IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application for Revision in terms of Section 364 of the Code of Criminal Procedure Act. No.15 of 1979 read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal No: Subramanium Ramani CA//PHC/APN/0021/2017 No.36, Kelanitissa Mawatha, Kandy Road, Pattiya Junction, Kelaniya.

High Court of Colombo Case No. HC/6131/2012 PETITIONER Vs.

The Hon. Attorney General Attorney General's Department Colombo-12 RESPONDENT BEFORE : Sampath B. Abayakoon, J.

P. Kumararatnam, J.

COUNSEL : Neranjan Jayasinghe for the Petitioner.

Sudharshana De Silva, DSG for the Respondent.

ARGUED ON : 23/01/2023 DECIDED ON : 05/04/2024 *******************

JUDGMENT

P. Kumararatnam, J.

The Petitioner is the wife of Welaudan Methiyas Chandrapala alias Mervyn who was the Accused in the following cases filed in the High Court of Colombo.

1. HC Colombo Case No. 6131/2012 2. HC Colombo Case No. 5398/2010 On 13.02.2012 the Accused Welaudan Metiyas Chandrapala alias Mervyn was produced before the High Court of Colombo in the case No. HC 5398/2010 by the Prison Department. After the Court appearance, when he was taken away by the officers of Prison Department, several unknown armed persons who came in a white van had abducted him from prison custody.

When this matter was brought to the notice of the High Court on 24.05.2012, the Learned High Court Judge had ordered an investigation to be conducted by the Prison Department. In the meantime, the Petitioner had filed a Habeas Corpus Application bearing No. CA 02/2012 in the Court of Appeal.

After lapse of one year of the abduction, a death certificate was issued in terms of Registration of Deaths and Missing Persons (Special Provisions) Act, No. 19 of 2010 and the same was tendered to the High Court in case No. HC 5398/2010 on 04.04.2013. Accordingly, the proceeding in case No. HC 5398/2010 was terminated with the consent of the Hon. Attorney General on 04.04.2013 by the Learned High Court Judge of Colombo.

In the High Case No. HC 6131/2012, the Accused Welaudan Methiyas Chandrapala alias Mervyn was indicted under two counts.

1. The Accused bought a land worth of Rs. 55 lakhs from the money he had earned from trafficking of Heroin and thereby committed an offence punishable under Section 3(1) (a) of the Anti-Money Loundering Act, No. 05 of 2006.

2. The Accused bought a land worth of Rs. 235 lakhs from the money he had earned from trafficking of Heroin and thereby committed an offence punishable under Section 3(1) (a) of the Anti-Money Loundering Act, No. 05 of 2006.

When it was brought to the notice of the Learned High Court Judge that the Accused in case No. 6131/2012 was abducted and presumed to be dead, the Learned High Court Judge by his order dated 11.11.2013, ordered to take steps under Section 241 of the Code of Criminal Procedure Act N. 15 of 1979 to proceed the case in absentia of the Accused.

On a subsequent application, the Learned Counsel for the Accused had brought to the notice of the Court that 241 inquiry cannot be conducted under the CPC, as there is no evidence that the accused is alive and that he was absconding wilfully. At this point it is very pertinent to note that the prosecution had admitted the death certificate of the Accused, which was filed in the case No. HC 5398/2010. Accordingly, the case No. HC 5398/2010 was abated.

A criminal case can be closed on the death of the accused under the provision of "abatement ab initio," which means "from the beginning." This provision states that when the accused dies before the completion of the trial, the case is deemed to have never existed, and all charges against the accused are dropped. This is based on the principle that a person cannot be convicted or punished for a crime if they are no longer alive.

The Learned High Court Judge, after satisfying and applying the said principle, abated the case when the death certificate of the Acc