WIJAYARATHNA VS. ATTORNEY GENERAL

WIJAYARATHNA VS. ATTORNEY GENERAL

COURT OF APPEAL
RANJIT SILVA, J.
SISIRA DE ABREW, J.
CA PHC APN 246/2004
HC COLOMBO 876/97
NOVEMBER 28,2007

Penal Code - Section 403 - Cheating - Section 403 -Tried in absentia - Has the accused a right of appeal? Could he also move by way of revision? Criminal Procedure Code Section 241, of contumacious conduct? Decision made without jurisdiction Nullity?

The petitioner was indicted in the High Court on Go indictment on counts of cheating. He was tried in absentia. Evidence was led in only one case, and in the other case, without leading evidence, but by adopting the evidence in the earlier case the High Court convicted the petitioner - on the basis that the witnesses were the same in both cases. The petitioner appealed against the judgment and also moved id revision. The petitioner succeeded - in one appeal and the application revision was withdrawn and a retiral ordered. The other appeal was dismissed on technical grounds. The petitioner sought to challenge the conviction and sentence by way of revision.

Held

(1) Even an accused who had absconded during the trial has a right of appeal.

(2) An accused who had absconded has no right to invoke the revisionary jurisdiction of the Court. Discretionary remedy by way of revision will not be available to a person who was guilty of contumacious conduct.

(3) Although the conduct is totally reprehensible and cannot be condoned nevertheless Appellate Court is justified in exercising its revisionary powers if the decision had been wholly without jurisdiction which renders the decision a nullity.

Per Ranjith Silva, J.

"Whether the evidence led in the case was sufficient to prove the fact is a matter that should be agitated in a property constituted appeal and not in revision, even in appeal findings on facts are not lightly disturbed by an appellate Court unless there is a substantial reason to do so."

APPLICATION in revision from a judgment of the High Court of Colombo.

Cases referred to:

(1) Sidharman de Silva us. AG - 1986 - 1 Sri LR 9

(2) Suddage Gamini Rajapakse vs. State - CA 30/98

(3) AG us. Podi Singho - 5 1 NLR 385

(4) Camihs Ignatious us. OIC Uhana Police Station - CA 90189 MC Amparai 2857

(5) Opatha Mudiyanselage Nimal Perera us. AG - CA 532/97 - CAM 21.10.1998 - HC Kandy 1239/92

(6) M. S. M. Misbah us. E. P. Hafeela - CALR 1986 Vol. 1 - 633

(7) Fradd us. Brown & Company - 20 NLR 282

(8) Alwis w. Piyasena - 1983 - 1 Sri LR 119

Neranjan Jayasinghe for petitioner.

Dappula de Livera DSG for respondents.

Cur, adv. vult

November 28th 2007

RANJIT SILVA, J.

The Petitioner was indicted in the High Court of Colombo on two indictment bearing No. HC 8766/97 and HC 8767/97 on counts of cheating under section 403 of the Penal Code. The Petitioner, as he absconded, was tried in absentia. Evidence was lead in case bearing No. 8767/97 and the learned High Court Judge delivered his judgment convicting the petitioner in that case on 03.09.2003. In case No. 8766/97 without

leading evidence the learned High Court Judge convicted the Petitioner and sentenced him to imprisonment merely adopting the evidence lead in case No. 8767, on the footing that the witnesses were the same in both cases. Aggrieved by the said convictions and sentences in the two cases the petitioner appealed against the said judgment and also moved in revision to have the said convictions and sentences set aside. The relevant appeals were appeals bearing No. CA. 215/2003 and CA. 216/2003 respectively. The relevant revision applications are CA (PHC) APN 245/2004 and C.A. (PHC) APN 246/2004, respectively.

    Both revision applications bearing No. CA (PHC) APN 246104 and CA(PHC) APN. 246104 which are amalgamated, are now before us for our consideration. Mr. Jayasinghe moves to withdraw the application in CA/(PHC) APN 245104 (Revision) unconditionally, in view of the fact that they have succeeded in th

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