The Court of Appeal granted leave until September 15 to raise any objections when the petition for leave to appeal against the order of acquittal of S. B. Dissanayake came up for hearing before the Court yesterday.
The matter was taken up before the Bench comprising Justices D.J.de S.Balapatabendi and Sisira Abrew.
President`s Counsel D.S.Wijesinghe with President`s Counsel Anand Wijesekera and Chandana Perera instructed by Gowri Sangari Thavarasa submitted that they accepted the notice and asked for a date to object.
Dr Ranjith Fernando appeared for the petitioner the Bribery Commission.
The Petitioner, the Director General of the Commission to Investigate Allegations of Bribery or Corruption Piyasena Ranasinghe in his petition cited S.B.Dissanayake as accused-respondent.
He alleged that the Trial Judge thought it fit to go beyond the function and duty of a Judge conducting a Trial by commenting that the Commission ?had failed in its obligation to make an informed decision to prosecute as required under the Act.
He contended that if this be the function and duty of a judge of a trial court, the Attorney General would be inundated with such strictures in every judgement upon every prosecution under his name where an accused is acquitted.
The applicant-appellant Director General Ranasinghe in his petition inter alia stateds that upon the receipt of a communication, the Commission caused an investigation to be undertaken to ascertain whether an offence under the Bribery act has been committed by the accused-respondent S.B.Dissanayake.
Mr. Dissanayake was finally indicted before the Colombo High Court on a charge that between March 31, 1993 and September 30, 2001, he was a person who has or had been the owner of properties deemed to be property acquired by bribery or to which he has or had converted any property acquiring by him by bribery and that he was thereby guilty of an offence under the Bribery Act.
The trial before the High Court commenced after S.B.Dissanayake pleaded not guilty to the charge set out in the said indictment. He stated that at the conclusion of the evidence of the only witness Sub Inspector Chandrapala, on July 6 , the prosecution closed its case.
When the case for the prosecution closed, counsel for S.B.Dissanayake moved that the High Court Judge to act in terms of Section 200(1) of the Code of Criminal Procedure Act and to acquit S.B.Dissanayake without calling for his defence, he said.
On July 19, the High Court Judge purporting to act in accordance with the provisions of the Code of Criminal Procedure Act made order acquitting S.B.Dissanayake ?of all charges?, he faced on the indictment.
The Bribery Commission being aggrieved by the said order to the acquittal and/or the judgement acquitting S.B.Dissanayake applied to the Court of Appeal for leave to appeal to be had and obtained in the first instance on the following, amongst other grounds of law and mixed question of fact and law that may be urged by counsel at the hearing of this application.
The Director General of the Bribery Commission complains that the order made on July 19, by the High Court Judge purporting to be under the Code of Criminal Procedure Act is erroneous, unlawful and unjustified. He maintained that the accused should necessarily had been put on his defence for an evaluation and consideration by court of the contents of the affidavits and documents relied upon by the defence.
He was seeking the Court of Appeal to consider whether or not a breach of this fundamental tenet of trial judging, has caused prejudice to the prosecution and has reflected poorly on the administration of justice.
He argued that the trial judge has erroneously referred to the Department of Bribery Commission and that the court has thereby delivered the order and has expressed in total disgrace and in ignorance of the organizational structure of the Commission.
He alleged that the order revealed a serious flaw in the process of trial judging and that for this reason alone, the said order cannot stand and had to be set aside considering that the process of trial judging had suffered a serious setback.
He sought the Court of Appeal to make order to set aside the order of acquittal and to direct the High Court Judge to call upon S.B.Dissanayake for his defence and to direct the trial be held de novo before another judge of the High Court.