revision
IN THE SUPREME
COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter of an Appeal in terms of Article 128 of
the Constitution of the Democratic Socialist Republic of Sri Lanka.
SC Appeal
No. 59/2021
SC Spl. LA 176/2021
CA Revision
Application No: CA (PHC) APN
50/2021
HC Colombo Case No: HC 6256/2012
The Hon. Attorney General,
Attorney General’s Department,
Colombo 12.
Complainant
Vs.
Asselage Sujith
Rupasinghe, No. 30/6, Nadun Uyana, Katukurundugasyaya,
Mirigama.
Accused
AND BETWEEN
Mrs. P.M. Ranasinghe,
21B, Alfred Place, Colombo 3.
Aggrieved Party – Petitioner
Vs.
1.
Asselage Sujith Rupasinghe, No. 30/6, Nadun Uyana, Katukurundugasyaya, Mirigama.
Accused – Respondent
2.
The Hon. Attorney
General,
Attorney General’s Department,
Colombo 12.
Complainant – Respondent
AND NOW BETWEEN
Mrs. P.M. Ranasinghe,
21B, Alfred Place, Colombo 3.
Aggrieved Party – Petitioner – Appellant
Vs.
1.
Asselage Sujith Rupasinghe, No. 30/6, Nadun Uyana, Katukurundugasyaya, Mirigama.
Accused – Respondent – Respondent
2.
The Hon. Attorney
General,
Attorney General’s Department,
Colombo 12.
Complainant
– Respondent – Respondent
Before: S. Thurairaja, P.C., J Achala
Wengappuli, J Arjuna Obeyesekere, J
Aggrieved
Party – Petitioner – Appellant appeared
in person Counsel: Sajith Bandara, State Counsel for the
Attorney General Argued on: 15th February 2022
Written Tendered on behalf of the Aggrieved Party – Petitioner – Appellant
Submissions: on 18th February
2022
Tendered on behalf of the Attorney
General on 9th March 2022
Decided on: 8th April 2022
Arjuna Obeyesekere, J
In this appeal, the Aggrieved Party – Petitioner – Appellant [the Appellant] is seeking to set aside an order
delivered by the Court of Appeal on 28th April
2021, by which the Court of
Appeal refused to issue notice
on the Respondents in a revision application filed by the Appellant in respect of an order of
the High Court of Colombo.
The facts of this appeal very briefly are as follows.
On 19th September 2012, the Attorney General forwarded
indictment against Asselage Sujith Rupasinghe, the Accused – Respondent –
Respondent [the Accused], to the High
Court of Colombo on six charges. The gravamen of the said charges was that the Accused,
together with Bulathsinhalage Gunasinghe Cooray and others unknown to the
prosecution had conspired
to, and prepared,
two forged deeds in respect
of premises No. 21A, Alfred Place, Colombo 3 belonging
to the Appellant.
The
trial before the High Court commenced on 25th July 2016. The
prosecution led the evidence of the appellant and ten others, prior to closing
its case. In his evidence, the Accused, who had served as a Reserve Police
Officer for some time, denied the several charges against him and stated that he purchased
the aforementioned property
from the said Cooray,
who had claimed
that the said property belonged
to him. It was the position
of the Accused that he had been cheated by Cooray into believing that the said
property was owned by Cooray.
The Accused had stated that on 16th October 2016, he had seen
an obituary notice containing the photograph of a person by the name of E.S.
Thanthrige who the Accused claimed was in fact the person who sold the said
property to him – i.e., Cooray. The Accused claims that he brought
this information to the notice of the investigating officer. He had stated further that he had
gone to the address displayed on the obituary notice and found that Cooray’s actual
name was E.S. Thanthrige and that the said
person was a fraudster who had a similar
case against him. In cross examination, the Accused admitted that the alleged sighting of
Cooray/E.S. Thanthrige had happened while the prosecution case was proceeding
before the High Court.
After the evidence
of the Accused was concluded on 15th November
2016, an application had been made to call inter alia the following persons on the
list of witnesses filed on behalf of the Accused:
a)
The Director of the Criminal Investigation Department
[CID] to give evidence with regard to a letter dated 31st October
2016 sent by the Accused
wherein he had asked
that an investigation be done in respect of E.S. Thanthrige [witness No. 2];
b)
Renuka Damayanthi to give evidence relating to the
death of E.S. Thanthrige [witness No. 3];
c)
Mangala Deepal, Attorney-at-Law, who attested Deed No. 894 by which the Accused is said to have purchased the
property from Cooray [witness No. 4];
d)
Deepthi Premalal to give evidence
with regard to Deed No. 894 and the death of E.S. Thanthrige [witness No. 5].
The application to call witness No. 2, the Director of the CID, had been
refused by the High Court on the basis that the evidence that the witness was
required to give must relate to the period prior to the service of the
indictment, which was not the case with regard
to witness No. 2. The prosecution had also objected
to witness Nos. 4 and 5 being called to give evidence
as they had already been called by the prosecution and had been subjected to extensive
cross-examination. The High Court had upheld the said objection and by its Order delivered on 16th November
2016, refused the application to call witness Nos. 4 and 5. The
High Court had thereafter issued summons on witness
Nos. 3 and 7-12 on the list
of witnesses filed on behalf of the Accused, although the Attorney-at-Law for
the Accused had informed that he would be filing an amended
list omitting the names of witness Nos. 8, 9 and 10.
Aggrieved
by the said Orders of the High Court refusing permission to summon witness Nos.
2, 4 and 5, the Accused had invoked the revisionary jurisdiction of the Court
of Appeal in terms of Article 138 of the Constitution, seeking inter alia (a) to revise the
aforementioned orders of the High Court, and (b) an order directing the High
Court to issue summons on witness Nos. 2, 4 and 5. By its judgment delivered in
CA/PHC Application No. 148/2016 on 26th July 2017, the said application had been refused
by the Court of Appeal.
In the course of its judgment,
the Court of Appeal had held as follows:
“This Court cannot think of any advantage
that would accrue to the defence even if the Accused succeeds in establishing
that it was late E S Thanthrige who deceived him, since what the indictment
alleges is that the said person is a fictitious person. Indeed, it is noteworthy that what the indictment has alleged is that the Accused had conspired with a person said to be
Bulathsinhalage Gunasinghe Cooray or a person unknown to the prosecution.
The Accused has already testified
in his evidence, the position taken by him in this regard. The Notary Public
who attested the alleged forged deed in his evidence has already stated that he does not know the alleged seller
Gunasinghe Cooray. It is his position that he personally knew the Accused who
introduced a person said to be Gunasinghe Cooray. Thus, it is the view of this
Court that the question whether the person said to be Gunasinghe Cooray is still alive or now dead, would not help either party in this case. It is the view of this Court that such fact would be neither a fact in issue nor relevant to any fact in
issue. One has to bear in mind that Section 5 of the Evidence Ordinance only
permits evidence relating to existence or non-existence of a fact in issue and
such other facts as are declared relevant to any fact in issue.”
The
Accused thereafter sought Special leave to appeal against the said judgment
from this Court – vide SC Spl. LA Application No. 197/2017 – on five questions of law, including the following: “Did the Court of Appeal err in concluding
that even if the defense were to
prove that E.S. Thanthrige was not a fictitious person,
there would be no advantage
to the defence case?”
The application for Special leave to appeal
had been refused
on 25th October
2017.
The
trial before the High Court commenced on 2nd February 2021 for the
resumption of the case for the defence.
The Accused was present in Court.
The Attorney-at-Law looking after the interests of the
Appellant had moved that an order be made refusing the application to call the aforementioned witness
No. 3, Renuka Damayanthi who, as noted above, had been listed to
give evidence relating to the death of E.S. Thanthrige. The Senior
State Counsel appearing for the prosecution had however stated that she
had no objection to the evidence of the said witness being led. The above
application of the Appellant had been rejected by the High Court on the
following basis:
a)
The Court of Appeal had refused the application to call witness Nos. 4 and 5 on the basis that their evidence had
already been led when they were called as witnesses for the prosecution;
b)
Witness No. 3 is not such a witness and one does not
know what evidence is to be elicited from witness No. 3;
c)
While the right of an accused to a fair trial will be
affected by the refusal to call a witness on his behalf, in this instance, no
prejudice will be caused to the Appellant by the said witness being called.
Although
the Appellant had made an application to revise the above order, the Court of
Appeal, by its Order delivered on 28th April 2021 in CA/PHC Application No. 50/2021 had
refused to issue notice on the Accused and the Attorney General on the basis
that there was no “exceptional illegality
in the order of the learned High Court Judge which shocks the conscience of
this Court.”
Aggrieved by the said Order, the Appellant sought and obtained Special
leave to appeal from this Court on the following question of law:
“Did the Court of Appeal err in law and fact
in failing to consider that the Court of Appeal had in CA/PHC Application No.
148/2016 held that, whether Gunasinghe Cooray is dead or alive is neither a
fact in issue nor a relevant fact in issue in this case?”
Notices had been dispatched to the Accused, on one occasion prior to this
matter being supported and thrice thereafter. The Accused however was neither
present nor represented before this Court, although he had been enlarged
on bail by the High
Court.
It
was the submission of the Appellant who appeared before us in person that the
High Court was correct
when it held that the judgment of this Court
in CA/PHC Application No. 148/2016 related to three witnesses who had already been
called as witnesses for the prosecution. The Appellant, however, contended that
the High Court had erred, when it failed to consider the following:
a)
The purpose of calling witness No. 3 had specifically
been set out in the list of witnesses filed by the Accused
– namely to produce documents relating to the death
of E.S. Thanthrige and give evidence relating
thereto – and therefore the reason for
calling the said witness
was known;
b)
That part of the said judgment of the Court of Appeal,
which held that whether Gunasinghe Cooray, whom the Accused now claims is E. S.
Thanthrige, is dead or alive would not help either party as such fact would be
neither a fact in issue nor relevant to any fact in issue;
c)
That even though a question of law had been raised in
that regard, Special leave to
appeal had been refused by this Court;
d)
That there was no basis
to call a witness whose evidence
is not relevant.
She therefore submitted that the said Order of the High Court was illegal
and that the Court of Appeal
had misdirected itself
when it held that it
did not see any
illegality in the order of the High Court.
The learned
State Counsel, referring
to the evidence of the Accused where he attempted to establish that the real name of Cooray
was E.S. Thanthrige, submitted that witness
No. 3 is not a witness to the forged deed and is therefore unable to
give any evidence regarding the complicity or the non-complicity of the Accused
relating to the offences set out in the indictment. He submitted
further that the death of E.S. Thanthrige would not prove either the existence
or non-existence of the facts in issue nor any other fact relevant to the charges
in the indictment, and therefore the evidence of witness No. 3 has no relevance to the trial before the
High Court. He drew the attention of this Court to Section 5 of the Evidence Ordinance, which provides that, “Evidence may be given in any suit
or proceeding of the existence or non-existence of every fact in issue,
and of such other facts as
are hereinafter declared to be relevant and of no others.”
The learned State Counsel cited the judgment of Chief Justice Basnayake
in Queen v Sodige Singho Appu
[62 NLR 112], where it was held as follows:
“The Evidence Ordinance
lays down strict
limits within which evidence may be given in
any suit or proceeding. Evidence
may be given of the existence or non-existence of
every fact in issue and of such
other facts as are declared by the Ordinance to be relevant and of no others
(Section 5). Evidence admitted in disregard of Section 5 is evidence improperly
admitted and a conviction is liable to be quashed if such evidence has resulted
in a miscarriage of justice.”
The issue before us is limited
to whether the Appellant had established an illegality in the
order of the High Court which warranted
the Court of Appeal to exercise its discretion and issue notice on the Respondents.
The power of revision is an extraordinary power. A person invoking the
revisionary jurisdiction of the Court of Appeal must, inter alia, (a) demonstrate the error or illegality on the face of
the record, which would occasion a failure of justice; and (b) plead and
establish exceptional circumstances warranting the exercise of revisionary
powers in order to succeed with his or her application. The presence of
exceptional circumstances is the process by which the court selects the cases
where the extraordinary power of revision should be exercised.
Rule 3(3) of the Court of Appeal (Appellate Procedure) Rules, 1990, read
with Rule 3(4) thereof, requires that an application made under Article 138
must be supported in open Court, and that notice will be issued on respondents
only thereafter.
In this instance, the Court of Appeal has refused to entertain the
application of the Appellant at the threshold stage of issuing notice. In order
to have notice issued on the Respondents, the burden
cast on the Appellant was to establish
a prima facie sustainable case and for the Court to be
satisfied that there is a prima facie case
to be looked into. In other words, the Court was only
required to be satisfied that the application before it warrants a full
investigation at a hearing with the participation of all parties.
Having carefully considered the submissions of the Appellant and the
learned State Counsel, the aforementioned material placed by the Appellant
before this Court and especially the fact that this Court has refused Special
leave to appeal on the aforementioned question of law, it is clear that neither
the High Court nor the Court of Appeal have considered that part of the judgment
of the Court of Appeal
in CA/PHC
Application
No. 148/2016 with regard to the relevancy of evidence relating to E.S. Thanthrige.
In the said circumstances, I am satisfied that:
a)
The Appellant has established a prima facie case of an illegality which warrants full investigation
with the participation of all parties; and
b)
This is a fit matter
where the Court of Appeal
should have issued
notice on the Respondents.
I
therefore answer the aforementioned question of law in the affirmative and
direct the Court of Appeal
to (a) issue notice of the revision application on all Respondents; and (b) expeditiously conclude the hearing of the said revision
application since a period
of over five years have lapsed since the Accused gave evidence before the High
Court.
The appeal is therefore allowed,
without costs.
JUDGE OF THE SUPREME
COURT
S. Thurairaja, P.C., J
I agree.
JUDGE OF THE SUPREME
COURT
Achala Wengappuli, J
I agree.
JUDGE OF THE SUPREME
COURT
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