Improper questioning of a witness by State Counsel violates fair trial rights; evidence obtained through such violations is inadmissible, warranting a retrial.

Sampath B. Abayakoon, J.

This is an application by the 2nd accused-petitioner, who is the 2nd accused in the High Court of Kalutara Case No HC-454/17, seeking to invoke the discretionary remedy of revision granted to this Court in terms of Article 138 of The Constitution.

The 2nd accused-petitioner (hereinafter referred to as the petitioner) has been indicted by the Hon. Attorney General along with two others for committing the offence of murder, punishable in terms of section 296 read with section 32 of the Penal Code .

At the trial, prosecution witness No-01 has given evidence before the learned High Court Judge of Kalutara on 05-10-2021 and 13-01-2022, and has concluded her evidence-in-chief.

The petitioner is now seeking to challenge and set aside three orders made by the learned High Court Judge during the evidence of PW-01 on 13-01-2022, on the basis that the said orders are contrary to law and against the concept of fair trial towards him.

When this matter was supported for notice, having considered the facts and the circumstances and the relevant law, this Court decided to issue notice and also decided to call for the High Court case record for inspection by the Court. This Court also issued a stay order ordering that any further proceedings of this matter should be stayed until the final determination of the application.

Accordingly, upon notice, the learned Deputy Solicitor General (DSG) who represented the respondent, namely, the Hon. Attorney General informed the Court that the Hon. Attorney General will not object for the reliefs sought by the petitioner being granted, as it was the view of the Hon. Attorney General that the said orders are contrary to law and also against the concept of fair trial, and hence, he is not in a position to support the orders pronounced by the learned High Court Judge.

Although it was intimated to the Court that the Hon. Attorney General will not object to this revision application being allowed, since the questions of law that needed to be considered are of academic interest as well, this Court allowed both parties to file written submissions if they so wish.

Accordingly, the learned Counsel for the petitioner has filed written submissions citing several decided cases in support of the application, while, the Hon.

Attorney General has not filed any written submissions in this regard.

Before I move on to the impugned orders pronounced by the learned High Court Judge of Kalutara, I find it appropriate to briefly state the background of the case that led to the impugned orders.

It appears from the proceedings that when PW-01 was called upon to give evidence, she has apparently deviated from what she stated to the police in her police statement. This has led to the learned prosecuting State Counsel questioning her in that regard. When questioned, PW-01 has stated that she is a person of ill health, she cannot remember what happened on the day of the incident, and what she said in the Court was what she could remember.

At this stage, the learned defence Counsel who represented the petitioner and the other accused has objected to the manner in which the learned State Counsel attempted to extract evidence from the witness on the basis that such a cause of action cannot be permitted under the law.

The learned prosecuting State Counsel has submitted to the Court that she is making an application to allow the witness to refresh her memory in terms of section 159 and section 160 of the Evidence Ordinance .

When this application was made, the learned High Court Judge has determined that since the witness has stated in Court that she is suffering from various illnesses and she cannot remember things, and because the witness has made a statement to the police, he is allowing the learned prosecuting State Counsel to verify whether the witness has made a statement in that regard to the police.

Although I do not find any meaning in the order made by the learned High Court Judge, it appears from the proceedings of