Counsel seeks CA to direct CID to discover absconding accused

By S.S. Selvanayagam

Counsel Sumathiran on Tuesday pleaded the Court of Appeal to issue directive to the CID to trace out the whereabouts of three accused including a Navy Officer Sambath and report to Court.

He brought to the notice of the Court that the main accused the 2nd accused Navy Officer is wanted in another case of abduction and killing of 11 persons in Colombo and he is absconding while the Magistrate’s Court has issued warrant for his arrest.

Counsel Sumanthiran made the pleading to find out the whereabouts of the accused as the Attorney General told Court that the Navy could not serve notices on them.

He brought to the notice of the Court that the Attorney General’s appeal against the acquittal of the accused is pending and sought the Court to consolidate that appeal with the revision application.

Court directed the Registrar of the High Court to prepare the appeal brief early and send it to Court.

The Court had on 21 February issued notices on the Respondents returnable for 28 February.

The Bench comprised Justices H.C.J. Madawala and L.T.B. Dehideniya yesterday re-issued notices on the accused Respondents returnable for 19 June.

In the Revision Application Aggrieved Party/Victim Petitioner Sasikala Raviraj is seeking the Court to revise and set aside the Order of the High Court Judge allowing the request of the accused for the case to be tried before a Jury as well as his verdict of acquittal.

She is also seeking the Court to find the accused guilty of all or several of the offences charged and pass sentence on them according to law.

She is asking the Court otherwise order for a re-trial by a Judge of High Court without a Jury.

She cited the accused Palanisami Suresh alias Sami and Navy officers Chandana Kumara alias Sampath, Gamini Seneviratne, Pradeep Chaminda alias Vajira along with S. Vivekananthan alias Charan and Fabian Roiston Tusen as Accused Respondents and the Attorney General.

M.A. Sumanthiran with Niran Anketell instructed by Moahan Balendra appeared for the Aggrieved Party/Victim Petitioner.

Petitioner states that 1st, 5th and 6th Accused were not arraigned before the Court while the 1st accused was said to be deceased and 5th and 6th Accused were said to be absconding.

She states that Raviraj and one other person were assassinated on 10 November 2006.

The Attorney General filed indictment against the accused and when the case was taken up prior to trial, the Counsel for the accused made an application to the High Court that the accused be tried by a Sinhala-speaking Jury.

Counsel representing the Aggrieved Party objected to the said application and Written Submissions were made, she states.

The indictment in the instant case included charges relating to offences specified in the Provision of Terrorism Act as well as offences specified in the Penal Code, she states.

She maintains that it is the procedure specified by the PTA which would override any other procedure stipulated by the regular criminal code and contends that in this case, that requires that the trial be by a Judge without a Jury as specified in Section 15(1) of the PTA.

She states that the High Court Judge on 23 December 2016 made order overruling the objection of the Petitioner and allowing a trial by a special Jury. She said the High Court Judge, after addresses to the Jury by the Attorney General and the Counsel for the Aggrieved Party, charged the Jury in terms of the Code of Criminal Procedure and that he also charge the Jury to provide a verdict in respect of all charges in the indictment, including those relating to the PTA.

After the Jury’s deliberations, on 24 December 2016, the Jury returned a verdict of not guilty in respect of all Accused for all charges in the indictment and the High Court Judge thereafter discharged the Accused, she states.

She seeks the revisionary power of the Court of Appeal as to whether the High Court Judge has erred and/or misdirected himself and the Jury in law of ordering a trial by Jury where the indictment contains a charge of the commission of an offence and/or offences under PTA as well as by failing to consider and/or fully appreciate the Section 15(1) of the PTA which specially requires trial by a Judge without Jury.