Delay in prosecution: State to pay compensation | Daily News

Delay in prosecution: State to pay compensation

Petitioners’ FR violated by Police inaction
Case called before Court for over 4 ½ years to obtain AG’s instructions

The Supreme Court has recently held that the Fundamental Rights of three petitioners’ guaranteed under Article 12 (1) of the Constitution had been violated by police for their inaction which resulted in the long delay in prosecuting the suspect who is said to have killed the petitioners’ close relative in 2010.

Accordingly, Supreme Court three-judge-Bench comprising Justice Eva Wanasundera, Justice Priyantha Jayawardena and Justice Vijith K. Malalgoda made an order directing the state to pay Rs.150,000 as compensation to the three petitioners who are the mother, brother and sister of the deceased for non-effective prosecution of the murder of their close relative for almost six years.

It was revealed that the case was called before the Moratuwa Magistrate’s Court for over a period of 4 ½ years to obtain the instructions from the Attorney General.

The Petitioners’ to this Fundamental Rights petition namely, M. W. Leelawathie Hariot Perera, W. W. Raj Lakmal Fernando and W. W. Roshini Shivanthi Fernando who are the mother, brother and sister of the deceased Rumesh Liroshan Fernando had filed the present application before this court alleging, that their Fundamental Rights guaranteed under Article 12 (1) and Article 11 had been infringed by then IGP N. K. Illangakoon and Officer-In-Charge of the Moratuwa Police station or any person acting under their supervision, direction or command.

The Petitioners’ main complaint before the Supreme Court was the inaction which resulted in the long delay in prosecuting the suspect, who is said to have killed their close relative.

When this matter was supported on October 29, 2015, Court after considering the matters placed, had granted leave to proceed for alleged infringement of Articles 12 (1) and 11 of the Constitution. As submitted on behalf of the Petitioners, deceased Rumesh Liroshan Fernando who was only 20 years at the time of his untimely demise, was a victim of a stabbing which took place on October 24, 2010.

The victim had succumbed to his injuries at Kalubowila Hospital, and the Police Officers who investigated into the death of the deceased, had reported the facts before the Magistrate of Moratuwa on 25.10.2010 under B Report No 1677/10.

The 4th Respondent to the present application namely Widanalage Amesh Asantha de Mel who is said to have stabbed the deceased, was arrested by the police and produced before the Magistrate and remanded to the fiscal custody on 26.10. 2010.

The complaint of the Petitioners before the Supreme Court is based on the subsequent investigation carried out by the Police, and the failure by them to expeditiously prosecute the case against the suspect before the Magistrate’s Court of Moratuwa or in other words inaction by the police officers who investigated into the said offence to prosecute the offender.

In this regard, the Petitioners have placed the following material before this court.

(a). Since 26.10.2010, the date in which the suspect was produced before the Magistrate Court of Moratuwa, the case was called from 04.11.2010 until 23.06.2011 for nearly 07 months for further investigation and for the Post Mortem Report.

(b). When the case was called before the Magistrate Court on 23.06.2011, police had informed the Magistrate that they were filing the investigation reports and plaint and the Magistrate had thereupon made order fixing the matter for inquiry on 07.07.2011.

(c). When the case was called before the Magistrate on 07.07.2011, the Magistrate found that the police had not forwarded the reports and were not ready for the inquiry and therefore the matter was re-fixed for inquiry on 21.07.2011.

(d). On 21.07.2011 the police once again moved for further time to obtain instructions from the Attorney General, and the Magistrate made order allowing the said application.

(e). Since then, the case was called before the Magistrate Court of Moratuwa on several dates over a period of 4 ½ years, to obtain the instructions from the Attorney General, the 5th Respondent to the present application.

(f) At the time the FR petition was filed before Supreme Court on September 25, 2015, the matter before the Magistrate Court of Moratuwa, was still pending for Attorney General’s Advice.

In addition to the sequence of events which took place from the untimely death of the deceased Rumesh Liroshan Fernando, the Petitioners have further submitted that, the said delay in prosecuting the offenders before the appropriate court had resulted,

(a) The deceased’s father W. W. Philip Ranjan Fernando, gradually losing faith in the System of Justice as the case was unduly being prolonged, become ill and prematurely passed away on 05.08.2012 at the age of 65 years.

(b) The three Petitioners suffered severe mental stress, trauma due to the non-effective prosecution of the murder of their close relative for almost 6 years.

When the notices were sent on the Respondents, the 1st Respondent who came before Supreme Court, had tendered his objection along with a document. By the said document the Attorney General on November 30, 2015 had directed the Head Quarters Inspector of Moratuwa to commence a Non Summary Inquiry against the suspect Amesh Asantha de Mel under section 296 of the Penal Code for the murder of Rumesh Liroshan Fernando.

When the matter was taken up for argument before Supreme Court, the Deputy Solicitor General who represented the 1st to the 3rd and the 5th Respondents had submitted that, the Non Summary Inquiry has now commenced before the Magistrate Court of Moratuwa, after receiving the instructions from the Attorney General.

Deputy Solicitor General, referring to the journal entries filed before Supreme Court had further submitted that, the decision to refer the extracts for the advice of the Attorney General was taken by the Magistrate, and the said decision by the Magistrate cannot be questioned in the present proceedings since it amounts to a Judicial action.

In his judgment, Justice Vijith K. Malalgoda observed that from the material already discussed, it is also clear that the Petitioners have not being able to establish that the suffering and the trauma complained by them was in fact faced by them as a result of the inaction by the 1st to 3rd and 5th Respondents.

“I hold that the Fundamental Rights guaranteed under Article 12 (1) of the Constitution had been violated by the conduct of the 1st to the 3rd Respondents or by their agents.

In the said circumstances I make order directing the state to pay Rs. 50,000 as compensation to each Petitioner,” Justice Malalgoda added.

Counsel Chrishmal Warnasuriya with Anslam Kaluarachchi and Priyanka Thevendrean instructed by Indunil Wijesinghe appeared for the Petitioners.

Deputy Solicitor General Thusith Mudalige appeared for the 1st to 3rd and 5th Respondents.


 

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