IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for revision in terms of Article 138 of The Constitution and sections 364 and 365 of the Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal Hon. Attorney General, Revision Application No: Attorney General’s Department, CA/CPA/163/22 Colombo 12.

COMPLAINANT-PETITIONER High Court Colombo Case No: HC/1855/2020 Vs.

Muttettuwage Manjula Prasanna Kumara Perera, No. 123/1, Kadawatta Road, Nedimala, Dehiwala.

ACCUSED-RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Dilan Rathnayake, S.D.S.G. for the petitioner Argued on : 14-09-2023 Decided on : 04-12-2023 Sampath B. Abayakoon, J.

This is an application by the complainant-petitioner (hereinafter referred to as the petitioner) invoking the revisionary jurisdiction of this Court granted in terms of Article 138 of The Constitution.

The petitioner being the Attorney General of The Democratic Socialist Republic of Sri Lanka, is seeking to challenge the order made on 05-04-2022 by the learned High Court Judge of Colombo, wherein, the accused-respondent who was indicted before the High Court of Colombo in case No. HC/1855/20 was discharged.

When this matter came up for notice, this after having considered the petition, affidavit, the documents tendered and the submissions of the learned Senior Deputy Solicitor General (SDSG) decided to issue notice along with the relevant documents to the accused-respondent mentioned. The notices were issued for the 1st time under registered post article number 6820 on 21-04-2023 and again under registered post article number 8095 on 26-06-2023, giving notice of this application to the accused-respondent. None of the notices have been returned to the Court on the basis that it could not be served on the accused-respondent. The accused-respondent did not appear before the Court, and it was decided to hear the matter as it appeared clear to this Court that the accused-respondent is not interested in appearing before the Court.

At the hearing of this application, the learned SDSG submitted that there was no basis whatsoever for the learned High Court Judge to discharge the accused-

respondent (hereinafter referred to as the respondent) on the 1st day fixed for the summons returnable on the prosecution witness number 01 on the given basis of the order pronounced by the learned High Court Judge.

He contended that 05-04-2022 was the date 1st fixed for the trial, and the learned State Counsel who prosecuted informed the Court that the summons had not been served on PW-01, and despite the application before the learned High Court Judge to refix the matter and reissue the summons on PW-01, the learned High Court Judge proceeded to discharge the respondent by the impugned order.

He was of the view that knowing very well that there is no provision under the Code of Criminal Procedure Act to discharge an accused at that stage of the trial, the learned High Court Judge giving a wrong interpretation to the relevant statute and being misdirected as to the Judgements considered, to substantiate his order, discharged the respondent.

He cited the decided case of Attorney General Vs. Sumathipala (2006) 2 SLR 126 to argue that the learned High Court Judge was not empowered to create laws that are not in existent, and moved that the revision application by the petitioner be allowed and the relief sought in the petition granted.

The facts which led to the impugned order by the learned High Court Judge of Colombo as revealed during the hearing of this application can be summarized as follows.

The petitioner being the Attorney General of the country has filed an indictment under case number HC/1855/2020 before the High Court of Colombo naming the respondent as the accused for committing the following offence.

1. That between 01-01-2015 to 31-12-2015, the accused knowing that his service has been terminated as an employee of the Dehiwala-Mt. Lavinia Munici