Criminal proceedings depend fundamentally on lawful investigations. Such investigations must be conducted by duly authorized officers, aimed at ascertaining the truth, identifying perpetrators, apprehending them, and gathering admissible material to be converted into judicial evidence.

Presentation of evidence founded upon investigative material (material that has the potential of being converted into judicial evidence at the trial) collected in the course of an unlawfully conducted investigation can pollute the findings of the trial court and its verdict and thereby render such finding unlawful.

Summary of the selected passages 

The judgment explores the intrinsic link between the right to a fair trial, lawful investigations, and the institution of criminal proceedings. Justice Mark Fernando in Wijepala v. Attorney General emphasized that Article 13(3) guarantees not just legal representation but “anything and everything” necessary for a fair trial—underscoring its expansive and indefinable nature. A fair trial must be assessed on the facts and circumstances of each case.

Criminal proceedings depend fundamentally on lawful investigations. Such investigations must be conducted by duly authorized officers, aimed at ascertaining the truth, identifying perpetrators, apprehending them, and gathering admissible material to be converted into judicial evidence. Decisions by prosecutorial authorities such as the Attorney General or the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) must therefore be founded on investigative material collected lawfully, impartially, and in good faith. Instituting proceedings for collateral purposes or on the basis of unlawful investigations infringes Article 12 and undermines the rule of law.

Sri Lankan precedent (R.P. Wijesiri v. Attorney General) confirms that an indictment without lawful investigation is itself unlawful, a view endorsed by Justices Parinda Ranasinghe and Abdul Cader. Both the Attorney General and CIABOC are bound by the same principle. Investigations must not only be lawful but also fair—ensuring suspects are informed of allegations, allowed to present their position, and treated humanely. Indian Supreme Court jurisprudence similarly stresses that fair investigation is an integral component of Article 21’s right to a fair trial.

Finally, the Court turned to the contentious issue of “traps” versus “entrapment.” While traps are lawful investigative techniques in bribery cases, entrapment—where crime is induced by investigators—raises serious concerns of legality and fairness. The distinction is crucial to uphold integrity in the criminal justice system.

 

 

An excerpt from the judgment.

[SC TAB 1A and 1B/2020] - Page 116 of 145 In Wijepala v. Attorney General [(2001) 1 Sri L.R. 46] Mark Fernando, J. observed that Article 13(3) “not only entitles an accused to a right to legal representation at a trial before a competent court, but also to a fair trial, and that includes anything and everything necessary for a fair trial.” (Emphasis added.)

Thus, it is seen that Justice Mark Fernando has by the use of the term ‘anything and everything’ indicated the impossibility of defining the concept of a fair trial and exhaustively describing the constituent ingredients of a fair trial. He has observed the expansive nature of the concept of a fair trial.

Indeed, what amounts to a fair trial would be extremely difficult to define. It is only a series of judgments on this matter that would give rise to a comprehensive description of the concept of a fair trial and illustrate a definitive list of the constituent ingredients of the concept. Whether or not an accused has been denied a fair trial must be determined upon a consideration of the attendant facts and circumstances of the case in comparison with the requirements of a fair trial.

Link between the right to a fair trial, a lawful investigation and the institution of criminal proceedings It is noteworthy that both the institution of criminal proceedings and the conduct of criminal prosecutions are founded upon the conduct of criminal and forensic investigations.

A criminal investigation can be described as a legally regulated process, which is required to be conducted by officials who possess the legal authority to conduct such a process. The primary objectives for which a criminal investigation is conducted, are as follows: (a) To ascertain the truth pertaining to the information, complaint or allegation that an offence has been committed (i.e. whether in fact an offence has been committed). (b) If the investigation reveals that in fact an offence has been committed, ascertaining the identity of the perpetrator. (c) Apprehending the perpetrator. (d) Collecting ‘investigative material’ that would have the potential of being admissible against such perpetrator in a court of law, by converting such material into ‘judicial evidence’ (oral, documentary and technical), so that criminal proceedings could be instituted against the perpetrator, and upon successful prosecution of the perpetrator, he could be convicted for committing the offence and be appropriately punished.

It must be noted that the function of the Attorney General with regard to the institution of criminal proceedings (following a consideration of investigative material) has been conferred on him by [SC TAB 1A and 1B/2020] - Page 117 of 145 statute (the written law). A decision on the institution of criminal proceedings has a direct bearing on the legal rights and interests of both the suspect / accused (alleged offender) and the relevant victim of crime. Therefore, this function of the Attorney General should be viewed from the perspectives of principles of public law.

Subject to the exception provided by section 24 of the Commissions of Inquiry Act (as amended by Act No. 16 of 2008), the statutory function of instituting criminal proceedings against alleged offenders is regulated by section 393 of the Code of Criminal Procedure Act (CCPA). With regard to offences that are required to be investigated into by the police, the CCPA requires the decision of the Attorney General on the institution of criminal proceedings to be founded upon an investigation conducted by the police in terms of the law.

Thus, with regard to an offence investigated into by the police, a decision on the institution of criminal proceedings by the Attorney General must be founded upon an intra-vires, independent, impartial, neutral, good faith and objective consideration of investigative material relating to an investigation conducted by the police in a lawful manner. The same principle applies to the function of the CIABOC pertaining to the institution of criminal proceedings by it.

It needs hardly be mentioned that the institution of criminal proceedings by either the Attorney-General or the CIABOC for whatever collateral purposes of itself or any other person, would be unlawful and amount to an infringement of Article 12 of the Constitution.

If investigators are permitted to conduct investigations in a manner contrary to law, it would amount to a serious afront to the rule of law and will affect the legality of the institution of criminal proceedings. Similarly, it will affect the integrity of the criminal justice system and frustrate the achievement of objectives of criminal justice.

It can result in persons suspected of committing offences being deprived of their fundamental rights, the truth being suppressed, and accused persons being unfairly prosecuted. It can give rise to innocent persons being investigated into and actual perpetrators of crime being shielded from criminal justice. In addition to the underlying rationale behind outlawing unlawful investigations, from a public law perspective, using investigative material gathered through such an unlawfully conducted investigation to found a decision on the institution of criminal proceedings would be manifestly unlawful.

In R.P. Wijesiri v. The Attorney General [(1980) 2 Sri L.R. 317], Justice Parinda Ranasinghe (as His Lordship was then) as a Judge of the Court of Appeal, considered the vexed question of (in the circumstances of the case examined by that Court), the legality of an indictment preferred by the Attorney General to the High Court. His Lordship considered whether, even if the Attorney General had the statutory power to prefer an indictment to the High Court, such indictment should have [SC TAB 1A and 1B/2020] been preceded by a ‘lawful investigation’. While answering this question in the affirmative, Justice Ranasinghe observed the necessity for and the importance of a legally valid investigation being conducted by the Police into an offence, before criminal proceedings are instituted by the Attorney General.

He observed that the importance of commencing proceedings before a Court in a lawful manner cannot be overstated (at page 339). In the circumstances of that case where the Attorney General had directly instituted criminal proceedings against the Petitioner for having committed an offence under section 480 of the Penal Code, Justice Ranasinghe observed (at pages 346-7) that the indictment should have been preceded by a lawful investigation, and that the absence of such a lawful investigation preceding the indictment rendered the indictment also unlawful.

Justice Abdul Cader pronouncing a separate judgment, while expressing agreement with the views expressed by Justice Ranasinghe, held that in the circumstances of that case, the High Court was not empowered to try the case, as the Police had not conducted an investigation in a lawful manner in accordance with the provisions of the Code of Criminal Procedure Act. He therefore ruled that the indictment itself was unlawful. Thus, the law is clear. The institution of criminal proceedings in the High Court by the Attorney General and by the Director General of the CIAOBC (who is also conferred with the statutory power of instituting criminal proceedings before the High Court by forwarding indictment, on a direction to do so by the Commission) should be founded upon a consideration of investigative material collected in the course of a lawful investigation (which means an investigation conducted in terms of the applicable law) and should be preceded by the conduct of such a lawful investigation by competent law enforcement personnel.

All criminal investigations must necessarily be conducted in terms of the law. As observed by the Court of Appeal in R. P. Wijesiri v. The Attorney General, it is only investigative material emanating from a ‘lawfully conducted investigation’ that a prosecutorial authority such as the Attorney General should consider for the purpose of deciding on the institution of criminal proceedings.

The same principle of law would apply to the CIABOC. In terms of section 11 of the CIABOC Act, where the material received by the Commission in the course of an investigation conducted under the Act, discloses the commission of an offence by any person under the Bribery Act or the Declaration of Assets and Liabilities Law, the Commission shall direct the Director General to institute criminal proceedings in the appropriate Court. It is implicit in section 11, that such investigation should be lawful. Thus, this principle applies equally to both the Attorney-General and the Commission to Investigate Allegations of Bribery or Corruption. It logically flows from this principle of law, that, if upon a consideration of investigative material, an affirmative [SC TAB 1A and 1B/2020] - Page 119 of 145 decision is taken by either of these two prosecutorial authorities to institute criminal proceedings against an alleged offender, the corresponding prosecution can be conducted only based on material collected in the course of a lawful investigation, and not otherwise.

It is necessary to observe that basing prosecutorial decisions such as a decision on the institution of criminal proceedings and framing of charges, and the conduct of prosecutions relying upon material gathered in the course of an unlawful investigation, would be a violation of the doctrine of the rule of law, and be both unreliable and unfair. The resultant effect of an unlawful investigation may be grave prejudice being caused to the accused and depriving him of this fundamental right to a ‘fair trial’. Such a process would also amount to an infringement of Article 12(1) of the Constitution (which may be identified as the Constitutional guardian of the rule of law). Fair investigations Not only should a criminal investigation be lawful, it must be fair as well; fair from the perspective of both the victim of crime and the suspected perpetrator of the offence. From the perspective of the suspect, a fair investigation will include the investigator adhering to the following: (i) Explaining to the suspect the allegation against him. (ii) Affording the suspect, a full opportunity of presenting his position with regard to the allegation against him and regarding persons who have made incriminatory statements and items of incriminatory material gathered by investigators. (iii) Conducting investigations based on exculpatory positions (if any) taken up by the suspect. (iv) Treating the suspect in a humane manner, and in a manner that would not infringe his fundamental rights. The investigator must always maintain an objective mind and not view or treat the suspect with any prejudice. Ascertainment of the truth in terms of the law should be the prime motive of the investigator, and not to ‘develop a case against the suspect so that he could be somehow prosecuted’. In Nirmal Singh Kahlon v. State of Punjab and Others, [(2009) AIR SC 984] the Supreme Court of India has held that “… an accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to the preservation of fundamental right of an accused under Article 21 of the Constitution of India”. [Emphasis added] In Sidhartha Vashisht alias Manu Sharma v State (NCT of [SC TAB 1A and 1B/2020] - Page 120 of 145 Delhi), [(2010) 6 SCC 1] the Supreme Court of India has observed that, “… the alleged accused is entitled to fairness and true investigation and fair trial, and the prosecution is expected to play a balanced role in the trial of a crime... The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law”. If an investigation is conducted in an unfair manner, the accused (when indicted) may be able to claim that he had been deprived of his fundamental right to a fair trial. Further, by the conduct of an unfair investigation, there is every reason to believe that the truth will not surface, and in the circumstances, the public will lose confidence in criminal law enforcement and in the criminal justice system. Unlawful investigations There can be a strong causal nexus between on the one hand an unlawfully conducted investigation and on the other hand the conviction of the accused following a trial at which investigative material collected in the course of such unlawful investigation had been presented (as judicial evidence). Presentation of evidence founded upon investigative material (material which has the potential of being converted into judicial evidence at the trial) collected in the course of an unlawfully conducted investigation can pollute the findings of the trial court and its verdict, and thereby render such finding unlawful. That is primarily due to the possibility of highly prejudicial evidence emanating from an unlawfully conducted investigation. Therefore, if the prosecution had relied primarily on evidence collected in the course of an unlawfully conducted investigation, it is possible that such evidence resulted in causing substantial prejudice to the accused and therefore resulted in a miscarriage of justice. If in fact a miscarriage of justice had occurred, the conviction of the accused should be set aside on the premise that the accused has been denied a fair trial. That is a situation where the outcome of the case (conviction of the accused) has been inextricably interwoven with the evidence presented by the prosecution which had emanated from an unlawfully conducted investigation. Therefore, there has been a causal nexus between the unlawfully conducted investigation and the conviction of the accused. However, there may be situations where the investigation as a whole had been conducted in a lawful manner, and only certain segments of it had been unlawfully conducted. An example would be a lawful investigation into an incident of murder, where a particular search had been conducted in an unlawful manner, and a highly incriminatory item of real (physical) evidence having been found during such unlawful search. In such instances, the Court would have to carefully examine [SC TAB 1A and 1B/2020] - Page 121 of 145 and rule on the impact of such unlawfully conducted portion(s) of the investigation. What was the impact of the search having been conducted in an unlawful manner, on the recovery of the relevant incriminatory item of real evidence? Was evidence presented against the accused based on such unlawfully conducted segments of the investigation? Was the testimonial narrative of the prosecution pertaining to the recovery of such item, credible and trustworthy? Has the presentation of material emanating from such unlawfully conducted segments of the investigation, cause grave and irreparable prejudice to the accused resulting in a miscarriage of justice? It is the answers to these questions, that will enable the Court to determine whether in such instances (where only a part of the investigation had been conducted unlawfully), the accused had been denied a fair trial, and if so, whether the conviction should be set-aside. Conduct of the investigation by officers of the CIABOC It is now necessary to consider whether the investigation into the complaint made to the CIABOC by the virtual complainant Nagarajah, had been conducted in a lawful manner. In this regard, consideration of section 5 of the Code of Criminal Procedure Act, No. 15 of 1979 would provide a useful starting point. All offences – (a) under the Penal Code, (b) under any other law unless otherwise specifically provided for in that law or any other law, shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of this Code. [Emphasis added] The offences for which the Appellants have been found ‘guilty’ of committing, are offences under the Bribery Act. The Bribery Act presently does not contain specific provisions pertaining to the conduct of investigations into offences under the Act. [Prior to 1994, there were certain provisions, which were repealed by Act No. 20 of 1994.] However, the Commission to Investigate Allegations of Bribery or Corruption Act, No. 19 of 1994, which established the Commission to Investigate Allegations of Bribery or Corruption (CIABOC), has vide section 3 of the Act, entrusted such Commission the statutory functions of – (i) investigating allegations contained in communications made to the Commission under section 4, and (ii) [SC TAB 1A and 1B/2020] - Page 122 of 145 where such investigation discloses the commission of any offence by any person under the Bribery Act or the Declaration of Assets and Liabilities Law, No. 1 of 1975, directing the Director General for the Prevention of Bribery or Corruption to institute criminal proceedings against such person in the appropriate court. It would be seen that by section 5 of the CIABOC Act, the CIABOC has been vested with certain powers of investigation. Therefore, the Commission in the exercise of its statutory function of investigating the alleged commission of certain offences (such as the offences the Appellants were subsequently indicted of having committed) is entitled to exercise such powers of investigation contained in section 5 of the CIABOC Act. However, vide section 5 of the Code of Criminal Procedure Act, unless specifically provided in a particular law, an investigation at large should be conducted in the manner provided for in such Code. To enable officers appointed to assist the Commission to exercise powers of investigation contained in the Code of Criminal Procedure Act, section 18(2) of the CIABOC Act provides that the Director General for the Prevention of Bribery or Corruption (referred to as the ‘Director General of the Commission’ during the hearing of this Appeal) and every officer appointed to assist the Commission shall be deemed to be ‘peace officers’ within the meaning of the Code of Criminal Procedure Act. A careful consideration of the Code of Criminal Procedure Act reveals that the statutory regulation of the conduct of an investigation is primarily found in Chapter XI of the Act. As observed by Justice Parinda Ranasinghe in R.P. Wijesiri v. The Attorney-General, Chapter XI contains vital powers of investigation, provisions that are sacrosanct and are invaluable safeguards against oppressive and unlawful forms of investigations. However, it is important to note that there are several very important provisions pertaining to the conduct of criminal investigations outside Chapter XI of the Code as well. They are, the (i) power to conduct search operations (sections 24 to 31), (ii) powers of arrest of suspects (sections 23, 32, 33, 34, and 42), and (iii) power to hold an arrested person in custody (sections 37 and 43A). Additionally, when police officers conduct investigations, they are empowered under the provisions of the Police Ordinance as well. Therefore, restricting the powers of investigation to Chapter XI of the Code would not be correct. A further examination of the provisions of the CIABOC Act and the Code of Criminal Procedure Act reveals that though the said laws suitably empower any Peace Officer or an Officer-in-Charge of Police Station (in the context of investigations into offences under the Penal Code and various other laws containing offences which may be investigated into by the Police) and the Commission (in the [SC TAB 1A and 1B/2020] - Page 123 of 145 context of offences under the Bribery Act and the Declaration of Assets and Liabilities Law), the two laws in conjunction do not exhaustively contain provisions of law that would regulate the conduct of investigations. Neither of these two laws stipulate the exact modus operandi that may be adopted when conducting an investigation. For valid reasons, determining the exact manner in which an investigation should be conducted has been left to the ingenuity of the relevant investigators based on circumstances relating to each investigation. The manner of conducting an investigation is to be determined keeping in mind a host of factors such as the nature of the offence, the circumstances pertaining to the commission of the offence that is required to be investigated into, and the need to collect sufficient investigative material that would enable the launching of a successful prosecution. Subject to the provisions of the afore-stated laws and circumscribed by such laws, investigation officers have been vested with considerable discretionary authority to determine the exact manner in which the investigation ought to be conducted and implement the conceptualized investigation strategy in a lawful manner. Particularly with regard to complex crimes such as premeditated murder, bribery and corruption, money laundering, and drug trafficking, law enforcement officers would need to adopt complex investigative methodology to detect crime and to gather evidence. Of course, when designing such investigation strategy and implementing it, investigation officers would have to abide specifically by the applicable provisions of the afore-stated two laws and generally by the rule of law, which would include recognizing and respecting the Fundamental Rights of suspects and the rights and entitlements of victims of crime and witnesses. Indeed, every investigation must be conducted in a lawful, impartial, fair, prompt and comprehensive manner, with the view to ascertaining the truth. Laying of a ‘trap’ and ‘entrapment’ as investigative techniques and their legality Throughout the hearing of this Appeal, there was considerable debate about the investigative technique adopted by CIABOC officials which resulted in the arrest of the appellants. While learned President’s Counsel for the Appellants submitted that what took place at the instance of officers of the CIABOC was an ‘entrapment’, learned Deputy Solicitor General for the Respondents submitted that the investigative technique adopted by officers of the CIABOC did not amount to ‘entrapment’ and was not unlawful. Learned counsel also debated whether the modus operandi adopted by CIABOC officers was merely ‘laying of a trap’ or ‘an entrapment’. Therefore, it is now necessary to consider (i) what a ‘trap’ is as opposed to an ‘entrapment’, (ii) whether the modus operandi of ‘entrapment’ as alleged to have been adopted by the investigation officers of the Commission in the instant case, amounted to an ‘entrapment’ (iii) whether such ‘entrapment’ is ‘unlawful’ or ‘illegal’,................................

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