The special leave to appeal petition filed by Bodu Bala Sena (BBS) General Secretary Ven. Galagoda Atte Gnanasara Thera seeking an order to set aside the judgement of the Court of Appeal was yesterday fixed for support on October 5.
Supreme Court Two-Judge-Bench comprising Justice Eva Wanasundara and Justice Vijith Malalgoda fixed the matter for another date since the Bench was not properly constituted.
This application is to be taken up before the Supreme Court Three-Judge-Bench on the next date.
On August 8, Gnanasara Thera was sentenced to 19 years’ rigorous imprisonment, to be served concurrently within six years by the Court of Appeal over his contemptuous behaviour inside the Homagama Magistrate’s Court on January 25, 2016. Through his special leave to appeal application, Gnanasara Thera further sought an order to release him on bail pending the final hearing and determination of this special leave to appeal.
On a previous occasion, Court of Appeal (President) Justice Preethi Padman Surasena and Justice Shiran Goonaratne refused to grant leave to appeal citing there is no substantial reason to consider the application.
Gnanasara Thera was sentenced to a four-year-rigorous imprisonment in respect of the first count. Another four-year-rigorous imprisonment was imposed regarding the second count. Six-year and five-year rigorous imprisonments were also imposed in respect of third and fourth counts respectively.
Gnanasara Thera stated that the Court of Appeal erred in law by dealing with the complaint made by the Magistrate under Article 105(3) of the Constitution, when Section 55(1) of the Judicature Act No. 2 of 1978 provide a special jurisdiction to the Magistrate’s Court to take cognizance and to punish for contempt committed in the presence of court itself.
The petitioner stated that the Court of Appeal erred in fact and law in convicting the Petitioner for counts 2, 3 and 4 of the charge sheet when the evidence presented by the prosecution did not establish the said counts beyond reasonable doubt.
The petitioner further stated that the judges of the Court of Appeal misdirected themselves in law by failing to appreciate that it is not lawful to prefer four counts of contempt of court based on different parts of one single incident that took place before the Magistrate and having sentences passed in respect of each such part.
He further said the judges of the Court of Appeal, misdirected themselves in law by failing to appreciate that the sentences imposed in this case are far too excessive having regard to the decision in the case of S.C. (Rule) 01/2004, where a bench of five judges of the Supreme Court imposed a sentence of two years’ rigorous imprisonment for contempt of the Supreme Court committed for the second time after having issued a severe warning on the first occasion.
He said the judges of the Court of Appeal misdirected themselves in law by failing to appreciate that the extensive punitive power given to the Court of Appeal by Article 105(3) of the Constitution should be used with caution and deterrent punishment should be imposed when corrective measures are seen to be ineffective as decided by a full bench of the Supreme Court in SC (Rule) 01/2004.
The petitioner further said the judges of the Court of Appeal, misdirected themselves in law by failing to appreciate that the petitioner intervened not on his behalf but on behalf of intelligence personnel of the Sri Lanka Army, if not for whom Sri Lanka would not have won the war against the LTTE.
The petitioner further stated that the judges of the Court of Appeal, misdirected themselves in law by failing to appreciate that the offence of intentionally insulting or interrupting a public servant sitting in any stage of a judicial proceeding set out in Section 223 read with Section 19 of the Penal Code which is an offence akin to the offence contempt of court prescribes only a maximum of six months’ simple imprisonment or a fine which may extend to Rs. 1,000 or both such imprisonment and fine, when imposing an overall sentence of six years rigorous imprisonment on the petitioner.
He further said the judges of the Court of Appeal misdirected themselves in law by failing to consider that there is a striking discrepancy between the note made by the Magistrate on 25.01.2016 soon after perceiving what happened in Court with his senses on the one hand and the evidence given by the Magistrate, witnesses DSG Dileepa Peiris and lawyer Upul Kumarapperuma on the other hand and that has a bearing on the veracity of the evidence led in this case by the prosecution and as such a conviction based on such evidence is not lawful.
While handing out a 56-page judgement, Court of Appeal Justice (President) Preethi Padman Surasena and Justice Shiran Goonaratne had observed that the ingredients of all four charges framed against the accused have been proved beyond reasonable doubt.
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