropolitan University, England.

The Petitioner states that on 27th April 2019, several Officers of the Terrorism Investigation Division (TID) arrived at his house and arrested the Petitioner and his wife on suspicion that they had aided and abetted the several terrorist attacks that took place on Easter Sunday- 21st April 2019.

The Petitioner states that he was thereafter detained at the TID on a detention order marked 'P4' for a period of three months on the basis that he was connected with or concerned in the spreading of Muslim ideologies, aiding and abetting and conspiring to cause bomb explosions on 21s1 April 2019 and concealing such information from security Forces.

The Petitioner states that he and his wife were produced together with fourteen others in the Magistrate's Court, Mount Lavinia on 3151 July 2019 under 'B' Report No. B/917/19. Having done so, the Petitioner claims that the TID had sought permission to have the Petitioner discharged from the said case, and to produce him before the Hon. Magistrate of Colombo in relation to another investigation relating to the said