Court of Appeal gives reasons to release Shani Abeysekara on bail

Power to grant bail vested with judges should be exercised liberally-Court of Appeal

By A Masinghe

“It is my view that on account of the unusual and extraordinary delay in lodging the first complaint despite every ability to do so demonstrates very strongly that the allegations against the suspect Shani Abeysekara are a result of falsification and embellishment and a creature of after-thought-Justice Nissanka BandulaKarunaratne

 

Court of Appeal today ordered that the Former CID Director SSP Shani Abeysekara and his subordinate Sugath Mendis to be released on bail,identifying the allegations brought against the highly lauded officer were falsified

The revision application was heard before Justices N. Bandula Karunaraathne and R. Gurusinghe.

In his order Court of Appeal Justice NishankaBandula Karunarathne states the delays in bringing the said complaint and the failure to satisfactorily and credibly explain such delays, indicates so. The order, also finds several inconsistencies in evidence given by the witnesses initially and again back in 2020.

“It is my view that on account of the unusual and extraordinary delay in lodging the first complaint despite every ability to do so demonstrates very strongly that the allegations against the suspect Shani Abeysekara are a result of falsification and embellishment and a creature of after-thought.  On account of the said unusual and extraordinary delay, the complaint has not only lost the benefit of the advantage of spontaneity, but also smacks of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to the suspect Shani Abeysekara, for collateral purposes,” the order reads.  

Abeysekara was arrested on 31 July 2020 relating to the investigations of Vas Gunewardena’sinvolvement in the murder of businessman that occurred back in 2014, based on a complaint made on 09 March 2020 stating that Abeysekaraand his subordinate Sugath Mendis for fabricating evidence.

After arresting both Abeysekara and Mendiswere produced before the Magistrate of Gampaha and moved to bring in charges under the penal code and the Offensive Weapons and Explosives Act. The court in this regard points out that “no credible evidences has been brought to the attention of the Court to substantiate this position or credibly establish a semblance of a prima facie case.” It further notes that at the time of the arrest Abeysekara was not in possession of any illegal weaponry and that there is no substantial evidence to link the possession of said weaponry to the suspect, other than the statements obtained.

While acutely analysing the laws and the facts before him the court reasons out stating that the power to grant bail which is vested with judges is meant to be exercised liberally.

The Supreme Court has consistently reiterated that “bail is the rule, jail is an exception”. The primary purpose of bail is to ensure the accused person’s compliance with investigation, and subsequent presence at the trial if they are released after arrest. The refusal to grant bail deprives individuals of liberty by confining them in jails without trial and conviction,” the order reads.

Justice Karunarathne further highlights circumstances where lower courts have exercisedthis power to grant bail sparingly which has resulted in accused persons remain in incarceration as undertrials for extended periods.  

Appearing on behalf of Abeysekara Senior Counsel Viran Corea raised several health concerns faced by him. Shani Abeysekara who is 59 years of age had suffered a heart attack while being transported to prisons facilities in Gampaha and Polonnaruwa and therefore has been medically advised to undergo surgery to insert stents. While in custody he was also exposed to Covid- 19 virus which resulted in serious threats to his life.  

Accordingly, court granted bail stating that “the suspect has been in remand custody for the last 10 months. There is no cogent material before this Court to establish that the witnesses were intimidated by suspect Shani Abeysekara. Considering the totality of the material placed before us, I am of the considered view that the suspect Shani Abeysekara be enlarged on bail subject to strict conditions imposed by this Court.”

The court order also took cognisance of Abeysekara’s contributions during his service in the Police department for the past 34 years.  

“The suspect Shani Abeysekara was actively involved in the investigation of a number of high-profile cases including, the attempted murder of former President Chandrika Bandaranaike Kumaratunga in 1999; the LTTE Attack on the Katunayake International Airport in 2001; the murder of Yvonne Johnson at Royal Park Condominium in 2005; the kidnapping and disappearance of 11 youths by Naval Intelligence personnel in 2008 – 2009; the double murder case in Angulana in 2009; and the kidnapping and disappearance of the Journalist PrageethEknaligoda in 2010. Furthermore, the suspect was awarded a certificate of commendation by the Secretary-General of the International Police Organisation (INTERPOL), greatly appreciating his remarkable professionalism and excellent support to the INTERPOL Response Team in relation to the global response to the Easter Sunday attacks in Sri Lanka. It is important to note that the suspect has been a key prosecution witness in over 100 trials including over 20 murder trials that led to convictions.

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