MADHUBAHASHINI

VS.

WELAGEDARA AND OTHERS

COURT OF APPEAL
VIJITH MALALGODA, PC J. (P/CA)
PADMAN SURASENA, J.
CA (MC REVISION) 17/2014
MC ATTANAGALLA B/926/2014

Revision - Code of Criminal Procedure Act No. 15 of 1979 - Sections 2,32,108, 135, 136,145, 296, 298, 370(3), 371-Inquest-duty of an inquirer-difference between inquirer and Magistrate.- cause of death - apparent cause of death -judicial order- Bail Act Sections 13, 27 -Incident- Opened fire whilst on duty - Magistrate acting in excess of jurisdiction - Can the inquest proceeding, be challenged by way of revision? No exceptional circumstances - Can the Court act if the order is illegal?

The Police filed report, stating that the death of J had been caused in an incident where suspect Respondent Police Officer - has opened fire whilst on duty. The police officers were at that time engaged in duties pertaining to checking negligent driving, driving under the influence of liquor, breaking traffic laws etc. It was the position of the suspect Respondent that, he was compelled to open fire with his official revolver at the deceased, who being a rider of a motor bicycle, not only failed to obey the orders of the police to stop but also attempted to knock them down. At the end of the inquest proceedings, the Magistrate held that the death was due to hemorrhage from internal injuries caused to the body of the deceased due to the gunshot injuries.

The Petitioner moved in Revision. The Petitioner contended that, he has no complaint with regard to he above findings, but complained of certain observations and findings in the order, contended that the Magistrate had failed to keep herself within the scope of the chapter XXX - Code of Criminal Procedure - that the Magistrate acted in excess of jurisdiction.

Held :

(1) S.370(1) refers to the duty of an inquirer. S.2 defines an 'Inquirer'. It is the Minister who appoints any person by name or office to be an inquirer for any area the limits of which shall be specified in such appointment.

(2) Inquirers duty is to draw up a report of the apparent cause of death -S.370(1), and to send the report to the nearest Magistrate.

(3) Under S.371-it is only a Magistrate and not an inquirer, who is not a Magistrate, who can conduct an inquiry into a death of such person.

Padman Surasena, J.

"It must be stressed ....that nothing contained in S.370 shall preclude a magistrate from forthwith holding an inquiry - Under S.9 whenever any of the events in paragraphs (a) (b) and (c) - S.370(1) have been brought to his notice S.370(4)."

(4) Cause of death in S.373(1) is different to the term 'apparent cause of death in S.370(1).

(5) What is contemplated in Section 373(1) is the cause of death determined by a Medical Officer upon performing a post mortem examination.

(6) On the other hand what Section 370(1) contemplates is the apparent cause of death as revealed by all the material available. This material would include the evidence of the witnesses who may have testified.

(7) Apparent cause of death set out in the report of an inquirer in Section 370(1) goes on a step beyond the threshold of cause of death referred to in Section 373(1).

Per Padman Surasena, J.

"What the inquirer must do once he has completed the inquiry and drawing up the report setting out the apparent cause of death is described in Section 370(2) - he has to forward it to the nearest Magistrate", and it is at this moment that the role of the Magistrate begins-and according to Section 370(3) the Magistrate should take proceedings under chapter XIV - XV - if the report or other material before him discloses a reasonable suspicion that a crime has been committed.

(8) The inquirer conducting an inquest performs more an administrative function thus his decision in an inquest proceedings is a decision made in the course of such function and not a judicial decision made by the Magistrate.

(9) Power given