097-NLR-NLR-V-66-A.-AMIRTHALINGAM-Petitioner-and-THE-ATTORNEY-GENERAL-and-2-others-Responden.pdf
SRI SKAISTDA RAJAH, J.—AmirthaUngam v. The Attorney-General
407
Present: Sri Skanda Rajah, J.
A. AMIRTHALINGAM, Petitioner, and THE ATTORNEY-GENERAL
and 2 others, Respondents
S. C. 473/1963—Application for the re-transfer of M. C. Jaffna 25792from
M.C. Colombo to M. C. Jaffna
Courts Ordinance—Section 43—Transfer of case thereunder—Application for re-transfer—Tender of affidavits by Attorney-General—Right of petitioner to filecounter-affidavits.
Where, in an application for the re-transfer of a criminal case transferredfrom one court to another under the provisions of section 43 of the CourtsOrdinance, affidavits are filed by the Attorney-General showing cause againstthe motion, the petitioner is entitled to file counter-affidavits.
Application for the re-transfer of a case from the Magistrate’sCourt, Colombo, to the Magistrate’s Court, Jaffna.
M. Tiruchelvam, Q.C., with T. W. Rajaratnam and K. Kanthasamy, forthe Petitioner.
A. C- Alles, Solicitor-General, with R. I. Obeyesekera, Crown Counsel,for the 1st to 3rd Respondents.
January 24, 1964. Ski Skanda Rajah, J.—
This is an application for the re-transfer of a case which was transferredby the Attorney-General by his fiat under the provisions of section 43of the Courts Ordinance from the Magistrate’s Court of Jaffna to theMagistrate’s Court of Colombo.
In view of the following comment of my brother Weerasooriya in thecase of Paramalingam v. Attorney-General1, : “ But as a result of theattitude of silence adopted by the Attorney-General in regard to thereasons that moved him to issue his fiat, the position is simply this :that no cause has been shown against the petitioner’s application ”,the Attorney-General tendered this day copies of three affidavits, oneeach by the two accused and another by the Assistant Superintendentof Police, Jaffna, which had been submitted to the Attorney-Generalbefore he issued the fiat.
Mr. Tiruchelvam, who appears for the petitioner, asks for time to fileaffidavits controverting the averments in those affidavits. The learnedSolicitor-General argues that the petitioner is not entitled to file suchaffidavits.
1 {1959) 63 N. L. R. 202 at page 206.
408
SRI SKANDA RAJAH, J.—Amirthcdingam v. The Attorney-General
In the above case Weerasooriya, J., quoted a previous decision of thisCourt, namely, The King v. Lndowylc and said that the matter is opento the fullest examination by this Court.
I am of the view that it is open to this Court to decide the questionwhether the material that was available to the Attorney-General beforehe issued the fiat was sufficient and/or true. In order to determinethat question this Court may also take into consideration any fact,which had not been disclosed to the Attorney-General or which may tendto throw doubt on the averments in the affidavits that were placedbefore him. It should be open to the petitioner, who would naturallyhave been in the dark till today regarding the grounds which induced theAttorney-General to issue the fiat, to show that there was suppressio veriand/or suggestio falsi in those affidavits and that it is not likely thathe would have considered it ‘ expedient ’ to issue the fiat had he beenmade aware of the real state of affairs—the word ‘ expedient5 in section43 is equivalent to “ expedient in the interests of justice Otherwise,it may not be possible for this Court to examine this matter as fully as itshould. Therefore, I hold that Mr. Tiruchelvam’s application is reason-able and allow two weeks5 time to file affidavits. The matter to belisted for argument thereafter.
Petitioner granted time to file affidavits.
1 (1935) 36 N. L. R. 397.