Court of Appeal sets 13 May to inquire into Shani Abeysekara revision case

By S.S.Selvanayagam

The Attorney General yesterday (29) informed the Court of Appeal that the State wanted to consider the matter regarding the refusal order of the High Court to grant bail to former CID Director Shani Abeysekara.

The revision application filed against the High Court order yesterday came up before the Court of Appeal. The Bench comprised Justices Bandula Karunaratne and R. Gurusinghe.

Viran Corea, instructed by Gowry Shangary Thavarasha, appeared for the suspect Abeysekara.

Additional Solicitor General Rohantha Abeysooriya with Deputy Solicitor General Shanil Kularatne appeared for the Attorney General.

Counsel Corea submitted and urged that the situation was very unsatisfactory, as the case was being taken up for the respondents to file any objections for which ample time had been given.

He stated that he was not in a position to accommodate further attempts to delay determination of the matter and urged that Abeysekara, who had health issues, was being irresponsibility placed in grave danger, especially in view of COVID-19.

He stated it was the responsibility of all concerned not to unnecessarily delay the matter and urged the Court to have the case fixed for inquiry and decision on a very early date as a matter of high priority.

Additional Solicitor General Abeysooriya informed Court that the State wanted one more week to consider the matter.

The Court, having heard submissions of all counsels, fixed that the case should be taken up for inquiry on 13 May and permitted the Attorney General to file objections on or before 7 May, serving a copy on the petitioner’s instructing attorney.

The petition states that on 31 July 2020, the suspect was arrested from his residence on purported allegations that the suspect has falsely introduced certain weapons that fall within the provisions of the Offensive Weapons Act, Firearms Ordinance and the Explosives Act and fabricated false evidence to frame a false case against and arrest a former Deputy Inspector General Vass Gunawardena, pursuant to Magistrate Court Case No. B/1536/20 that had been filed on or about 9 July 2020.

On arrest, the suspect was produced to the Gampaha Magistrate of at his residence in case B/1536/20. After the submissions were made by both the complainant and the counsel for the suspect for granting bail, the matter was fixed for Order on 7 August 2020. Upon the said Order, the suspect was remanded and his application for bail was dismissed, citing lack of jurisdiction.

The Petitioner thereafter instituted Bail Application No. 339/20 on behalf of the suspect in the Gampaha High Court.

This application for revision is preferred from the Order of the learned High Court Judge of Gampaha dated 9 December 2020, whereby the application for bail was rejected.

The petition states that the suspect is thus entitled to be released on bail on account inter alia of the following grounds: “The Complainant’s failure to establish prima facie to the reasonable satisfaction of the court that there was material in support of any of the allegations; there are no reasonable grounds for believing that the suspect is likely to have committed the offence alleged against him; the suspect has been arrested without following the due process and/or procedure; the unsubstantiated allegations are ill-founded and based on purported positions taken up by witnesses who are bereft of any reasonable credibility; given the circumstances of the arrest, there are doubts as to the genuineness of the prosecution and such has been done for a collateral purpose; the physical condition of the suspect requires him to have specialised medical attention; there is a prolonged delay in disposal of the proceedings for no fault of the suspect; and blatant infringement of rights guaranteed to the suspect under the Constitution.”

The petition states that the suspect is over 59 years of age and is currently on medication for high blood pressure and that the suspect has suffered a heart attack while being transported by the State overnight between multiple holding facilities in Gampaha and Polonnaruwa.

It further states that in the context of the COVID-19 pandemic coupled with conditions in the prison system, the suspect’s physical health, safety and life are at an aggravated risk if kept in remand and that the suspect has already been exposed to and contracted COVID-19 while in remand, and was fortunate to have survived it.

It states that the suspect was arrested on 31 July 2020 and there is prolonged delay in disposal of the investigations not attributable to any fault of the suspect. Accordingly, the suspect ought to be granted bail.Being aggrieved by the said Order dated 9 December 2020 by the High Court Judge of Gampaha, it is advised and states that the said Judgment/Order of 9 December 2020 is bad in law, unreasonable and unlawful and liable to be revised by Court of AppealIt states that grave and irreparable harm would be caused to the suspect and the petitioner and the efficacy of the reliefs sought through this application would be negated unless the interim relief sought through this application is granted until the hearing and final determination of this application.

“The petition seeks the Court to make an interim order granting the suspect bail on such terms and conditions as to Your Lordships’ Court seem appropriate, until the hearing and final determination of this application and to set aside and/or revise the Judgment/Order made by the High Court Judge of the High Court of Gampaha in HC, dismissing the application for Bail for the suspect.”