IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal under and in terms of Section 331 of the Code of Criminal Procedure Act No 15 of 1979.

The Democratic Socialist Republic of Sri Lanka Complainant CA Case No: CA/HCC/263/16 HC of Nuwara Eliya Case No:

HC 40/2010 Vs.

1. Edirisinghe Peruma Arachchilage Sanjeewa Nishantha alias Kasthuri

2. Raluwe Don Iran Chaminda alias Sujith

3. Madawala Mudiyanselage Udaya Shantha Bandara

4. Halielle Gedara Buddhika Samapriya Samapriya Samarajeewa

5. Kadar Anwar Nasleen alias Bai 6. Ranneththige Hendri Jayasena

7. Thuwan Mohomad Faruk Accused AND NOW BETWEEN Raluwe Don Iran Chaminda alias Sujith Accused- Appellant Vs.

Hon. Attorney General Attorney General’s Department Colombo 12. Respondent Before: Menaka Wijesundera, J.

B. Sasi Mahendran, J.

Counsel: Kalinga Indatissa, PC, Ashanti De Almeida and Naveen Jayamanne for the Accused-Appellant Janaka Bandara, DSG for the State Written 27.07.2021(by the Accused-Appellant)

Submissions: 16.08.2021 and 08.06.2023(by the Respondent)

On Argued On : 25.05.2023 Order On : 28.06.2023 B. Sasi Mahendran, J.

This is an appeal filed by the 2^nd Accused-Appellant (hereinafter referred to as “the Accused”) against an Order of the learned High Court Judge of Nuwara Eliya dated 9^th August 2016 in terms of Section 241(3) of the Criminal Procedure Code refusing his application to set aside the conviction and sentence and for the Accused to be tried de novo. The Petition of Appeal dated 18^th August 2018 prays for setting aside the substantive conviction (the Accused was convicted of counts 1 to 8 in the indictment by judgment dated 15^th July 2014) or, in the alternative, an imposition of a lenient sentence. It must be noted that this Petition does not seek to revise or set aside the Order of the learned High Court Judge made in terms of Section 241(3). The learned High Court Judge refused the same on the basis that the Accused was not able to demonstrate that his absence from the trial was bona fide.

The learned Counsel for the Respondent raised a preliminary objection on the maintainability of this appeal, specifically that the Accused has in effect appealed the substantive conviction, which is now out of time (conviction date is 15^th July 2014), having not sought to revise the Order of the learned High Court Judge in terms of Section 241(3). As such, the question this Court is grappling with is whether the Accused is entitled to appeal the substantive conviction in the absence of a prayer to set aside the Order made in terms of Section 241(3) (if there is such a right of appeal) or an application by way of revision to set aside the Order in terms of Section 241(3)

which was made on 9^th of August 2016.

According to Section 241(3) of the Criminal Procedure Code, after the conclusion of the trial of an Accused person in his absence if he appears before Court and satisfies the Court that his absence at the trial was bona fide the Court shall set aside the conviction and sentence and order that the Accused be tried de novo. If the Accused is unsuccessful the initial conviction and sentence stand unchallenged.

To support his stance that the Accused is entitled to an unconditional right of appeal the learned President’s Counsel for the Petitioner strongly relied on several judgments of the Supreme Court which expound the sanctity of the right of appeal. One of which is the notable judgment of Sudharman v. Attorney General [1986] 1 SLR 9. In the said judgment his Lordship Sharvananda C.J. contended that an Accused is not estopped by his contumacious conduct from invoking the statutorily conferred right to appeal against a sentence and conviction. In what appears to be an interesting exchange with the Counsel for the Respondent their Lordships had posed the question, “what was the distinct advantage which an absconding accused had over persons who respected the law and presented themselves for trial”. In response to which, their Lordships observe