prosecutorial discretion - how it shuld be attacked
Authorities on applications seeking to quash indictments, quash the Attorney General’s decision to indict, or restrain/prohibit an indictment, together with the principles.
CASES ON APPLICATIONS TO QUASH INDICTMENTS IN SRI LANKA
A. Leading reported authorities
1. Victor Ivan v. Sarath N. Silva, Attorney General and Another
[1998] 1 Sri LR 340
This is the foundational Sri Lankan authority on reviewability of the Attorney General’s prosecutorial discretion. The Supreme Court held that the Attorney General’s discretion to file or not file an indictment is not absolute, unfettered or unreviewable. It is a public power held in trust and must be exercised for the purpose for which it was conferred.
However, the Court will not lightly interfere. Intervention is possible where the decision is arbitrary, capricious, mala fide, made for an improper purpose, or based on no objective material.
This case is repeatedly relied upon in later indictment challenge cases. In Fakhir v. Attorney General, the Court of Appeal quoted Victor Ivan for the proposition that the Attorney General’s power to file an indictment is discretionary, but not absolute.
2. Mohamed Imad Ibthisam Fakhir v. Attorney General
The Petitioner sought a Writ of Certiorari to quash the Attorney General’s decision to indict him. The Court accepted that prosecutorial discretion is reviewable in a proper case, but refused relief because the Attorney General’s decision was based on material, namely a confession, and was not Wednesbury unreasonable.
Important holdings:
The Attorney General’s decision to indict may be reviewed to prevent abuse of prosecutorial discretion. But where there is material on which the Attorney General could reasonably act, Court will not substitute its own view. If the complaint concerns voluntariness or admissibility of a confession, the proper forum is the High Court trial, where a voir dire inquiry can be held. The Court also stated that Certiorari cannot be used simply to quash the indictment issued by the Attorney General. (Lanka Law)
3. Kaluhath Ananda Sarath de Abrew v. Chanaka Iddamalgoda and Others
This was a Fundamental Rights challenge to the Attorney General’s decision to indict. The Supreme Court held that the Attorney General’s decision may be vitiated if it is not based on objective facts or evidence, but on subjective satisfaction, bad faith or improper motive. However, if there was evidence before the Attorney General, considered through the proper departmental process, the Superior Courts would hesitate to interfere or substitute their view for that of the Attorney General.
This principle is cited in Fakhir and Cooray v. Attorney General. (Lanka Law)
4. The King v. Fernando
8 NLR 354
A classic authority on the reluctance of Courts to interfere with the Attorney General’s discretion. Layard C.J. stated that the Court should interfere only where the Attorney General has abused the discretion vested in him, and that such cases will rarely arise.
This authority is cited in Fakhir v. Attorney General as part of the line of cases showing the narrow scope of intervention. (Lanka Law)
5. The King v. Baba Singho
21 NLR 142
The Court held that it is within the discretion of the Attorney General to decide the Court to which a case should be committed and the offence for which the accused should be indicted. The Court will interfere only in an extreme case.
This case is cited in Fakhir and also in later Court of Appeal cases such as Wickrama Arachchi Athukoralage Asantha Udayakara v. Inspector General of Police and Others. (Lanka Law)
6. Velu v. Velu and Another
76 NLR 21 / 76 NLR 221
This case concerns the Attorney General’s power after a preliminary or non-summary inquiry. Weeramantry J. held that the Attorney General is vested with a measure of discretion, and that it is not the province of Court to enter into that sphere except for the gravest cause.
It is cited in Fakhir and in later writ cases involving attempts to prevent indictment. (Lanka Law)
B. Unreported or minutes cases directly concerning indictment challenges
7. Ajahn Gardiye Punchihewa v. Officer-in-Charge, Financial Investigation Unit III and Others
This is an important Court of Appeal authority frequently cited in later cases. The Court recognized that prosecutorial discretion is reviewable both in England and Sri Lanka, but only in extreme situations, such as dishonesty, mala fides, or exceptional circumstances warranting effective judicial intervention.
The principle from this case was quoted in Wickrama Arachchi Athukoralage Asantha Udayakara v. Inspector General of Police and Others.
8. Senarathge Lakshman Cooray v. Attorney General
The Petitioner sought Certiorari to quash an indictment dated 03.03.2022 in the Badulla High Court. The indictment was challenged on the basis that a confession relied on by the prosecution had earlier been rejected by another High Court as involuntary.
The Court dismissed the application. It held that the Attorney General had not acted only on the Petitioner’s confession, but also on other material, including confessions of other accused and other evidence. The Court reiterated that unless mala fides or abuse of power is shown, Courts are reluctant to intervene with the Attorney General’s decision to indict.
9. Wickrama Arachchi Athukoralage Asantha Udayakara v. Inspector General of Police and Others
The Petitioner sought, among other reliefs, Prohibition against the Attorney General from indicting him, and alternatively Certiorari to quash the indictment if already issued. The Court dismissed the application.
Important principles:
The Attorney General must form his own opinion after committal. Committal to the High Court does not automatically result in an indictment. If no indictment has yet been served, an application to quash it is premature. The burden is on the Petitioner in writ proceedings. The Court will not interfere with prosecutorial discretion unless there is grave abuse. Allegations that the complaint is false or fabricated are matters for trial, especially where material facts are disputed.
10. Patali Champika Ranawaka v. Attorney General
This was not a writ application directly asking the Court of Appeal to quash an indictment, but it is highly relevant. The accused raised objections in the High Court to the maintainability of the indictment, based on issue estoppel and earlier Magistrate’s Court proceedings.
The Supreme Court held that the Attorney General had not acted contrary to law in presenting the indictment. The Court also clarified an important procedural point: if the complaint is that the Attorney General abused prosecutorial authority by forwarding an indictment, the proper remedy is judicial review by writ or fundamental rights jurisdiction, not an inherent power of the High Court to quash the indictment. The High Court has no inherent jurisdiction to judicially review the Attorney General’s decision to indict, although it may consider whether the indictment complies with the Code of Criminal Procedure and whether the High Court has jurisdiction.
The Supreme Court also stressed that prosecutorial action must be objective, lawful, in good faith, and free from collateral purposes such as political, pecuniary or improper objectives.
11. Ganeshan Samson Roy v. M. M. Janaka Marasinghe and Others
This was a Fundamental Rights case, not a pure Certiorari application, but it is now frequently cited in indictment challenge cases. The Supreme Court stated that before indictments are filed, the Attorney General should consider whether there are reasonable grounds to suspect that the person to be indicted committed the offence, whether further evidence can be obtained to provide a realistic prospect of conviction, whether the seriousness or circumstances justify immediate indictment, and whether it is in the public interest to indict.
The Court also emphasized that although the Attorney General’s discretion to forward indictments is reviewable, judicial intervention is rare. This principle is quoted in Senarathge Lakshman Cooray v. Attorney General.
C. Cases on withdrawal or discontinuance of indictment
12. CA/Writ/424/2021
Court of Appeal, decided on 10.11.2021
This case concerned an application challenging the Attorney General’s decision to withdraw an indictment in High Court-at-Bar Case No. HC/TAB/1448/2020. The Petitioners sought Certiorari to quash the decision to withdraw the indictment and Mandamus directing the Attorney General to proceed with the case.
The Court refused to intervene. It held that there was no proper basis for judicial review and that the Court should not usurp the prosecutorial discretion of the Attorney General in the circumstances of the case.
D. Principles emerging from the authorities
The following propositions can safely be drawn from the verified cases:
The Attorney General’s decision to indict is reviewable, but only within narrow limits. The discretion is not absolute or unfettered. This is the principle of Victor Ivan.
The Court will intervene only in exceptional cases, such as:
mala fides;
dishonesty;
improper or collateral purpose;
bad faith;
absence of any objective material;
Wednesbury unreasonableness;
abuse of prosecutorial power;
acting outside statutory power.
The Court will not quash or restrain an indictment merely because the accused says the complaint is false, the witnesses are unreliable, the confession is involuntary, or the prosecution evidence is weak. Those are usually matters for trial.
If the indictment is based on some material which the Attorney General could reasonably consider, the Court will not substitute its own view for that of the Attorney General.
If the challenge concerns admissibility or voluntariness of a confession, the proper forum is the High Court trial, usually by way of a voir dire inquiry.
The High Court has no inherent jurisdiction to judicially review the Attorney General’s decision to indict. That challenge must be brought, if at all, by writ or fundamental rights proceedings.
A writ to quash an indictment may fail as premature if no indictment has yet been issued or served.
A writ Court is reluctant to act where material facts are disputed.
The Attorney General may, after a non-summary inquiry, independently decide whether to indict, quash the committal, or call for further evidence, depending on the Code of Criminal Procedure.
E. Most useful authorities for a written submission to quash an indictment
For a Petitioner seeking to quash an indictment, the strongest authorities to cite are:
- Victor Ivan v. Sarath N. Silva, Attorney General and Another[1998] 1 Sri LR 340For the proposition that the Attorney General’s discretion is reviewable.
- Sarath de Abrew v. Iddamalgoda and OthersSC/FR/424/2015, SC Minutes, 11.01.2016For the proposition that a decision to indict may be vitiated by bad faith, ulterior motive, subjective satisfaction, or failure to act on objective facts.
- Ganeshan Samson Roy v. M. M. Janaka Marasinghe and OthersSC/FR/405/2018, SC Minutes, 20.09.2023For the test of reasonable grounds, realistic prospect of conviction, seriousness, and public interest.
- Ajahn Gardiye Punchihewa v. OIC, Financial Investigation Unit III and OthersCA/Writ/311/2019, CA Minutes, 18.06.2020For the proposition that prosecutorial discretion may be reviewed in extreme situations such as dishonesty, mala fides or exceptional circumstances.
- Fakhir v. Attorney General[2021] 1 Sri LR 230For both sides: reviewability is accepted, but intervention is narrow.
- Patali Champika Ranawaka v. Attorney GeneralSC Appeal No. 116/2022, judgment dated 08.05.2025For the correct forum and scope: High Court cannot quash by inherent power; writ or FR is the proper route for reviewing prosecutorial abuse.
- Senarathge Lakshman Cooray v. Attorney GeneralCA/Writ/425/2023, decided 08.05.2024Useful to understand why applications fail where there is some other evidentiary material.
- Wickrama Arachchi Athukoralage Asantha Udayakara v. IGP and OthersCA/Writ/725/2024, decided 30.01.2025Useful on prematurity, disputed facts, failure to show grave abuse, and the need to attack the Attorney General’s decision-making process.
The law on the matter
The law in Sri Lanka is not that the Attorney General’s decision to indict is immune from review. It is reviewable. But the jurisdiction is exceptional. The Court will not sit as a trial court, nor weigh the evidence as if deciding guilt or innocence. It will ask a narrower question: whether the Attorney General acted within power, on objective material, in good faith, for a proper purpose, and without abuse of prosecutorial discretion. Where an indictment is founded upon no material, or upon a demonstrably irrelevant, legally inadmissible or already discredited foundation, or where the decision is infected by mala fides, political purpose, bad faith, or Wednesbury unreasonableness, the supervisory jurisdiction of Court may be invoked.
A recent judgment - click to read
Comments
Post a Comment