QUASHING AN INDUCTMENT
Sri Lankan law on applications to quash indictments or the Attorney General’s decision to indict, arranged as a set of principles with the authorities that support each principle.
APPLICATIONS TO QUASH INDICTMENTS IN SRI LANKA
Law, principles and precedents
1. The starting point: the Attorney General’s power to indict
The Attorney General’s power to present indictments is a statutory prosecutorial power. In the ordinary criminal process, once material is placed before the Attorney General, he may decide whether to prosecute, whether to file an indictment, what charges should be framed, and in what court the accused should be tried.
The modern cases usually begin with section 393 of the Code of Criminal Procedure Act, which empowers the Attorney General to present indictments. In Fakhir v. Attorney General, the Court of Appeal expressly treated the question as whether the Attorney General’s power to forward an indictment is amenable to writ jurisdiction under Article 140 of the Constitution. The Court recognized that the Attorney General’s power to institute criminal proceedings is a form of prosecutorial discretion. (Lanka Law)
The first principle, therefore, is this:
The Attorney General has a wide discretion to indict. But it is not a wild discretion. It is a legal discretion. It must be exercised according to law, upon material, for a proper purpose, and in good faith.
2. The discretion to indict is reviewable, but only in exceptional cases
The leading Sri Lankan authority remains Victor Ivan v. Sarath N. Silva, Attorney General and Another, [1998] 1 Sri LR 340. That case rejected the argument that the Attorney General’s power to file or not file an indictment is absolute, unfettered and unreviewable. In Fakhir, the Court of Appeal relied on Victor Ivan and quoted the principle that the Attorney General’s power to file or not file an indictment is a discretionary power, but one similar to other powers vested by law in public functionaries and therefore not beyond review. (Lanka Law)
The same principle was restated in Senarathge Lakshman Cooray v. Attorney General, where the Court of Appeal cited Victor Ivan for the proposition that the Attorney General’s discretion involves several aspects, including whether to give or refuse sanction, whether to exclude a summary trial, whether to order non-summary proceedings, and whether to file an indictment. The exercise of that discretion was described as executive or administrative action, not legislative or judicial action.
Thus, the law is not that the Attorney General’s decision is immune from review. It is reviewable. But the review is narrow.
The Court will not sit as a criminal trial court before the trial. It will not weigh the evidence as if deciding guilt or innocence. It will not substitute its own opinion for that of the Attorney General merely because another view is possible.
The Court asks a different question: Was the prosecutorial power exercised lawfully, honestly, rationally, and upon objective material?
3. The Court’s reluctance to interfere
Although the discretion is reviewable, the Courts repeatedly emphasize that intervention is rare. In Fakhir, the Court referred to the common law approach and noted the “extreme reluctance” of Courts to disturb decisions to prosecute by way of judicial review. (Lanka Law)
The older authorities are to the same effect.
In The King v. Fernando, Layard C.J. stated that the Court should interfere with the Attorney General’s discretion only where the Attorney General has abused the discretion vested in him, and that such cases are very rarely likely to arise. This passage was cited with approval in Fakhir. (Lanka Law)
In The King v. Baba Singho, the Court held that it is within the Attorney General’s discretion to decide to what Court a case should be committed and on what offence the accused should be indicted. This too was cited in Fakhir as part of the line of authority showing the width of prosecutorial discretion. (Lanka Law)
In Velu v. Velu, the Court stated that the Attorney General is vested with a measure of discretion and that it is not the province of Court to enter that sphere save for the gravest cause. This principle was also cited in Fakhir. (Lanka Law)
The rule may be stated thus:
A writ Court may examine the legality of the Attorney General’s decision. But it will intervene only for grave cause.
4. Grounds on which an indictment decision may be reviewed
The recognized grounds are the ordinary public law grounds, adapted to prosecutorial discretion. They include:
mala fides or bad faith;
dishonesty;
ulterior or collateral purpose;
absence of objective material;
failure to consider relevant material;
taking irrelevant material into account;
Wednesbury unreasonableness;
acting in excess of jurisdiction;
procedural impropriety;
abuse of prosecutorial authority;
abuse or misuse of judicial process.
In Ajahn Gardiye Punchihewa v. Officer-in-Charge, Financial Investigation Unit III and Others, CA/Writ/311/2019, Court of Appeal Minutes of 18.06.2020, the Court summarized the position that prosecutorial discretion is reviewed in England and Sri Lanka only where there is material to satisfy Court that the decision to prosecute was taken in extreme situations akin to dishonesty or mala fides or exceptional circumstances warranting effective judicial intervention. This formulation was quoted in Fakhir. (Lanka Law)
In Sarath de Abrew v. Chanaka Iddamalgoda and Others, SC/FR/424/2015, Supreme Court Minutes of 11.01.2016, the Supreme Court held that where the legislature has confided the Attorney General with a discretion to forward an indictment, the Court will not contest that discretion unless it has been exercised mala fide, with ulterior motive, or in excess of jurisdiction. That statement was later cited by the Court of Appeal in CA/Writ/323/2022.
This is a crucial proposition for any submission:
It is not enough to say that the prosecution case is weak. It must be shown that the decision to indict is legally defective in the public law sense.
5. The “no evidence” or “no objective material” ground
One of the strongest grounds for intervention is that there was no objective material upon which the Attorney General could lawfully decide to indict.
This is not the same as saying that the evidence is weak. The Court will not conduct a mini-trial. But where the indictment is founded upon no material, or where the material does not disclose the legal ingredients of the offence, the decision may be attacked as irrational, ultra vires, or based on no evidence.
In CA/Writ/323/2022, the Court referred to the “no evidence” rule as a branch of ultra vires, citing Wade and Forsyth. However, the application failed because the Petitioner had not established even the basic ingredients of that rule, and the Court found no viable reason to conclude that the Attorney General had failed to consider relevant material or had taken irrelevant material into account.
The contrast is important. If the record discloses some material capable of supporting the charge, the Court will usually refuse intervention. But if the material does not disclose the basic legal ingredients of the offence, the decision may fall.
That is what happened in the combined Court of Appeal applications CA/Writ/03/2021 and CA/Writ/590/2023, where the Petitioners sought Certiorari to quash the Attorney General’s decision to indict and related steps. The Court noted that the Petitioners’ complaint rested on absence of mens rea, lack of material evidence, procedural impropriety and unlawful prosecutorial discretion. The Court later held that there was no evidence that the Petitioners made any representation to induce payment, no evidence of knowledge of the relevant title claim, and that the material relied upon failed to establish dishonest inducement or deception under section 398 of the Penal Code.
Thus, where an offence such as cheating requires deception and dishonest inducement, a mere administrative or passive role may not be enough. If the material shows only routine official conduct and no dishonest inducement, an indictment may be vulnerable.
6. Reasonable suspicion, realistic prospect of conviction, seriousness and public interest
The prosecutorial decision is not a mechanical act. The Attorney General must evaluate whether the material justifies prosecution.
In Ganeshan Samson Roy v. M. M. Janaka Marasinghe and Others, SC/FR/405/2018, Supreme Court Minutes of 20.09.2023, 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 of the case justify an immediate indictment, and whether it is in the public interest to indict. This passage was quoted in Cooray v. Attorney General.
This gives a useful structure for submissions. A Petitioner may ask:
Did the Attorney General consider whether there were reasonable grounds?
Did the material disclose the legal elements of the offence?
Was there a realistic prospect of conviction?
Was the indictment in the public interest?
Was there delay, selective prosecution, or some improper collateral reason?
But again, the Court will not lightly interfere. The same passage in Cooray emphasizes that although the Attorney General’s discretion regarding indictments is reviewable, the circumstances in which Court will intervene are rare.
7. Confessions, disputed evidence and matters for trial
Several applications fail because the complaint is not really about legality, but about the evidentiary worth of the prosecution case.
In Mohamed Imad Ibthisam Fakhir v. Attorney General, [2021] 1 Sri LR 230, the Petitioner sought to quash the Attorney General’s decision to indict him. The Court accepted the reviewability of the decision, but refused relief. One important reason was that there was material, including a confession, upon which the Attorney General had acted. Where the Petitioner’s complaint relates to voluntariness or admissibility of a confession, the proper forum is generally the High Court trial, where the issue can be tested by a voir dire inquiry. (Lanka Law)
Similarly, in Senarathge Lakshman Cooray v. Attorney General, CA/Writ/425/2023, the Petitioner challenged an indictment on the basis that a confession relied upon had earlier been rejected by another High Court as involuntary. The Court noted the argument, but also considered that the indictment was not founded solely on that confession; the production list included confessions of other accused and other material.
The principle is this:
Where the indictment rests on some material, and the challenge is really to admissibility, credibility, voluntariness, contradiction, or weight, the writ Court will usually decline intervention and leave those matters for the trial Judge.
8. Defects in the indictment itself: particulars, dates and prejudice
A separate category concerns the indictment as a charging document. An indictment must give reasonable notice of the charge. But not every defect invalidates it.
In CA/Writ/410/2020, the Petitioner sought Certiorari to quash an indictment pending in Kalutara High Court Case No. 38/2020. The complaint was that the indictment failed to specify a precise time period and date for the alleged offences.
The Court considered section 165 of the Code of Criminal Procedure Act, which requires a charge to contain such particulars as to the time and place of the alleged offence as are reasonably sufficient to give the accused notice of the matter with which he is charged and to show that the offence is not prescribed.
The Court then considered sections 166 and 167. Section 166 provides that an error or omission in stating the offence or particulars is not material unless the accused was misled by it. Section 167 allows Court to alter an indictment or charge before judgment.
The Court also relied on Pandithakoralege v. Selvanayagam, 56 NLR 143, where it was held that a mistaken date in an indictment is not material unless the date is of the essence of the offence or the accused is prejudiced.
Therefore, an indictment is not quashed merely because it is imperfect. The question is whether the accused was misled or prejudiced. If the defect can be corrected by alteration under the Code, writ relief will normally be refused.
9. The distinction between challenging the indictment and challenging the decision to indict
This is a subtle but important distinction.
In Fakhir, the headnote records that the Court cannot quash by Certiorari the indictment issued by the Attorney General. (Lanka Law) The reasoning is that the proper public law target is usually the decision of the Attorney General to indict, not the indictment as a mere document in the High Court record.
However, later Court of Appeal cases show that relief is sometimes framed as quashing the Attorney General’s decision, the charge in the indictment so far as it relates to the Petitioner, or consequential steps flowing from the decision. In CA/Writ/590/2023, the Court granted Certiorari quashing the Attorney General’s decision or advice to indict the Petitioner, and also quashed the first charge in the indictment in so far as it related to the Petitioner.
The safer formulation in a petition is therefore:
Seek Certiorari to quash the decision, advice, or opinion of the Attorney General to indict the Petitioner, and consequentially seek to quash the charge or indictment in so far as it affects the Petitioner.
That avoids treating the indictment as though it were an ordinary administrative order, while still attacking the prosecutorial decision that gave birth to it.
10. High Court cannot judicially review the Attorney General’s decision to indict
The Supreme Court’s judgment in Patali Champika Ranawaka v. Attorney General, SC Appeal No. 116/2022, judgment dated 08.05.2025, is very important.
The Supreme Court held that if the complaint is that the Attorney General abused prosecutorial authority by forwarding an indictment, the proper remedy is judicial review of that decision through writ jurisdiction or fundamental rights jurisdiction. The High Court, as the trial court, has no inherent jurisdiction to judicially review the Attorney General’s decision to indict or to continue with a prosecution.
But the Supreme Court drew a distinction. The High Court may still consider whether the indictment complies with the Code of Criminal Procedure Act. For example, the High Court may consider joinder of accused, framing of charges, joinder of charges, and jurisdictional questions such as forum, territorial jurisdiction, temporal jurisdiction, penal jurisdiction and jurisdiction in personam.
The principle is:
A High Court may rule on the validity of the indictment as a criminal pleading under the Code. But it cannot exercise judicial review over the Attorney General’s prosecutorial decision. That belongs to writ or fundamental rights jurisdiction.
11. Abuse of process, issue estoppel and double jeopardy
A more complex ground arises where the indictment is said to contradict an earlier judicial finding or revive a matter already concluded.
In Patali Champika Ranawaka v. Attorney General, the Appellant argued that the indictment was barred by issue estoppel and that the prosecution amounted to an abuse of process. The Supreme Court rejected that argument on the facts. It held that the Attorney General had acted on sufficient investigational material, for sufficient cause, and there was no proof that he had acted subjectively or mala fide.
The Court also observed that even where issue estoppel is relevant, it may arise at the stage where the prosecution seeks to lead a particular item of evidence, rather than at the threshold stage of objecting to the indictment. The objection in that case was therefore treated as premature.
The same judgment contains a wider discussion of abuse of process. The Court accepted that criminal proceedings may in an appropriate case be stayed or resisted where the prosecution is oppressive, seeks to get behind an earlier verdict, or amounts to double jeopardy in substance. But the Court was careful not to convert those doctrines into a general power to quash every indictment that follows previous proceedings.
Thus, a plea based on issue estoppel or abuse of process must be precise. It is not enough to say that there was an earlier case. One must show that the same issue was finally and necessarily determined, and that the new indictment unlawfully seeks to reopen it, or that the prosecution is oppressive, unfair, or collateral.
12. Delay as a ground
Delay alone is usually not enough. But unexplained delay, coupled with absence of new material and prejudice, may support a finding of irrationality or procedural impropriety.
In CA/Writ/03/2021 and CA/Writ/590/2023, the Court noted that the Petitioners were not named as suspects during the initial phase of the investigation; their statements had been recorded years earlier; and only eight years later they were named as suspects allegedly on Attorney General’s advice. The Court found that no explanation had been tendered for the delay, nor had any new material been identified. The unexplained delay, combined with absence of fresh inculpatory material, rendered the decision irrational and procedurally tainted.
The principle is not that delay automatically quashes an indictment. The stronger proposition is:
Where the prosecution has long treated a person as a witness or peripheral actor, where no new evidence emerges, and where many years later he is suddenly indicted without explanation, delay may become evidence of irrationality, unfairness, or improper exercise of discretion.
13. Indictments founded on Commission of Inquiry material
The uploaded judgment in Dr. Kodagoda Hitige Jayampathy Rohanakumara Wickramaratne v. Hon. Upaly Abeyrathne and Others, CA/Writ/331/2021, decided on 25.03.2024, is relevant where an indictment or possible criminal proceeding may flow from the findings of a Commission of Inquiry.
There the Court considered the effect of findings and recommendations made by a Presidential Commission of Inquiry. The Petitioner complained that he had not been informed of allegations, had not been given relevant material, and had not been given an opportunity to respond. The judgment records that the Petitioner’s position was that the Commission acted ultra vires, violated natural justice, acted arbitrarily and irrationally, and exposed him to the peril of criminal proceedings without a fair and impartial inquiry.
The same judgment is important because section 24 of the Commissions of Inquiry Act, after amendment, allows the Attorney General to institute criminal proceedings based on material collected in the course of an investigation or inquiry by a Commission of Inquiry. The Court therefore recognized the real danger that Commission findings may have criminal consequences.
The Court also discussed section 16 of the Commissions of Inquiry Act, which gives representation rights to persons whose conduct is under inquiry or who are implicated, and section 23, which requires the Commission to observe the rules of natural justice before arriving at conclusions based on investigated material.
The principle that emerges is this:
If an indictment or prosecutorial decision rests materially on Commission of Inquiry findings, and those findings were reached without notice, disclosure, representation, opportunity to answer, or observance of natural justice, the foundation of the prosecutorial decision may itself be attacked.
This is particularly important where the Commission did not merely collect facts, but made condemnatory findings that expose the person to criminal prosecution or reputational injury.
14. Natural justice as a supporting ground
Natural justice is not usually available in the same way in every prosecutorial decision, because the Attorney General is not conducting a trial when deciding whether to indict. But where the decision rests on a prior inquiry that directly condemned the person, or where a person was misled into believing he was only a witness and then findings were made against him, natural justice becomes central.
The uploaded Wickramaratne judgment relied on the principle from R. v. Race Relations Board, ex parte Selvarajan, that where a person may be subject to pains or penalties, exposed to prosecution or proceedings, deprived of remedies or redress, or otherwise adversely affected by an investigation and report, he should be told the matter against him and afforded a fair opportunity of answering it.
This principle may be adapted in indictment challenges where the prosecutorial decision depends on a prior investigative or quasi-judicial report that itself was procedurally unfair.
15. Report of a Commission: recommendation or legal consequence?
The general rule is that a Commission of Inquiry report is often only recommendatory. A writ will not usually issue against a mere recommendation that has no legal effect proprio vigore.
In the uploaded Wickramaratne judgment, the Court discussed Silva and Others v. Sadique and Others, [1978] 1 SLR 166, where it was held that recommendations made by a Commission of Inquiry are not subject to review where they are not binding and lack legal authority. The judgment also referred to Kehar Singh v. Delhi Administration, where a Commission report was treated as an opinion for the consideration of Government and not evidence in a criminal trial.
But there is an exception. If the recommendation is a prescribed step in a statutory process that may lead to legal consequences, or where it exposes the person to prosecution, civil consequences, or reputational harm, the writ Court may intervene.
This distinction is useful in indictment cases. If the indictment rests on a flawed Commission report, one must show that the report is not merely academic, but forms part of the legal chain leading to prosecution.
16. Withdrawal or non-continuation of indictment
The Attorney General’s discretion also includes the discretion to withdraw, discontinue, or not proceed with criminal proceedings. Challenges may arise from complainants or public interest litigants seeking to compel continuation.
In CA/Writ/424/2021, the Petitioners challenged the Attorney General’s decision to withdraw an indictment in a High Court-at-Bar matter. The Court refused to interfere, treating the matter as falling within prosecutorial discretion and declining to substitute judicial control for the Attorney General’s decision in the circumstances. The search result confirms that the case concerned an indictment filed by the Attorney General in High Court-at-Bar Case No. HC/TAB/1448/2020 and a challenge to its withdrawal. (Lanka Law)
The same principle applies in reverse:
The discretion to indict and the discretion to withdraw are both prosecutorial decisions. Both are reviewable in principle, but the Court will intervene only where public law grounds are clearly established.
17. Recent Supreme Court caution: do not second-guess the Attorney General
Recent Supreme Court authority emphasizes restraint. In the Treasury Bond related litigation reported as Attorney General v. Ravi Karunanayake, the Court of Appeal had quashed an indictment on the basis that there was insufficient material. The Supreme Court disagreed with that intervention, emphasizing that the Attorney General’s prosecutorial discretion should not be second-guessed unless there is clear evidence of mala fides, abuse of power, or illegality. (Lanka Law)
This is consistent with the older cases. The Court may review legality, but it must not become the prosecutor.
The lesson is practical:
A petitioner must not merely ask the Court to prefer the defence version. He must show that the decision to indict was one no lawful prosecutor could have reached.
Practical synthesis of the law
The law may be reduced to the following propositions.
Proposition 1: The Attorney General’s power to indict is wide
The Attorney General has a statutory discretion to indict. He may assess the material, decide whether prosecution is warranted, choose charges, and present the indictment.
Proposition 2: The power is not immune from review
The decision to indict is executive or administrative action. It is reviewable by writ or fundamental rights jurisdiction. It is not absolute, unfettered or unreviewable.
Proposition 3: Review is exceptional
The Court intervenes only for grave cause: mala fides, dishonesty, ulterior purpose, no evidence, irrationality, procedural impropriety, abuse of power, or excess of jurisdiction.
Proposition 4: Court will not conduct a trial before the trial
Questions of credibility, contradictions, weight of evidence, voluntariness of confessions, and admissibility usually belong to the trial court.
Proposition 5: The existence of some material usually defeats writ relief
If there is objective material upon which the Attorney General could reasonably act, the Court will normally refuse to interfere.
Proposition 6: No material or no legal ingredients may justify intervention
If the material does not disclose the essential elements of the offence, or the indictment rests on speculation, passive association, or guilt by status, the Court may intervene.
Proposition 7: Defects in the indictment must cause prejudice
Errors in dates, particulars or form will not usually invalidate the indictment unless the accused was misled or prejudiced. The Code allows alteration of charges.
Proposition 8: The High Court cannot judicially review the decision to indict
The High Court can rule on the indictment’s compliance with the Code and its own jurisdiction. But it cannot exercise judicial review over the Attorney General’s prosecutorial discretion. That must be done by writ or fundamental rights proceedings.
Proposition 9: Commission findings must comply with natural justice if they expose a person to prosecution
Where Commission findings are used as a foundation for prosecution, the affected person must have had fair notice, disclosure and an opportunity to answer. Otherwise, the foundation may be attacked.
Proposition 10: The best challenge is to the decision-making process
A successful application should attack the legality of the prosecutorial decision, not merely the strength of the prosecution case.
How the authorities line up
Authorities supporting reviewability
Authorities supporting restraint
Authorities where relief was granted or principle favoured intervention
The Attorney General’s power to present an indictmentA model statement of law for written submissions
The Attorney General’s power to present an indictment is undoubtedly wide. But it is not beyond law. It is a public power, conferred for the administration of criminal justice, and must be exercised upon relevant material, in good faith, for a proper purpose and without abuse. The Court will not sit as a trial court at the threshold stage. It will not decide whether the accused is guilty or innocent. Nor will it substitute its opinion for that of the Attorney General merely because the evidence is contestable. But where the decision to indict is founded upon no objective material, or upon material which does not disclose the legal ingredients of the offence, or where relevant material has been ignored, irrelevant material has been relied upon, the decision is infected by mala fides, ulterior purpose, procedural impropriety, unexplained delay, Wednesbury unreasonableness or abuse of prosecutorial authority, the supervisory jurisdiction of Court may be invoked.
The focus is not the ordinary defence to the criminal charge. The focus is the legality of the decision to put the citizen on trial. Where the decision is lawful, the accused must meet the indictment before the High Court. Where the decision is unlawful, the Court may intervene before the trial becomes the punishment.
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