A Magistrate should not make orders merely upon the application of police: SC

• OIC ordered to pay Rs.100,000 as compensation

By Lakmal Sooriyagoda

In its recent judgement, the Supreme Court held that a Magistrate should not make orders merely upon the application of investigators. Sri Lanka’s top Court further held that before acting on an application, the Magistrate must be satisfied that the application is justified.

The Supreme Court made these remarks in respect of a Fundamental Rights petition filed by a Major serving in the Sri Lanka Army, challenging his arrest and remand for aiding and abetting the driver of the Army Jeep in causing a fatal accident and injuries in 2016 at Opanayake in Balangoda. 

The Supreme Court held that the Fundamental Rights of the petitioner, who was simply a passenger of the jeep, have been violated after he was arrested and remanded for aiding and abetting the driver of the jeep to cause the fatal accident.

Justice Priyantha Fernando observed that a Magistrate, in the exercise of his judicial power, should consider the facts of each case carefully before making an order of remand where there exists no evidence whatsoever to even suspect that a person has committed an offence.

The Supreme Court declared that the fundamental rights that have been guaranteed to the petitioner under Articles 13(1) and 12(1) of the Constitution has been violated and ordered then OIC of Opanayake Police Station to pay a sum of Rs.100,000 as compensation to the petitioner out of his personal funds.
At the time of the accident which took place on February 18, 2016, the petitioner had been seated on the front passenger seat of the Army Jeep. The Army Jeep collided with a three-wheeler which was headed from Opanayake towards Balangoda.

The passengers of the three-wheeler were the driver of the three-wheeler, his 5-year-old daughter, his 3-and-a-half-year-old son, and his mother-in-law. They received injuries from the accident, and the 5-year-old daughter died upon admission to the Balangoda Hospital. The two suspects the driver and the petitioner were produced before the Balangoda Magistrate for committing offences punishable under sections 298, 329,328 of the Penal Code and sections 149(1), 151(2), 151(3) and 234 of the Motor Traffic Act and sections 298 read with section 102 of the Penal Code. Following an application by police, the driver of the Army Jeep was remanded till March 1, 2016, and the petitioner till February 23. This application was based on the fact that there has been unrest among the residents of the Opanayake area.
President’s Counsel Saliya Pieris appearing for the petitioner had maintained that there is no duty imposed on a passenger of a vehicle to be vigilant while travelling or to avoid accidents that may be caused by a driver of a vehicle, an omission on the part of the petitioner is also absent.

He further stated that neither the Penal Code nor the Motor Traffic Act casts a legal duty upon the passengers to prevent an accident or to be vigilant while travelling.

The Supreme Court maintained that there was no abetment by the petitioner as there is no evidence of an act or omission, any instigation, conspiracy, or anything to say that the petitioner intentionally aided the driver of the Army Jeep in causing the accident.

The Supreme Court three-judge-bench comprised Justice Murdu Fernando, Janak de Silva and Priyantha Fernando. State Counsel Sajith Bandara appeared for the Attorney General.