SENADEERA

VS.

COMMISSION TO INVESTIGATE ALLEGATIONS OF BRIBERY OR CORRUPTION

COURT OF APPEAL
WENGAPPULI, J.
FERNANDO, J.
CA/APPEAL/466/2017
HC COLOMBO HCB 1822/2009
OCTOBER 6, 2020

Appeal against convictions and sentences imposed by the High Court Failure to name a necessary party as a respondent in the petition of appeal-Application to amend the petition of appeal-Code of Criminal Procedure Act, No. 15 of 1979, sections 332, 355-Material prejudice caused to the respondent

The appellant appealed to the Court of Appeal against his conviction and sentence for offences committed under the Bribery Act. The indictment on which he was tried by the High Court had been signed by the Director General of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC). The appellant had named CIABOC as the only respondent in the petition of appeal. A preliminary objection was taken by the respondent that the petition of appeal was fatally defective as the Director General had not been made a respondent. The appellant moved to amend the caption under section 355(2) of the Code of Criminal Procedure Act, No. 15 of 1979, as amended, to add the Director General as a respondent. The respondent objected on the basis that this would cause material prejudice to the respondent.

Held :

1. Sections 332 and 355 of the Code of Criminal Procedure Act provide two opportunities for an appellant to correct a defective petition of appeal in an appeal from the High Court. Neither of these provisions require an application by the appellant for the exercise of the powers referred to therein.

2. Section 332 provides .that the High Court may return a defective petition of appeal for amendment either within a time fixed by the court or then and there. Section 355 gives the Court of Appeal

power to direct the appellant to comply with such directions as may be necessary to rectify, supply or make good any error, omission or default in complying with the provisions of the Code relating to the lodging of an appeal, unless material prejudice is caused thereby to the respondent.

3. The statutory provisions indicate the liberal view of the legislature for the process of lodging an appeal, perhaps in consideration of the fact that there may be situations where the petition had not been prepared by an Attorney-at-Law, such as is provided for in the proviso to section 331(1).

4. The mere continuance of the litigation if the amendment is allowed cannot be regarded as "material prejudice" to the respondent. The application for amendment shall be allowed.

Cases referred to :

1. Senanayake v. Attorney General and another [2010] 1 Sri LR 149
2. Dayaratne v. Wijeratne [2012] 2 Sri LR 156
3. Sameen v. Abeywickrama 64 NLR 553
4. Kithsiri v. Weerasena [1997] 1 Sri LR 70
5. Martin v. Suduhamy [1991] 2 Sri LR 279
6. Jayasekera v. Lakmini and others [2010] 1 Sri LR 41

APPEAL from the Judgment of the High Court of Colombo.

Anil Silva, P.C., for the Accused-Appellant.

Subashini Siriwardena, Assistant Director General, for the Complainant- Respondent.

cur. adv. vult.

November 16, 2020

WENGAPPULI, J.

In this appeal, the accused-appellant (hereinafter referred to as the Appellant) seeks to set aside his convictions for offences committed under the Bribery Act and the sentences imposed upon the said convictions. The indictment upon which the Appellant was tried by the High Court had been filed under the signature of the Director General of the Commission to Investigate Bribery or Corruption.

The Appellant, in his Petition of appeal had named the Commission to Investigate Bribery or Corruption as the only Respondent.

Learned Counsel for the Respondent Commission had raised a preliminary objection as to the maintainability of this appeal on the basis that the Director General of the Commission to Investigate Bribery or Corruption had not been made a party to the appeal, in view of the reas