011-SLLR-SLLR-2006-V-3-WASANTHA-vs.-OFFICER-IN-CHARGE-POLICE-STATION-SEDUWA-AND-ANOTHER.pdf
CA Wasantha vs. Officer in Charge, Police Station Seeduwa and Another
71
WASANTHAVS.OFFICER IN CHARGE, POLICE STATIONSEEDUWA AND ANOTHERCOURT OF APPEAL.
BALAPATABENDI. J. (P/CA),
BASNAYAKE.J.
CA(PHC) REV, 148/2005.
H. C. NEGOMBO 49/2004.
MARCH 23. 2006.
JUNE 1. 27. 2006.
Penal Code – charged under section 317- Conviction – Appeal -Isa certificate
by a lawyer certifying that there is a legal question fit for adjudication necessary?
– Criminal Procedure Code Section 320 (A), section 322 (1) Section 322 (2)-
Industrial Disputes Act, section 31D (2)(5).
HELD: (1) Where a party makes an appeal on a matter of law a certificate isrequired in terms of section 322(2) certifying that such matter oflaw is a fit question for adjudication. This certificate has to beissued by an Attorney – at- Law.
The certificate is needed only in a situation when an appeal couldbe made only on a point of law. Any party is entitled to appealagainst any judgment for any error of fact as well; in such asituation no certificate is necessary.
APPLICATION in Revision from an order of the High Court of Negombo – On a
Preliminary objection being taken.
Cases referred to
Weerasekera vs. Subramaniam – 44 NLR 545
Solicitor General vs Perera – 17 NLR 413
Thevarayan vs Balakrishnan – 1984 1 Sri LR 189 (distinguished)
Anil Silva for accused – appellant – petitioner.
Kumudini Wickremanayake SSC for respondents.
September 21, 2006.
ERIC BASNAYAKE. J.The accused appellant petitioner (accused) was charged in theMagistrate’s Court of Negombo under section 317 of the Penal Code for
2-CM 8428
72
Sri Lanka Law Reports
(2006) 3 Sri LR.
causing grievous injuries to Koiomba Wasantha Deepal on 07.06.2001.After trial the accused was convicted and sentenced to two years rigorousimprisonment. The accused appealed against the said conviction and thesentence to the High Court of Negombo. When this case was taken up forargument in the High Court, the learned State Counsel took up a preliminaryobjection.
The Preliminary Objection
The preliminary objection taken up was that the accused cannot haveand maintain this action as he has failed to file a certificate by a lawyercertifying that there is a legal question fit for adjudication. The learnedHigh Court Judge held that the accused violated the provisions of section322 (2) of the Code of Criminal Procedure Act. Thereby he upheld thepreliminary objection and dismissed the appeal. In one sentence the learnedHigh Court Judge dealt with the merits as well. The learned High Courtjudge stated that the learned Magistrate had made a proper evaluation ofthe evidence and therefore the conviction is reasonable.
Section 322 (2) is as follows :
Where the appeal is on a matter of law the petition shallcontain a statement of the matter of law to be arguedand shall bear a certificate by an attorney-at-law thatsuch matter of law is a fit question for adjudication bythe Court of Appeal.
This section should be read with section 320(1) of the Code which is asfollows:
Subject to the provisions of sections 317,318 and 319any person who shall be dissatisfied with any judgmentor final order pronounced by any Magistrate’s Court in acriminal case or matter to which he is a party may prefer
CA Wasantha vs. Officer in Charge, Police Station Seeduwa and Another73
(Eric Basnayake, J.)
an appeal to the Court of Appeal against such judgmentfor any error in law, or in fact (emphasis added).Where a party makes an appeal on a matter of law, a certificate isrequired in terms of section 322(2) certifying that such matter of law is a fitquestion for adjudication. This certificate has to be issued by an attorneyat law. Wijewardena J in Weerasekara vs. Subramanium^ said that “Ithink section 340(2) of the Criminal Procedure Code (same as section322(2) of the Code of Criminal Procedure Act) is applicable only to casesin which a party has no right of appeal except on a point of law. Pereira Jin Solicitor General vs. Perera(2> expressed a similar opinion. It is cleartherefore that a certificate is needed only in a situation where an appealcould be made only on a point of law. Any party is entitled to appealagainst any judgment on any error of fact as well. In such a situation nocertificate need be filed.
The learned High Court Judge referred to the case of Thavarayan vs.Balakrishnan(3>. This is an appeal against the judgment of a learnedPresident of the Labour Tribunal. In terms of section 31D (2) and (5) of theIndustrial Disputes Act an appeal from an order of the Labour Tribunalmust be on a question of law only. In terms of section 322(2) of the Codeof Criminal Procedure Act, when an appeal is filed on a question of law, acertificate is required by an Attorney at law certifying that it is a fit case foradjudication by the Court of Appeal. Therefore the judgment in that case isnot relevant to the facts of the present case.
It is apparent that the learned High Court judge had not considered themerits of this case, but only the preliminary objection. I am of the view thatthe learned judge has erred in upholding the preliminary objection. HenceI direct the learned High Court judge to reconsider the appeal on its merits.The appeal is allowed.
BALAPATABENDI J. -I agree.
Preliminary objection overruled.Appeal to be reconsidered onthe merits by the High Court.