SIRIWEERA AND ANOTHER

Vs.

OFFICER-IN-CHARGE, SPECIAL CRIMES DIVISION, TANGALLE POLICE AND ANOTHER

COURT OF APPEAL
WICKREMASINGHE, J.
J. DE SILVA, J.
CA/PHC/51/2013
HC HAMBANTHOTA 19/2010/RE MC WALASMULIA 10076/9
JANUARY 11, 2019

Criminal law-Penal Code, sections 454, 457, 459-Code of Criminal Procedure Act, sections 115, 456-Time bar

The virtual complainant made a complaint to the police on 03.10.2008 about a forged deed executed on 08.04.1989. The police filed three charges against the appellants on 12.10.2009.At the trial, the appellants raised a preliminary objection that the charges against them are time- barred in terms of section 456 of the Criminal Procedure Code, as the charges were framed twenty years after the alleged offence. The

Magistrate's Court overruled the objection and the High Court affirmed it. The appellants appealed to the Court of Appeal.

Held:

1. In interpreting section 456 of the Code of Criminal Procedure two issues arise: what is meant by the right of prosecution and what is the time when the crime or offence was committed?

2. The right of prosecution must be taken to mean the right to commence the prosecution. It is only when steps are taken in terms of section 136(1) of the Code of Criminal Procedure Act that it can be said that proceedings have commenced. That is when the persons identified as "suspects" become identified as "accused".

3. The offence was committed on 08.04.1989, which is the date the impugned deed was executed. The report under section 136(1) (b) of the Code was filed on 12.10.2009. The prosecution of the appellants is time barred in terms of section 456 of the Code of Criminal Procedure.

Cases referred to:

1. Sarah Mathew v. Institute of Cardio Vascular Diseases and others 2014(2) Sec 62
2. R. v. Jordan 2016 Sec 27
3. Japani Sahoo v. Chandra Sekhar Mohanty AIR 2007 SC 2762
4. Queen v. Don Louis 1863-1868 Ramanathan Law Reports at 97
5. Crosley v. Arkwright (1788) 2 T.R. 603 at 608, (1788) 100 E.R. 325 at 328
6. Tunnaya alias Gunapala v. Officer-in-Charge, Police Station, Galewela [1993] 1 Sri LR 61 at 66
7. Magar & St. MelIons Rural District Council v. Newport Corporation (1951) 2 AII ER 839 at 841

APPEAL from the Judgment of the High Court of Hambantota.

Jacob Joseph with Sandamali Wijesekera for the Accused-Petitioner-Appellants.

Nayomi Wickremasekera, S.S.C., for the Complainant-Respondent-Respondent.

cur. adv. vult.

October 28, 2019

J. DE SILVA, J.

This is an appeal against the order dated 14.05.2013 made by the learned High Court Judge of the High Court of the Southern Province holden in Hambantota.

The virtual complainant Pujitha Suraweera made a complaint to the SCIB of Tangalle Police on 03.10.2008 about a forged deed no. 5506 purportedly executed by his deceased mother in relation to ancestral property which belonged to all family members. The virtual complainant received knowledge of this deed about a week before the complaint as a result of an argument between the virtual complainant and the Accused-Petitioners-Appellants (Appellants) who are his sisters. The deed no. 5506 is dated 08.04.1989 whereas the mother of the virtual complainant died on 12.10.1988.After inquiry the sequence of events are as follows:

(i) Facts were reported to Walasmulla Magistrate's Court under section 115 of the Code of Criminal Procedure on 06.03.2009. Further reports were filed on 06.04.2009.

(ii) Appellants were arrested and produced before the Magistrate on 04.05.2009.

(iii) The Tangalle Police filed three charges against the Appellants on 12.10.2009 which included charges under sections 454, 457 and 459 of the Penal Code.

(iv) On 10.05.2010 when trial was taken up the Appellants raised a preliminary objection in terms of section 456 of the Code of Criminal Procedure that the charges preferred against them are time barred.

The learned Magistrate overruled the preliminary objecti