Sobhitha Rajakaruna J.

The instant application was taken up for support along with the Applications bearing Nos. CA/Writ/117/2022 and CA/Writ/118/2022 filed by the same Petitioner in this Court against the above named Respondents.

The Petitioner was serving in the 1^st Regiment of the Sri Lanka Army Medical Corps as a Medical Officer when he was served with three different charge sheets and such charge sheets have been annexed separately, marked as ‘P2’, in all three applications.

The instant application concerns the Petitioner’s charge under Section 129(1) of the Army Act No.17 of 1949 (‘the Act’) for conducting himself in a manner prejudicial to military discipline. The charge relates to the Petitioner, while serving in South Sudan, allegedly giving instructions to another officer with regard to arranging a vehicle on hiring basis for collateral purposes.

CA/Writ/117/2022 The Application CA/Writ/117/2022 concerns the Petitioner’s charge under Section 107 of the Act for behaving in a scandalous manner, unbecoming the character of an officer and a gentleman. The charge relates to the Petitioner’s alleged misbehavior on or about 11.07.2017 whilst being a legally married officer serving as a Medical Officer at the Army Hospital, Narahenpita.

CA/Writ/118/2022 The Application CA/Writ/118/2022 concerns the Petitioner’s charge under Section 102(1) of the Act for neglecting to obey garrison or other orders. The charge relates to an alleged violation of the Standing Order 1.අ of No.109/01 dated 10.10.2016 imposed by the Director of Management and Maintenance.

The 1^st Respondent by three Orders issued on the same date i.e., 10.06.2020, marked ’P1’, convened General Courts Martial to try the Petitioner in reference to the above charges. After the close of the prosecution case, the learned Counsel for the Defense made an application to the General Court Martial in terms of Regulation 71(1) of the Court Martial (General and District) Regulations 1950 (‘Regulations’) for an acquittal of the Petitioner on the basis that no prima facie case in respect of the relevant charges under the Army Act had been established.

As per the proceedings of the General Court Martial the prosecution witness who has served as a driver attached to the Army Hospital in Narahenpita has revealed certain evidence including the occurrences on 11.07.2017, in relation to the charges against the Petitioner. The learned Counsel for the Petitioner submits that the Prosecution has not made out a prima facie case by proving the elements of the offence charged with and that the Prosecution’s only witness was not competent to provide any evidence in support of the allegations and no other documents were submitted by the Prosecution to corroborate the testimony of the witness. The contention of the Petitioner is that in the absence of the Prosecution providing evidence substantiating the elements of the charges under Sections 107, 102(1) and 129(1) of the Army Act, the General Court Martial should have acquitted the accused.

The learned Additional Solicitor General for the 1^st to 5^th Respondents contends that the Defence (Petitioner in the instant application) in their cross examination has failed to attack or discredit any of the evidentiary matters prima facie established by the Prosecution. Referring to L. Edrick De Silva vs. A. N. D. L. Chandradasa De Silva 70 NLR 169, and X (Employer) vs. Deputy Commissioner of Labour and others (1991) 1 Sri. L.R. 222 (at p. 226) he submits that;

“Where the petitioner has led evidence sufficient in law to prove his status, i.e., a factum probandum, the failure of the respondent to adduce evidence which contradicts it adds a new factor in favour of the petitioner.”

The 2^nd Respondent, Judge-Advocate General by his order dated 16.03.2022, marked 'P5b’ relating to the instant application, dismissed the application of the learned Counsel for the Defence for the acquittal of the Petitioner under Regulation 71(1) and called upon the accused for his defen