SF can’t be tried before 2 courts for the same offence: HC Judge

Supreme Court ruled that the Military Tribunal was a properly constituted court
By Wasantha Ramanayake

“The Prosecution could have indicted both Danuna Tilakaratne and Sarath Fonseka before the High Court in respect of all charges, without charging Sarath Fonseka in the Military Tribunal,” observed Colombo High Court Judge Sunil Rajapakshe, delivering his judgment last Thursday in the Hi-Corp case.

Judge Rajapakshe upholding the Defence’s preliminary objections, acquitted former Army Commander Sarath Fonseka of cheating and criminal breach of trust, when Fonseka as Army Commander, presided over a tender board that awarded a tender to a company in which Fonseka’s son-in-law, first accused Danuna had interests.

Court having considered submissions of both parties, decided that the Prosecution could not proceed with the case against the 3rd accused, on the basis that he had been tried on the same charges before.
Defence took up the preliminary objection that 3rd accused Fonseka had been convicted by a Military Tribunal for a similar offence, and in terms of Section 314 (1) of the Code of Criminal Procedure Act, he could not be tried again by the High Court.

Court also noted the Prosecution’s argument that Fonseka had not been indicted on similar charges and for the same incident, but that, the charges in the Military Tribunal were different and for a different incident.

Delivering judgment, Judge Rajapakshe noted that the Prosecution had argued that the conspiracy charge had been preferred jointly against both Danuna and Fonseka, because 1st accused Danuna Tilakaratne was not under military authority and hence, they could not be tried together by the Military Tribunal. Hence, their joint indictment before the High Court.

The Judge pointed out that the Prosecution could not do so because, then 3rd accused Fonseka would be tried twice for the same offence, thus harassing him twice over. Court noted that the first count in the indictment is the conspiracy charge, which the Prosecution should prove beyond reasonable doubt that the accused had engaged in fraudulent acts.

Having studied the related evidence in the Court Martial, Court concluded that the Prosecution had furnished evidence to prove that the 3rd accused had engaged in fraudulent acts. Evidence of fraudulent acts should also be produced in order to prove the first count in the High Court that would amount to harassment of the accused, in terms of the International Covenant on Civil & Political Rights (ICCPR) and Code of Criminal Procedure Act.

The Judge further pointed out that, under these circumstances, the Prosecution should have indicted both accused in the High Court, and not try 3rd accused Fonseka before a Military Tribunal, in terms of Section 109 of the Army Act.

“In terms of Section 314 (1) of the Criminal Procedure Code and the ICCPR, an accused could not be acquitted or convicted twice for similar offences,” he noted. The Judge also noted that the ICCPR and the Code of Criminal Procedure Act should be given prominence, and thus overruled the objection of the Prosecution, based on Section 77 of the Army Act.

Prosecution took the stand that conviction by the Military Tribunal would not be a bar to try the 3rd accused in the High Court, in terms of Section 77 of the Army Act.

However, Court noted that, as the Military Tribunal is recognised by the Supreme Court, as a court with proper jurisdiction, the Military Tribunal is also subject to the ICCPR Act passed by Parliament.

Court also noted that the uncertainty of whether the Military Tribunal constitutes a proper court or not, could have been the reason for the 3rd accused to be charged before two courts.

Top to the page  |  E-mail  |  views[1]
SocialTwist Tell-a-Friend
Other News Articles
Government lifts SriLankan Airlines
D-Day in Geneva, both sides battle hard
Colombo Museum burgled
Lanka boycotts C’ wealth Day reception
Iraq offers oil to Sri Lanka
SF can’t be tried before 2 courts for the same offence: HC Judge
Fashion stars behind bars
Fisher families return to safe-zone Nandikadal
Police used brutal force on a peaceful rally, MPs say
Matale man sold dog meat, saying it was venison
Day-to-day hardship killing voter enthusiasm for polls
Detective journalist busts doctorate racket
GMOA to strike for increased transport allowance
Army, Police claim ‘mistaken identity’ while victim insists he was target
ASP’s arrest is biggest bribery case in 10 months
Switch on to conserving electricity by switching off
Two new Lichens from Horton Plains
Zoo probes unfortunate death of Rosi the camel
Consider the children
PS member questioned by CID
Mahamodera (PBU) to undergo long overdue facelift
Bodies of mother, child flown back to UAE sans postmortem
Luxury buses running low on comfort
Collated results of research bring new hope of ridding deadly scourge: Health official
Unpopular prawns cause major profit loss


Reproduction of articles permitted when used without any alterations to contents and a link to the source page.
© Copyright 1996 - 2012 | Wijeya Newspapers Ltd.Colombo. Sri Lanka. All Rights Reserved | Site best viewed in IE ver 8.0 @ 1024 x 768 resolution