This morning the Court of Appeal has dismissed former IGP Deshabandu Tennakoon’s writ petition seeking to block his arrest over the 2023 Weligama shooting. The court ordered the CID to arrest and present him before the court. The bench, led by Acting President Mohamed Lafar Tahir and Justice Sarath Dissanayake, ruled that the petition would be dismissed without a hearing. Tennakoon’s legal team had sought an interim injunction against the Matara Magistrate’s arrest order, but the request was denied.
Judgement in Full:
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC
OF SRI LANKA
In the matter of an Application for mandates in the
nature of writs of Certiorari and Prohibition under
and in terms of Article 140 of the Constitution of
the Democratic Socialist Republic of Sri Lanka
Deshabandu Tennakoon
Inspector General of Police
No. 76/A, Gangani Gardens,
7th Lane, Hokandara East,
Hokandara.
CA Writ Application:
168/25
PETITIONER
Vs
1. Hon. B. A. Aruna Indrajith Buddhadasa
Learned Magistrate
Magistrate’s Court,
Matara.
2. Priyantha Weerasooriya
Acting Inspector General of Police
Police Headquarters,
Colombo 02.
3. P. Ampawila
Deputy Inspector General
Criminal Investigation Department,
4th Floor, New Secretariat Building,
Colombo 01.
4. D. R. Wijekoon
Assistant Superintendent of Police
Criminal Investigation Department,
4th floor, New Secretariat Building,
Colombo 01.
1
- Hon. Ananda Wijayapala
Minister of Public Security
Ministry of Public Security,
1st Floor, ‘Suhurupaya’,
Battaramulla.6. D. W. R. B. Seneviratne
Secretary
Ministry of Public Security,
18th Floor, ‘Suhurupaya’,
Battaramulla.7. Shani Abeysekara
Director
Central Criminal Intelligence Analysis
Bureau,
Battaramulla.8. Hon. Attorney General
Attorney General’s Department
Hulftsdorp,
Colombo 12.9. Nuwan Wedisinghe
Former Deputy Inspector General of Police in
Charge of the Criminal Investigation
Department
No. 1271, Biyagama Road,
Kelaniya.10. Prasanna De Alwis
Former Senior Superintendent of Police and
Former Director of the Criminal Investigation
Department
No. 6/A, Samulu Niwasa,
Keppitipola Mawatha,
Colombo 05.11. G. J. Nandana
Senior Superintendent of Police
Former Director of the Colombo Crimes
Division
Presently,
Director of Kalutara Crimes Division,
Aluthgama.12. Upul Kumara
Chief Inspector of Police
Headquarters Inspector,
Weligama Police Station,
Weligama.13. W. A. R. Bandara
Superintendent of Police
Director of Special Investigation Unit,
No. 97, 3rd Floor, Maradana Road,
Colombo 10.14. P. V. A. S. Karunatilleke
Chief Inspector of Police
OIC – Commercial Crimes Investigation Unit1,
4th Floor, New Secretariat Building,
Colombo 01.RESPONDENTS
Before: M. T. Mohammed Laffar, J. (P/CA- Actg).
K. M. S. Dissanayake, J.Counsel: Dr. Romesh De Silva, P.C. with Sugath Caldera and Niran Anketell
for the Petitioner, instructed by Sanath Wijewardena.Dileepa Peiris, A.S.G., with Maheshika Silva, D.S.G. for the
Respondents.Supported on: 12.03.2025
Decided on: 17.03.2025
MOHAMMED LAFFAR, J, PRESIDENT OF THE COURT OF APPEAL (Actg.)
The Petitioner who is the Inspector General of Police of Sri Lanka, under Article 140
of the Constitution of the Democratic Socialist Republic of Sri Lanka invokes the Writ
jurisdiction of this Court seeking the reliefs as prayed for in prayers to the Petition
dated 07/03/2025. When the matter was mentioned on 10/03/2025 in open Court,
the President’s Counsel appearing for the Petitioner made submissions ex parte and
sought an interim order, inter alia, preventing the Petitioner from being arrested by
the Respondents, pursuant to the order, marked P19, made by the 1st Respondent, the
learned Magistrate of Matara, in case bearing No. B/6314/23 in respect of the
Weligama incident that took place during the period 29th to 31st of December 2023.This Court ordered to support the matter with notices on the Respondents. On
12/03/2025 we heard Dr. Romesh de Silva PC who appeared for the Petitioner in
support of this application and Dileepa Peiris, Additional Solicitor General, who
appeared for the Respondents. This inquiry is confined to the issuance of formal
notices on the Respondents and in respect of the grant of interim reliefs.FACTUAL MATRIX IN A NUTSHELL
The Petitioner states that on 29/12/2023, on his instructions, the Acting Director of
the Colombo Crime Division (hereinafter referred to as ‘CCD’), along with other
police officers, were sent to the Matara area on the night of 30/12/2023. This action
was taken in response to certain information collected during an investigation
involving associates of a notorious underworld drug kingpin suspect who had
attempted to escape from police custody. The Petitioner further states that while the
said CCD team was patrolling the Weligama area at around 2:30 a.m. on 31/12/2023,
an incident occurred where the CCD team reportedly came under fire. The CCD team
retaliated with fire and moved their vehicle along the road to escape the shooting.
During this incident, two officers of the CCD sustained injuries, and one Police
Sergeant, Upali (57241), attached to the CCD, succumbed to his injuries. According to
the affidavit filed by the Petitioner, it is stated that he had taken necessary steps to
investigate the incident and to report the relevant information to the learned
Magistrate.However, the Petitioner further states that the 6th Respondent, D.W.R.B. Senevirathne,
Secretary of the Ministry of Public Security and the 7th Respondent, Shani Abeysekara,
Director of Central Criminal Intelligence Analysis, motivated by personal animosity,
have initiated fresh investigations and legal proceedings against the Petitioner. The
Petitioner contends that the said investigation against him is malicious, politically
motivated, targeted, biased and aimed at framing the Petitioner at any cost. As such,
the order issued by the learned Magistrate on 27/02/2025, directing the arrest of the
Petitioner and his production before the Magistrate on the basis that the said incident
was initiated by the Petitioner unlawfully, is illegal.In those circumstances, the Petitioner in the instant application is seeking, inter alia,
Writs of Mandamus directing the 2nd to 7th Respondents to conduct a fair, independent
and impartial investigation by a division of the Sri Lankan Police other than the 6th
and 7th Respondents. Moreover, the Petitioner is seeking an interim order, inter alia,
preventing the 2nd to 7th and the 14th Respondent from conducting any further
investigation against the Petitioner in this regard and also preventing the arrest of the
Petitioner pursuant to the said order of the learned Magistrate.THE CONTENTION OF THE LEARNED PRESIDENT’S COUNSEL FOR THE
PETITIONER IN A NUTSHELLThe learned President’s Counsel for the Petitioner contends that the impugned order
of the learned Magistrate is bad in law on the basis that,1. Under Section 136(1)(b) of the Criminal Procedure Code No. 15 of 1976 (as
amended) the Magistrate is not empowered to issue a warrant at the first
instance.
2. The report submitted before the learned Magistrate by the OIC Weligama,
marked as P20, dated 31/12/2023 is incomplete and there is no mention of the
Petitioner therein, and therefore, making an order to arrest the Petitioner based
on P20 is premature.
3. Under Article 13(1) of the Constitution of the Republic of Sri Lanka, arbitrary
arrest is prohibited.
4. There is a duty cast upon the learned Magistrate to issue summons to the
Petitioner before issuing a warrant under proviso 1 of Section 139(1)(b) of the
Criminal Procedure code, whereas the learned Magistrate failed to do so.
5. The investigation officers or the learned Magistrate has not taken steps to
record the statement of the Petitioner before issuing the impugned order to
arrest.THE CONTENTION OF THE LEARNED ADDITIONAL SOLICITOR GENERAL
FOR THE RESPONDENTS, IN A NUTSHELL1. The Petitioner has suppressed material facts to this Court and therefore, he is
not entitled to invoke the discretionary remedy of the Writ jurisdiction of this
Court.
2. As an alternative remedy has been provided for by law to the Petitioner to
challenge the impugned order of the learned Magistrate, he is barred from
invoking the writ jurisdiction of this Court
3. Having considered the totality of the evidence, reports and the provisions of
the Criminal Procedure Code, the learned Magistrate has every right to issue a
warrant against the Petitioner based on the facts and circumstances of this case.SUPPRESSION OF MATERIAL FACTS
It is established law that discretionary relief will be refused by Court without going
into the merits if there has been suppression and/or misrepresentation of material
facts. It is necessary in this context to refer to the following passage from the judgment
of Pathirana J in W. S. Alphonso Appuhamy v. Hettiarachchi1“The necessity of a full and fair disclosure of all the material facts to be placed before
the Court when an application for a writ or injunction is made and the process of the
Court is invoked is laid down in the case of The King v. The General Commissioner for
the Purpose of the Income Tax Acts for the District of Kensington – Ex-parte Princess
Edmond de Poignac – (1917)2 Kings Bench Division 486. Although this case deals with
a writ of prohibition the principles enunciated are applicable to all cases of writs or
injunctions. In this case a Divisional Court without dealing with the merits of the case
discharged the rule on the ground that the applicant had suppressed or misrepresented
the facts material to her application. The Court of Appeal affirmed the decision of the
Divisional Court that there had been a suppression of material facts by the applicant in
her affidavit and therefore it was justified in refusing a writ of prohibition without
going into the merits of the case. In other words, so rigorous is the necessity for a full
and truthful disclosure of all material facts that the Court would not go into the merits
of the application, but will dismiss it without further examination”.Furthermore, in Walker Sons & CO. LTD. v. Wijayasena3 Ismail, J stated that,
“A party cannot plead that the misrepresentation was due to inadvertence or
misinformation or that the Applicants was not aware of the importance of certain facts
which he omitted to place before Court.”And in Dahanayake and Others v. Sri Lanka Insurance Corporation Ltd. and
Others4 the Court held that if there is no full and truthful disclosure of all material
facts, the Court would not go into the merits of the application but will dismiss it
without further examination. Therein, Marsoof J in Dahanayake’s case held as
follows:“The 1st respondent has also taken up a preliminary objection on the basis that the
Petitioners have suppressed or misrepresented material facts. This by itself is a serious
obstacle for the maintenance of the Petitioners’ case. Our Courts have time and again
emphasized the importance of full disclosure of all material facts at the time a Petitioner
seeks to invoke the jurisdiction this court, by way of writ of certiorari, mandamus or
any other remedies referred to in Article 140 of the Constitution.”This view was also held in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and
Ors5 where Ruma Pal J. held thus;“As a general rule, suppression of a material fact by a litigant disqualifies such litigant
from obtaining any relief. This rule has been evolved out of the need of the Courts to
deter a litigant from abusing the process of Court by deceiving it. But the suppressed
fact must be a material one in the sense that had it not been suppressed it would have
had an effect on the merits of the case. It must be a matter which was material for the
consideration of the Court, whatever view the Court may have taken.”Further, Makgoba JP, in the South African High Court case of Hlahledi Frank Moropa
v. Kinesh Sachiadanadan Pather6 held,“The omission of material facts may be either willful or negligent. Regardless, the Court
may on this ground alone dismiss an ex parte application In Schlesinger v Schlesinger
1979(4) SA 342 (W) an order obtained ex parte was set aside with costs on an attorney
and client scale because the applicant had displayed a reckless disregard of his duty in
making full and frank disclosure of all known facts that might influence the Court in
reaching a just conclusion.”In the case at hand, it is submitted that the learned Magistrate made the impugned
order not only based on the report marked P20, but also on the facts revealed during
the inquest and the B report. Therefore, the B report, inquest report, and
corresponding journal entries are material documents necessary to determine
whether the impugned order complies with the law. Strictly speaking, the entire
Magistrate’s Court proceedings are required to conclude whether the impugned
order is erroneous.It is pertinent to note that although the Petitioner, in paragraph 34 of the Petition,
reserved the right to tender the entire case record of the Magistrate’s Court
proceedings, he failed to do so. Furthermore, the learned President’s Counsel for the
Petitioner, in open Court, did not disclose this fact and did not seek permission from
this Court to support the matter after tendering those documents. In these
circumstances, under Section 114(f) of the Evidence Ordinance, this Court can
presume that if the said documents were produced, they would adversely affect the
Petitioner’s case. Section 114(f) of the Evidence Ordinance reads as follows:“(f) that evidence which could be and is not produced would if produced, be
unfavourable to the person who withholds it;”As such, it is the opinion of this Court that this application could be dismissed on this
ground alone. At this juncture, the attention of this Court is drawn to the observation
made by Jayasuriya J in Jayaweera vs Commissioner of Agrarian Services7 in this
regard, which reads thus;“A Petitioner who is seeking relief in an application for the issue of a Writ of Certiorari
is not entitled to relief as a matter of course, as a matter of right or as a matter of routine.
Even if he is entitled to relief, still the Court has a discretion to deny him relief having
regard to his conduct, delay, laches, waiver, submission to jurisdiction – are all valid
impediments which stand against the grant of relief.”ORDER OF THE LEARNED MAGISTRATE
It is a globally recognized legal principle that all reports, observations,
recommendations, decisions, determinations, judgments and orders made by heads
of departments, heads of corporations, heads of statutory bodies or even the head of
the judiciary (whether judicial or quasi-judicial) are bad in law and liable to be
quashed in limine if they are made without providing an adequate opportunity for the
concerned party to be heard (ex parte), without sufficient reasoning, or based on
baseless presumptions. Such arbitrary decisions lack legal value as they adversely
affect the legal rights of the concerned party.In this regard, I refer to the case of Choolanie vs Peoples Bank8 where the Supreme
Court observed that,“Satisfactory reasons should be given for administrative decisions. A decision not
supported by adequate reasons is liable to be quashed by Court.”Per Shirani Bandaranaike J “………giving reasons to an administrative decision is
an important feature in today’s context which cannot be lightly disregarded.
Furthermore, in a situation, where giving reasons have been ignored, such a body
would run the risk of having acted arbitrarily in coming to their conclusion”Moreover, it is appropriate for this Court to draw the attention of the observation
made by the Supreme Court in Piyasena De Silva And Others Vs Ven.
Wimalawansa Thero And Another9 where Shirani Bandaranaike J (as she then was)
held;“A fair administrative procedure, which would be comparable to ‘due process of law’
embedded in the Constitution of the United States, is based on the principles of granting
a fair hearing to both sides. The Courts therefore are bound to exercise the rules of
natural justice, as the decisions would not be valid if ordered without first hearing the
party who was going to suffer owing to the decision of the Court. Although the
applicability and thereby the interest in the development of the well known rule “audi
alteram partem” to a wider category succeeded recently, giving a hearing to an
aggrieved party had begun arguably at the beginning of the human kind. As pointed
out by Fortescue, J. In R v University of Cambridge the first hearing in human history
was given in the Garden of Eden.In his words “I remember to have heard it observed by a very learned man upon such
an occasion, that even God himself did not pass sentence upon Adam, before he was
called upon to make his defence. ‘Adam, says God, where art thou? Hast thou not eaten
of the tree, whereof I commanded thee that thou shouldst not eat? And the same
question was put to Eve also.”Having taken into consideration the above legal literature, it is necessary to ascertain
whether the learned Magistrate had adequate material to make the impugned order.
Generally, when a special police team is dispatched from Colombo to Matara for a
special raid, it is the duty of the Petitioner to inform the relevant police authorities in
the Matara area and ensure appropriate entries are made in the relevant records.
However, it is revealed that the CCD team was sent by the Petitioner to Matara
without adhering to the provisions of the Police Ordinance and regulations.The CCD team were in civilian attire and even the deceased police constable, who
sustained injuries from gunfire, was not rushed to the closest hospital for treatment.
Instead, he was brought to Karapitiya hospital, which raises a reasonable suspicion
regarding the Petitioner’s actions. Had the injured officer been admitted to the nearest
hospital, there might have been an opportunity to save his life. At this point, this
Court appreciates the conduct of the learned Magistrate, who took considerable care
in exercising his judicial powers to ensure justice was served.According to the inquest report, it is revealed and rightly observed by the learned
Magistrate, that the Petitioner sent an illegal, para-military team to carry out this task
to fulfill needs that were of a personal nature. The observation of the learned
Magistrate is reproduced as follows:“ඒ අනුව නඩුවට අදාලව ඉදිරිපත්ව ඇති සියලුම කරුණු සලකා බැලීමමෙන් අනතුරුව
අධිකරණයට සිද්ධිමය කරුණු සම්බන්දයෙන් එළඹිය හැකි නිගමනය වන්මන්, වැඩ
බලන පොලිස්පතිවරයා ලෙස සිටි දේශබන්දු තෙන්නකෝන් යන අය විසින් “W15″
හෝටලයට අදාලව අනර්ථය, සපරාධී බලහත්කාර පෑම සහ හෝ වෙනත් ක්රියාමාර්ගයක් එකී අයිතිකරුවන්ට, රැඳී සිටින්න්නට හෝ සේවකයින්ට එරෙහිව සිදු කිරීම සඳහා තමා යටතේ සිටින පොලිස් නිලධාරින් අට දෙනෙකුගෙන් යුතු කණ්ඩායමක් නීති විරෝධී ආකාරයෙන් රජය සතු නිල වාහන, ගිනි අවි, උන්ඩ ආදියද සමග යොදවා ඇති බවත්ව.”Moreover, the learned Magistrates observed that,
“දේශබන්දු තෙන්නකෝන් යන අය සහ කොළඹ අපරාධ කොට්ඨාශයේ නිලධාරීන්
එක්ව නිර්මාණය කරන ලද අසත්ය සාක්ෂි නිර්මාණය කිරීමට චේතානාත්මකව
දායකත්වය දක්වින්, අධිකරණය විසින් පවත්වන ලද විමර්ශනයට ඉදිරිපත් කිරීම
සඳහා පොලිස් පරීක්ෂක මුර නිලධාරියා විසින් වෙඩි තබන ලද උණ්ඩ සංඛයාව
පිළිබඳව වැරදි සංඛ්යාවන් ඇතුලත් කර වෙඩි තැබීමෙන් ඉතිරි උණ්ඩ සංඛයාව
සම්බන්ධයෙන් සහ හිස් පතුරම් කොපු සංඛයාව සම්බන්ධයෙන් දෝශ සහගත සටහන්
යෙදීමෙන් වැලිගම පොලිස් ස්ථානයේ ස්ථිනාධිපති වන උපුල් නිලධාරියා බොරු සාක්ෂි
ගැනීමේ ක්රියාවෙන් සහ නීත්යානුකූලව විමර්ශන නිලධාරියා ලෙස නීතියෙන් බැඳී සිටින
පොලිස් දෙපාර්ථමෙන්තු වගකීමට පටහැනිව අකීකරුව ක්රියා කිරීමෙන් කර ඇති වැරදි
පිළිබඳව එම අයට විරුද්ධව නඩු කටයුතු පැවරීමට ප්රමාණවත් හේතු පවතින බවටද
වැඩි දුරටත් නිගමනය කෙරේ.”Having scrutinized the impugned order of the learned Magistrate, it is abundantly
clear that the impugned determination is based not only on the report marked P20,
but also on the inquest report conducted by him, the B report filed in Court and other
relevant testimonies. In these circumstances, this Court can be satisfied with the basis
upon which the learned Magistrate concluded to issue the impugned arrest warrant
against the Petitioner. In Victor Ivan vs Sarath N. Silva10 it was observed by Fernando
J that, “A citizen is entitled to a proper investigation – one which is fair, competent,
timely and appropriate – of a criminal complaint, whether it be by him or against
him. The criminal law exists for the protection of his rights – of person, property
and reputation – and lack of a due investigation will deprive him of the
protection of the law.”Furthermore, it is my observation that in criminal proceedings, the Magistrate should
not act as a mere rubber stamp. He is not expected to act according to the whims and
fancies of the police or the officers of the Attorney General’s Department. There is a duty cast upon the Magistrate to ascertain the truth of the incidents, as he is, at times, part of the investigation as well. He is empowered to decide whether or not to comply with the directions and orders made by the prosecution, provided he gives acceptable and adequate reasons in the interest of justice and is satisfied that the application is justified. In this regard I refer to the case of Dayananda v. Weerasinghe and Others where His Lordship Ratwatte, J stated,
“It must be remembered that when a person is remanded he is deprived of his personal
liberty during the duration of the remand period and a person who is remanded is
entitled to know the reasons why he is so remanded. Magistrates should be more
vigilant and comply with the requirements of the law when making remand orders and
not act as mere rubber stamps.”.
In the above context, Article 4(c) of the Constitution reads as follows;
“4. The Sovereignty of the People shall be exercised and enjoyed in the following
manner:-
c) the judicial power of the People shall be exercised by Parliament through
courts, tribunals and institutions created and established, or recognized, by the
Constitution, or created and established by law, except in regard to matters
relating to the privileges, immunities and powers of Parliament and of its
Members, wherein the judicial power of the People may be exercised directly by
Parliament according to law;”
Very often, when bail applications are brought before the Magistrate, bail is either
permitted or refused based solely on whether the prosecution objects to the
application or has no objection. Similarly, judges often permit the prosecution to
withdraw indictments merely because the prosecution wishes to do so. This is not the
judicial power endowed by law or the Constitution to a Magistrate or a judge
exercising the judicial power of the people. It is rightly observed by the learned
Magistrate that:
“A Criminal investigation is Crucial before prosecuting a case. Investigators, part of
the executive branch, are given extensive power by law and judicial interpretation. In
Sri Lanka’s adversarial system, the trial Judge acts as an umpire. However, during the
course of an investigation, the magistrate should not act as a mere Umpire or silent
observer, but is duty-bound to see that a fair, efficient and independent investigation is
conducted in a timely manner, though he is not in charge of the investigation”
In these respects, it appears to this Court that before making the impugned order of
arrest, the learned Magistrate applied his judicial mind to the report marked P20, the
B report, reports related to the inquest, evidence recorded, and all relevant provisions
of the law pertaining to this matter.
THE PROVISIONS OF LAW APPLICABLE TO THIS APPLICATION
The contention of the learned President’s Counsel for the Petitioner is that issuing a
warrant before issuing summons under Section 136(1)(b) is bad in law. The said
section reads as follows:
“136(1) Proceedings in a Magistrate’s Court shall be instituted in one of the following
ways: -………..
(b) on a written report to the like effect being made to a Magistrate of such Court
by an inquirer appointed under Chapter XI or by a peace officer or a public
servant or a servant of a Municipal Council or of an Urban Council or of a Town
Council; or”
In terms of Section 9(b) read with Section 139(1) of the Criminal Procedure Code, the
Magistrate is empowered to issue a warrant against the suspect. As such, Section
136 should not be considered in isolation. Having scrutinized the totality of the
provisions relating to the issuance of a warrant against a suspect, there is no
impediment for the Magistrate to issue a warrant in the first instance, based on the
facts, circumstances, and gravity of the offence. In these circumstances, as already observed by this Court, the instant incident was committed by a para-military team
using illegal weapons and vehicles, ultimately leading to the loss of a life.
Accordingly, issuing a warrant in the first instance is justifiable and within the
purview of the powers of the Magistrate.
AVAILABILITY OF ALTERNATIVE REMEDIES
Prerogative Writs are discretionary remedies, and therefore, the Petitioner is not
entitled to invoke the Writ jurisdiction of this Court when an alternative remedy is
available to him. In Linus Silva Vs. The University Council of the Vidyodaya
University12 it was observed that,
“the rule that the remedy by way of certiorari is not available where an alternative
remedy is open to the petitioner is subject to the limitation that the alternative remedy
must be an adequate remedy.”
The Court of Appeal in Tennakoon Vs. Director-General of Customs13 held that,
“The petitioner has an alternate remedy, as the Customs Ordinance itself provides for
such a course of action under section 154. In the circumstances the petitioner is not
entitled to invoke writ jurisdiction.”
In the instant case, in terms of the law, the Petitioner has every right to challenge the
impugned order of the learned Magistrate before the High Court. As observed
in Linus Silva’s Case (supra), the Petitioner can obtain adequate remedies before the
High Court by way of appeal or revision. Instead of invoking the alternative remedy
provided by law, that is invoking the High Court’s jurisdiction, the Petitioner has
chosen to invoke the discretionary Writ jurisdiction of this Court, which is not
justifiable. Where the law provides a right to appeal or revisionary jurisdiction to an
aggrieved party, that party is precluded from invoking the discretionary jurisdiction
without first exhausting the available remedies. In the instant application, the Petitioner has entirely failed to satisfy this Court as to why he opted to not invoke the
High Court’s jurisdiction as provided by law. Thus, it is the view of this Court that,
on this basis as well, this application cannot be maintained and is liable to be
dismissed.
THE RULE OF LAW
The Rule of Law is a fundamental principle that ensures a state is governed by laws
rather than by the arbitrary decisions of rulers or government officials. Its origins can
be traced back to Ancient Rome and were later developed by medieval European
thinkers such as Hobbes, Locke, and Rousseau through the social contract theory.
Indian philosophers such as Chanakya, the chief advisor to Mauryan emperor
Chandragupta, emphasized the importance of the rule of law by advocating that a
just and stable state could only be maintained if the king himself was subject to legal
principles. In his treatise Arthashastra, Chanakya outlined a framework for
governance in which no individual was above the law, believing that laws should be
applied impartially and that the king’s power should be exercised within the
boundaries of dharma and established legal norms.
According to British jurist, A.V. Dicey, the rule of law upholds the absolute
supremacy of regular law, eliminating arbitrary power and wide discretionary
authority by the government, where he states as follows;
“the rule of law means the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power and excludes the existence of arbitrariness,
of prerogative or even of wide discretionary authority on the part of the government.”
A historic affirmation of this principle was seen in the case of Prohibitions del Roy
(1607), where Lord Edward Coke ruled that even the monarch was subject to the law
and that legal disputes should be resolved by independent Courts, while highlighting
the central tenet of the rule of law: no one, including those in power, is above the law.
With this background, by analyzing the case at hand, we see that the Petitioner is not
an ordinary citizen. He holds the highest rank within the Police force, serving as the Inspector General of Police (IGP), a position that casts upon him the duty to maintain
law and order within the country. During his tenure as a Police Officer, the Petitioner
may have produced numerous suspects and/or wrongdoers before Courts, adhering
to Court orders. Unlike an ordinary citizen, he possesses a heightened awareness of
the rule of law in this country.
It is deeply concerning and regrettable that the head of the Police Department, who
possesses extensive knowledge of the law and holds a position of great responsibility,
is involved in a grievous offense and is actively evading arrest. His failure to
cooperate with the Court order and his attempts to remain in hiding not only
undermine the principles of justice but also tarnish the reputation of the Police
Department. Such actions are unacceptable and diminish public trust in the very
institution entrusted with upholding law and order. The Petitioner, who is entrusted
with enforcing the law and tasked with setting an example for society, cannot be
permitted to act as though he is above the law.
It is pertinent to note that the Police Department and the judiciary must operate with
impartiality, free from any influence based on race, caste, religion, language, position,
political beliefs or any ulterior motive. If these institutions fail to uphold fairness and
equality in their actions, it will inevitably erode public confidence in the justice system
and the administration of justice as a whole. Thus, maintaining integrity and
impartiality is essential to preserving trust in these fundamental pillars of society. In
my view, if these two institutions function without fear or favour and strictly adhere
to the law of the land, it would significantly reduce crime by as much as 90% and
thereby uphold the democratic process.
I further observe that if these two institutions fail to function effectively, the general
public will inevitably lose confidence in them. As a result, people may resort to
resolving disputes on their own, leading to a rise in lawlessness, thuggery, and the
breakdown of law and order. This deterioration will give way to vigilantism, where
individuals will take justice onto their own hands, ultimately undermining the very
foundation of a lawful and democratic society.
Furthermore, it is a well-established legal principle that when Courts exercise their
writ jurisdiction, they do not consider only the legal aspects of a case but also the
broader impact of their judgment on society. In Inasitamby v. Government Agent,
Northern Province14, the Court held that:
“A Court before issuing a writ of mandamus, is entitled to take into consideration the
consequences which the issue of the writ will entail.”
In light of this legal precedent, it is crucial to recognize the difference in treatment
when minor offenders are swiftly arrested, produced before Court, remanded and
punished in accordance with the law, while the head of the Police Department is
attempting to shield his arrest through invocation of writs. An imbalance of this
nature in the administration of justice will undoubtedly erode public confidence in
the legal system that could be the catalyst of a social unrest similar to the ‘අරගලය’
against these institutions. Historically, it has been actions like these that have fuelled
public outrage and unrest. If Courts deliver haphazard judgments without
considering the prevailing social conditions, they risk further intensifying public
discontent and instability, ultimately undermining the rule of law and democratic
governance. Courts, before issuing writs, must take into consideration the effects the
writs will have on society, ensuring that their decisions align with justice, fairness,
and the broader social context.
INTERFERENCE OF POWERS OF THE MINOR JUDICIARY BY THE APEX
COURT
When the Magistrate or the minor judiciary exercises their powers with due diligence
and in accordance with the law, the higher judiciary should not interfere with their
functions and decision making. They must be allowed to perform their judicial duties
freely and independently, as prescribed by law. Unnecessary and baseless
interference by the apex Courts in the functioning of the minor judiciary can hinder
their ability to discharge their duties effectively.
However, if it is revealed that the minor judiciary is not functioning in accordance
with the law and has made ex facie errors in fact and law, it becomes the duty of the
apex Court to intervene in the interest of justice. When Magistrates issue warrants
while exercising their criminal jurisdiction against a suspect based on adequate
reasoning, allowing the Petitioner to invoke writ jurisdiction to prevent the
Magistrate from performing their duties would render the minor judiciary ineffective.
This in turn, would indirectly open the floodgates to unwarranted interference by the
apex Court in matters where the minor judiciary is properly exercising its jurisdiction.
Indeed, there are situations where a Magistrate’s order may be palpably erroneous,
mala fide, or bad in law, thereby causing material prejudice to the parties involved. In
such instances, intervention by the writ Courts becomes inevitable to uphold justice.
However, in the present case, based on the facts and circumstances of these
proceedings, no such situation has arisen that would warrant interference by the apex
Court.
CLEAN HANDS
It is settled law that a party seeking prerogative relief should come to Court with clean
hands. The expression is derived from one of Equity’s maxims ‘He who comes to
Equity must come with clean hands.’ Clean hands denote a clean record with respect
to the transaction with the Respondent. In Perera vs. National Housing Development
Authority15, the Court of Appeal observed that,
“It is also relevant to note that the petitioner has submitted to this Court a privileged
document which he is not entitled to have in his possession. He has not explained the
circumstances under which he came to possess this document. Writ being a
discretionary remedy the conduct of the applicant is also very relevant. The conduct of
the applicant may disentitle him to the remedy.”
The Supreme Court of India in S.P. Chengalvaraya Naidu Vs. Jagannath16 observed
that, “One who comes to court, must come with clean hands.”
If the Petitioner truly believes that he is innocent and has nothing to fear, he should
present himself before the Magistrate instead of evading the legal process. By doing
so, he can seek the relief he desires through proper legal channels, rather than
resorting to avoidance or non-compliance with the Court’s order.
It is pertinent to note that with the available documents and evidence, without any
ambiguity the learned magistrate observed that,
1. The Petitioner maintained a para military group within the police force.
2. The CCD was illegally dispatched to the Southern Province for his personal
task.
3. There are no police entries within the books pertaining to this raid.
4. There was no information given to area OIC with regards to this raid.
5. The weapons used by the CCD were obtained illegally and without authority.
6. All official cellular devices of the CCD officers were suspiciously disconnected
during this raid.
7. The CCD team member, Police Sergeant Upali (57241), upon receiving gunshot
injuries was not rushed to the closest hospital in the area, and thereafter
succumbed to his injuries.
8. Attempts were made to manipulate entries and evidence in this regard in order
to mislead the investigation.
9. The Petitioner has not obeyed the Court order and is in hiding from
27/02/2025.
Etc….
All of the above facts clearly establish that the Petitioner has not come to Court with
clean hands and is therefore not entitled to invoke the writ jurisdiction of the Court.
COMPLY AND COMPLAIN
The principle of comply and complain is a well-established and globally recognized
doctrine that upholds the integrity of the judicial system. It mandates that individuals
must first comply with a Court order, even if they believe it to be unjust and then seek
redress through proper legal avenues if they wish to challenge it.
In this case, the Petitioner, as the head of the Police Department, is expected to set an
example by adhering to the law. If he believes that the Magistrate’s order is erroneous
or unfair, the proper course of action is not to evade it but to challenge it through legal
mechanisms. By refusing to comply and instead going into hiding, he undermines the
very legal system he is duty bound to uphold. Such actions not only weaken public
confidence in the judiciary but also set a dangerous precedent where individuals
selectively follow Court orders based on their own interests.
It is contended by the learned President’s Counsel for the Petitioner, that before
issuing the arrest order, no statement was recorded from the Petitioner. However, it
is evident that when the Petitioner is actively evading arrest and remaining in hiding,
it becomes impossible for the authorities to obtain such a statement from him. His
deliberate absence obstructs the due process of law and he cannot now rely on this
argument to challenge the arrest order while simultaneously avoiding lawful
procedures.
For the foregoing reasons I hold;
1. The impugned order of the learned Magistrate directing the arrest of the
Petitioner is in accordance with the law. Therefore, I find no basis to interfere
with the order by way of writ.
2. I direct the 2nd to 14th Respondents to take all necessary measures to execute the
learned Magistrate’s order and ensure that the Petitioner is arrested and
produced before the Magistrate’s Court, strictly within the purview of the law,
to uphold the rule of law.
3. I further direct the learned Magistrate to take appropriate action against
individuals aiding and abetting the Petitioner in evading arrest and remaining
in hiding.
Thus, the application for interim orders is refused, formal notices are refused and the
application is dismissed with cost fixed at Rs. 10,525.00.
Notice refused. Application dismissed with cost.
PRESIDENT OF THE COURT OF APPEAL
(Actg.)
K. M. S. Dissanayake, J.
I agree.
JUDGE OF THE COURT OF APPEAL
For foot notes to to PDF please : Desha Writ-168-2025