CHANDRASENA v. COMMANDER OF THE SRI LANKA ARMY AND OTHERS

055-SLLR-SLLR-2004-V-1-CHANDRASENA-v.-COMMANDER-OF-THE-SRI-LANKA-ARMY-AND-OTHERS.pdf


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CHANDRASENAv
COMMANDER OF THE SRI LANKA ARMYAND OTHERSCOURT OF APPEALMARSOOF, J.(P/CA) ANDSRI SKANDARAJAH, J.
C.A.NO. 957/98AUGUST 25, 2003 ANDJANUARY 26, 2004
Army Act, sections 46(1), 49(1), 55(1) 56 and 102- Court Martial – Regulation62 – Time limit – Trying of an accused – Navy Act, No. 34 of 1950, section 26- Code of Criminal Procedure – Comparison – Commencement of a trial -When ? – Interpretation.
The petitioner, a Major in the Sri Lanka Army sought to quash an order of theCourt Martial overruling the preliminary objections challenging the jurisdictionof the Court Martial and the final order made by the Court Martial. It was con-tended that the Court Martial has no jurisdiction to hear and determine theoffence, as the purported offence has got prescribed/time barred by virtue ofsection 56 of the Army Act, since more than 3 years had elapsed between thecommission of the purported offence and the trial.
It was contended by the respondent that a Court Martial commences upon itbeen convened.
Held:
Section 56 of the Army Act and Regulation 62 bars a trial if three yearshave elapsed between the commission of an offence and the beginningof the trial.
When one compares the Regulations with the Code of CriminalProcedure Act one can come to the conclusion that the commencementof the trial in a Court Martial is also by arraignment of the accused.
The offences were committed on 20.8.94 and between 25.12.94 and14.1.95. The plea in bar of the trial was.raised on 22.5.98, before thearraignment of the petitioner. At the time of making this plea three yearshave elapsed from the date of the offence. The prosecution is timebarred.
CA
Chandrasena v Commander of the Sri Lanka Army and others
(Sriskandarajah, J.)
405
‘Trial” means the proceeding which commences when the case iscalled with the Magistrate oh the Bench, the accused in the Dock andthe representative of the prosecution and defence, if the accused isdefended, present in Court for the hearing of the case.
APPLICATION for a writ of certiorari
Cases referred to:
Duryadhan v Sitaram – (1979) AIR All 1 at 8 – 9
Hari Vishdu Kamathu v (Election) Tribunal Jabalpur- (1958) Jab. LJ 1at p.10; 1958 AIR 168.
Dagdu Govindest v Punka Vadu – Want 38, Bom. LR 1189 at 1191(1937) ARI Horn. 55
Lanston v Northern Publishing Co. – (1922) 63 SCR 482
Hackv London Provident Building Society – (1983) 23 Ch. Division 103
Kalinga Indatissa for petitioner.
Arjuna Obeysekera, State Counsel for 1 st to 9th respondents.
Cur.adv.vult
September 01,2004SRISKANDARAJAH, J.
• The petitioner is a Major in the Sri Lanka Army and functioned 01in that capacity in the 2nd Commando Regiment of the Sri LankaArmy. He has sought a mandate in the nature of a writ of certiorarito quash an order of the Court Martial made on 26th June 1998,overruling the preliminary objection of the petitioner challenging thejurisdiction of the Court Martial.
He also has sought a writ of certiorari to quash the final order ofthe Court Martial made on 17th September 1998 and a writ of ppprohibition preventing the 1st respondent from making an orderconfirming the final order of the Court Martial made on 17th 10September 1998.
The 1st respondent is the Convening Officer of the aforesaidCourt Martial and the Commander of the Sri Lanka Army. The 2ndrespondent is the President of the Court Martial and the 3rd to the
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5th respondents are members of the said Court Martial. The 6threspondent is an officer under instructions of the said Court Martial.The 7th respondent is the Judge Advocate General of the saidCourt Martial.
The 8th respondent is a Colonel and was the CommandingOfficer of the 2nd Commando Regiment and the complainant of theallegation which was the subject matter of the Court Martial.
1A respondent was added to this application as he is the suc-cessor to the first respondent after the retirement of the 1st respon-dent on 16th December 1998.
The petitioner submitted that the Court Martial has no jurisdic-tion to hear and determine this offence on the ground that the pur-ported offence has got prescribed or time-barred by virtue of sec-tion 56 of the Army Act, since more than three years had elapsedbetween the commission of'the purported offence and the trial.
The petitioner has taken this objection as a preliminary objectionbefore the Court Martial as provided by Regulation 62(2) of theCourt Martial (General and District) Regulations, which states interalia that at the commencement of the trial the accused may offer aplea in bar of the trial, where the time elapsed between the com-mission of the offence and the beginning of the trial exceeded threeyears. The Court Martial after considering the submissions of bothparties on this preliminary objection made order rejecting the pre-liminary objection on 26.06.1998 on the basis that the Court Martialconvened to try the accused was assembled on 14th August 1997which is within a period of 3 years and proceeded with the trial. Thepetitioner did not challenge this order at that time but continuouslyparticipated in the trial until the final order was made. The petition-er in this application while challenging the final order made by theCourt Martial, challenged the order made by the Court Martial onthe preliminary objection on the basis that the said order is mani-festly erroneous, ultra vires, illegal and wrongful.
Section 56 of the Army Act provides:
“Where three years have elapsed after the commission ofany offence by any person subject to military law, he shallnot be tried by a Court Martial for an offence unless it isthe offense of mutiny, desertion or fraudulent enlistment.”
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CA
Chandrasena v Commander of the Sri Lanka Army ana omers
(Sriskandaraiah, J.)
407
The petitioner submitted that the words used in section 56 of theArmy Act are “he shall not be tried". Therefore the question is as towhich point of time is deemed that the trying of an accused wouldcommence. It is submitted that an analysis of the correspondingprovision of the Navy Act would throw light on the interpretation ofsection 56 of the Army Act.
Section 26 of the Navy Act, No. 34 of 1950 reads as follows:
“No person subject to Naval Law, unless he is an officerwho has avoided apprehension fled from justice shall be 60tried or punished by a Court Martial or by a naval officerexercising judicial powers under this Act for any offencecommitted by that person unless the trial takes placewithin a period of three years from the commission of theoffence or where that person has been absent from SriLanka during such period within one year after his returnto Sri Lanka.”
The petitioner submitted that in the aforesaid circumstances theintention of those who drafted this legislation was to ensure that thetrial of the accused commences within three years of the date of 70commission of the alleged offence. He submitted that his trial com-menced on 22.5.1998 over 3 years and 9 months after the com-mission of the purported offence. According to the petitioner thetrial of an accused commences at the time of reading the chargesheet to the accused. He submitted that section 55(1) of the ArmyAct supports this position as it specifically states that evey memberof a Court Martial shall take the prescribed oath/affirmation beforethe commencement of the trial. He also submitted that theRegulations of Court Martial also support the postition that the trialproper does not commence until the oath is taken by all the mem- sobers of the Court Martial and the charge is read to the accused. Thepetitioner submitted that at this Court Martial the president, themembers of the Court Martial and the rest of the personnel tooktheir prescribed oaths only on 26.06.1998 after the objection of thepetitioner was overruled.
The respondent’s counsel argued that a Court Martial is con-vened for the purpose of trying an accused, and that therefore the
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first sitting of the Court Martial on 14.8.1997 could be considered tobe the commencement of the trial.
The respondent’s counsel submitted that section 56 of the Army 90Act does not require the Court Martial to commence leading of evi-dence or reading of the charge sheet to the accused within thethree year period of limitation set out therein. He submitted theword “tried” contained in section 56 cannot be given, and should notbe given, such a restrictive interpretation. He further submitted thata trial in any criminal proceedings is preceded by the institution ofproceedings, and that once the proceedings are instituted theaccused is to be “tried” for that offence by the relevant, court.Similarly a Court Martial commences upon it being convened interms of section 46(1) of the Army Act. Convening of the Court 100Martial is the first step in the trial process and with the convening ofthe Court Martial the accused is to be “tried” for that offence.
The respondent’s counsel in support of his contention relied onsome Indian authorities; in Duryadhanv Sitararri1>, it has been heldthat the trial of an election petition commences on the reference ofthe petition to the Tribunal. In Hari Vishdu Kamathu v (Election)Tribunal Jabalpur^ the following view was expressed; the word“trial” in section 90(1) of the Representation of the People Act, 1951covers the entire period from the first presentation of the electionpetition by the tribunal to its disposal. These authorities deal with nothe election petition and election tribunal proceedings.
The counsel for the respondent also submitted an Indian author-ity in relation to a criminal case Dagdu Govindest v Punka Vadu,WantW, the Court observed; “trial” has been understood to meanthe proceedings which commences when the case is called withthe Magistrate on the Bench, the accused in the dock and the rep-resentatives of the prosecution and defence, if the accused bedefended, present in Court for the hearing of the case. The trialcovers the whole of the proceeding in a warrant case.
The question that has to be determined by this court is on what '120date the trial against the petitioner commenced in the Court Martialand whether this date is later than three years from the date ofoffence on which the petitioner was charged.
CA
Chandrasena v Commander of the Sri Lanka Army and others
(Sriskandarajah, J.) 409
Section 56 of the Army Act has to be read with Regulation 62 ofthe Court Martial (General and District) Regulations which providedfor the procedure and the time in which the objection for bar of trialhas to be taken. Regulation 62 provides;
62. The accused at the time he offers his generalplea of “guilty” or “not guilty" to a charge for an offencemay offer a plea in bar or trial on-the ground that -130
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the time which elapsed between the commission of theoffence and the beginning of the trial was more than threeyears
From the above provision it is apparent that section 56 of theArmy Act and the Regulation 62 bar a trial if three years haveelapsed between the commission of the offence and the beginningof the trial.
The commanding officer’s powers in regard to an accused per- 140son is specified in section 49(1) of the Army Act. This sectionempowers the commanding officer to investigate the charge and todecide whether to proceed with the charge or to dismiss thecharge. If he in his discretion decides that the charge should beproceeded with he shall take steps for the trial of the person by aCourt Martial or where that person is an officer of a rank below thatof the Lieutenant-Colonel or is a warrant officer, refer the case to bedealt with summarily by the Commander of the Army or by such offi-cer not below the rank of Colonel or where the person is a soldierother than a warrant officer deal with the case summarily.150
In this instant case the 1st respondent was the commanding offi-cer at the relevant time. He after investigation has decided to pro-ceed with the charges against the petitioner. As the petitioner hadrefused to undergo a summary trial he recommenced that a CourtMartial be appointed to hear the charges against the petitioner. Bya convening order dated 4th August 1997 he convened a General
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Court Martial to assemble on the 14th August 1997 for the purpos-es of trying the petitioner by General Court Martial. This conveningorder and the charge sheet which are marked as P12 (a) & (b) aswell as R12 were transmitted on 6.8.1997 to the Sri Lanka High 16<>Commission in the United Kingdom to be forwarded to the petition-er as the petitioner was taking treatment in the United Kingdom atthat time. From the letters of the High Commissioner marked R13,
R14 & R16 the 1st Secretary of the High Commission has person-ally called over at the residence of the petitioner in the UnitedKingdom to hand deliver the aforesaid documents and the petition-er had declined to accept the same. According to the charge sheetthe petitioner was charged with two offences – one is conduct prej-udicial to good order and military discipline” an offence under sec-tion 102(1) of the Army Act committed between 25th December 1701994 and the 14th January 1995. On the first charge the trialagainst the petitioner should have commenced not later than 25thDecember 1997.
It appears on 14th August 1997 the date on which the assemblyof the Court Martial was fixed, the petitioner was absent and thecase was postponed and it was postponed on several other occa-sions.
On 22nd May 1998 when the Court Martial assembled the peti-tioner was present and a plea of bar of trial was raised.
The respondents relied on some Indian authorities in election 180cases to show that the trial in an election petition before an electiontribunal commence at the time of the petition is referred to theTribunal. It is not prudent to construct a word in a statute which isof criminal in nature in co parison with an election statute. Duff J. inLanston v Northern Publishing Co.W relying on Sir George Jesselin Hack v London Provident Building Society<5) observed that it isalways dangerous to construe the words of one statute by refer-ence to the interpretation which has been placed upon words bear-ing a general similarity to them in another statute dealing with a dif-ferent subject matter.190
But it is an accepted principle in construction of a statute or aword in a statute to refer to a statute in pari material as a means ofexplaining the statute or a similar word used in the statute. The
CA
Chandrasena v Commander of the Sri Lanka Army and others
(Sriskandarajah, J.)
411
Court Martial (General and District) Regulations containsRegulations under fifteen different heads. Regulation 17(2) pro-vides that the president shall be responsible for the trial being con-ducted in proper order in accordance with the Army Act and in amanner befitting a court of justice. These Regulations have laid
down the procedure of trial of an accused person in relation tocharges framed against him and it has specifically provided that thetrial should be conducted similar to a court of law; hence the wordtrial used in the Regulations could be interpreted with the aid of theCode of Criminal Procedure Act as this Act and the Regulationscould be considered as statute in pari material. The Code ofCriminal Procedure Act has laid down provisions containing thepowers of a criminal court, information to the Magistrate and Police,arrest investigation and for the institution of proceedings, trial, judg-ment and sentence among other relevant matters. It provides for atrial in the Magistrate’s Court, trial in the High Court before a juryand a trial in the High Court without a jury.
The trial of cases where a Magistrate’s Court has power to trysummarily is provided under Chapter XVII of the Code of CriminalProcedure Act. Under section 182 of the said Act the Magistrateshall frame a charge against the accused and he shall read suchcharge to the accused and ask him if he has any cause to showwhy he should not be convicted. The accused could plead guilty tothe charge and if he had pleaded not guilty the magistrate shall askhim whether he is ready for trial and if the accused replies that heis ready for trial the court shall proceed to try the case in a mannerprovided in the said Act. If the accused replies that he is ready thenthe trial has to be postponed to another day. The commencementof the trial in a Magistrate, Court is by reading the charge to theaccused and not by instituting the proceedings in a Magistrate’sCourt under section 136 of the Code of Criminal Procedure Act.Similarly the proceedings in a High Court is instituted by filing anindictment in the High Court. The commencement of trial by thejudge of the High Court without a jury is provided in section 196.The caption of this section says the “commencement of trial” Thissection reads as follows “when the Court is ready to commence thetrial the accused shall appear or be brought before it and the indict-ment shall be read and explained to him and he shall be asked
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whether he is guilty or not guilty of the offence charged”. The com-mencement of trial before a High Court by Jury is provided in sec-tion 204 of the said Act. The caption of this section also reads as“the commencement of trial” and the side note of this section readsas “arraignment of accused” and the wording of this section is sim-ilar to section 196.
Therefore it is apparent from the provisions of the Code ofCriminal Procedure Act that a trial commences in a criminal courtby the arraignment of the accused. The Regulations providing for 240the procedure for Court Martial also has several parts under differ-ent heads such as responsibilities of officers convening CourtMartial, preparation for defence by accused, assembly of the CourtMartial and its responsibilities, challenge, swearing of Court &Judge Advocate, arraignment, finding and sentence, etc.Regulation 48, reads as follows: “After the members of the Courtand other persons are sworn, the accused shall be charged for thecommission of the offence he is purported to have committed. Thecharge shall be read to him, and he will be required to plead sepa-rately to each charge as soon as it has been read to him." 250Regulation 49 provides that the trial upon several charge sheetsshall be taken in such order as the convening officer directs. Whenone compares these Regulations with the Code of CriminalProcedure Act, one can come to the conclusion that the com-mencement of the trial in a Court Martial is also by arraignment ofthe accused. The criminal case Dagdu Govindest v Punka Vadu,Want (supra) cited by Respondent’s counsel also support this posi-tion. In this case the court observed; “Trial” has been understood tomean the proceeding which commences when the case is calledwith the Magistrate on the Bench, the accused in the dock and 260the representatives of the prosecution and defence, if the accusedbe defended, present in Court for the hearing of the case. Thetrial covers the whole of the-proceeding in a warrant case (empha-sis is mine).
In the instant case the plea in bar of the trial was raised on22.5.1998 before the arraignment of the petitioner. The offence inthe charges framed against petitioner marked P12b and P13 werecommitted on 20.8.1994 and between 25.12.1994 & 14.1.1995respectively. At the time of making this plea three years has
CA Nishantha Janaka v The Attorney-General (Nanayakkara J.)413
elapsed from the date of offence. Therefore the prosecution of the 270petitioner in relation to the charges framed against him markedP12b and P13 is time barred. Hence this court quashes the ordermade by the Court Martial on 26.6.1998 marked R15. In view of thisorder, the final order made after trial by the Court Martial has alsoto be quashed.
The Court allows this application as prayed for in prayer (b) and
of the petition without costs.
MARSOOF, J. (P/CA) – I agree.
Application allowed.