Quoting from several Supreme Court Judgments, Chief Magistrate Lanka Jayaratne, while delivering her Bail Order on the magisterial inquiry conducted against former IGP Pujith Jayasundara and former Defence Secretary Hemasiri Fernando who were charged with criminal negligence and murder over the Easter terror attacks, observed that the Court should not act like visitors from outer space, and also a Magistrate should not act to satisfy the sardonic pleasure of the Prosecution.
Following are the facts that transpired during the last hearings of the Magisterial inquiry:
Allegation of the Prosecution
At the onset of the inquiry, on July 3, 2019, Deputy Solicitor General Thusith Mudalige explained as to how the prosecution brings up the particular allegations against the two suspects based on the series of omissions of the suspects.
DSG Mudalige said that this criminal investigation commenced after the interim report of the ‘Special Board of Inquiry appointed to inquire into the Easter attacks’, which recommended a possible criminal investigation against the two suspects.
The DSG elaborated on how the series of omissions transpired on the suspects’ part referring to the events that took place prior to the April 21st attacks.
He said that the Head of Intelligence had sent a letter to the former IGP on April 9, 2019 mentioning the possibility of a suicide attack being carried out in the near future.
The DSG explained that the warning had included information on the nature and the possible targets of the terrorists. However, according to the DSG the former IGP had copied that letter to four DIGs, but failed to share the information with other relevant officers.
The DSG said that the Head of Intelligence had informed the Defence Secretary of the possibility of an attack taking place as far back as April 4, 2019. According to him, a meeting of the Intelligence services took place thereafter on April 9. The two accused had also participated in the discussions.
However, the DSG revealed that the suspects hadn’t brought up the possibility of a terror attack during the council meeting and the terror warnings were thus ignored.
Submitting details about another failure of the suspects, the DSG pointed out that there was a bomb blast that took place targeting a motorbike in the Kattankudy area on April 16, which was subsequently informed to the former IGP on April 17, 18, 19.
The DSG said that the Head of Intelligence had informed the IGP about a possible link between the bomb blast and a future terror attack.
The DSG also revealed that the Head of Intelligence, writing another letter on April 20, 2019, had informed about other suspicious individuals. However, the IGP had not taken any action regarding the letters or information he received on April 17,18,19, and 20 over the possibility of a terror attack, the DSG said.
He also said that there was enough evidence to suggest that Head of Intelligence had informed the IGP about the attack on April 20, 2019 evening and April 21 morning via WhatsApp.
The DSG said that based on the above evidence it could be understood that the suspects had failed to take precautions to prevent a probable attack having been in possession of sufficient information.
Therefore, he said the prosecution had brought charges against the two suspects for their failure to prevent the attacks after having sufficient information in their possession.
Appearing for the suspects, President’s Counsel Anuja Premaratne rejected the prosecution’s stance saying this ‘terrorist attack information’ was first received by the Sri Lankan Intelligence officials from Indian Intelligence on April 4, 2019 and based on that the State Intelligence Service acted on the information by informing the IGP on April 9, 2019.
Premaratne PC said that the first suspect, former Defence Secretary Hemasiri Fernando, had not received any letters from the Intelligence Services, but came to know about the warnings on April 8, 2019.
He also said the letter received by the IGP on April 9, 2019 from the Head of the Intelligence Service was not a letter written with much certainty as it had a phrase which read ‘investigation has not observed so far over the alleged suspicious acts relating to Zahran’.
He also said that the IGP had taken all the possible steps possible after that letter was received by him, as he had copied it to the Western Province SDIG, DIG STF, Director TID and DIG under whom the PSD and JSD comes.
He also pointed out that the letter dated April 9 which carried the warnings of a possible attack was also copied to the SDIG of the CID, which is now conducting the criminal investigation into the Easter Sunday attacks.
Counsel Premaratne also argued that the letters passed on to the IGP on April 17,18,19,and 20 did not contain substantial information over the April 16 motorbike bomb blast.
He also pointed out that a letter dated April 25, 2019 sent by DIG Deshabandu Thennakoon (Western Province) to the IGP mentioning how he had acted upon the IGP’s instructions in informing the relevant police officials to be vary of a possible terror attack.
The SDIG had also stated in that letter that the OIC of the Katuwapitiya Police Station had not considered the Katuwapitiya Church as a possible target. Premaratne therefore said it was the OIC who should have been arrested for negligence and not his client.
Mr. Premaratne also said that there was no Security Council meeting called by the President since February 19, 2019 and furthermore the second suspect, the IGP, had not been called upon to participate in such meetings since October, 2018.
He said the practice of the Head of the Intelligence was to inform the matters directly to the President, who was the Defence Minister. Therefore, neither the former Defence Secretary nor the IGP could be held responsible for the terror attacks.
The offences brought up against the suspects under the Penal Code:
Section 296 - Murder (Death Sentence) – Not bailable*
Section 298 – Causing death by negligence (Imprisonment of Five years) – Bailable*
Section 326 - Voluntarily causing grievous hurt on provocation (Imprisonment of Four years) – Bailable*
Section 327 - Whoever does any act so rashly or negligently as to endanger human life, or the personal safety of others (Imprisonment of Three months) – Bailable*
Section 328 - Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life (Imprisonment of Six months – Bailable*
Section 410 - Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or up-wards (Imprisonment of Two years) – Bailable*
As we can see, the most important allegation brought up against the suspects was the Murder charge under section 296 of the Penal Code, as it is not a bailable offence under the Criminal Procedure Code. In fact, the section 13 of the Bail Act (No. 30 of 1997) apparently prevents Magistrates from granting bail for an offence punishable with death.
“A person suspected or accused of being concerned in committing or having committed, an offence punishable with death or with life imprisonment, shall not be released on bail except by a Judge of the High Court”
Therefore, one needs to understand how the Prosecution had brought up this Murder charge against the suspects in this case.
296- Whoever commits murder shall be punished with death.
In order to establish the Murder charge there needs to be two components. The act and the intention. Section 294 of the Penal Code provides four occasions how these elements can meet to constitute murder charge. The Prosecution had brought up this murder charge against the suspects as per the fourth situation set out in this section and they have brought up the argument saying that according to the Section 30 of the Penal Code the words which refer to acts done, also extend to illegal omissions. Hence, the Prosecution has brought the Murder charge under the following section of the Penal Code.
294 (4) -If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustration given in the Penal Code:
“A, without any excuse, fires a loaded gun into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a pre-meditated design to kill any particular individual”
Abstracts of the Chief Magistrate’s Order
Chief Magistrate Lanka Jayaratne, on July 3 directed both the Defence and Prosecution to file written submissions over the legal meaning covered under Section 296 (murder charge) and Section 294 (4) of the Penal Code whether the phrase “if the person committing the act or omission knows that it is so imminently dangerous that it must in all probability cause death” can be proven in this case. Based on those submissions and the oral submissions made by the parties the Chief Magistrate had delivered a lengthy order, on July 9, 2019, with regard to the maintainability of the case under Section 296 of the Penal Code and granting bail to the suspects.
Failure of the Prosecution to record statements from suspects before arresting
Firstly, the Magistrate considered that this criminal investigation was commenced after the interim report of the ‘Special Board of Inquiry appointed to inquire the Easter Attack’, which recommended an inquiry into the matter. However, this special board of inquiry did not have judicial capacity unlike the Treasury Bond Commission, said the Magistrate.Therefore, the Court considered that such Board of inquiry can be regarded as the ‘first information’, based on which, this criminal investigation was initiated by the CID. Hence, the Court observed that whatever the statements given before that ‘Board of Inquiry’ cannot be considered as evidence in the court of law.
The Magistrate observed that it was not appropriate to arrest and produce the suspects over the murder charge without listening to their side of the story.
The Magistrate also considered such failure of the prosecution could be highly detrimental to the suspects in the inquiry. The Magistrate quoted several previous superior court’s judgments with regard to the way in which the Prosecution should have conducted its inquiry. She quoted former Chief Justice Priyasath Depp in a Supreme Court case and said that the ‘Police has to ascertain the credibility of the information before arresting and producing individuals on offences’…
Did the suspects have knowledge that their omission would cause deaths ‘in all probability’?
Considering the facts of this incident over the intelligence information which is said to have received by the suspects, the Magistrate first said, in order to establish the liability of murder charge, the element of intention has to be observed. The prosecution had brought this element of intention under section 294(4) where the phrase ‘if the person committing the act or omission knows that it is so imminently dangerous that it must in all probability cause death’ has to be proven.’There is a difference between mere possibility and the probability’, the Magistrate said.And observing the information that said to have received by the suspects on April 9, 18, 2019 from the head of intelligence, the Magistrate said most of them, except for April 20 Whatsapp message, are not certain about an imminent terror attack or did not contained any possible attack in near future by the Intelligence with much certainty.The Magistrate also considered about a Whatsapp message received by the first suspect on April 20 via Whatsapp.The Magistrate said the Court also has to consider the fact that the time period, during which this information was received by the suspects, as it was clearly different to the time as of now. According to some decided Supreme Court Judgments, ‘the court should not act like visitors from outer space,’ in deciding the intention of the suspects over their alleged omission or failure to take precautions with regard to the terror attack, without considering the extrinsic and unexpected nature of the attack during that particular time period, Magistrate said.
The Chief Magistrate decided that the Court cannot logically see that the suspects had the knowledge when they received the intelligence information that their omission would cause deaths ‘in all probability’. Hence the 296-murder charge cannot stand.
Whether sufficient evidence available to bring the charge of ‘298-causing death by negligence’
The Chief Magistrate also considered the inclusion of the section 298 (criminal negligence) against the suspects over their alleged omission and said that such inclusion is also questionable to maintain in this criminal inquiry as there is no cogent evidence to prove such negligence on the suspects’ part.
The Magistrate observed this elaborating the factual evidence presented so far by the parties. Based on those facts the Court held that there was no evidence so far to suggest that the suspects’ alleged omissions could amount to criminal negligence under section 298 of the Penal Code as they have apparently acted hundred per cent sufficiently according to their positions after the receipt of that intelligence information.
Considering the way in which that the first suspect as the Defence Secretary had reacted to the intelligence information, the Chief Magistrate said he had taken substantially sufficient steps as the Secretary of the Defence.
Observing the powers vested on the President as the Defence Minister over such security concerns (such as to command three forces), the Magistrate said it is on that background that one should look into the responsibility of the suspect and his alleged negligence.
The Court also concerning the alleged negligence of the second suspect said that the IGP too had acted relatively sufficiently. Since, he had not been a part of the security council for some time, it is apparent there is no sufficient facts to suggest negligence to constitute offence under section 298 (causing death by negligence)
‘The remoteness of the omissions and deaths’
The Court also considered the remoteness of the incident and the suspects’ alleged omission to determine the ‘causal relationship’ with the incident. The Magistrate observed that the suspects didn’t kill the people directly so if there is negligence at all, it cannot be taken alone. There has to be close proximity between deaths and the negligence to prove them guilty
How 296(Murder) and 298(Negligence) both?Addressing the legal question with regard to the inclusion of both Section 296(Murder) and Section 298 (Causing death by Negligence), the Magistrate considered that inclusion of both murder and criminal negligence suggests the hesitation of the prosecution in bringing charges against the suspects.
The Magistrate considered that the Court should not adopt the 296-murder charge in this instance as there was a clear hesitation from the Prosecution in forming murder charge against the suspects.
The Magistrate also gave detailed reasons as to how a Magistrate should react in such situations citing several precedents. She quoting a superior Court decision (Mahanama Thilakaratne v Bandula Wickramasinghe) said a Magistrate should not act “to satisfy the sardonic pleasure of an opinionated investigator or a prosecutor”
Normal circumstances of Bail Act applies
Thereby, the Chief Magistrate decided that there is no cogent evidence or facts before court to suggest an offence under section 296 (Murder charge) against the suspects. Hence, she said that the normal circumstances come under the Bail Act would apply when considering bail for the suspects. Magistrate Jayaratne observed the reasons for which court may refuse bail or cancel that set out in the section 14 of the Bail Act, and said that the Court has no reason to believe that the suspects would not appear before court in future, or interfere with the witnesses or that the alleged offence would give rise to public disquiet.