IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application to deal with the 1^st to 3^rd respondents for Contempt of Court under Article 105(3) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal Contempt of Court Case No:

COC 10/2021 Gnendra Shani Abeyekara, No. L/1/1, Elvitigala Flats, Colombo 08.

Petitioner VS

1. Hon. Upaliy Abeyrathne, Chairman, Presidential Commission of Inquiry, No. 42/10 Baddegana North, Pitakotte.

2. Daya Chandrasiri Jayathilaka, Member, Presidential Commission of Inquiry, No. 74/21, Jaya Road, Udahamulla, Nugegoda.

3. Chandra Fernando, Member, Presidential Commission of Inquiry, No. 01, Shrubbery Gardens, Colombo 04.

Respondents Before : N. Bandula Karunarathna J. (P/CA)

R. Gurusinghe J.

Counsel : Asthika Devendra with Kaneel Maddumage and Kavindi Weerasekara For the petitioner Ikram Mohammed, PC with R. Hettiarachchi and A. Abeysekara instructed by Shalini Fernando For the 1^st to 3^rd Respondents Argued on : 09/11/2023 Decided on : 16/11/2023

ORDER

R. Gurusinghe J The petitioner in this application urged that the undertaking given by the counsel on behalf of the first, second and third respondents on 27-07-2020 in the cases of CA/WRIT/166/2020 and CA/WRIT/167/2020 has been violated by the respondents and thereby committed the offence of Contempt of Court.

The application was supported with notice to the respondents. The counsel appeared for the respondents objected to the issuance of summons. After hearing both parties by order dated 10-07-2023, the court decided to issue summons against the respondents.

An Attorney-at-law filed a motion dated 25-07-2023 on behalf of the first, second and third respondents. Thereafter, the respondents filed a statement of objections on 08-09-2023 along with affidavits of the respondents and took up the position that the respondents had not violated the undertaking given to the Court. The respondents also contended that the petitioner had not prima facie established that the respondents breached the recorded undertaking, as the petitioner did not lead evidence as to the meaning and the extent of the undertaking so recorded. It was further submitted that if the relevant binding judgments in this regard and the provisions of section 18 of Commissions of Inquiry Act No. 17 of 1948 had been brought to the notice of court and/or considered by the court, the court might have made a different form of order dated 10-07-2023 and refused to issue summons on the respondents. The respondents further submitted that in view of the above, the order dated 10-07-2023 is an order made per incuriam which prejudicially affected the rights of the respondents and sought to recall and /or withdraw the summons issued on the respondents and dismiss the Petitioner’s petition dated 15/12/2021.

The undertaking recorded in court is as follows:

“Further, I wish to give an undertaking that both petitioners in CA (WRIT) Application 166/2020 and 167/2020, respectively, will be dispensed with their presence until this court decides on the question of notice and interim order and their absence will not be held against them”.

The respondents submitted that Mr Egalahewa, Counsel for the respondents in the aforesaid Writ Applications, has not given any undertaking that the proceedings of the inquiry would be stayed. The respondents further submitted that they have not issued summons on the petitioner after the said undertaking was given to this Court and have not held the petitioner’s absence against him. The respondents have denied that they had acted in violation of the said undertaking.

In the case of Ranjit Senanayake and others vs Paul Peiris [1992] 2 Sri LR 169 Justice A. De Z. Gunawardana quoting from P.A. Thomas and Company vs Mould [1966] 1 All ER 963, held “ where parties seek to invoke the power of court to commit people to prison and deprive them of their liberty, there has got to be quite clear certainty about it. “In that case com