IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of Section 331 (1) of the Criminal Procedure Act No 15 of

1979.

The Democratic Socialist Republic of Sri Lanka Complainant Court of Appeal Case No:

HCC/042/22 HC of Badulla Case No; HC 31/2001 Kailasan Rajkumar Accused AND NOW BETWEEN Kailasen Rajkumar Accused-Appellant V.

The Attorney General, Attorney General’s Department, Colombo-12.

Complainant- Respondent Before: Menaka Wijesundera,J.

B. Sasi Mahendran, J.

Counsel : Ershan Ariaratnam for the Accused-Appellant Maheshika Silva DSG for the Respondent Written 30.06.2022 (by the Accused-Appellant)

Submissions: 27.10.2022 (by the Respondent)

On Argued On: 20.11.2023 Decided On: 14.12.2023 ************

Sasi Mahendran, J.

The 1^st Accused Appellant (hereinafter referred to as “the Accused”) along with two others was indicted in the High Court of Badulla for murdering Mariappan Selvaraj punishable under section 296 read with section 32 of the Penal Code.

During the trial, 2^nd Accused passed away. After the trial, The Learned High Court Judge convicted the Accused appellant for the offence of Murder, imposed the death sentence, and Acquitted the 3^rd Accused.

Being aggrieved by the said conviction the Accused has appealed to this Court.

The main ground urged by the Accused was that he was not provided a fair trial.

Following are the facts and circumstances of this case, According to the brief the indictment was served to the 1^st Accused on 14^th May

2002, thereafter he was granted bail by the High Court. When the trial commenced on the

31^st of August 2005, he was present and represented.

On 6^th September 2011 he was absent. Thereafter on the 8^th of November 2011, steps were taken under section 241 of the criminal procedure code, and the case proceeded against the 1^st Accused in trial in absentia.

6 years later that is on the 27^th of June 2013, police produced the Accused to the High Court. And learned High Court Judge had assigned a counsel to him and proceeded to trial for calling witness number 12.

When we perused the proceedings on 27^th June 2013, we observed that after assigning the counsel to the accused, the learned High Court Judge had not given reasonable time for the Accused to give instructions to the assigned counsel regarding this case. It should also be noted that a number of witnesses have already given evidence.

Purpose of obtaining an attorney at law.

Section 41 (1)of the Judicature Act, No.2 of 1978, reads as follows:

“Every attorney-at-law shall be entitled to assist and advice clients and appear, plead, or act in every Court or other institution established by law for the administration of justice and every person who is a party to or claims to have the right to be heard in any proceeding in any such court or other such institution shall be entitled to be presented by an attorney-at-law.”

It indicates that the attorney at law who represents the accused should get the instructions from the client and assist and advice him but in the instant case we observe that the Learned High Court judge had not given that opportunity to the Accused.

The issue before us was whether the Accused was given a fair trial.

In the instant case Accused was facing the murder charge which would end up with a death sentence. Also, to defend his case, counsel should receive proper instruction from him.

What is a fair trial?

Justice A.R.B Amarasinghe had to say in his work on “Judicial Conduct Ethics and Responsibilities” at page 780 :-

“Article 13(3) of the Constitution states that the’ any person charged with an offence shall be entitled to be heard…at a fair trial by a competent Court’. The constitution makes a fair trial ‘a fundamental right’ in the case of person charged with an offence. However, in my view, in the exercise of constitutional duties under Article 4 ( c ). A Judge is legitimately expected by the people on whose behalf Judges exercise the judicial power to ensure a fair trial, in every case, whet