107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE ROLE AND FUNCTION OF PROSECUTION IN SRI LANKA
D.P. Kumarasingha*
I. WHERE AND HOWPROSECUTIONS ARE INSTITUTEDIn Sri Lanka prosecutions are instituted
in two original courts namely, theMagistrate’s Court and the High Court.
Proceedings are instituted in the
Magistrate’s Court in one of the following
ways (Section 136 of the Code of Criminal
Procedure Act):(1) on a complaint being made orally orin writing to a magistrate of such
Court that an offence has beencommitted which such Court has
jurisdiction either to inquire into or
try; (Such a complaint if in writing
shall be drawn and countersigned bya pleader and signed by thecomplainant);(2) on a written report to the like effectbeing made to a magistrate of such
Court by an inquirer into sudden
deaths or by a peace officer or a public
servant or a servant of a municipal
council or of an urban council or of a
town council;(3) upon the knowledge or suspicion of amagistrate of such Court to the likeeffect provided that whenproceedings are instituted under thisparagraph the accused or when there
are several persons accused, any oneof them shall be entitled to requirethat the case not be tried by themagistrate upon whose knowledge or
suspicion the proceedings were
instituted, but either be tried byanother magistrate or committed fortrial;* Additional Solicitor-General, Attorney-General’s
Department, Sri Lanka.

(4) on any person being brought before amagistrate of such Court in custody
without process accused of having
committed an offence which such
Court has jurisdiction either toinquire into or try;(5) upon a warrant under the hand of the
Attorney-General requiring amagistrate of such Court to hold an
inquiry in respect of an offence whichsuch Court has jurisdiction to inquire
into; or(6) on a written complaint made by acourt under section 135 (giving or
fabricating false evidence andforgery).
Prosecutions in the High Court are
instituted by the Attorney-General. The
procedure is as follows:(1) In serious crimes the police, under
section 393 (5) and (6) of the Code of
Criminal Procedure Act, send to the
Attorney-General a file containing
the notes of investigation and thestatements of witnesses and thesuspects, together with a report of thecase and other relevant documents.
The Attorney-General may forward
an indictment to the High Court
depending on the sufficiency ofevidence.
(2) In cases where a magistrate isrequired to hold a preliminary
inquiry under section 145 or section
136(e) of the Code of Criminal
Procedure Act the Magistrate, if heis satisfied of the sufficiency ofevidence, commits the accused tostand trial in the High Court andforwards to the Attorney-General acopy of the proceeding, together withother relevant documents.

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The Attorney-General, if he is satisfiedof the sufficiency of evidence for committal,
will forward an indictment to the High
Court.
After an indictment is forwarded to theHigh Court in the manner aforementioned,
the prosecution will invariably be
conducted by a State Counsel. In
important cases and in cases wheredifficult questions of law are likely to ariseor cases which depend solely on
circumstantial evidence, it is always thepractice of the Attorney-General’s
Department to assign a senior officer to
conduct the prosecution.
Every indictment forwarded to the High
Court shall contain,(1) a l i s t o f w i t n e s s e s w h o m t h eprosecution intends to call.
(2) a list of documents and things
intended to be produced at the trial.
(productions).
The following documents should be
attached to every indictment,(1) where there was a preliminary
inquiry, a certified copy of the recordof the inquiry and of the documents
and of the inquest proceedings if
there had been an inquest;(2) where there was no preliminary
inquiry, copies of statements to thepolice made by the accused and thewitnesses listed in the indictment;(3) copies of all reports and sketches
listed in the indictment;(4) copies of the notes of any identification
parades that may have been held
during the investigation of the case;(5) copies of any statements made to themagistrate under section 1271 by:(a) the accused; and(b) a n y w i t n e s s l i s t e d i n t h e
indictment; and1Section 127(1): Any magistrate may record any
statement made to him at any time before thecommencement of any inquiry or trial.

120(6) copies of such portion of the notes,
containing the observations of thescene of offence made during theinvestigation of the offence by apublic officer.
The indictment shall be in the prescribed
form and shall be brought in the name of
the Attorney-General and shall be signedby the Attorney-General or the SolicitorGeneral or a State Counsel.
The proceedings do not abate or
determine by reason of the death orremoval from the office of the AttorneyGeneral (Section 162 of the Code of
Criminal Procedure Act).
II. ORGANISATION OF THE
ATTORNEY-GENERAL’S
DEPARTMENT AND ITSFUNCTIONSAt this stage, it would be appropriate to
set out the structure of the AttorneyGeneral’s Department and discuss theinternal working of the Department. At
the apex is the Attorney-General who is thehead of the Department. He is theprincipal law officer of the State and isaccorded the first place among public
servants at official functions. The next incommand is the Solicitor-General followedby three Additional Solicitors-General.
Additional Solicitors-General and above
are also appointed as President’s Counsel(equivalent of Queen’s Counsel in England)by virtue of their office. Below them there
are nine Deputy Solicitors-Generalfollowed by Senior State Counsel and State
Counsel.
The Attorney-General’s Department isdivided into two divisions: the Criminal
Division and the Civil Division. The
Solicitor-General who is in charge of theadministration of the Department is also
the head of the Civil Division while themost senior Additional Solicitor-General is
the head of the Criminal Division.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
In cases of murder, attempted murder
and rape, it is mandatory that theprosecution be instituted in the High Court
by the Attorney-General. In such cases themagistrate, after committal of the accused
to stand trial in the High Court, forwards
to the Attorney-General copies ofproceedings of the preliminary inquiry
together with other relevant documents. In
other serious cases such as robberies, thepolice invariably forward the notes of theinvestigation and the statements of thewitnesses and the suspects, together withother relevant documents, to the AttorneyGeneral for advice.
Once a file reaches the AttorneyGeneral’s Department, it is registered andsent to an allocating officer who is a senior
officer in the Department. He allocates it
to a State Counsel for necessary action.
The State Counsel studies the case andsubmits a report to his supervising officer
who is invariably a Senior State Counsel.
The report shall discuss the facts of thecase, analyse the evidence available andmake one of the following
recommendations:• In the case of committal by themagistrate:(1) To forward indictment to the High
Court—if there is sufficient evidence;(2) To quash the committal and direct themagistrate to discharge theaccused—if there is not sufficientevidence to make out a prima facie
case; or(3) To direct the magistrate to record
further evidence.
• In the case of files submitted by thepolice:(1) To indict the suspect or suspects—ifthere is sufficient evidence to makeout a prima facie case;(2) To d i s c h a r g e t h e s u s p e c t o rsuspects—if there is no evidence or if
the evidence available isunsatisfactory and cannot form thebasis of an indictment; or(3) To order further investigations if thepolice have not done a proper
investigation.
The supervising officer will study thereport and decide on the course of action.
III. POWERS OF THE ATTORNEYGENERALThe Attorney-General possesses very
wide powers in respect of criminal
prosecutions. These powers are set out insection 393 of the Code of Criminal
Procedure Act and are stated below:
A. Section 393(1): It shall be lawful for the
Attorney-General to exhibit information,
present indictments and to institute,undertake or carry on criminal proceedingsin the following cases, that is to say,(a) in the case of any offence where apreliminary inquiry under Chapter
XV by a Magistrate is imperative or
may be directed to be held by the
Attorney-General; (This chapter
relates to inquiries by Magistrates
into cases which appear not to be
triable summarily by the Magistrate’s
Court but triable by the High Court.
Such offences are set out in the Second
Schedule to the Judicature Act).
(b) in any case where the offence is notbailable; (Non-bailable offences are
set out in the Schedule to the Code of
Criminal Procedure Act. There arealso some offences which are madenon-bailable by special statutes).
(c) in any case referred to him by a State
Department in which he considers
that criminal proceedings should beinstituted;(d) in any case other than one filed under
section 136(1)(a) of the Code whichappears to him to be of importanceor difficulty or which for any otherreason requires his intervention;

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RESOURCE MATERIAL SERIES No. 53(e) in any case where an indictment ispresented or information exhibited in
the High Court by him.
(2) The Attorney-General shall give
advice, whether on application or on his
own initiative to State Departments, public
officers, officers of the police and officers
in corporations, in any criminal matter ofimportance or difficulty.
(3) The Attorney-General shall beentitled to summon any officer of the Stateor of a corporation or of the police to attend
his office with any books or documents andthere interview him for the purpose of,(a) Initiating or prosecuting any criminal
proceeding, or(b) Giving advice in any criminal matterof importance or difficulty.
The officer concerned shall comply withsuch summons and attend at the office of
the Attorney-General with such books anddocuments as he may have been summoned
to bring.
(4) The Attorney-General may nominate
State Counsel or employ any attorney-atlaw to conduct any prosecution in any court
and determine the fees to be paid to suchattorney-at-law.
(5) The Superintendent or AssistantSuperintendent of Police in charge of any
division shall report to the AttorneyGeneral every offence committed within his
area where,(a) preliminary investigation under
Chapter XV is imperative; or(Chapter XV deals with inquiries into
cases which appear not to be triablesummarily by Magistrates’ Courts but
triable by the High Courts).
(b) for the institution of proceedings theconsent or sanction of the AttorneyGeneral is required; or(c) a request for such report has been
made by the Attorney-General; or(d) such Superintendent or AssistantSuperintendent considers the advice
or assistance of the Attorney-General
necessary or desirable; or122(e) the Magistrate so directs; or(f) the offence was cognizable and theprosecution was withdrawn or cannot
be proceeded with.
(6) When reporting in terms ofsubsection (5) the Superintendent orAssistant Superintendent of Police, as thecase may be shall supply to the AttorneyGeneral,(a) a full statement of the circumstances;(b) copies of the statements of all
witnesses;(c) such other information, documents or
productions as may be relevant or as
may be called for by the AttorneyGeneral; and(d) where an inquest has been held, a
copy of the inquest proceedings.
(7) Notwithstanding any otherprovisions of the Criminal Procedure Code,it shall be lawful for the Attorney-General,
having regard to the nature of the offenceor any other circumstances, in respect ofany summary offence,(a) to forward an indictment directly to
the High Court; or(b) to direct the Magistrate to hold apreliminary inquiry in accordancewith the procedure set out in Chapter
XV in respect of any offence specified
by him where he is of opinion thatthe evidence recorded at apreliminary inquiry will be necessary
for preparing an indictment;
and thereupon such offence shall not be
triable by a Magistrate’s Court.
B. The Attorney-General is also vested
with wide powers in respect of preliminary
inquiries (also referred to as non-summary
inquiries) held by the magistrates.
In all cases which are not triablesummarily by the magistrate but triableby the High Court, a preliminary inquiry
must be held by the magistrate. It is
mandatory that preliminary inquiries
should be held in the following cases:

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS(a) Where the offence or any one of themwhere there is more than one, falls
within the list of offences set out in
the Second Schedule to the
Judicature Act. They are:(i) Offences punishable under section
296 (murder), section 297(culpable homicide not amounting
to murder), section 300 (attempted
murder), and section 264 (rape) of
the Penal Code.
(ii) Offences punishable under section
4(2) of the Offensive Weapons Act,i.e., causing injury to any personwith an offensive weapon—
offensive weapon means a bombor grenade or any other device orcontrivance made for a use or
purpose similar to that of a bombor grenade) and section 4(2) readwith section 6(1)—instigation tocommit an offence under the
O f f e n s i v e We a p o n s A c t o rconspiracy to commit such an
offence or intentionally aiding by
any act or illegal omission thecommission of such offence).
(iii) Abetment and conspiracy for theabetment or commission of theoffences described in Item (i)above and conspiracy for thecommission of the offences
described in Item (ii) above.
C. When the magistrate commits theaccused for trial to the High Court, he ismandated under section 159 of the Code of
Criminal Procedure Act to forthwithtransmit,(a) to the High Court:(i) the record of the inquiry together
with all documents and things
produced in evidence; and(ii) a copy certified under his hand ofsuch record and of such
documents; and(iii) one of the certified copies of thenotes of investigation and ofstatements furnished by theofficer in charge of the police
station,(b) to the Attorney-General:(i) a copy certified under his hand of
the record of inquiry and of all the
documents produced in evidence
together with as many of suchcertified copies as there areaccused; and(ii) one of the certified copies of thenotes of investigation and ofstatements furnished by the
Officer-in-Charge of the police
station.
D. Under section 395, it is lawful for the
Attorney-General after the receipt by himof the certified copy of the record of theinquiry, if he is of the opinion that suchaction is necessary for the properconsideration of the case by him, to call forthe original record of the inquiry (together
with any documents produced in evidence)from the court to which such record has
been forwarded, and for any productions
other than documentary evidence, from theRegistrar.
It is the duty of the Registrar of the High
Court to forward to the Attorney-General
any record or production called for.
IV. ATTORNEY-GENERAL’SFUNCTIONS VIS-À-VIS NONSUMMARY INQUIRIES
If after the receipt by him of the certified
copy of the record of the inquiry, theAttorney-General is of the opinion that
there is not sufficient evidence to warrant
a commitment for trial, or if for any reason
he is of the opinion that the accused should
be discharged from the matter of thecomplaint, information or charge, and if theaccused is in custody, from further
detention, he may by order in writing
quash the commitment made by the123

RESOURCE MATERIAL SERIES No. 53
magistrate and may direct the Registrarof the High Court to return the record of
the inquiry to the Magistrate’s Court. The
Attorney-General shall in every such caseissue to the magistrate such directions as
to the disposal of the complaint,
information or charge against the accused
as to him may seem expedient, and it isthe duty of the magistrate to comply withthe directions so issued.
If the Attorney-General is of opinion thata criminal offence is disclosed by theproceedings against the accused but thatthe evidence already taken by reason of
being in any particular or respect defective
is not sufficient to afford a foundation for a
full and proper trial, then he may make inwriting an order requiring the Magistrate’s
Court to take such further evidence as may
be specified or indicated in the order either
in the way of examining anew witnesses
who have already given their testimony orotherwise to continue the inquiry, and uponmaking such order the Attorney-Generalshall direct that the record of the inquiry
be returned to the Magistrate’s Court, andthereupon the Registrar of the High Court
shall so return the record and themagistrate shall comply with the order ofthe Attorney-General. [Section 397(1) of
the Code of Criminal Procedure Act.]
The Attorney-General may if he thinks
it necessary, direct the Magistrate to record
the evidence of any expert witness or police
officer and the Magistrate shall thencomply with such directions. [Id. section
397(2)].
A judge of the High Court and amagistrate shall whenever required inwriting by the Attorney-General, forthwithtransmit to the Attorney-General theproceedings in any criminal case in which
an inquiry or trial has been or is being held
before him and thereupon such inquiry ortrial shall be suspended in the same andthe like manner as upon adjournment
thereof. [Id. section 398(1)].

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It shall be competent for the AttorneyGeneral upon the proceedings of any casebeing transmitted to him by a Magistrate
to give instructions with regard to theinquiry to which such proceedings relate
as he may consider requisite; andthereupon it shall he the duty of theMagistrate to carry into effect the
instructions of the Attorney-General andto conduct and conclude such inquiry inaccordance with the terms of such
instructions. [Id. section 398(2)].
Whenever a Magistrate has discharged
an accused after a Non-Summary Inquiry
and the Attorney-General is of the opinion
that such accused should not have beendischarged, the Attorney-General may
direct him to commit such accused to theHigh Court or order the Magistrate of such
Court to re-open the inquiry and may givesuch instructions with regard thereto as tohim shall appear requisite; and thereupon
it shall be the duty of such Magistrate tocarry into effect such instructions (Id.
section 399).
V. WHO MAY CONDUCT THE
PROSECUTION IN NON-SUMMARYINQUIRIES?
A person other than the AttorneyGeneral, State Counsel, or a pleader
generally or specially authorised by the
Attorney-General shall not conduct theprosecution in any case into which themagistrate of a Magistrate’s Court may beinquiring [Id. section 400(1)].
In the absence of the Attorney-General,
the Solicitor-General, State Counsel and apleader generally or specially authorisedby the Attorney-General, the Magistrate
has to conduct the prosecution, but there
is nothing to preclude the Magistrate fromavailing himself, if he considers it sodesirable, of the assistance of any pleader
or public officer in the conduct of any
inquiry [Id. section 400(2)].

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
VI. EXAMINATION OF WITNESSESAND ADMISSIBILITY OF
DOCUMENTS
In all trials either in the High Court orin the Magistrate’s Court, the witnesses forthe prosecution as well as witnesses for the
defence are first examined in chief, then if
the adverse party so desires crossexamined, and then if the party calling him
so desires re-examined (section 138 of the
Evidence Ordinance).
A person summoned to produce a
document does not become a witness by themere fact that he produces it and, therefore,cannot be cross-examined unless and until
he is called as a witness (Id. section 139).
Leading questions are not generally
permitted in examination in chief.
However, such questions may be asked incross-examination subject to the following
qualifications:(1) the question must not put into themouth of the witness the very words
which he is to echo back, and(2) the question must not assume thatfacts have been proved which havenot been proved, or that particularanswers have been given contrary to
the fact. (Id. section 143).
Oral evidence as to contents of
documents cannot be led unless the
document itself is produced. If the
document is not available, secondary
evidence may be given. (Id. section 144).
VII. WHO MAY PROSECUTE IN
TRIALS BEFORE THE
MAGISTRATES’ COURTS?
In the case of trials before a Magistrate’s
Court, the Attorney-General, the SolicitorGeneral, a State Counsel or a pleader
generally or specially authorised by the
Attorney-General shall be entitled toappear and conduct the prosecution. In theabsence of any of the officers from the
Attorney-General’s Department, thecomplainant or any officer of any
Government Department or any officer ofany local authority may appear in personor by pleader to prosecute in any case inwhich such complainant or Government
Department or local authority is interested.
In the absence of any of the officers
mentioned above, the magistrate many
permit any attorney-at-law to appear andconduct the prosecution on behalf of theperson against whom or in respect of whom
the accused is alleged to have committed
the offence. If the complaint is one filed
under paragraph (a) of subsection (1) ofsection 136 of the Code of Criminal
Procedure Act, that is a private plaint, theAttorney-General, Solicitor-General, aState Counsel or pleader generally or
specially authorised by the AttorneyGeneral shall, except where such complaint
has been filed against an officer or
employee of the State in respect of a matter
connected with or relating to the dischargeof the official duties of such officer or
employee, not have the right to appear forthe complainant without his consent.
VIII. CONDITIONS NECESSARY
FOR INITIATING PROCEEDINGS
In certain types of cases, the law
provides safeguards to persons accused ofthose offences. In these cases, theAttorney-General is required to bring his
mind to bear on the facts before aprosecution is instituted. Below are theconditions necessary for initiatingproceedings in those cases.
Section 135(1) of the Code of Criminal
Procedure Act stipulates that any Court
shall not take cognizance of,(a) any offence punishable under
sections 170 to 185 (contempts oflawful authority of public servants)of the Penal Code except with the
sanction of the Attorney-General oron the complaint of the public servant
concerned or of some public servant
to whom he is subordinate;
125

RESOURCE MATERIAL SERIES No. 53(b) any offence punishable under
sections 158, 159, 160, 161, 210, 211
and 212 of the Penal Code (offencesby or relating to public servants)
except with the previous sanction of
the Attorney-General;(c) any offence punishable under
sections 190, 193, 196, 197, 202, 203,
204, 205, 206, 207 and 223 of thePenal Code (fabricating false evidence
and perjury, etc.) when such offence
is committed in or in relation to any
proceeding in any Court except withthe previous sanction of the AttorneyGeneral or on the complaint of suchcourt;(d) any offence described in section 452
or punishable under sections 459, 463
and 464 of the Penal Code (forgery,etc.) when such offence has beencommitted by a party to any
proceeding in any Court in respect ofa document given in evidence in suchproceeding except with the previous
sanction of the Attorney-General oron the complaint of such Court;(e) any offence punishable under section
290A or section 291B of the Penal Code(offences relating to religion) unlessupon complaint made by the
Attorney-General or by some otherperson with the previous sanction of
the Attorney-General;(f) any offence falling under Chapter
XIX of the Penal Code (criminal
defamation) unless upon complaint
made with the previous sanction of
the Attorney-General by some person
aggrieved by such offence or by someother person with the like sanction;and(g) any offence punishable under section
291 A of the Penal Code (utteringwords, etc. with deliberate intent towound religious feelings) unless uponcomplaint made with the previous
sanction of the Attorney-General bysome person aggrieved by such

126

offence or by some other person withthe like sanction.
IX. SUPPLEMENTARY POWER OF
THE ATTORNEY-GENERALIn Sri Lanka like in any other country,
it is the State that is responsible for theadministration of justice in the country. All
criminal prosecutions (except private
plaints) are instituted in the name of theState and the Attorney-General as theprincipal law officer of the State has
supervisory control over all prosecutions.
He can take over any prosecution at any
time or intervene in any criminal matterat any time. Thus he can take over andoffer no evidence in any criminal
prosecution at any stage and secure theacquittal of the accused. This is usually
done where a public officer is prosecutedfor something which he has done bona fidein the execution of his official duties.
The Attorney-General also enjoys thefollowing exclusive powers:(1) The power to enter a nolle prosequi,(2) T h e p o w e r o f p a r d o n i n g a n
accomplice, and(3) The power of sanctioning an appeal
from an acquittal.
A nolle prosequi is an order under thehand of the Attorney-General stopping any
criminal case at any stage in any court oftrial without assigning any reasons. Thisis rarely resorted to and is exercised only
when public interest demands recourse tosuch cause of action. The Attorney-General
has the right to offer a conditional pardon
to an accomplice. This is done in serious
cases where there is a severe dearth ofevidence. In practice, a conditional pardon
is offered to an accomplice whose
involvement in the crime is minimal andwhose evidence covers the most number ofsuspects.
An appeal from an acquittal cannot be
preferred without the sanction of the
Attorney-General. When an application is

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
made to the Attorney-General for his
sanction, he calls for the record andexamines the evidence carefully to see
whether any substantial grounds of appeal
exist. If he is satisfied that there aresufficient grounds, he will give his sanction
to appeal.
The Attorney-General appeals against
acquittals only where there has been aserious miscarriage of justice. Appeals by
the Attorney-General against sentences are
more frequent.
The three powers of the AttorneyGeneral stated above have to be exercised
personally by him and the order should bemade under his hand. No other officer ofthe Attorney-General’s Department isentitled to make such order (Section 401of the Code of Criminal Procedure Act).
The Attorney-General exercises
supervisory powers over his Departmentin the matter of all prosecutions.
Prosecutors are not subject to thesupervisory control of any Minister or the
Cabinet or the President in the matter ofthe discharge of their official duties asprosecutors. The Minister of Justice
exercises supervision in administrative andfinancial matters only.
X. APPOINTMENT AND TRAINING
OF PUBLIC PROSECUTORS AND
THE GUARANTEE OF THEIRSTATUS
The members of the Attorney-General’s
Department are appointed by the PublicService Commission and are thus governedby the rules laid down in the
Establishments Code. Generally the statusof these officers is guaranteed as long as
they are of good behaviour while holding
office. Their services could be terminatedonly after a disciplinary inquiry is held interms of the provisions of theEstablishments Code. Unequal treatment
could give rise to the officers filing
applications in the Supreme Court alleging
violations of their fundamental rights

guaranteed under the Constitution. This
remedy is available to all public servants.
The availability of this remedy has moreor less secured the status of public
servants.
State Counsel are appointed from among
qualified attorneys-at-law. No period ofservice or training is insisted upon at thetime of recruitment. After recruitment,
they acquire on-the-job experience. In
addition senior officers of the Department
hold workshops at the end of every High
Court session for the benefit of juniorofficers. At these workshops, presentations
are made and discussions centre aroundthe difficulties each prosecutor has facedin the course of carrying out his duties.
The Department generally follows ascheme of assigning duties to junior State
Counsel with a view to assisting them inacquiring experience in a systematic way.
The pattern generally followed is as follows:
A State Counsel as he joins the
Department is sent to the Court of Appeal
with appeals from the lowest court, whichis the Magistrate’s Court. After about one
and a half years, they are posted to theHigh Courts to prosecute in criminal
matters like murder, rape, etc. After aboutanother one and a half to two years, they
are usually brought into the “miscellaneous
section” of the Head Office. In this section,
they have to deal with very complicatedcases such as bank frauds, cases involving
circumstantial evidence, etc. They are also
sent to the Court of Appeal with appeals
from High Courts. After a year or so, they
are considered for promotion to the Senior
State Counsel grade depending on theavailability of vacancies in the cadre. A
Senior State Counsel becomes asupervising officer. He supervises the workof several junior State Counsel. Usually a
Senior State Counsel appears in the Courtof Appeal and the Supreme Court inappeals from the High Courts. They
appear in High Courts to prosecute only inimportant cases. Above Senior State127

RESOURCE MATERIAL SERIES No. 53
Counsel, there are several Deputy
Solicitors-General who are also in chargeof various subjects and supervise several
State Counsel. Above them there are
Additional Solicitors-General. The mostsenior Additional Solicitor-General is incharge of the Criminal Division of the
Attorney-General’s Department.
The above-stated system of gradedassignments ensures a high degree of
quality training for the officers of the
Attorney-General’s Department.
XI. RELATIONSHIP BETWEEN THE
HIERARCHY OF THE COURTS AND
THE ATTORNEY-GENERAL’S
DEPARTMENT (OFFICIAL BAR)
Prosecutors of the Attorney-General’s
Department are eligible to be appointed tohigher grades in the Judicial Service.
Senior State Counsel are elevated to theHigh Courts, Deputy Solicitors-General to
the Court of Appeal, the Solicitor-General
to the Supreme Court, and Additional
Solicitors-General, who are also appointed
as President’s Counsel by virtue of theiroffice, could also be elevated to the Supreme
Court. The Attorney-General ranks above
the Judges of the Supreme Court and issecond only to the Chief Justice in thehierarchical order. As such, the AttorneyGeneral is elevated to the rank of Chief
Justice.
Appointments to the higher judiciary,
namely, the High Court, the Court ofAppeal and the Supreme Court, are madeby the President of the Democratic Socialist
Republic of Sri Lanka. The President has
the power to appoint suitable officers fromthe judiciary or the Attorney-General’s
Department, or a member of the unofficial
bar.
XII. PROFESSIONAL ETHICS OF
PROSECUTORSThe general code of ethics for attorneysat-law would apply to any prosecutor of the128

Attorney-General’s Department. The
prosecutor is an officer of the court and hisrole is to assist the court to dispense justice.
Thus it is not for a prosecutor to ensure aconviction at any cost, but to see that thetruth is elicited and justice is meted out. A
prosecutor is not expected to keep relevantfacts either from the court or from theaccused. If the investigation has revealed
matters which are favourable to theaccused and the accused is unaware of theexistence of such facts, it is the bounden
duty of the prosecutor to make those facts
available to the court and to the defence.
XIII. ROLE OF THE PUBLICPROSECUTOR IN ARRESTING AND
DETAINING A SUSPECT
Public prosecutors of the AttorneyGeneral’s Department do not play a role in
the arrest and detention of suspects. It is
the function of the police to arrest suspects
and produce them in court in accordancewith the law. However, it becomes
necessary sometimes to advise the policethat there is a prime facie case against thesuspect, and the police arrest the suspect
thereafter. When a person in remandcustody applies for bail to the High Court
or to the Court of Appeal, the AttorneyGeneral is consulted before bail is granted.
XIV. INTERROGATIVE AUTHORITY
AND METHODOLOGY
In criminal cases falling under the Penal
Code or other acts creating criminal
offences, such as the Offensive Weapons Act
and the Firearms Ordinance, the power ofinterrogation is entrusted to the police.
The procedure to be adopted in conducting
a criminal investigation is laid down in the
Code of Criminal Procedure Act, No. 15 of1979.
Generally an investigation iscommenced with the reception of
information relating to the commission of
an offence. If upon information, the officer

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
in charge of the police station has reason
to suspect the commission of a cognizableoffence or he apprehends a breach of thepeace, he shall either himself or throughanother officer commence theinvestigation. The interrogator is given
powers to question witnesses to theincident and arrest any suspects whosenames have transpired. It is the duty of
the investigating officer to produce thesuspects, if any, before a magistrate withina period of 24 hours, together with a reportsetting out the facts of the case and asummary of the statements of thewitnesses and the suspects. It is up to themagistrate to decide whether to grant bailto the suspect. In minor offences police
many themselves release the suspect ifthey can ensure his attendance in court if
necessary. In cases of waging war against
the State, giving or fabricating false
evidence with intent to procure conviction
for a capital offence and murder, themagistrate has no power to grant bail.
However, a suspect accused of such an
offence shall be released on bail by themagistrate if proceedings are not instituted
against him in a Magistrate’s Court or a
High Court before the expiration of a periodof three months from the date he has
surrendered to the court or is arrested,
unless the High Court, on application madeby the Attorney-General, directs otherwise.
The High Court in special circumstances
may release such person on bail before orafter the expiration of the period of threemonths. [Section 115(3) of the Code of
Criminal Procedure Act].
XIX. INSTRUCTION AND
SUPERVISION OF THE POLICE
AND CO-OPERATION BETWEEN
PUBLIC PROSECUTORS AND THE
POLICE
It is the role of the police to conduct
investigations into criminal offences. As
stated above, the Attorney-General has

wide statutory powers over prosecutions.
The Attorney-General also has the power
to give appropriate directions to the police
in the course of the investigations. It isalso open to the police to seek instructions
from the Attorney-General in regard to any
criminal offence. In practice, the police
seek the advice of the Attorney-General incomplex and difficult cases, and theAttorney-General usually exercises somedegree of supervision over theinvestigations thereafter. There are also
instances of representations being made on
behalf of suspects complaining of police
irregularities and the Attorney-General isentitled in such instances to step in andensure that investigations are done
properly and impartially. Generally thepolice and the public prosecutors co-operatewith each other to ensure that justice isdone.
XVI. EXERCISE OF DISCRETION IN
PROSECUTINGThe Attorney-General has thediscretionary power to:
A. Enter a Nolle Prosequi
The Attorney-General has the power ofstopping any prosecution in any court at
any stage without giving any reasons. This
device is resorted to only in extreme casesin order to secure justice or where it isnecessary in the interests of the public and
the State.
B. Withdraw an Indictment
At any stage of a trial in the High Court
before the return of the verdict, theAttorney-General may if he thinks fit,
inform the Court that he will not further
prosecute the accused upon the indictment
or any charge therein. Thereupon, allproceedings on such indictment or charge
as the case may be against the accusedshall be stayed and the accused shall bedischarged of and from the same.

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XVII. SUSPENSION OF
PROSECUTIONS
The concept of suspension ofprosecutions is not known to the legal
system of Sri Lanka. However, considering
the background of an accused, thecircumstances under which the offence wascommitted and the social implications of
any case, a suspended sentence may be
given by a judge. When a suspended
sentence is imposed, the suspect should beof good behaviour during the operational
period of the sentence. If he commits
another offence during the operational
period and is convicted by a court of law,
the suspended sentence would begin tooperate after the sentence imposed for thesubsequent offence.
XVIII. PLEA BARGAINING AND
SENTENCE
Plea bargaining is an accepted practicein Sri Lankan courts. For example, wherea suspect has been indicted for murder andhe wishes to plead guilty to the lesser
offence of culpable homicide not amounting
to murder, the court may accept such plea
with the consent of the prosecutor, provided
sufficient grounds exist. The trial judge
has the sole discretion to impose any
sentence laid down by law. Sentencebargaining is not permitted.
However, a prosecutor is entitled to place
before the court facts relevant todetermining an adequate sentence. It is
open to the Attorney-General to move inrevision of any sentence passed by any
judge. In recent times, the AttorneyGeneral has resorted to this practice very
successfully in several cases.
XIX. PROOF OF CRIMINAL FACTS
It is an accepted principle of law in Sri
Lanka that an accused is presumed
innocent until proven guilty. This isenshrined in Article 13(5) of the130

Constitution as well. The standard
required is proof beyond reasonable doubt.
It is the duty of the prosecutor to prove thecase beyond reasonable doubt. If theevidence adduced by the prosecution falls
below this standard, the accused is entitledto be acquitted.
XX. CO-OPERATION FOR A SPEEDYTRIAL
The subject of law delays has been the
topic of discussion in Sri Lanka for many
years. The prosecutor and the police
always work towards ensuring a speedy
trial, as inordinate delay is always
detrimental to the prosecution. The
prosecutors also make it a point not tomake applications for postponements
unless they are compelled to do so. Trial
dates are fixed in consultation with counsel
for the prosecution as well as counsel forthe defence, to suit the convenience of thecourt.
XXI. SUPERVISION OF THE FAIRAPPLICATION OF THE LAW
It is the duty of the prosecuting counsel
to see that the law is applied correctly by
the trial judge. Whenever a trial judge errs,
the prosecutor is entitled to point out such
errors. The Attorney-General is entitledto move in revision to correct wrong interim
orders made in the course of a trial. The
Attorney-General is also entitled to appeal
from wrongful or unreasonable acquittal.
State prosecutors are required to submit
all files relating to concluded cases, to thesupervising officer to enable him to see
whether an appeal should be lodged orwhether revisionary action should betaken.