Former GMR off the bribery hook as indictment ruled bad in law

Former General Manager of Railways P. W. A. K Silva on Tuesday succeeded in his challenge of the bribery indictment against him in the High Court when an Appeals Court bench comprising Justices Rohini Marasinghe and Sarath de Abrew discharged him from further proceedings on the basis that the indictment was bad in law as it had not complied with Section 23A (4) of the Bribery Act.

Justice Sarath de Abrew in writing the judgment observed that the Bribery Commission commenced investigations in 1990 into the assets of the accused petitioner, including a house construction at Vajira Road, Bambalapitiya.

The petitioner left the country in September 1994 and returned in January 1997 whereupon he faced an inquiry by a Special Presidential Commission of Inquiry, whose proceedings terminated without any findings. Thereafter a show cause letter was issued to the petitioner on 03-09-2001 by the Bribery Commission to submit a sworn statement. It was tendered on 04-01-2002 by the petitioner. Thereafter the complainant commission on 10-06-2002 called upon the petitioner to make further clarifications on his sworn statement and directed him to appear before the commission in four days time with his identity card, bank account books, a copy of the tax return and copies of the bill payments with regard to the construction of the house at Vajira Road. The petitioner requested one month extension of time to submit the information and the documents requested, but the request was refused by the Bribery Commission on the basis that the investigation had been badly delayed due to the petitioner being abroad for a number of years.

When the counsel for the accused raised a preliminary objection assailing the validity of the indictment, the High Court Judge ordered the case for trial on 14-07-2006, rejecting the objection.

The main contention of the petitioner was that the purported indictment was invalid and bad in law due to the non-compliance by the Bribery Commission of the mandatory provisions in Section 23A(4) of the Bribery Act.

The Appeals Court bench declared, "It is clear as crystal that on a reasonable analysis of the above mandatory provision, the Bribery Commission is required by law to comply with the following antecedents requirements in order to forward a valid indictment under Section 23Aof the Bribery Act in what is known as property or asset cases.

a) A reasonable opportunity must be given to a person under investigation to show cause as to why he should not be prosecuted,

b) Such person should fail to show cause after a reasonable opportunity has been given.

c) Or, in any case where cause is shown consequent to being given a reasonable opportunity, such cause shown must be unsatisfactory in the opinion of the Commission."

In setting aside the High Court order, the Appeals Court said that since the Commission had called for further clarification from accused petitioner and given him only four days to comply with its order it went to show that the Commission was still in the process of gathering information and assessing the material placed before them in order to decide whether or not to prosecute. "The four days time given for the accused to furnish the documents called for could hardly be interpreted to afford a reasonable opportunity to show cause further. The refusal of extension of time by one month is therefore arbitrary", the judges said.

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