028-SLLR-SLLR-2010-V-2-WIJAYARATHNA-vs.-ATTORNEY-GENERAL.pdf
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Wyayarathna vs. Attorney General
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WIJAYARATHNA VS. ATTORNEY GENERALCOURT OF APPEALRANJIT SILVA. J.
SISIRA DE ABREW, J.
CA PHC APN 246/2004HC COLOMBO 876/97NOVEMBER 28, 2007
Penal Code – Section 403 – Cheating – Section 403 – Tried inabsentia ■ Has the accused a right of appeal? Could he also moveby way of revision P Criminal Procedure Code Section 241, guiltyof contumacious conductP Decision made without jurisdiction ■Nullity?
The petitioner was indicted in the High Court on two indictmentson counts of cheating. He was tried in absentia. Evidence was led inonly one case, and in the other case, without leading evidence, but byadopting the evidence in the earlier case the High Court convicted thepetitioner – on the basis that the witnesses were the same in both cases.The petitioner appealed against the judgment and also moved inrevision. The petitioner succeeded – in one appeal and the applicationin revision was withdrawn and a retiral ordered. The other appeal wasdismissed on technical grounds. The petitioner sought to challenge theconviction and sentence by way of revision.
Held
Even an accused who had absconded during the trial has a rightof appeal.
An accused who had absconded has no right to invoke therevisionary jurisdiction of the Court. Discretionary remedy byway of revision will not be available to a person who was guilty ofcontumacious conduct.
Although the conduct is totally reprehensible and cannot becondoned nevertheless Appellate Court is justified in exercisingits revisionary powers if the decision had been wholly withoutjurisdiction which renders the decision a nullity.
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[2010] 2 SRIL.R.
Per Ranjith Silva, J.
“Whether the evidence led in the case was sufficient to prove thefact is a matter that should be agitated in a property constitutedappeal and not in revision, even in appeal findings on facts are notlightly disturbed by an appellate Court unless there is a substan-tial reason to do so.”
APPLICATION in revision from a judgment of the High Court ofColombo.
Cases referred to:
Sidharman de Silva vs. AG- 1986 – 1 Sri LR 9
Suddage Gamini Rajapakse vs. State – CA 30/98
AG vs. Podi Singho – 51 NLR 385
Camilas Ignatious vs. OIC Uhana Police Station – CA 90/89 MCAmparai 2857
Opatha Mudiyanselage Nimal Perera vs. AG – CA 532/97 – CAM21.10.1998 – HC Kandy 1239/92
M. S. M. Misbah vs. E. P. Hafeela – CALR 1986 Vol. 1 – 633
Fradd vs. Brown & Company – 20 NLR 282
Alwis vs. Piyasena – 1983 – 1 Sri LR 119
Neranjan Jayasinghe for petitioner.
Dappula de Livera DSG for respondents.
Cur.adv.vult
November 28th 2007RANJIT SILVA, J.
The Petitioner was indicted in the High Court of Colomboon two indictment bearing No. HC 8766/97 and HC 8767/97on counts of cheating under section 403 of the Penal Code. ThePetitioner, as he absconded, was tried in absentia. Evidencewas lead in case bearing No, 8767/97 and the learned HighCourt Judge delivered his judgment convicting the petitionerin that case on 03.09.2003. In case No. 8766/97 without
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leading evidence the learned High Court Judge convictedthe Petitioner and sentenced him to imprisonment merelyadopting the evidence lead in case No. 8767, on the footingthat the witnesses were the same in both cases. Aggrieved bythe said convictions and sentences in the two cases thepetitioner appealed against the said judgment and also movedin revision to have the said convictions and sentencesset aside. The relevant appeals were appeals bearing No.CA. 215/2003 and CA. 216/2003 respectively. The relevantrevision applications are CA (PHC) APN 245/2004 and C.A.(PHC) APN 246/2004, respectively.
Both revision applications bearing No. CA (PHC) APN246/04 and CA(PHC) APN. 246/04 which are amalgamated,are now before us for our consideration.
Mr. Jayasinghe moves to withdraw the application inCA/(PHC) APN 245/04 (Revision) unconditionally, in view ofthe fact that they have succeeded in the connected appealCA. 215/2003 that was taken against the judgment, in casebearing No. 8766/97.
This is a matter where the petitioner had not faced trialand was tried in absentia. After trial the petitioner wasconvicted and sentenced. The accused had absconded fornearly 5 years and after he was convicted and sentenced, wasarrested nearly one year after the date of conviction. Thereafterthe accused appealed against the said judgment. Appeal withregard to C.A. 215/2003 was allowed and a retrial ordered.But the appeal bearing No: C.A. 216/03 was dismissed dueto the fact that the appeal was taken out of time. Also wefind that the accused in the said two cases had moved inrevision and the two numbers are C.A. (PHC) APN 245/04and C.A. (PHC) APN 246/04. Counsel appearing for theaccused-petitioner withdrew the revision application bearing
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No: C.A. (PHC) APN 245/04 as the connected appeal wasallowed and a retrial ordered in that case. Now what isremaining before us is C.A. (PHC) APN 246/04 application forrevision made by the petitioner, challenging the convictionand sentence in case bearing No. 8767/97. The relatedappeal was CA. 216/2003.
The petitioner had absconded from courts for nearly 5years and the case proceeded to trial in absentia and theaccused was convicted after trial. Later on after one year ofthe conviction, the accused was arrested by the Police andwas produced before the High Court. After the arrest theaccused preferred the appeals and the two revision applica-tions. The revision applications have been made after twomonths of his arrest.
Appeal being a statutory right the accused was entitledto appeal, provided he appealed in time. Even an accusedwho had absconded during the trial has a right to appealprovided he complies with the Supreme Court Rules and theother provisions of the law and makes the appeal in time. Itwas held in Sudharman de Silva vs. Attorney General!*" thatan accused person who absconded at the trial has a right toappeal, as the right to appeal is a statutory right granted.But in that case at page 14, it was held that, it was not theposition where the remedy sought by the accused is adiscretionary remedy, (by way of revision). We would like torefer to the Cursus Curiae dealing with this aspect of the law.In Suddage Gamini Rajapakse vs. The State*21 Kulathilaka,J. held that; “An accused who had absconded has no rightto invoke the revisionary jurisdiction of the court.” He heldfurther that the discretionary remedy by way of revisionwill not be available to a person who was guilty of
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contumacious conduct. In A.C. vs. PodisinghoP1 itwas held that “the revisionaiy power of the Courtcannot be invoked by an accused who is guilty ofcontumacious conduct” In Camilas Ignatious vs. O.I.C. ofUhana Police Station ,4> Justice Ismail came to the sameconclusion and held that the revisionaiy powers cannot beinvoked by an accused who absconded at the trial and theratio decidendi in that case was reiterated in OpathaMudiyanselage Nimal Perera vs. AG.,5) by Justice NiniyanJayasuriya. According to the Cursus Curiae a person whoby his contumacious conduct placed himself beyond the reachof the law treating the original courts and there authoritywith contempt, should not be allowed the invoke thereversionary jurisdiction of the appellate Courts, particularlythe Court of Appeal. A person who had resorted to conducthimself in order to delay, circumvent and subvert justiceshould not be pardoned or his actions condoned and reliefgranted to him by way of revision. A Court of Justice shouldnot allow such a person to even make any submissions onthe merits of the case. In this case, we can see an addedfeature which is a veiy significant factor that should be tak-en into consideration namely, the fact that after his arrestthe accused – petitioner had not opted to exercise his rightto make an application under section 241 of the CriminalProcedure Code to have the conviction and sentence set asideand to have the matter restored to the roll. This fact indicatesthat he had no valid reasons or justifiable reasons, for thatmatter, any reasons whatsoever to adduce before the HighCourt, in order to justify his absence. In other words, theaccused by keeping silent and not exercising his rights undersection 241 of the Criminal Procedure Code has impliedlyadmitted that he had no cause to show and that, he wasguilty of contumacious conduct.
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The learned Counsel argued that despite delay anddespite contumacious conduct on the part of the petitioner, ifthere is grave injustice that has occasioned, this Court mustintervene in the matter to rectify the injustice caused to thepetitioner. Although this Court was not bound to go into themerits of the case still due to inquisitiveness, questioned theCounsel as to what the substantial injustice that was causedto the appellant. In response Counsel stated to Court that,the prosecution failed to prove that the petitioner committedthe alleged offence with a dishonest intention. This is entirelya question of fact which will eventually lead to a questionof law but it is not a pure question of law and therefore, weconclude that this is not a reason for us to deviate from theCursus Curiae laid down in the cases above referred to.
Although the conduct attributed to the petitioner istotally reprehensible and cannot be condoned neverthelessthis Court is justified exercising its revisionaiy powers if thedecision had been made wholly without jurisdiction whichrenders the decision a nullity. (Vide M.S.M. Mishbah vs. E. P.Hefeela[6))
In the instant case the petitioner does not even suggestthat the judgement of the High Court Judge is perverse ormanifestly erroneous or that it is exfacie wrong or that thedecision is a nullity. The petitioner merely states that thedishonest intention was not proved.
That was a fact the prosecution had to prove in the maincase. Whether the evidence lead in the case was sufficient toprove that fact is a matter that should be agitated in a properlyconstituted appeal and not in revision. Even in appealfindings on facts are not lightly disturbed by an appellateCourt unless there is a substantial reason to do so. (VideFraad vs. Brown & Companif7) Alwis vs. Piyasena<8>.
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Wijayarathna vs. Attorney General
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Where the trial against the petitioner was held in absentiaand an application in revision is filed by the petitionerafter more than one year from the date of conviction andsentence, and two months after his arrest are matters thatmust be considered in limine before the court decides to hearthe petitioner on the merits of his application for revision. Beforehe could pass the gate way to relief his aforesaid contumaciousconduct and undue delay in filing the application for revisionmust be considered and a determination made upon thosematters before he is heard on the merits of the application.
In this case we find that the petitioner has not offeredany explanation whatsoever as to his contumacious conductor the undue delay in presenting this application for revision.In fact the petitioner even failed to make an application tothe relevant High Court under section 241 of the CriminalProcedure Code let alone explaining his contumaciousconduct.
For the reasons adumbrated on the facts and the law, wedismiss this application for revision. Application for revisionCA (PHC) APN 246/04 is dismissed.
SISIRA DB ABREW, J – I agree.
application dismissed.