17 February 2020 11:07 pm
Colombo Fort Magistrate Ranga Dissanayake yesterday reprimanded some of the CID officers while emphasising that the manner in which they acted when Udayanga Weeratunga was arrested and produced in Court in connection with the alleged MIG-27 deal was unusual and questionable because they had failed to follow the procedure laid down under the Public Property Act.
As such he refused to release the suspect on bail considering the gravity of the US$7 million loss caused to the government.
The Magistrate said he was not prepared to satisfy the sardonic pleasure of the prosecution because the remanding of a suspect was not a police matter but a legal process.
At the outset of the inquiry, the Magistrate pointedly questioned the CID officers regarding the removal of the previous investigating officer of the FCID, Inspector Nihal Francis from the ongoing investigations.
Magistrate Dissanayake: First, I need to know why IP Nihal Francis was not conducting the prosecution.
CID: Your honor, he has been transferred from the FCID to the Negombo region.
Magistrate: Who is in charge of the investigation now?
CID: IP Sanjeewa is conducting the investigations now.
Magistrate: IP Francis has been conducting this inquiry since March 26, 2015, so why was he suddenly transferred?
CID: That we don’t know your honor, but he had been transferred so he is no longer in charge of the investigation.
Magistrate: I am concerned about his absence, as he was the one who handled all the documents relating to this investigation. I may have to consider this fact when I consider bail to the suspect.
Magistrate: Does the new investigator have a thorough knowledge about this investigation?
CID: He is working on it your honor.
Magistrate: Earlier, the CID director said statements had to be recorded from the suspect and that process may take even ten days. So how you record statements without fully knowing about the investigation?
CID: (Silent)
Magistrate: What has happened to the Sri Lanka Police?
CID: (Silent)
Magistrate: Is it not desirable to obtain the assistance of the previous investigator as soon as possible to avoid any difficulties?
CID: There is no objection from our side to obtain such assistance from him your honor.
At this point the Magistrate highlighted the legal powers vested in him under Section 119 of the Criminal Procedure Code to remove an investigator from an investigation. (Under the CPC, a Magistrate can remove an investigator or take over the investigations)
However the Magistrate observed that it was more practical to first ask the acting IGP whether there were any barriers to re-appoint the previous investigator to this case.
DSG Thusith Mudalige and SC Udara Karunathilake agreed to the views expressed by the magistrate.
The Magistrate then directed the Court Registrar to send a letter to the acting IGP asking whether he can re-appoint IP Nihal Francis and his supervisor at the FCID, P. Dayaratne to the magisterial inquiry being conducted into the US$14 million loss caused to the government in the MIG-27 deal.
At this point the Magistrate said, “If the re-appointment doesn’t happen, he can remove the current investigators until the previous one is reappointed”
At yesterday’s inquiry, the Magistrate was specifically attentive to the offences over which the suspect was produced in court.
When questioned by the Magistrate, Deputy Solicitor General Thusith Mudalige and State Counsel Udara Karunathilake said during the previous investigation there had been several reports filed in court indicating the offences under the Penal Code (for Cheating), Public Property Act and the Money Laundering Act.
The Magistrate then pointed out that yesterday’s B report itself contained a clause regarding the offences under the Public Property Act (PPA) and explained that when a person is produced in Court for an offence committed under the PPA, the Police were required to file a certificate signed by an ASP if the amount committed under the PPA exceeded Rs.25,000.
(If the suspect is produced under the PPA with a relevant certificate, a magistrate cannot release him on bail unless under special circumstances)
However, it was found that the CID had not filed such a certificate even yesterday.
Magistrate: I read the case docket thoroughly. According to the investigation so far the Sri Lankan Government had paid $14 million during the MIG-27 deal but only $7 million had been received to the Ukrainian Company. Apparently, the loss caused to the Government is $7 million. So, I cannot understand why the CID did not consider this as an offence which had exceeded Rs.25,000 under the PPA and therefore file the relevant certificate signed by the ASP.
CID: (Silent)
Magistrate: I cannot understand this behavior by the CID. It is clear that loss is $7million. So, why did the CID neglected to file this certificate?
CID: Your honor. We have been appointed as the investigators only in January, 2020 so we are still working on the investigation and the offences, because this investigation was earlier handled by a single investigator.
Magistrate: I am asking you why the certificate is not filed if there is a concern about the Public Property Act. This offence was there for five years during this investigation and how come it got changed when the suspect was arrested?
The Magistrate criticised the remarks made by the CID Director on the previous day when producing the suspect in court.
“The CID Director said earlier that he cannot ascertain the laws against the offence and therefore need to consult the Attorney General’s Department. The CID does not need to consult the AG during an investigation, if the offence had clearly transpired from its findings. Here, he should have studied the investigation first,” he said.
The Magistrate then asked the CID whether they were waiting to consult the AG to clarify the fact that $7million was above Rs.25 000? “People of the Country are watching you” he said looking towards the CID.
In the meantime, President’s Counsel Anil Silva appearing for the suspect argued that the CID had not filed the relevant certificate rightly or wrongly under the PPA and thus, the remaining alleged offences fell under the normal Bail Act. He said therefore, his client could be released on bail considering the fact that the investigation was not over.
PC Silva said there was an issue regarding the jurisdiction of the court to consider the offences, which are committed apparently outside Sri Lanka. He pointed out the Presidential Commission of Inquiry appointed to investigate political victimization during 2015-2019.
However, disagreeing with the PC, the Magistrate said according to him the previous investigation was actually ‘satisfactory and thorough’.
Subsequently, the Magistrate considering bail to the suspect reiterated the unusual behavior by the CID for not filing the relevant certificate under the PPA when producing suspect Weeratunga in court.
“If the CID had studied the investigation properly they could have easily identified the offence as committed under the PPA, hence, the behavior of the CID is unusual and strange,” the Magistrate said.
Citing some superior court judgments, he said, “a Magistrate should not act to satisfy the sardonic pleasure of the prosecution….and that remanding a suspect is not a police procedure but a court process”
He considered Section 14 (1) b of the Bail Act “that the particular gravity of, and public reaction to, the alleged offence may give rise to public disquiet” and said that $7 million is considerably a huge amount as it could be regarded with much gravity, thus rejected bail to the suspect.
At the end of the proceedings, the Magistrate advised the CID saying, “Don’t tell the court that the CID need the Attorney General’s instructions if you are not complying and obeying such instructions because it was evident during this inquiry that there are some disagreement between the AG’s Department and the CID. If there is any such disagreement solve it as soon as possible”. (Shehan Chamika Silva)