028-SLLR-SLLR-2005-V-2-REV.-RATMALANE-SRI-SIDARTHA-vs-ATTORNEY-GENERAL.pdf
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REV. RATMALANE SRI SIDARTHAvs
ATTORNEYGENERALCOURT OF APPEALBAL^PATABENDI, J.
IMAM, J.
CA 1329/2004
H. C. RATNAPURA 160/03
OCTOBER 1, NOVEMBER 1. DECEMBER 6. 2004
Judicature Act 2 of 1978 – Section 9, 47(1), 47(2), 47(3) – Transfer of a HighCourt case (Southern Province) to a High Court in the (Sabaragamuwa Province)
Legality -one province to another Province – Penal Code Section 345, 360( 1),335 – Constitution-Article 154, Article 154(1), 153 P3(a) – 13th Amendment -does it repeal Section 47 of Judicature Act-High Court of the Provinces (Sp.Pro.) Act; 19 of 1990 – Section 2(2) – Application for re-transfer-According to Law ?
Discretion of the Attorney-General? – Criminal Procedure Code, S 450 – Trialat Bar – according to Law?.
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The non-summary Inquiry was transferred from Tissamaharama Magistrate'sCourt to the Galle Magistrate’s Court on a fiat by the Attorney General. Theaccused was indicted in the High Court of Matara. The trial was fixed to beheard in the High Court of Hambantota. The case was thereafter transferred tothe High Court of Ratnapura by the Attorney General by a fiat.
Accused sought a re-transfer of the case on the ground that, after the enactmentof the 13th Amendment to the Constitution, a Provincial High Court did not havejurisdiction to try and determine an offence outside that jurisdiction and thereforethe Provincial High Court of Sabaragamuwa Province did not have jurisdictionto hear an determine an offence which had been committed in the SouthernProvince. The accused Appellant contended that Section 47(1) of the JudicatureAct does not empower the transfer of a case from one province to another andthat jurisdiction of the Provincial High Court could not be transferred by ordinarystatute to any other High Court.
HeldThe 13th Amendment does not repeal Section 47 of the Judicature Actand Section 47 is not in conflict with any of the Articles of the 13thAmendment. Under Section 450 of the Criminal Procedure Code, Trials-at-Bar are conducted generally in Colombo outside the provincialjurisdiction of the particular court.
According to Section 9, of the Judicature Act the offence should be tried,heard and determined in the manner provided by written law-whichincludes statutes.
According to law means according to the common law and statute law.
The directions of the Attorney General is supported by the facts set outin the objections filed by the 2nd Respondent.
APPLICATION to transfer High Court case under Section 47(2) of the Judicature
Act.
Cases referred to :Weragama vs. Eksath Lanka Wathu Samithiya and others – 1994 1 SriLR 299.
Saranapala vs Solanga Arachchi – 1992 – 2 Sri LR 10.
Mohideen vs Goonewardena – 4 Sriskantha Part 2 at 16
Anil Silva for Accused Petitioner
Navaratne Bandara – S. S. C. for 1st Respondent
Aravinda Athurapane for 2nd Respondent
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Imam, J.This is an application filed by the accused-Petitioner (hereinafterreferred to as the Petitioner) under the Provisions of Section 47(2) of theJudicature Act, No. 2 of 1978 praying inter-alia for a relief to retransferHigh Court Ratnapura Case bearing No. 160/03 to the High Court ofHambantota. On 25.08.2004 counsel for the 2nd Respondent filedobjections, subsequent to which on 01.11.2004, counsel for the petitionertendered written submissions, on which occasion Mr. Athurupane indicatedto Court that he was not appearing for the 2nd Respondent. Senior StateCounsel for the 1st Respondent tendered his Written Submissions on
consequent to which this application was fixed for Order.
The Petitioner who is the Chief Incumbent of the VedahetikandaViharaya, Kataragama was earlier in – charge of the Sella KataragamaGanadevi Kovil as well. The Petitioner contends that there was a disputeregarding the possession/management of the Sella Kataragama Kovilbetween the Petitioner and one Piyadasa Dissanayake, which resulted incertain powerful persons fabricating a case against the Petitioner on thebasis that he was in possession of unlicensed firearms. The Petitionerfurther submits that he was kept under detention for a considerable period,subsequent to which he was indicted in the High Court of Matara. ThePetitioner in his petition further states that during this period PiyadasaDissanayaka took control of the Ganadevi Kovil at Kataragama with theassistance of the aforesaid powerful persons. Nevertheless after a protractedTrial the Petitioner avers that he was acquitted. The Petitioner further aversthat after his acquittal, having made representations to the relevant partieshe was in the process of regaining the control and management of theSella Kataragama Ganadevi Kovil when the aforesaid PiyadasaDissanayaka connived with H. M. Sugathapala the 2nd Respondent inthis case which resulted in the 2nd Respondent making a false complaintthat the Petitioner had sexually abused his daughters. The Petitioner admitsthat the Non-summary Inquiry was held in the Magistrates Court ofGalle,and that he was committed to stand his Trial in the High Court. On receivingsummons from the High Court of Hambantota, the Petitioner appeared incourt on 28.08.2003 and an indictment was served on him, a copy ofwhich is marked as ‘PT. Trial was fixed by the learned High Court Judgeof Hambantota for 10.12.2003, and the Prosecution witnesses weresummoned to appear in court. The Petitioner further contends that when
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he appeared at the High Court of Hambantota on 10.12.2003 he wasinformed by the learned High Court Judge that the case had been transferredto the High court of Ratnapura by the Hon. Attorney General by a fiat inwriting, and that he would be informed of the next date by the High Courtof Ratnapura. The Petitioner avers that on 10.12.2003 before the Courtbegan sessions when he was speaking to his lawyers, the 2nd Respondentwho is the father of the 1st four Prosecution witnesses abused andthreatened him, which was brought to the notice of the learned High CourtJudge, who directed the Petitioner to make a complaint to the police. Acertified copy of the proceedings of 10.12.2003, is marked as ‘P2’, andthe complaint made by the petitioner is marked as ‘P3’. Subsequently thePetitioner received summons from the High Court of Ratnapura requiringhis presence in Court on 23.01.2004. It is contended by the Petitioner thathe was ill on 23.01.2004, and thus could not attend the High Court ofRatnapura, on that day in support of which a Medical Certificate markedP4A was tendered to Court, Section 47 of the Judicature Act states asfollows:
47(1) Whenever it appears to the Attorney General that it is expedientthat any inquiry into or trial of any criminal offence shall be transferredfrom any Court or place, to any other Court or place, it shall be lawful forthe Attorney General in his discretion by his fiat in writing to designatesuch last mentioned court or place, and such inquiry or trial shall be heldaccordingly on the authority of such fiat which shall be filed of record withthe proceeding in such inquiry or trial so transferred as aforesaid.
47(2) Any person aggrievedby a transfer made under such fiat of theAttorney General may apply to the Court of Appeal, by motion supportedby affidavit, setting out the grounds for such application for retransfer or fortransfer to any other court or place of such inquiry or trial, and the Court ofAppeal may after notice to the Attorney General, who shall, if he thinks fit,be heard to show cause against such motion, if it considers that goodcause has been shown why the application shall be granted, make orderaccordingly.
The eight offences against the Petitioner as set out in the Indictmentrelate to three counts of sexual exploitation of children punishable undersection 360B of the Penal Code in respect of H. M. Susangika, H. M.Indika and H. M. Ratnamenike. The 4th Count relates to the commission
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of the offence of wrongful confinement in respect of H. M. Sujeeva.punishable under section 335 of the Penal Code. The 5th and 6th arecounts the commission of statutory rape on H. M. Susangika and H. M.Indika respectively punishable under section 364(2) of the Penal code, the7th and 8th counts relate to the commission of the offences of sexualharassment punishable under section 345 of the Penal code in respect of
M. Ratnamenike and H. M. Sujeewa respectively. The complainantgirls are said to be sisters of the same family and two of them were said tobe minors at the time of the offence. It was contended on behalf of thePetitioner that after the enactment of the 13th amendment to theConstitution, a Provincial High court did not have jurisdiction to try anddetermine an offence outside that Jurisdiction, and that therefore theProvincial High Court of Sabaragamuwa Province did not have Jurisdictionto hear an offence which had been committed in the Southern Province.Hence the Provisions of Section 47(1) of the Judicature Act does notempower the transfer of the case from one province to another. It wassubmitted that in transfering a case out of ordinary Jurisdiction the Hon.Attorney General is exercising Judicial Power, which should be justified. Itwas further pointed out that no Public functionary has an unfettereddiscretion, that the Hon. Attorney General should place material beforeCourt Justifying his exercise of discretion, and in the absence of suchmaterial before Court, this Court should set aside the aforesaid transfer. Itwas submitted that the facts and circumstances in this case do no warrantthe transfer of this case. The Petitioner submits that the objective of the13th amendment of 1987 to the Constitution was the intention of devolvingpower to the provinces.
The 2nd Respondent in his Statement of Objections dated 25.08.2004denies that he connived with Piyadasa Dissanayaka referred to in thecomplaint to the Police by the Petitioner marked P3. Furthermore the 2ndRespondent denies that he abused and threatened the Petitioner, andalleges that the Petitioner made a false representation to Court on10.12.2003, only after learning that the case had been transferred out ofHambantota. It is further contended by the 2nd Respondent that thePetitioner is alleged to have connections with notorious persons of ill-repute in Kataragama, Tissamaharama and Hambantota areas and hasoffered death threats as well as inducements to the 2nd Respondent andfamily, seeking to have them withdraw the charges against him.
Furthermore the officials of the Children’s Home he avers are veryreluctant to travel to Hambantota accompanying two of the said victims
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due to the threats of the Petitioner and insufficiency of security. The 2ndRespondent further avers that there is an imminent threat to the lives ofhim and his family including the said 4 victims if the case is tried in theHigh Court of Hambantota, and thus has no objection to the case beingtransferred out. Written submissions were not tendered on behalf of the2nd Respondent.
Senior State Counsel appearing for the 1st Respondent tenderedwritten submissions and sought that the Petition of the Accused-Petitionerbe dismissed. This Court considered the application of the Petitioner, theobjections of the 2nd Respondent, the Written Submissions tendered onbehalf of the Petitioner, the 1 st respondent and other material submitted inthis case. The Non-Summary Inquiry bearing No. 43097 TissamaharamaMagistrate’s Court was transferred to the Galle Magistrate’s Court on a fiatby the Attorney General possibly taking into consideration the protectionof the complainant girls, and subsequently the Non-summary proceedingshad taken place at the Galle Magistrate’s Court, as illustrated by documentmarked XI.
This application has been made invoking section 47(2) of theJudicature Act No. 2 of 1978. The relevant procedure to be adopted is setout in section 47(3) of the Judicature Act, and the Court of Appeal Rulesdo not set out the Jurisdiction which is applicable with regard to section47(3) of the Judicature Act.
Article 154(1) of the Constitution (the 13th amendment) states that‘There shall be a High Court for each of the provinces with effect from thedate on which this chapter comes into force. Each such High Court shallbe designated as the High Court of the relevant province”
Article 154 P(3) (a) states as follows : “Every such High Court shallexercise according to law, the original Criminal Jurisdiction of the HighCourt of Sri Lanka in respect of offences committed within the Province. Itwas submitted on behalf of the Petitioner that the Jurisdiction of the ProvincialHigh Court could not be transferred by ordinary statute to any other HighCourt. However under Section 450 of the Criminal Procedure Code Trialsat Bar are conducted generally in Colombo outside the ProvincialJurisdiction of the particular court.
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Section 2(2) of the High Court of the Provinces (Special Provisions)Act, No. 19 of 1990 states as follows.
“The Provisions of the Judicature Act applicable to the transfer ofany action, prosecution, proceeding or matter pending before anycourt to any other Court shall apply to the transfer of any action,prosecution, proceeding or matter pending before any High Courtestablished by Article 154P of the Constitution from a Province toany other High Court established under that Article.”
Justice Mark Fernando in Weragama V. Eksath Lanka WathuSamithiya and others (,) held that “There was no intention on the 13thAmendment to devolve judicial power. There was nothing more than a re-arrangement of the Jurisdictions of the Judiciary.”
Although it was held in Saranapala Vs. Solanga Arachchi{2) that theConstitution is the Supreme Law, section 47 of the Judicature Act is not inconflict with any of the Articles of the 13th Amendment. Furthermore the13th Amendment does not repeal section 47 of the Judicature Act eitherexpressly or impliedly, which provision thus remains as law up to date.
Siva Selliah, J. held in Mohideen vs Goonewardena^ and others at16 that the term “According to Law” means according to the common lawand statute law. Section 9 of the Judicature Act states that (1) “The HighCourt shall ordinarily have power and authority and is hereby required tohear, try and determine in the manner provided for by written law allprosecutions on indictment instituted therein against any person in respectof (a) any offence wholly or party committed in Sri Lanka"
Hence it means that the offences should be tried, heard anddetermined in the manner provided by written law which obviously includesstatutes. Hence it is my view that the 13th Amendment does not repealsection 47 of the Judicature Act, and thus initially the Hon. Attorney Generalacting under section 47(1) of the aforesaid Act had the legal capacity totransfer the case from the High Court of Hambantota to the High Court ofRatnapura, which has Jurisdiction to hear this case. Section 47(1) of theJudicature Act states that “Whenever it appears to the Attorney Generalthat it is expedient that any inquiry into or trial of any criminal offence shall
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be transferred from any Court or place, to any other Court or place, it shallbe lawful for the Attorney General in his discretion by his fiat in writing todesignate such last mentioned Court or place”
The direction of the Attorney-General is supported by the facts setout in the objections filed by the 2nd Respondent.
Paragraph 6 of the relevant affidavit states that the officials of thechildren’s home are very reluctant to travel to Hambantota due to threatsof the Petitioner and lack of security. The Petitioner is also alleged to haveclose connections with several notorious persons in Kataragama,Tissamaharama and Hambantota areas, and is said to wield tremendousinfluence in those areas, which could be detrimental to a fair trial. The 2ndRespondent is said to have received death threats from the petitioner, andinducements are said to have been offered to the family of the 2ndRespondent seeking to withdraw the charges against them. Even at theNon-Summary Inquiry, the 2nd Respondent gave evidence with regard tothe death threats which he was. subjected to. Thus it appears to bedangerous to the 2nd Respondent and his family if this case is held at theHambantota High Court. The Petitioner filed this application for a re-transferof the case on the basis of an alleged threat made to him at the High Courtof Hambantota by the 2nd Respondent. The position of the 2nd Respondentis that this complaint was made only after learning that this case hadbeen transferred out of the High Court of Hambantota. On the day in questionnamely 10.12.2003 counsel for the petitioner on learning that the casehad been transferred to Ratnapura, initially objected indicating that heproposed to appeal to this Court against that order of transfer. Consequentlyhe made the complaint of the alleged threat by the 2nd Respondent, asillustrated in Document marked P2. Under these circumstances theallegation of the threat seems more like a false representation to instigatean application for a re-transfer.
When this case was called before the Ratnapura High Court on
the Petitioner did not appear in courts, and a Medical Certificatewas filed on his behalf. On examination of the Medical Certificate markedP4A, which is dated 13.01.2004, the Medical Officer has stated that thepetitioner is suffering from chest pain and vertigo and has been recommendedbed rest from 20.01.2004 to 27.01.2004 but does not state that he cannotattend Court. Furthermore although the Petitioner in paragraph 11 of thepetition states that he was warded at the Intensive Care Unit of the Cardiology
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Unit for more than one month, the Petitioner has failed to produce anydocument to prove this. For the aforesaid reasons I dismiss the applicationof the Petitioner without costs.
Balapatabendi, J. – I agree.
Application dismissed