GAMMANPILA
VS
GUNATHILAKE, INSPECTOR OF POLICE AND TWO OTHERS

SUPREME COURT
K.SRIPAVAN.CJ.
UPALY ABEYRATHNE J.
SC FR APPLICATION NO. 207/2016
29.06.2016

Constitution Article 13 (1) Could the Court interfere with an investigation-applicability of Article 13 (5) and Article 123 (1) Article 138 Article 139-Penal Code Section 70- It is the duty of Court to determine whether on such available material an arrest should have been made or not made ? Should the Petitioner be informed of the reason for his arrest.

On a complaint by the 4th Respondent to the Criminal Investigation Department that shares of Pan Asia Bank Limited held by him had been allegedly sold by the Petitioner using a fraudulent Power of Attorney, the Petitioner was summoned to record a statement by the 1st Respondent. At the investigation the Petitioner denied any involvement. Petitioner was arrested by the Special Investigation Unit of Police on 18.06.2016. 'B' report was filed on same day before the Colombo Fort Magistrate and Petitioner was placed on remand until 01.07.2016. The Petitioner complained of violation of Article 13 1) of the Constitution.

HELD:

1. If an offence is disclosed, the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the Court interferes with the proper investigation where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of justice suffers. When a 'B' Report is filed, the Magistrate has to apply his judicial mind to the said Report and give appropriate directions to the Police if further investigations are necessary. The Magistrate shall not make orders mechanically without applying his judicial mind.

2. The learned Magistrate exercising her judicial discretion remanded the Petitioner till 1st July 2016. Thus, one does not find fault with the investigators for arresting the Petitioner and producing him before the learned Magistrate on the same day. The petitioner is presumed to be innocent until he is proved guilty. The fundamental right recognized in Article 13 (5), shall be subject to such restrictions as may be prescribed by law. Otherwise no Police Officer would be inclined to perform his functions not only in doubtful cases but practically in all cases.

3. The object of the criminal law is to punish the offender who commits an offence against a person, property or the State for which the accused, on proof of the offence is deprived of his liberty and in some cases

even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred.

4. The Supreme Court while exercising its jurisdiction under Article 123 (1) of the Constitution will not interfere with any 'judicial orders' made by Magistrates. If the petitioner is not satisfied with the Order made by the Magistrate, he is free to seek further remedies as provided by law. Powers of Magistrates while dealing with the applications for grant of bail are regulated by the punishment prescribed for the offence in which bail is sought. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner.

5. The only question to be considered is whether the Petitioner was informed of the reasons for his arrest. While at Paragraph 95 of the Petition, the Petitioner alleges that he was not informed of any reasons for his arrest, learned Senior State Counsel tendered to Court a document marked 'G' and argued that the nature of the allegations or the charge were explained to the Petitioner, prior to his arrest. The Court does not have any affidavit from the Respondents with regard to this matter. Accordingly, the Court grants l