slja

Of The Judicial Service Association of Sri Lanka
NEWS LETTERNEWS LETTER
Editor : Lanka Jayaratne, Magistrate, Fort.
Asst. Editor : J Trotsky, Magistrate , Walapane.
Website : www.jsasl.org
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Page 23
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Fast Tracking
Commercial
Dispute
Resolution
Anticipatory
Bail
Suspension
of Sentences
Inherent
Jurisdiction
of Courts
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S
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E
Apr/May/June 2010
The life of law has not been logic: it has been experience. The felt necessities
of the time, the prevalent moral and political theories, institutions of public
policy, avowed or unconscious, even the prejudices which judges share with
their fellow men, have had a good deal more to do than syllogism in
determining therulesby whichmenshould be governed.
Justice Oliver Wendell Holmes Jr.,
Quoted in Max Lerner, The Mind and Faith of Justice Holmes, 1943, pp. 51-52
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April/May/June 2010
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WRITING IS A STRUGGLE AGAINST SILENCE………
The importance of article writing is by no means a very good article must have a wide range of
modern phenomenon. Even before the invention of vocabulary to be recognized as a good writer. The
printing machine, articles used to play a vital role in article writer must possess his/her own style of
forming public opinion. The courtiers of the royal writing in order to be called as a better writer. The
courts, used to write articles in the honor of their individual should bring in greater powers of
lords. With the arrival of printing machine, writing imagination and dedication into this work to be a
articles has become a universal art. The revolution good writer.
in the printing media sector has also contributed to
the popularity of article writing. Technology has Remember, creativity has no place in writing articles,
ensured mass production at low cost and this factor if you cannot satisfy the readers. You have to place
has contributed to the alleviation of illiteracy. yourself in the place of the reader and read your
article from a neutral point of view. Do not be
All the written pieces, which you can see, are the dejected on seeing a negative comment. Just try and
creations of highly creative and logical minds. They improve upon your negative aspects and this will
are not only pieces of literature; they also entertain really help you in becoming a better writer in the
us with their crisp language. Moreover, they also future. One thing to keep in mind is that nothing can
acquaint us with the latest happenings around us. be gained without proper involvement. With proper
Sometimes they definitely fuel controversy but motivation and involvement, the basic skills can be
nothing is absolutely taintless in the world. attained pretty easily and once you achieve, that
success will follow your trail.
The job of article writing requires considerable skill
and expertise in order to carry out with ease and The time to begin writing an article is when you have
perfection. Yet, this job is not as easy as many would finished it to your satisfaction. By that time you begin
think. An article is written in order to provide some to clearly and logically perceive what it is you really
information and it is very important that the article want to say.
writer attracts many readers, acknowledgment and Mark Twain
words of appreciation. These things require skills
NEWSLETTER which is conceived as the medium ofthat are not possessed by many but few. Remember,
expression of the judicial officers provides incentive
for your creative minds to articulate your ideas,The role of writer is not to say what we all can say,
thoughts and opinions in a readable form. Since webut what we are unable to say'
have provided the opportunity at your doorstep to
seeing yourself published, I sincerely request you toThe important requisites of article writing are very
spare your valuable time to pen down an article andgood language skills, expert and fast researching
send us for the future publications.skills, a distinct style of writing and versatility. These
skills are the primary requisites and without these,
you cannot be an article writer. . Every article writer Lanka Jayaratne
must possess a very good grammatical and
Editor
analytical skill in order to excel in this field. Also a
Editor's Note
Words so innocent and powerless as they are, as standing in a dictionary,
how potent for good and evil they become in the hands of one who knows
how tocombinethem.
Nathaniel Hawthorne

t a time when our nation is grappling with the
task of economic recovery at the end of three
decades of strife which impoverished our
nation, it is opportune for legal practitioners,
judgesandpolicymakerstoreflecton theefficacyof our
judicial system in the context of commercial dispute
resolution with seriousness, as the ability of courts to
resolve commercial disputes in a timely and efficient
manner, is key to economic resurgence.The relationship
between efficiency in dispute resolution and economic
th
development was adverted to as early as in the 15
century by Sir John Fortescue, who asserted that
England's prosperity was traceable to the quality of its
1
courts and legal institutions. Thomas Hobbes, the 17th
nation towards the poor overall ranking were not factorscentury English philosopher, stressed that without a
such as terrorism or civil strife, but our unimpressivereliable judicial system, traders will be reluctant to enter
showing in ease of dealing with construction permitsinto wealth-enhancing exchanges for fear that their th th
where we are ranked 168 in the world, our hapless 148bargains will not be honoured. In his words, when two
position in regard to ease of registration of property andparties enter into a contract, "he that performeth first has th
the poor 137 rating we enjoy in regard to the ease ofno assurance the other will perform after because the
enforcement of contracts. This is not a very goodbonds of words are too weak to bridle men's ambitions,
reflection on our administrative machinery and legalavarice, anger, and other passions without the fear of
system.some coercive power." Leading development
economists have rediscovered the wisdom of Hobbes's
observation. Douglass North, who won the 1994 Nobel Adam Smith, the founder of modern economics, has
Prize for Economics, observes that the absence of cost insisted that "tolerable administration of justice" was
and time efficient means of enforcing contracts is "the essential to "carry a state to the highest degree of
most important source of both historical stagnation and opulence.” Sociologists such as Max Weber have
contemporaryunderdevelopmentintheThirdWorld.” attributed the pronounced differences in development
between West European states and what then was China
to the rationalized, well-functioning judiciary commonThe importance of a vibrant judiciary for economic
to European countries. As Oliver Williamson notes, aprosperity may be illustrated by reference to Sri Lanka's
"high-performance economy" is one that isDoing Business Economic Rankings for the year 2010.
th characterized by a significant number of long-termSri Lanka is ranked 105 for ease of doing business, with
contracts, but such business relationships are unlikely toSingapore, New Zealand and Hong Kong heading the
thrive in the absence of a well-functioning judicialsaid rankings, and even countries such as Pakistan,
system. It is natural that when the courts are unable toMaldives, Ghana,Vietnam, Kenya and Marshall Islands
enforce contract obligations in a timely and efficientlisted ahead of Sri Lanka. The statistics reveal that
st manner, business men are compelled to enter into face-although Sri Lanka is in a healthy 41 place for ease of
to-face transactions or to merge with suppliers orstarting a business, important factors that dragged our
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NEWS LETTERNEWS LETTER April/May/June 2010
Page3Of The Judicial Service Association of Sri Lanka
FAST TRACKING COMMERCIAL DISPUTE
RESOLUTION FOR ECONOMIC RESURGENCE
by
Justice Saleem Marsoof, P.C.
Judge of the Supreme Court of Sri Lanka
A
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April/May/June 2010
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customers.All such manures result in higher transaction resolved. Due the transfer of civil appeals to the Civil
costs for business, which in turn retard economic Appellate High Courts, the Court of Appeal is now
growth. More significantly, failings in legal starved of work, while the Supreme Court is
infrastructure will prevent a nation from taking overburdened with an influx of appeals from the Civil
advantage of globalization and e-commerce which have Appellate High Courts. Even if it is decided to retain the
provided access to new markets and an unprecedented second appeal, should not the Court of Appeal be
volume of trade. In short, modern commerce demands expanded with sittings in the Provinces, as already
efficientdisputeresolutionsmechanisms. proposed, to takeover the appellate and supervisory
functions of the Provincial High Court and Civil
Appellate High Courts? Should the fundamental rights
How then, can we improve the efficacy of commercial
jurisdiction of the Supreme Court be vested in the
dispute resolution in Sri Lanka? The answer lies in
Court of Appeal, so that it could sit in the Provinces and
meaningful legal and judicial reform. We in Sri Lanka
hear these cases in the first instance, with an appeal to the
take pride in our rich legal heritage, the fine blend of
Supreme Court? In my view, these are some structural
English law with principles of Roman-Dutch law that
issues thatdeserveattention.
constitute our common law, which in landmark
decisions such as C. Kodeeswaran v The Attorney
General has been recognized as a dynamic system Apart from such structural changes, realistic legal and
capable of keeping pace with societal change. We have judicial reform would embrace at least three elements,
also preserved customary law such as the Kandyan law, namely (1) Empowerment of the Judiciary; (2)
Thesawalamai law and Muslim law which mainly Professionalization of the Bench and the Bar; and (3)
govern personal relations but may sometimes impact on Increasing the Access to Alternate Dispute Resolution
commercial matters. These principles of substantive law Mechanisms. Speaking of empowering the judiciary, it
are in the main hale and hearty, and all that we need is to goes without saying that the allocation of sufficient
fine tune procedural law so that the rights and resources and funding is essential for the smooth
obligations created by the common law and other laws functioning of the judicial system, and it is indispensable
can be given effect to through realistic legal remedies. that we have sufficient number of courts and judges to
Bottlenecks in procedures, which add to the backlog of administer justice. While the judge-population ratio in
cases and slowing down the enforcement machinery, advanced countries such as USA is as high as 114 per
have to be eliminated to speed up the process of million population, in India it is 12.5 judges per million
commercialdisputeresolution. population. If we take a modest estimate, adopting the
Indian standard which is currently being criticized as
being woefully inadequate, for our population of 20
Some of these bottle necks can be cleared through law
million people we should have at least 2,500 judges.
reform, and much work has been done in this direction.
Unfortunately, we have less than 350 judges including
Important reforms undertaken in recent times include the
those sitting in the Superior Courts, High Courts, District
introduction of a special procedure for debt recovery and
Courts, Magistrates Courts and Labour Tribunals.
the fast tracking of high value commercial cases through
Little wonder then that we have laws delays. We
the establishment of the Commercial High Court. But
definitely need more judges, and better quality ones too.
still there are significant delays in the courts, which
Changes are necessary in the ways in which judges are
prompt us to ask what more has to be done. We need to
recruited, evaluated, disciplined, promoted and
have a fresh look at our court structure, and there is no
remunerated for the enhancement of the quality of
better time to do that than now when major constitutional
justice that is delivered by our courts. Providing better
reforms are in contemplation. It is necessary to ponder
quality support services, computers and other resources
whether our time consuming appellate procedures,
necessary to modernize the process of recording of court
which provide for at least two opportunities for appeal, is
proceedings, and housing and transport facilities for
a luxury favouring only those who may be benefited by
judges and court personnel will no doubt help to reduce
delay, as more often than not, by the time the final appeal
case backlogs and accelerate the disposition of new
to the apex court is decided it is not those who were
disputes.
directly involved in the dispute but their children or
grandchildren who survive to greet the decision of the
apex court, knowing very little about the dispute that was However, it is even more important to improve the
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professionalism of the Bench and the Bar by providing “Both developed and developing countries have been
in-service training for judges, lawyers, and other legal working to improve judicial performance for decades,
professionals on applicable principles of substantial law and in some cases centuries. While much can be learned
including new and specialised areas of the law such as from a review of their efforts, here I would like to focus
financial regulation, intellectual property law and on three factors common to all successful reform
information technology law. Let us be frank, and admit programs: a strong commitment by the leaders of the
that cases are often postponed because the judge, the judiciary, a sound grasp of the incentives judicial actors
counsel, or both is not well acquainted with the legal face, and a clear understanding of how the system is
principles involved in a complex commercial case, or operating.”
worse still, when the case is taken up, the decision is
made overlooking the relevant principles of law leading
The first ingredient stressed by Messick is the
to appeals and other delays. This is an age of
commitment of the leaders of the judiciary for reform.
specialization, and while most lawyers now specialise in
He points out that many fast track measures have failed
certain areas of the law, the judges go up the ladder
in countries where the active participants in the process
switching from a civil court to a criminal court and vice-
were not very keen on those measures, while the same
versa having little opportunity to specialise in any field
reforms achieved great success in countries where there
of law. I feel that judicial reform should embrace the
was a greater degree of judicial commitment. From this,
provision of a specialised career track for judges, so that
hearrivesatthefollowinggeneralconclusion:
they can chose to specialise in an area of their choice,
such as criminal justice or commercial law. Judges also
“The failure of speedy trial acts illustrates a largerneed to be trained in case management techniques and
principle about judicial reform, one documented inother necessary skills for the efficient resolution of
studies of judicial reform around the globe. No programcases. The time is also ripe to rethink legal education and
can succeed without the active participation of thoseask ourselves, are our law schools preparing the right
directly involved in administering justice. Courts arenumber and right type of lawyers and do the products of
governed by a complex set of formal rules and informalthese schools enter the profession equipped with the
practices. Judges, lawyers, and others who work in theknowledge, skill and techniques to face the modern
court system know these norms far better than anychallenges of the legal profession. It is important to
outsider. They can use this information advantage torevise the curriculum of our law schools to reflect the
defeat reforms with which they disagree. Bringingdemands of the modern world, such as e-commerce and
judicial insiders into the reform process is thus a crucialthe market economy. Have we invested sufficient funds
stepindesigningasuccessfuljudicialreform.”for judicial training, and do we have a system of
continuing legal education to ensure that our judges and
practitioners enhance and update their knowledge and I wish quickly to deal with the third ingredient
skills to face their day to day tasks with responsibility? mentioned by Messick as being necessary for successful
Wehavealongway togointhissphere. judicial reform before I come to his second element. The
third element emphasized by him is the existence of a
clear understanding on the part of the reformers of how
Judicial and legal reform has engaged our attention in
the system is operating. In fact, it goes without saying
recent times and we have benefited from the Legal and
that reforms that are introduced without a clear
Judicial Reform Project of the government which was
understanding of the system and the problems associated
facilitated by the World Bank. This project has now been
with it are not only doomed to fail, but will invariably
concluded, but more such initiatives are necessary to
aggravatethesituation.
enhance the quality of justice delivered by our courts. In
this context, it is necessary to bear in mind the words of
Richard E. Messick, Co-Director of the World Bank The second ingredient adverted to by Messick is the
Thematic Group on Legal Institutions, who in 2002 incentives that motivate the “judicial actors”. In my
when addressing a Conference on Strategies for view, the only way one can deal with laws delays is by
Modernizing the Judicial System in theArab World held holding the judges responsible having empowered them
inMarrakesh,Morocco,said to manage their affairs efficiently and effectively. Lord
Woolf, who compares the adversarial system prevailing
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in common law jurisdictions with the system in civil law and appropriate remuneration commensurate with their
jurisdictions, concludes in his report Access to Justice, stature and experience. It is only through such positive
that there should be “a fundamental shift in the measures that one can hope to put an end to delays in the
responsibility for the management of civil litigation resolutionofcommercialdisputesthroughthecourts.
from litigants and their legal advisers to the courts." As Auseful way to begin would be to convene a study group
he points out, it is necessary to motivate all persons of judges, lawyers and major users of the court system to
involved in or concerned with the administration of frankly discuss and evaluate the existing incentives and
justice to resolve disputes without undue delay. In this devise ways to change them. In this context, it is
context, I must add that a study of the far reaching important bear in mind the following observation of
recommendations of Lord Justice Woolf contained in his Messick-
now famous report, and other such reports and
recommendations emanating from other jurisdictions
“Lawyers……often oppose speeding up casecan be of immense benefit. In essence, if courts are to
processing, believing their interests are served byperform better, ways must be found to reward those who
drawing out each case and thus maximizing their billingscontribute to better performance and sanction those
on each. A well informed study group can sometimeswhose actionsstandinitsway.
show them where their thinking is wrong. At the least, it
can build support among a critical mass of the bar for
As I observed in the course of my ceremonial address change.”
upon my elevation as the President of the Court of
Appeal inApril 2004, “it is ironic that in this information
As we all no doubt appreciate, a painstakingly slowera in which we are racing to dizzying technological
judicial process is a disincentive to investment and trade,heights, our justice system still moves in what may be
and the speeding up of the system can generate moredescribed as the bullock cart pace”. In the course of my
investments and trade which would then provide greaterceremonial address, I identified five persons who are
opportunities for our lawyers to provide their servicesinvolved in any civil or commercial litigation, namely
and earn better rewards. From a judicial perspective,the plaintiff or the petitioner, the defendant or the
economic recovery and development can give the Staterespondent, the lawyer for the plaintiff or the petitioner,
the ability to provide better facilities and incentives tothe lawyer for the defendant or the respondent, and the
the judges, which knowledge should motivate them toJudge. Delay in disposal of these cases takes place and
greater efficiency. Judges, after all, are the mostshallcontinuetotakeplaceso longas thedelayadversely
important stakeholders of the judicial system, and theyaffects only one or few out of the above mentioned five
are “better informed” than the other stake-holders, andpersons. Conversely, we can say goodbye to laws delays,
necessarily, proposals for structural reforms as wellif we can evolve a system in which all or as many of these
suggestions for amendments to the procedural rules thatfive persons will stand to gain by the expeditious
at present contribute to laws delays, should come fromdisposal of cases. As all human beings and even
them.Astudy of the Civil Procedure Code will show thatcorporations are selfish by nature, it is necessary to
there are many “speed traps” in the Code which have toprovide for incentives and disincentives to all these five
be removed if commercial dispute resolution should takepersons in some form or the other. For example, the
place at a more realistic pace. There can be also otherlosing party to a dispute (who is more often than not the
measures, such as the inclusion of email addresses inparty responsible for laws delays), should be made to pay
proxies to enable electronic service of process and othercosts which are not only realistic but also based on the
notifications, reducing the issues to be tried to atime taken to dispose of the case: more the delay more
minimum by encouraging parties to admityou pay as costs. Similarly, the lawyers too should be
uncontroverted facts, awarding realistic costs whenmade "accountable" for any undue delay on their part in
adjournments are sought, the conduct of day to daythe handling of their cases, and the Bar Association
hearings of civil trials and the filing of witness affidavitsshould evolve a scheme for the assessment of lawyers in
to serve as examination-in-chief of witness testimony,practice while providing them with continuing legal
all of which can bring about a higher level of agility toeducation. Judges can be motivated to work harder and
our court proceedings. No doubt, when consideringmore effectively by giving due weight to their efficiency
changes in procedure and introducing new measures, theand dedication when considering them for promotions,
co-operation of the Bar will be indispensable, and theand providing them with all modern facilities, training
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need to increase interaction and discussion between the reform. Secondly, the benefits of a successful reform, in
members of the Bench and the Bar, who are partners in terms of economic growth and development, more than
the same venture, namely the pursuit of justice, cannot justify the work involved, and would no doubt improve
beoverstressed. the efficacy of commercial dispute resolution. The
initiative for judicial reform should come from theTo sum up, let me stress two points that emerge from the
judiciary itself, and there is no better time than now toglobal experience with judicial reform. Firstly,
make the initial steps towards judicial and proceduralreforming the judiciary is indeed a challenging
reform,andthroughit,economicresurgence.undertaking, but one well within the reach of any country
where the leadership of the judiciary is committed to
1
2
3
4
5
6
8
9
10
11
12
13
14
15
16
17
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20
21
Rt Hon. Beverley McLachlin P.C, Liberty Prosperity and the Rule of Law, text of speech made at the Global Forum on Liberty and
Prosperity held in Manila Philipines October 18-20, 2006 available at: http://jrn21.judiciary.gov.ph/
forum_gflp/The%20Canadian%20Experience%20%20by%20B.%20McLachlin.pdf
SirThomasHobbes, Leviathanpage84 (EdwinCurleyed.,HackettPublishing1994) (1651).
Ibid., See also, Okezie Chukwumerije, Rhetoric versus Reality: The Link Between the Rule of Law and Economic Development,
EmoryInternationalLawReviewVol23, page384pages 414 to415.
As quoted by Artur Radziwill and Oleg Petrushin, 'Barriers to Growth in Moldova', in Gur Ofer, Richard W. T. Pomfret (Ed.) The
EconomicProspectsoftheCIS: SourcesofLong Term Growth,page101.
World Bank Group, Doing Business Economic Rankings available at: http://www.doingbusiness.org/economyrankings/
W.P.D. Wightman, J.C.Bruce and I.S Ross (Ed), Adam Smith's Essays on Philosophical Subjects, (Oxford University Press, 1980)
IV:26page322.
7 Oliver E. Williamson The Lens of Contract : Private Ordering, page 6, available at: http://groups.haas.berkeley.edu/
bpp/oew/lensofcontract.pdf
See, Saleem Marsoof, 'Legal Issues Relating to e-Commerce' (2009) Vol 44 The Chartered Accountant (Golden Jubilee
commemorative issue of the Institute of Chartered Accountants of Sri Lanka) page 38 available on line at the ICAS website:
http://www.icasrilanka.com/journal/v44No2/Journal.pdf
72 NLR 337
EstablishedbyOrder madeunderSection2(1) oftheHighCourtoftheProvinces(SpecialProvisions)ActNo. 10 of1996.
in terms of Section 5D(1) of the High Court of the Provisions (Special Provisions) Act No. 54 of 2006.
exercised under Article 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.
LegalDrift,WillthequalityofjusticeimprovebythecreationoftheNationalJudicialService?availableat:http://
www.legaldrift.com/will-the-quality-of-justice-improve-by-the-creation-of-national-judicial-service/
We have 11 Supreme Court Judges, 12 Judges of the Court ofAppeal, 60 High Court Judges (including the Judges of the Civil
Appellate High Court), 210 District Judges and Magistrates (including 16 trainee judges) and 35 Presidents of Labour Tribunals
makingup altogether327judges.
Richard E. Messick Judicial Reform : The Why, the What, and the How text of speech prepared for delivery at a Conference on
Strategies for Modernizing the Judicial Sector in theArabWorld held in Marrakesh, Morocco, on March 15-17, 2002 available on line
at:http://www.undp-pogar.org/publications/judiciary/messick/reform.pdf
Ibid.,
Ibid.,
Rt. Hon. Lord Woolf in his report entitled Access to Justice, Chapter V Sections 2 to 4.
Ibid., Chapter V Section 2 and Recommendation 1.
th
Ceremonial Sitting to Welcome President, Judge of Appeal Court the Ceylon Daily News, 28 April 2004 available at:
http://www.dailynews.lk/2004/04/28/new19.html
Richard E. Messick, supra note 15.
vv

n t i c i p a t o r y b a i l w a s misuse his liberty while on bail, “there any inducement, threat or
introduced to our legal seems to be no justification to require promise to any person acquainted
system by bail act no. 30 of him to first submit to custody, remain with the facts of the case so as to
1997. It is no secret this in prison for some days and then apply dissuade him from disclosing
u n i q u e c o n c e p t a n d for bail.”The provision was such facts to the Court or to any
procedure was borrowed from our subsequently inserted in the Code of police
neighbor, India. It is interesting that the Criminal Procedure, 1973, as section
word "Anticipatory bail" was nowhere 438. (c) a condition that the person shall
mentioned in the sec. 438 of Indian not leave India without the
criminal procedure code, yet it is Sec. 21 to sec. 26 of Bail Act of Sri previouspermissionoftheCourt.
commonly known by that name. This Lanka deal with Anticipatory bail
concept of bail is only found in India while the almost identical provision of (d) such other condition as may be
and our country, but it is not a thing to Indian legislation is sec. 438 of Cr.P.C. imposed
boast because the aim of enacting the It is useful to compare the relevant
same is to minimize the harassment section with sec. 21 to 26 of BailAct to Sec 436 (3). If such person is
and humiliation one has to undergo due understand our legislature has seen it thereafter arrested without warrant
to politically motivated, malicious and fit to modify the provisions of Indian by an officer-in-charge of a police
baseless complaints filed against them. Cr.P.C.slightly. station on such accusation, and is
It can be understood as an order of bail prepared either at the time of arrest or
issued prior to the arrest of a person, at any time while in the custody ofSec 436(1). When any person has
providing that if such person is such officer to give bail, he shall bereason to believe that he may be
subsequently arrested, he may, on released on by such conditions thearrested on an accusation of having
furnishing the bail amount, be bail order stipulates.The anticipatorycommitted a non- bailable offence,
released. Before going in to analyze the bail can not be granted nor appliedhe may apply to the High Court or the
legislation it is useful to have a look in after a Magistrate has issued aCourt of Session for a direction under
to the history of it to have a better warrant demanding the arrest of thethis section, and that Court may, if it
understanding about the goals which accused.thinks fit, direct that in the event of
were to be achieved by implementing such arrest he shall be released on
the same. This provision was bail.(sec.21 of bail act provides the Anticipatory bail concept has beenst
introduced to India by 41 law procedure in more detail and clarity) subject to the judicial scrutiny for more1 st
commission report. In its 41 report than three decades in India and it is
issued in September 1969, the Law Sec 436 (2). When the High Court or
now a well settled principle that itCommission considered suggestions the Court of Sessions makes a
cannot be granted in all cases as afor the insertion of a provision relating direction under sub-section (1), it
2
matterof course.The exerciseof powerto anticipatory bail. It observed that may include such conditions in such
has to be invoked in exceptional casessuch a provision was necessary due to directions in the light of the facts of
increasing instances in which false the particular case, as it may think fit, only. While considering the prayer for
cases were registered to ensure that the including- grant of anticipatory bail, a balance has
person targeted spent a few days in to be struck between two factors,
detention, with the attendant (a) a condition that the person shall
namely, no prejudice should be caused
consequences on his reputation. The make himself available for
to the free and full investigation andLaw Commission recommended the interrogation by a police officer
there should be prevention ofacceptance of the suggestion, stating asandwhenrequired;
harassment and unjustified detentionthat where there were reasonable
grounds for holding that the accused (b) a condition that the person shall of the accused. Anticipatory bail can
would not abscond or otherwise not, directly or indirectly, make
A
Anticipatory Bail - A Comparative
Analysis on Application of it in
India and Sri Lanka
BY MAHIE WIJEWEERA Magistrate, Baddegama.
April/May/June 2010
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Cont Page 9

not be granted as a matter of right. Court at that very stage is satisfied could be an obstacle on the way of
Decision of the Constitution Bench in that such a charge appears to be recovering stolen articles by
GURBAKSH SINGH SIBBIAETC. Vs. falseorgroundless. investigating authority from the
3
STATE OF PUNJAB is very information elicited from the accused
important in this regard. It was held, (7)The larger interest of the public and in the process of interrogation and it
court should follow the guidelines State demand that in serious cases may cripple the investigation process.
described below, before granting like economic offences involving This view was approved and
anticipatorybail. blatant corruption at the higher highlighted in the case of RANBIR
4
rungs of the executive and SINGH KHARAB v STATE. In that
(1) The power under Section 438, political power, the discretion judgment MOOL CHAND GARG, J.
Criminal Procedure Code, is of an under Section 438 of the Code has heldthus.
extra-ordinary character and should notbeexercised;and
must be exercised sparingly in “Section 438 contemplates an
exceptionalcasesonly. (8) Mere general allegations of mala application by a person on an
fides in the petition are inadequate. apprehension of arrest in regard to the
(2) Neither Section 438 nor any other The court must be satisfied on commission of a non-bailable offence;
provision of the Code authorizes materials before it that the the object being to relieve a person
the grant of blanket anticipatory allegations of mala fides are from unnecessary harassment or
bail for offences not yet committed substantial and the accusation disgrace and it is granted when the
or with regard to accusations not appearstobefalseandgroundless. Court is otherwise convinced that there
so farleveled. is no likelihood of misuse of the liberty
Apart from above it was held that the granted since he would neither
(3) The said power is not unguided or filing of a first information report is not abscond nor take such step as to avoid
uncanalized but all the limitations a condition precedent to the exercise of dueprocessoflaw.”
imposed in the preceding Section power under Section 438 Cr.P.C. and if
437 are implicit therein and must the imminence of a likely arrest “We find force in the submission of the
bereadintoSection438. founded on a reasonable belief can be CBI (analogous in structure to the FBI
shown to exist and even if an FIR is not in US and more similar to CID in SL -
(4) In addition to the limitations yet filed courts are empowered to grant added by writer) that custodial
mentioned in Section 437, the anticipatory bail. FIR in India is interrogation is qualitatively more
petitioner must make out a special identical to a “B report” filed in our elicitation-oriented than questioning
case for the exercise of the power magistrates' courts hence it is clear a suspect who is well ensconced with a
tograntanticipatorybail. filing of B report regarding the crime favorable order under Section 438 of
or offence is not a condition precedent the Code. In a case like this effective
(5) Where a legitimate case for the to filing of an anticipatory bail interrogation of a suspected person is
remand of the offender to the application. It is understood from the of tremendous advantage in
rd
police custody under Section 3 guideline, granting anticipatory bail disinterring many useful information
167(2) can be made out by the in SL is also subject to provisions of and also materials which would have
investigating agency or a sec.14ofBailAct. been concealed. Success in such
reasonable claim to secure interrogation would elude if the
incriminating material from It is clear from the ratio decidendi from suspected person knows that he is well
information likely to be received the above case that courts should be protected and insulated by a pre-arrest
from the offender under Section 27 restrained from granting anticipatory bail order during the time he is
of the Evidence Act can be made bail for accused persons, unless they i n t e r r o g a t e d . Ve r y o f t e n
out, the power under Section 438 can prove prima-facie the allegation interrogation in such a condition
should notbeexercised. against them is baseless or there is a would reduce to a mere ritual. The
personal vendetta on the part of the argument that the custodial
(6) The discretion under Section 438 complainant. Courts should refrain interrogation is fraught with the danger
cannot be exercised with regard to from granting anticipatory bail to the of the person being subjected to third-
offences punishable with death or persons suspected of offences like degree methods need not be
imprisonment for life unless the theft, extortion or robbery since it countenanced, for such an argument
Cont Page 10

can be advanced by all accused in all of interrogation and/or any other accordingto theprovisions of thecode.
criminal cases. The Court has to related process the investigation .The conclusion that can be reached by
presume that responsible police authority is legally vested with, such as above authorities is the jurisdictional
officers would conduct themselves making the accused to show relevant scope of interference by the courts in
in a responsible manner and that places or materials which come in to the process of investigation is limited,
those entrusted with the task of lightintheprocessofinterrogation. since it may lead to destabilize the
disinterring offences would not whole criminal justice system. The
c o n d u c t t h e m s e l v e s a s The Court further observed in Adri Courts ordinarily will not interfere
offender.”(emphasis added) Dharan case that the power exercisable with investigation of a crime or, with
under Section 438 is somewhat the arrest of accused in a cognizable
The Supreme Court in its more recent extraordinary in character and should offence. The Courts should not pass an
decision in Adri Dharan Das Vs. be exercised only in exceptional cases order to the effect that the applicant
5
State of West Bengal, while where it appears that the person may be shall be released on bail "whenever
interpreting Section 438 of the Code of falsely implicated or where there are arrested for whichever offence
Criminal Procedure has observed that reasonable grounds for holding that a whatsoever". Such blanket order
the very nature of the direction which person accused of an offence is not should not be passed as it would
the Court can issue under Section 438 likely to otherwise misuse his liberty. certainly be a blanket to cover or
of the Code, it is clear that the direction The practice of issuing blanket protect any or every kind of allegedly
is to be issued only at the pre-arrest directions, to the effect that the unlawful activity. An order under
stage. The direction becomes applicant shall be released on bail Section sec.21 of BailAct is a device to
operative only after arrest. The "whenever arrested for whichever secure the individual's liberty; it is
Supreme Court ruled that an offence whatsoever" was deprecated neither a passport to the commission of
application under Section 438 of the and criticized. Moreover, it is also well crimes nor a seal against any and all
Code can be moved only by a person settled that there is a difference kinds ofaccusationslikelyorunlikely.
who has not already been arrested. between regular bail and anticipatory
Once he is arrested his remedy is to bail. Anticipatory bail is to be granted The provision of anticipatory bail was
move the court concerned either under only to those persons who are able to highly criticized by some sections of
Section 437 or Section 439 of the show that they are not involved in the public in India after it was introduced.
Code. In the very nature of the case, subject matter of the enquiry or As a response to this In 1996,
direction, which the Court issue under that they have been falsely implicated commenting on a fresh amendment to
7
Section 438 of the Code, it is clear that and there is likelihood of harassment s. 438 in the Cr.P.C the Law
th
the direction is to be issued only at the by police officials. If the whole Commission in its 154 report stated
pre-arrest stage. The direction purpose of filing of bail application by that despite the misuse of the provision
becomes operative only after arrest. the petitioner is to keep themselves by “affluent and influential sections”,
The condition precedent for the away from the police and to avoid its occasional misuse could not be a
operation of the direction issued is interrogation so that their misdeeds ground for deletion and should
arrest of accused. This being so the may not be revealed and the therefore be retained, subject however
irresistible inference is that while misappropriated property may not be to safeguards laid down in the
8
dealing with an application under unearthed court should not grant bail amendment
Section 438 of the Code the Court thoseinstances.
cannot restrain arrest (vide Adri
Dharancase) In another recent judgment, namely Sub-section 1 was
State of Maharashtra v. Mohd. replaced and new sub-sections 1A and
6
So it is settled now, that a court cannot Rashid and another, Indian supreme 1B were inserted. New section 1A
issue an interim order preventing an court being the Apex Court in India provides that seven days' notice must
arrest of an accused at any stage of an held that a blanket protection of not be given to the public prosecutor and
anticipatory bail application. The only arresting the accused in any crime Superintendent of Police with a view
order it can pass is an order to release except after written notice to him could to giving them the opportunity of being
the petitioner on bail after the arrest of not have been Passed and declared that heard before the final order is granted.
him on such conditions imposed by the it was like issuing a blank cheque to the It is clear our legislature, on the
court, soon after the end of the process petitioner and it was uncalled for guidance of the architect of this
In 2005, based on the
recommendations of the Committee
on Reforms of the Criminal Justice
System, sec. 438,
April/May/June 2010
Page10
Cont Page 11

particular piece of legislation Prof. be an undue interference with an j u d g m e n t H o n . J u s t i c e
G.L. Peiris, in its wisdom has foreseen investigationofacrime. Bandaranayake has followed the
this phenomenon and included this observations by Hon. Justice Mark
provision in sec. 21(3) in our bail act Unlike the code of criminal procedure Fernando in the consideration of the
of no. 30 of 1997 since its inception. code in India which has a widespread Bill titled “An Act to Eliminate
Section 1B makes the presence of the application to almost all penal Ragging and Other Forms of Violence
applicant mandatory for the hearing offences, our legislature has and Cruel, Inhuman and Degrading
but this provision was purposely inserted the concept of Treatment from Educational
10
since the heavy protests anticipatory bail in to a separate act Institutions” and further clarified her
from the lawyers all over India. Our called bail act. Hence it is clear ladyships' view by an examination of
law is also silent as to the fact whether anticipatory bail can be granted only the Parliamentary proceedings
the petitioner required being present for a person suspected or accused of (Hansards) pertaining to the Bail Bill.
in court in person. As there's no committing any of the offence or Hence it is decided by our Apex court
mandatory provision it is presumed it offences under the penal code or any that BailAct has no application to any
is not required by law. But in a way no other offence created by any act which other written law which makes
court would like to grant bail to a is subject to the provisions of the bail express provision in respect of the
person who would like to indicate act. Sec. 3(1) of bail act reads as release of persons accused or
from his behavior that if he is not follows. suspected of having committed, or
given bail he is going to abscond. So if convicted of, offences under such
the investigation authority has made it “Nothing in this act shall apply to any other written law, such as Poisons,
clear that the petitioner is required for person accused or suspected of having Opium and Dangerous Drugs Act.
the investigation and needed to be in committed, or convicted of, an Therefore the contention any other
their custody for an effective offence under, the prevention of written law in sec. 3(1) of bail act is to
interrogation, the presence of the terrorism (temporary provisions) act apply to those cases within the genus
petitioner in person in court can be No 48 of 1979, Regulations made of which relate to the security of the
considered as a fact to prove he is under the Public Security Ordinance state and public, such as the
s u p p o r t i n g t h e p r o c e s s o f or any other written law which prevention of terrorism (temporary
investigation and petitioner can makes express provision in respect provisions) act No 48 of 1979 and The
successfully argue he ought to be of the release of persons accused or Public Security Ordinance, has no
granted anticipatory bail considering suspected of having committed, or validity now. So it is settled now, the
that fact. The guiding principle in our convicted of, offences under such acts which have special provisions
bail act “granting bail is the rule and otherwrittenlaw”(emphasis added) with regard to the release of persons
refusing it is the exception” has no suspected of the offences under it,
application when it comes to After enacting the bail act there was such as, The Poisons, Opium and
anticipatory bail. It is clear from the some controversy over how to Dangerous Drugs Act, The Public
line of Indian judgments mentioned interpret the above section. It was Property Act, The Prevention of
above the provision of anticipatory answered clearly and conclusively by Ragging Act, Fire Arms (special
bail itself is somewhat extraordinary the Supreme Court in its' full bench provisions) Act, Offensive Weapons
in character and should be exercised judgment delivered by Hon. Justice (special provisions)Act and
only in exceptional cases. The burden Bandaranayake in agreement with all Immigrants and Emigrants Act are
of proving prima facie they are not the other judges in the case of Shiyam excluded from the operation of Bail
involved in the case, or that they have v. Officer in charge Narcotics Act and no person accused or
9
been falsely implicated and there is Bureau and another as this section suspected of having committed
likelihood of harassment by police is should be interpreted without offences under such acts has “no right
the duty of the petitioner and unless he applying the rule of construction to invoke the provision embodied in
is succeeded in doing so courts should found in the Law of Interpretation, sec. 21 to 26 of the Bail Act viz. the
not grant anticipatory bail since it may Ejusdem Generis. In that landmark AnticipatoryBail.”
kept in
abeyance
1. September 1969 (Vol. I), p.316
2. linkavailablehttp://lawcommissionofindia.nic.in/1-50/Report41.pdf
3. 1980AIR 16321980SCR (3)383,1980SCC (2)565,1980Cri.L.J.1125
4. BAILAPPN. No. 2634/2007
5. 2005-4SCC 303 6. 2005(7)SupremeCourtCases56
7. CodeofCriminalProcedure,1972(ActNo. 2of1974),clause43.
th
8. Law CommissionofIndia,154 ReportontheCodeofCriminalProcedure,(ActNo 2of1974),VolI,1994,p.29,paragraph18
9. 2006,2SLR156 10. S.C. (SD) Nos. 6&7of1998

3) Convictions are contrary to the findings of the
learnedtrial Judge.
C.A. No. 135/2003
nd
H.C. Balapitiya Case No. 133 On behalf of the 2 accused-appellant learned
1. Dadimuni Wimalasena. Counsel urged the following ground as militating
nd
2. Dadimuni Indrasena. against the maintenance of the conviction of the 2
Accused Appellants accused.
Vs
TheHon.AttorneyGeneral, Learned trial Judge erred by concluding that there was
AttorneyGeneral's Department, culpability on the basis of Section 32 of the Penal Code. In
nd
Colombo12. short, the 2 accused-appellant did not share common
st
Respondent intentionwiththe1 accused-appellant.
BEFORE : SISIRA DE ABREW,J.& Factsofthiscasemaybebrieflysummarizedasfollows.
ERIC BASNAYAKE, J
On the day of the incident around 5.30 p.m. when witness
COUNSEL : D.S. Wijesinghe, P.C., with Laddu Shantha was having a chat with Gamini de Silva, thest
stMs. D. Dharmadasa for the 1 deceased in this case, the 1 accused-appellant who came on
Accused-Appellant. a bicycle invited the deceased to have a drink with him. When
st
the deceased showed certain reluctance to the invitation the 1
Dr. Ranjit Fernando with Chanya accused inquired from the deceased whether he had anynd
Perera for the 2 Accused animosity with the accused. Thereafter the deceased got onto
st stAppellant. the cycle of the 1 accused and went towards the 1 accused's
house. Laddu Shantha went home. Around 7.00 p.m. Laddu
Jayantha Jayasuriya D.S.G., for the A.G. Shantha thought of making inquires about the deceased and
st
went towards The house of the 1 accused-appellant. At this
st ndARGUED ON : 02.06.2008, 03.06.2008, time Laddu Shantha witnessed the 1 and the 2 accused-
04.06.2008 & 10.06.2008. appellant dragging the deceased through the gate of the house
st st
of the 1 accused-appellant.The 1 accused was armed with a
DECIDE ON : 10.06.2008 sword. At this time Laddu Shantha received a blow and fell
on the ground. Laddu Shantha could not indentify the person
SIRASA DE ABREW.J. who attacked him. After Laddu Shantha regained
consciousness, he went to the house of the deceased and
Heard Counsel in support of their respective cases. informed the deceased's mother about what he saw.
Thereupon the father of the deceased came to the scene and
The accused appellants in this Case were convicted for asked the deceased who cut you? To which the deceased
the murder of a man named olge Gamini de Silva and replied“KadeSunny”.
were sentenced to death. The accused-appellants were
stalso convicted for causing simple hurt to one Laddu Learned president's counsel for the 1 accused-appellant
Shantha de Silva.Aggrieved by the said convictions, the brought to our notice following passages of the judgment. At
accused-appellants have appealed to this Court. On page 324 of the brief, Learned trial judge after discussing thest
behalf of the 1 accused-appellant learned President's evidenceofbothsides madethefollowingobservation.
Counsel urged following grounds as militating against
st ndthemaintenanceoftheconviction. “From the evidence, it appears that 1 accused, 2 accused,
the deceased and Laddu Shantha had participated in the
1) Failure to consider the infirmities in the incident.”
evidence of witness Laddu Shantha.
st
2) Failure to consider the private defence of the 1 At page 327 of the judgment learned trial judge made the
accused-appellant.
P
Criminal - Evidence
JUDGEMENTS
April/May/June 2010
Page12
Cont Page 13

ground. At this time somebody attacked him with afollowing observation: “when the evidence of the
weapon and he sustained injuries. He then wielded hisprosecution and the defenceI considered it appears that the
st nd kathy and ran away. This was the summary of the evidence1 accused, the 2 accused, the deceased and witness No.1 st
of the 1 accused-appellant. According to the evidence of
for the prosecution were present at the scene of offence at st
the 1 accused-appellant both accused-appellants on thisst nd
the time of the incident. The injuries on the 1 and the 2 day sustained injuries and these injuries were fresh
staccused would indicate that there was a struggle among injuries. Is this position correct ? Although the 1 accused-
nd
them(accused,thedeceasedandLadduShantha).” appellant says that the 2 accused-appellant sustained
th
injuries on 9 of September 1989, the medical evidence
Learned President's counsel, harping on these two does not support this position. Professor Niriellege
nd
passages, contends that the learned trial judge disbelieved Chandresiri examined the 2 accused-appellant in
th
witness Laddu Shantha and believed the evidence of the Mahamodara Hospital (Galle Hospital) on 11 September
st nd
1 accused-appellant. Learned President's Counsel 1989. Surprisingly the 2 accused-appellant did not have
therefore contends that the conviction is contrary to the fresh injuries when Professor Niriellage Chandrasiri
st nd
evidence and the 1 accused is entitled to the benefit of the examined the 2 accused on this day. Professor Niriellage
nd
rightofprivatedefence. Chandrasiri only observed two scars on the body of the 2
accused- appellant. He further expressed the opinion that
I shall now consider whether the learned trial judge these injuries had been caused several weeks ago. When
st
disbelieved Laddu Shantha. Immediately after the said one considers this evidence the position taken up by the 1
nd
observation at page 324 of the Judgement learned trial accused-appellant that the 2 accused received injuries on
th
judge analysed the evidence of Laddu Shantha and the 09 of September becomes fales. Therefore the
st
compared the same with police observations. Learned trial evidence of the 1 accused cannot be believed. It has to be
judge did this in order to test the truthfulness of the noted here that when Professor Niriellage Chandrasiri
nd
evidence of witness No.1 Learned trial Judge, having gave the above evidence about the injuries of the 2
analysed the evidence of Laddu Shantha , decided to act accused-appellant he was not cross examined or
on his evidence. Vide page 327 of the brief. According to challenged on this point. The learned defense Counsel
the police observation among other things, there were observed silence at the trial on this matter. What happens
three patches of blood on the pavement of the wall of the when evidence given By a reliable witness on a material
st
house of the 1 accused-appellant and 30 patches of blood point is not challenged in cross examination? What is the
st
on the pavement of the house of the 1 accused-appellant. effect of such silence on the part of the Counsel? In this
Immediately after the observation at Page 327 which I regard I would like to consider certain judicial decisions.
have referred to above learned trial judge observed thus: In the case of Sarwan Singh vs. State of Punjab 2002
“From the injuries on the deceased, police observation and AIR S.C. (111) 3652 at 3655 and 3656 India Supreme
the evidence of witness No.1 for the prosecution, it Court held:
st
appears that the 1 accused invited the deceased to go to his
st nd
house and later both 1 and 2 accused dragged the “It is a rule of essential justice that whenever the
st
deceased through the gate of the house of the 1 accused- opponent has declined to avail himself of the
appellant a distance of about 17 ½ feet and intentionally opportunity to put his case in Cross examination it
killed the deceased.” It is therefore seen from the above must follow that the evidence tendered on that
observation of the learned trial judge that he had believed issueoughttobeaccepted.”
Laddu Shantha and decided to act on Laddu Shantha's
evidence. Thus , the contention of the learned President's This judgment was cited with the approval in the case of
Counselis untenable. Bobby Mathew vs. State Of Kernataka (2004) 3
CriminalLaw Journal page3003.
I shall now consider whether the learned trial judge In the case of State of Himchal Pradesh vs.ThakurDass
st st
believed the evidence of the 1 accused-appellant. The 1 (1983)2 CriminalLaw
accused-appellant. in his evidence, stated that whilst he Journal 1694atpage 1701 V.D.Misra CJ held:
was at home he heard some people banging on the door
asking him to open the door. They damaged the window “Whenever a statement of fact made by a witness
nd
pane of the house. Thereafter the 2 accused-appellant is not challenged in cross examination, it has to be
st
crying “Ayye”. Thereupon the 1 accused- Appellant. concluded that the fact in question is not
armed with a kathy, went out of the house and found his disputed.”
nd
brother the 2 accused-appellant lying fallen on the
Cont Page 14

Hospital with bleeding injuries he must have been treated
at Balapitiya Hospital or there must be some record aboutIn Motilal vs. State of Madhya Pradesh (1990)
him at Balapitiya Hospital. The DMO of BalapitiyaCriminal Law Journal NOC 125 MPIndian Courts held
Hospital gave evidence and produced the Medico Legalthus:
Report pertaining to the witness Laddu Shantha. But the
learned defence Counsel at the trial, did not ask a single“Absence of cross examination of prosecution st
question about the injuries or any admission of the 1witness of certain fact-leads to inference of
accused-appellane to Balapitiya Hospital. According toadmissionofthatfact.” st
the 1 accused-appellant on the same day he went to
Mahamodara Hospital and got himself admitted. ButIn the light of the above judicial decisions, I hold that
when Professor Niriellage Chandrasiri produced the MLRwhenever the evidence given by a witness on a material nd
of the 2 accused-appellant. the learned defence Counselpoint is the challenged in cross examination it has to be
at the trial did not ask a single question about the injuries ofconcluded that such evidence is not disputed and is st st
the 1 accused-appellant or whether the 1 accused-accepted by the opponent subject of course to the
appellant had been admitted to Mahamodara Hospital.Thequalification that the witness is a reliable witness. In the st
1 accused-appellant who was having cut injuriesinstant case there is no argument about the truthfulness of
surprisingly on his own volition left the Hospital. Videthe evidence given by Professor Niriellage Chandrasiri. st
page 256 of the brief. If the 1 accused-appellant was inHis evidence has not been challenged. Therefore I hold
Mahamodara Hospital and if he left the hospital on his ownthat Professor Niriellage Chandrasiri to be a reliable
volition, he did so in order to suppress the discovery of thewitness in this case. Considering the above judicial
fact that he was having old injuries. There is no medicaldecisions, I hold that evidence given by Professor st
evidence to prove that the 1 accused-appellant wasNiriellage Chandrasiri at the trial had been accepted by the
treated and/or admitted to any hospital on that day or later.accused-appellant.Thus it can be safely concluded that the
nd th considering all these matters the position taken up by the2 accused-appellantdid not have fresh injuries on the 11 st th
1 accused-appellant that he was attacked on the 09 ofof September 1989 and as such he did not have fresh
th st September 1989 cannot be accepted and is not capable ofinjuries on the 09 of September as claimed by the 1
creating any reasonable doubt in the prosecution case.accused-appellant
Learned President's Counsel contends that the learned trial
st
judge had believed the evidence of the 1 accused-st
The 1 accused-appellant in his evidence stated that he
appellant But at page 326 of the brief learned trial judgeth
sustained injuries on the 09 of September 1989. One must st
was of the opinion that the 1 Accused described the
consider whether this is true. Learned Presidents Counsel
incident in a different way.This shows that the learned trialst
for the 1 accused-appellant brought to our notice the st
judge did not believe the 1 accused-appellant. Learned
evidence at pages 196 and 197 given by the investigating
trial judge at page 327 observed that there had been ast
officer in this case. According to this evidence, the 1
struggle between the accused-appellants and the deceased
accused-appellant, had injuries at the time of the arrest.
and the witness no.1. He made the above observation inst
the learned counsel therefore contends that the 1 accused-
view of the injuries of the both accused-appellants. But asth
appellant sustained injuries on the 09 of September 1989. st nd
I pointed out earlier, the Injuries of the 1 and the 2
But according to the inspector these were old injuries.
accused-appellants were not fresh injuries. There is no
Considering the fact that he was arrested 11 days after the
medical evidence to suggest that these injuries had beenst
incident the injuries that 1 accused-appellant is supposed th
caused on the 09 of September 1989. Therefore above
to be having cannot be considered as having been caused
observation made by the learned trial judge that there wasth
on the 9 . The inspector had noticed two plastered
a struggle between the parties appears to be a mistake.Thisst
injuries on the 1 accused-appellant. The accused-
Mistake has not occasioned a failure of justice in view of
appellant was arrested after 11 days of the incident. st
the falsity of the evidence of the 1 accused-appellant.st
According to the evidence given by the 1 accused-
Marks of a struggle near Gunawathi's house observed byst
appellant at page 255, the 1 accused-appellant on the day
the investigating officer cannot be considered to interpret
of the incident first went to the hospital. This should be
that there had been a fight between parties because when
Balapitiya a hospital since he admits that he, went to Galle
the deceased was attacked by two people the deceased
Hospital from Balapitiya Hospital. It has to be noted the
would have struggled to escape from the attack. In my
witness Laddu Shantha too went to Balapitiya Hospital.
view the learned trial judge had considered the evidence ofst
The 1 accused said that he had cut injuries which were st st
the 1 accused appellant to establish the presence of the 1
somewhat serious in nature. If he went to Balapitiya
April/May/June 2010
Page14
Cont Page 15
i

nd st
and the 2 accused-appellant at the 1 accused's house. fromBalapityaHospital.Thisis evidentfromtheMLR.
There is no dispute that both accused-appellants were According to the MLR he was admitted to Balapityast
thpresent at the 1 accused's house since it had been admitted Hospital on 10 of September 1989.The fact that I.Pst
bythe1 accused-appellant.
Gunadasa failed to notice the plaster on the wound cannot
be taken as a serious ground to reject Laddu Shantha'sst
The 1 accused-appellant, in his evidence, says that his
evidence. In these circumstances. I hold that theonly name is Dadimuni Wimalasena. Vide page 265 of the
st contention advanced by the learned Presidents Counsel isbrief. The 1 accused-appellant says that he does not use
untenable. Although the learned Presidents Counselthe name Loku Sunny. Vide page 264 of the brief.
However, later at page 269 of the brief he admitted that he contends that the deceased and Laddu Shantha went to rob
st st
was also called Sunny. Therefore it shows that there was the house of the 1 accused appellant, the 1 accused-
st
great reluctance on the part of the 1 accused-appellant to appellant who had seen Laddu Shantha prior to the
admit that he was called Sunny. This was in my view to incident, did not say, in his evidence, that Laddu Shantha
dilute the effect of the dying declaration made by the
cametorobhis house.
deceased to his father. Learned trial Judge, in his
judgment, considered the reluctance on the part of the 1st nd
Learned Counsel for the 2 accused-appellantaccused-appellant to admit both the names. Considering
contends that the learned trial judge failed toall these matters I am unable to accept the argument of the
consider the concept of common intention. Helearned President's Counsel that the learned trial judge had nd
st st therefore contends that the conviction of the 2believed the evidence of the 1 accused-appellant. The 1
accused-appellants is bad in Law. I shall nowaccused-appellant is a person who was reluctant to admit
consider this argument. Although the learnedhis other names. Can the Court believe the evidence of nd
Counsel for the 2 accused-appellant contendedsuch a person? I say no. Earlier I havepointed out how his
so, the learned trial judge, at page 327, afterevidence became false on a vital issue. If the evidence of
st considering the totality of the evidence of the casethe 1 accused-appellant cannot be believed then he is not st nd
came to the conclusion that the 1 and 2 accused-entitled to the defence of exceeding right of private
appellants dragged the deceased through the gatedefence. For the above reasons I reject the contentions put
of their house and internally committed theforwardby thelearnedPresident's Counsel.
murder of the deceased. This shows that the
learned trial judge, although he has not used the
Learned President's Counsel contends that the learned trial
word 'common intention', was quite alive to the
judge failed to consider the infirmities of the witness
concept of common intention. I therefore reject
Laddu Shantha. Learned President's Counsel contends
theaboveargument.
that witness Laddu Shantha did not go to Balapitiya
Hospital to take treatment before the arrival of the police, nd
Learned Counsel for the 2 accused-appellant, in the
although the witness claimed so. He contends that Laddu
course of his submission, contended that learned trial
Shantha delayed in going to the hospital because he and st
judge had used the evidence of the 1 accused-appellant
the deceased went to rob the house of the accused- nd
against the 2 accused-appellant. He contended that this
appellant. He contends that according to I.P. Gunadasa the
was wrong. His contention is that the evidence of one
investigating officer Laddu Shantha had not taken
accused implicating the co accused cannot be used against
treatment when the police arrived at the scene and this was
the co-accused . I shall now consider this agreement. Can a
why I.P. Gunadasa instructed him to obtain a hospital
dock statement of an accused person be used against the
ticket from the police station. I shall now consider this
co-accused.This question must be answered I the negative
argument.
forthefollowingreason.
Laddu Shantha says that before the arrival of police he
When an accused person makes a dock statement
went to Balapitiya Hospital when the deceased was being implicating a co-accused, he (the co-accused) cannot cross
taken to the said hospital and at Balapitiya hospital examine the accused. Therefore the dock statement given
medicine was applied and the wound was covered with a by a accused person gives evidence implicating a co
plaster. He therefore came back to the scene in the same accused, that latter has the right to cross examine the
accused . Therefore the evidence of an accused personvehicle. Vide pages 129,131 and 132 of the brief. Laddu
who implicates a co accused can be used against the latter.Shantha says that on the following day he took treatment
Cont Page 16

This view is supported by a celebrated judgment of this murder and for the second charge. For the reasons stated
court in Rex vs Ukku Banda 24 NLR 327. His lordship above, I affirm the convictions and the sentences imposed
Betram CJ with the agreement of four other judges held on theacused-appellantsanddismiss thisappeal.
thus:
Appealdismissed
“Evidence given by an accused person on his own behalf
which implicates a co-accused person can be taken into JUDGE OFTHECOURTOF APPEAL
accountasagainstthelatter.”
ERICBASNAYAKE,J.
Considering the above judicial decisions I hold that the
evidence given by an accused person implicating a co- Iagree.
accused can be used against the latter. In fairness to the
JUDGE OFTHECOURTOFAPPEALnd
learned Counsel for the 2 accused-appellant I must state
here in his reply he admitted that he made a mistake on this
legal issue. I have carefully gone through the evidence led
at the trial. I am of the opinion that both the accused-
appellant have been rightly convicted for the offence of
April/May/June 2010
Page16
vv
He can who thinks he can, and he
can't who thinks he can't. This is
an inexorable, indisputable law.
Pablo Picasso
Shame may restrain what law does
not prohibit.
Seneca
Justice that love gives is a
surrender, justice that law gives is a
punishment.
Mahatma Gandhi
Laws are sand, customs are rock. Laws
can be evaded and punishment
escaped, but an openly transgressed
custom brings sure punishment.
Mark Twain
The law will never make men free;
it is men who have got to make the
law free.
Henry David Thoreau
Nobody has a more sacred
obligation to obey the law than those
who make the law.
Sophocles
Laws grind the poor, and rich men
rule the law.
Oliver Goldsmith

red light and then collided with the motor vehicle bearing
No. 64 8638 driven by the plaintiff, resulting in severe
injuries to the latter. The consequential damages suffered
bytheplaintiffis estimatedatRs. 1,000,000/=Case No. C.A. 162/2004 (F)
D.C. Colombo Case No. 22525
The plaintiff attributed the immediate cause of said
nd
1. The Hon. Attorney General vehicular accident to the negligent driving of the 2
Attorney General's Department defendant who allegedly had driven the vehicle bearing
Colombo 12. number 47-9234, without a proper lookout and / or due
st
1 Defendant Appellant consideration for others using the road and / or at a speed
excessive in the circumstances and / or with no proper
2. Udawattage Udayakumara control.
No. 17, Government Farm,
Mahailuppallama, Eppawala. It is common ground that at all times material to this action,
the registered owner of the offending vehicle bearing No.
rd nd
3. E.M. Ekanayake, 47-9234 was the 3 defendant and the 2 defendant had
Sirikulama Junction, Mahailuppallama been employed to drive it. It is also common ground that the
offending vehicle has been hired by the Sri Lanka army
nd
Vs together with the 2 defendant to act as the drive.Actually,
C.Donala Mendis of No. 820B, Kadawatha the vehicular accident which culminated in severe injuries
Road, Dehiwela, to the plaintiff has taken place at a time when the offending
Deceased Plaintiff Respondent vehiclewas inthecustodyanduseoftheSriLankaarmy.
st
1 Mrs. Patricia Veronica The plaintiff has made the Hon. Attorney General as the 1
No. 20, John Keels Housing Scheme defendant since the Sri Lanka army is an organ of the State.
Udawatta Road, Udawatta, Malabe. The plaint was presented on the basis that the State is liable
Substituted Plaintiffs Respondents. in damages as the offending vehicle was in the custody of
the Sri Lanka army and in fact been used by and on behalf
nd
BEFORE : A. W. A. SALAM. J of Sri Lanka army. The 2 defendant has been made a party
since he was the driver of the vehicle at the time of the
st rd
COUNSEL : L.M. K. Arulananthan D. S. G. for 1 impact. The 3 defendant came to be figured as a defendant
D e f e n d a n t A p p e l l a n t P r a s a n n a on the footing that he was the owner of the offending
nd
Jayawardena for 2 and rd Defendant vehicle. The position of the plaintiff is that all three
Appellants K.B. Basheer Ahamed with defendants are liable jointly and severally in damages
Murshid MaharoofforPlaintiff Respondent. arisingfromthesaidcollision.
DECIDED ON : 18.07.2007 The learned District Judge after trial entered judgment,
granting relief against all three defendants as prayed for in
the plaint. Being aggrieved with the judgment and decree of
st
ABDUL SALAM. J the learned District Judge, the 1 defendant preferred and
nd rd
appeal to this Court. Quite independent of it the 2 and 3
st nd rd
The plaintiff filed action against the 1 , 2 and 3 defendants also jointly preferred a different. This judgment
st nd rd
defendants to recover damages in a sum of Rs. 1,000,000/= concerns the cross petitions of appeal of the 1 , 2 and 3
by way of compensation for injuries and permanent defendants. The principal question that arises for
disabilities suffered as a result of a vehicular accident. The determination is the extent of joint and / or several liability
distinctive registered numbers of the vehicles involved in ofthedefendantsarisingfromthevehicularaccident.
the accident are 64 - 8638 driven by the plaintiff and 47-
nd
9234 drivenby the2 defendant. The several admissions made by the parties include the
nd
collision and the fact that the 2 defendant was the driver of
The plaintiff claimed that the vehicle bearing No. 47- 9234 the offending vehicle. The evidence led at the trial revealed
nd nd
driven by the 2 defendant ignored the traffic stop signal that the 2 defendant had driven the offending motor
Civil Law - Vicarious Liability
Cont Page 18

vehicle ignoring the traffic stop signal. The plaintiff's been in the custody, control and the use of the Sri Lanka
evidence regarding the allegation of negligence on the part army. The two clauses in ID2 excluding liability of the Sri
nd nd
of the 2 defendant was not contested. Moreover, the 2 Lanka army, according to the plaintiff is contrary to
defendant has pleaded guilty to the charges of negligent Section 3(1) of the Unfair Contract Terms Act and
driving and failure to avoid an accident in proceedings thereforeshallbeofno effect.
instituted in the Magistrate's Court under the provisions of
the MotorTrafficAct. In this background the finding of the The main question that arises for determination in this
nd
learned trial judge as to the negligence of the 2 defendant appeal, is the extent of the joint and several liability of Sri
rd
has not been seriously contested by the appellants. The Lanka army and or the 3 defendant in relation to the
only question that arises for determination is the degree of vehicular accident.The first and the third defendants are at
vicarious liability of the State as the hirer of the offending variance, with regard to their accountability in the light of
rd
Vehicle and / or the liability of the 3 defendant as the the concept of vicarious liability, in so far as the vehicular
registered owner and / or joint liability of both as the hirer accident is concerned. The learned District Judge held that
andregisteredowneroftheoffendingvehicle. the first and the third defendants (in addition to the second
defendant driver) are vicariously liable in a sum of Rs.
The 3rd defendant appellant has contended that since the 1,000,000/=, being damages caused to the plaintiff, on the
offending vehicle was under the control of and was used basisof jointandseveralliability.
for the purpose of Sri Lanka army the vicarious liability for
nd
any negligent act of the driver (2 defendant) should not be The first defendant takes up the position that the State is
attributedtohim. not liable on the alleged cause of action, mainly as the Sri
Lanka army is the hirer of the vehicle and that it was driven
st
On the other hand, the position taken by the 1 defendant at the time of the collision, by the second defendant who
appellant is that the registered owner of the offending was an employee of the third defendant. The third
rd
motor vehicle was the 3 defendant and any liability defendant, on the other hand denies liability on the basis
nd
arising from the negligence of the 2 defendant should be that the vehicle in question was under the control of the Sri
limited only to the registered owner of the vehicle and his Lankaarmyandnotwithinhis control.
driver.
It is significant to note the admissions of the third
nd
The plaintiff also submits that the wages of the 2 defendant made in relation to the employment of the
rd
defendant had been admittedly paid by the 3 defendant second defendant as the driver of the offending vehicle.
rd
and the driver has been employed to drive the vehicle by The 3 defendant admitted that the second defendant was
the latter. His contention is that since the hiring of the his agent and servant who draw the vehicle in such
offending vehicle include the services of the driver, the capacity at the time of the impact. It was also admitted by
vehicle should be regarded as having been used not only the third defendant that the wages of the second defendant
for the purpose of the army but for the purposes of the was paid by the third defendant. It is implied from the
rd
owner as well. Hence, the plaintiff has urged that he 3 above admissions that the second defendant was under the
defendant cannot in law excape liability behind the fact of general control of the third defendant and the right to
hiring. terminate his services was not within the power of Sri
Lankaarmy.
st
The 1 defendant-appellant has contended that in terms of
rd
the contract of hire ID2 the Sri Lanka army is not liable for As the 3 defendant has admitted that the he was registered
nd rd
any damage caused by the 2 defendant and it was the 3 owner of the offending vehicle in terms of Section 25(2) of
defendant owner who was responsible for any negligent the Motor TrafficAct No. 14 of 1951, a presumption arises
nd
act of the 2 defendant driver. In this respect learned that he was in possession of the vehicle unless the contrary
Counsel has drawn the attention of Court to clauses 6 & 7 is proved. The learned Counsel has cited Section 25(2)
rd
of ID2. In terms of clauses 6 & 7 no liability arising from claiming the benefit that the 3 defendant has rebutted the
the negligent driving is permitted to be attributed on Sri presumption of possession. It is pertinent to note that
Lankaarmy. Section 25(2) of the Motor Traffic Act relates to the
obligation of having to obtain a revenue licence as a
st
As regards the liability of the 1 defendant it is contended condition precedent to possess a motor vehicle. The
rd
on behalf of the plaintiff that the vehicle in question has learned Counsel of the 3 defendant appears to have cited
April/May/June 2010
Page18
Cont Page 19

Section 25(2) to deny liability on the basis of having of proving the ingredients necessary to have himself
rebutted the presumption arising under that Section. The absolved from vicarious liability. In order to achieve
rd
presumption uder 25(2) becomes relevant only with such an object the 3 defendant has to prove inter alia
nd
regard to the liability to pay the revenue to the that he divested himself of the right to control the 2
government. It has to be borne in mind that it is not the defendanttothehirerofthevehicle.
rd
position of the 3 defendant that he did not pay the revenue
to the government as he was not in possession of the The judgment in the case of Imlar and others Vs.
vehicle. No evidence has been led by any of the parties in Nagoor Pitchai Transporters Ltd., can be cited as
this case that the revenue licence for the offending vehicle being relevant to the proposition of law that a master
hadbeenobtainedby SriLankaarmy. who sends his workmen to the premises of another is
still subject to his common law obligation to take
rd
The learned District Judge has held that the 3 defendant's reasonable care for their safety by providing a safe
liability arises on the basis that he was the owner of the system of work on those premises. Applying the ratio
rd
offending vehicle. Such liability can be avoided if the in the above case it is abundantly clear that the 3
nd
registered owner is able to prove that he was not in defendant who engaged the services of the 2
possession of the vehicle and that it was driven by some defendant in furtherance of his business should be
other person other than the registered owner or his agent / considered as being obliged to provide for the safety
servant. As far as the possession of the vehicle is of others through his servant, as the act of driving the
concerned, it is admitted that the registered owner, in the vehicle fell within the general scope of the business of
rd
capacity as the hirer of the vehicle. The vehicle has been the 3 respondent, though the vehicle was driven to
hired by Sri Lanka army upon the payment of rupees 21, drop an officer of the army at the Ratmalana Airport.
nd
000/= a moth along with the services of the driver (2 The issue of vicarious liability for the acts of a loaned
rd
defendant) provided by the 3 defendant. Admittedly, the or borrowed servant usually occurs, when an
nd rd
salary of the 2 defendant has been settled by the 3 employer sends an employee to work for a separate
defendant on monthly basis. In the circumstances, it is unaffiliated organization as has been the position in
hardly possible to conclude that the possession of the this case. The person who sends the employee is
rd
vehicle by Sri Lanka army is independent of the 3 usually referred to as the “special employer”.The loan
defendant'sposition. should be considered as temporary even when the
period relating to the engagement of the borrowed
The correct position is that as the Sri Lanka army had used servant is relatively lengthy, because it is expected
the vehicle as hirer on monthly basis and had it in their that the employee will subsequently return to the
custody. Their possession of the offending vehicle in fact direct control of the general employer. Meanwhile the
rd
hasbeenheldforanonbehalfofthe3 defendant. borrowed servant is necessarily subject to some
control by the borrowing employer who is usually
The facts relevant to decide the basis of liability may be called a special employer, at least as to attain the
listedasfollows: desired results. The difficulty may arise as to whether
it is the general employer or the special employer who
rd nd
1. It was the 3 defendant who had appointed the 2 should be vicariously liable for wrong committed by
defendant,toservetheformerasadriver. the borrowed servant. Under the doctrine of
respondeat superior a master is liable for the wrong
2. Thedriverhadbeenpaidamonthlysalary. committed by the servant provided the act complained
of the servant fell within the servant's employment. A
nd
3. The monthly salary of the 2 defendant had passage which is quoted from Salmond with approval
rd
alwaysbeenpaidby the3 defendant. by the Privy Council in Canadian Pacific Railway
Company Vs. Lockheart 1942 AC 591 and 1942 AER
4. The Sri Lanka army had no disciplinary control 464 at 467 can be usefully referred to in this
nd
over the 2 defendant nor did it have right to connection.Thepassagereadsasfollows.
terminatetheservicesofhim.
“A master is responsible not merely for
The question that arises for determination is whether what he authorizes his servant to do but
rd
the 3 defendant who admittedly engaged the services also for the way in which he does it ……
nd
of 2 defendant to serve him has discharged the onus on the other hand, if the unauthorized and
Cont Page 20

wrongful act of the servant is not so length of time during which the vehicle had been
connected with the authorized act as to possessed by the State, the type of custody of the offending
be mode of doing it, but is an independent vehicle yet remained as temporary. The position would
act,themasterisnotresponsible.” have been totally different had the offending vehicle was
driven by an employee of the Sri Lanka army. In the
nd
The 2 defendant was admittedly driving the vehicle at the circumstances, it is hardly possible to attribute any joint or
time of the collision and therefore cannot be said to have severalliabilitiesontheState.
engaged in an act outside the scope of his employment or
rd
in a business other than that of the 3 defendant.Applying For the foregoing reasons the learned trial judge has erred
st nd rd
the principle laid down in the case of Canadian Pacific in holding that the 1 , 2 and the 3 defendants are jointly
Railway Company Vs. Lockheard (Supra), it would be and severally liable in damages to the plaintiff.
nd
seen that the 2 defendant was undoubtedly doing an act Consequently, the judgment and decree entered against the
st st
within the scope of his employment but carrying out his 1 defendant is set aside. The action against the 1
duties as had been authorized by his master. In the defendant therefore, should be considered as being
circumstances, the negligent manner in which the dismissed.
nd rd
offending vehicle had been driven falls within the Accordingly, the judgment entered against the 2 and 3
rd
responsibility of the master the 3 defendant. Hence, it is defendantsisaffirmed.
rd nd rd
my considered view the 3 defendant is not entitled to The plaintiff is entitled to costs from the 2 and 3
st
denyoravoidliability. defendants. The 1 defendant is entitled to recover costs
fromtheplaintiff.
The evidence disclosed at the trial clearly indicates that the Subject to the above variations, the judgment and decree
nd rd
2 defendant was obliged to return to the 3 defendant, oftheDistrictCourtis affirmed.
who was his master upon the termination of the contract of
hire. As has been mentioned already irrespective of the JUDGE OFTHECOURTOFAPPEAL
April/May/June 2010
Page20
Only one thing is impossible for
God: To find any sense in any
copyright law on the planet.
Mark Twain
The best way to get a bad law
repealed is to enforce it
strictly.
Abraham Lincoln
We are all full of weakness and
errors; let us mutually pardon
each other our follies it is the first
law of nature.
Voltaire
There is one kind of robber
whom the law does not strike
at, and who steals what is most
precious to men: time.
Napoleon Bonaparte
Justice that love gives is a
surrender, justice that law gives
is a punishment.
Mahatma Gandhi

AWAbdul Salam,J
This order arises on the preliminary objection raised by the
substituted Defendant, as regards the maintainability of
C.A. 643/93(F) the present application for leave to appeal. The facts
D.C. Gampaha 30629 /M relevant to the preliminary objection are as follows:
Pathirannehalage Vajirabuddi Karunarate filed action
Kahanda PathirannehelageVajirabuddhi Karunaratne of under summary procedure on liquid claims, against the
'Nimal'Doranagoda,Bemulla defendant W.P. Biyel seeking to recover a sum of money
Plaintiff-Appellant lent by him upon a promissory note. As the Defendant
Vs failed to appear and/or obtain leave to defend action,
1. Wickrama Pathirannehalage Biyel of Sethalagara decree was entered on 29.1.1988 in favour of the plaintiff.,
Estate,Kalpitimuula.Hunumulla. Subsequently, the defendant applied to Court to set aside
the decree entered for default. The application of the
Defendent Respondet defendant to purge his default was dismissed. The
2 Don KamaljayakodyofKalpitimulla. Defendant then sought to canvass the order in this Court
3.Bulugahamulla Pathirannehalage Chandralatha andthattoowas dismissedon31.10.1996.
Jayakody
4.RatnayakeGamageGunapala Subsequently writ of execution of the decree against the
5.ImbulanaAppuhamilageGunaratne Defendant was issued on the application of the judgment
6.ImbulanaAppuhamilageDharamasena creditor. Pursuant to the writ of execution, the Fiscal of
7.NaiwalaAppuhamilageNimalAppuhamy Negombo seized certain immovable properties.,
8.suasingheArachchigeTilakPriyantha Consequently, the property seized by the fiscal was put up
9.SubasingheArachchigeJayatilaka for sale and the plaintiff purchased the property at the
10. SagalappugeKusumalatha auction.
11.SubasingeManchanayakagePadmaPiyaseeli
12.AdikariMudiyanselageSomaratneBanda Nevertheless, the Defendant made yet another application
Allof Kalpitimulla,Hunumulla, to have the said sale declared null and void for alleged non-
observance of certain provisions of the Civil Procedure
Applicants-Respodents Code. Having considered the said application the District
Before : A.W.A. Salam,J. Judge of Gampaha set aside the sale. Being aggrieved by
the said order the plaintiff filed application for leave to
Counsel : L.C. Seneviratne PC with Rohan appeal. The said application having been rejected by this
Sahabandu for the Appllant in court the plaintiff then invoked the jurisdiction of the
C.A. 995/91(F)andC.A. 643/93(F). Supreme Court in SC Appeal No. 39/94 to challenge the
Walter Perera for the substituted validity of the rejection of the application for leave to
Defendant-Respondents. appeal.The Supreme Court thereafter set aside the order of
this court rejecting the application for leave to appeal and
Decidedon : 11.01.2008 directed that the application of the plaintiff for leave to
appealbeheardanddeterminedonthemerit.
Civil - Procedure
Cont Page 21

Pending the determination of the application for leave to It has been held in the case of Thyagarajah v.Fonseka 2
appeal the defendant died on 03.07.1999. Upon the Srikantha Law Reports 116 that the exection of decree is
plaintiff moving to have substitution effected in place of really against the estate of a deceased Judgment-Debtor. In
the deceased defendant, this court by order dated 26 fact, since there was a valid decree against the Defendant
October 1999 substituted the widow of the deceased entered prior to his death, for satisfaction of the same the
defendant as the legal representative of the deceased Judgment-Creditor was at liberty to go against the estate of
defendant. the deceased Judgment-Debtor. For that reason, the
preliminary legal objection taken by the substituted
The substituted Defendant has now raised a preliminary Defendantsappearstomeasutterlyfrivolousandbaseless.
objection as to the maintainability of the application for
leave to appeal. She takes up the position that on the death For the foregoing reasons it is my view that the substituted
of the defendant the proceeding against him had ended on Defendant cannot invoke the maxim actio personalis
the legal maxim actio personalis moritur cum persona and moritur cum personsa as being applicable. Hence, there is
therefore the plaintiff is not entitled in law to have and no merit in the preliminary objection raised by the
maintain the application for leave to appeal. On this substituted Defendant. Taking into consideration the
question as both parties have filed their respective written frivolous nature of the objection raised by the Defendant, I
submissions, it was agreed at the heading to try the consider it appropriate to order substantial costs against the
preliminary objection without it being re-argued before substitutedDefendant.
me.
Accordingly I rule out the preliminary objection of the
The learned counsel of the substituted Defendant- substituted-defendant subject to his paying the plaintiff a
Petitioner has adverted me to the maxim actio personalis sumofRs. 10,000/-,ascostsofthepresentcontest.
moritur cum persona and cited judgments in Norwood Vs.
Read Plowd 180, Burry Vs.Robinson 1 BXP(NR) 299 and This order shall be applicable with the necessary changes
RiddelVs. SuttonS.Bing200at206. tothe preliminaryobjectionraisedinCA995/91(F)
The Learned President's Counsel of the Plaintiff on the Judgeofthecourtofappeal.
other hand has submitted that the Defendant was alive
during the entirety of the action in the Distrist Court and
during the appeal field by him and therefore is bound by the
judgmentanddecreeenteredinfavourofthePlaintiff.
Admittedly, his death has occurred pending the application
for writ of exection and therefore it is common ground that
the death of the Defendant has occurrd after the decree was
enteredby theDistrictCourt.
April/May/June 2010
Page22
The judgement on Partition Law appeared in the 20th
page of the last issue has been delivered by
Hon.JusticeT.B.Weerasooriya with the agreement of
Hon. Justice J. Balapatabendi.Mentioning the name
of Hon. Justice J.Balapatabendi as who delivered the
judgement was a mistake and we regret the
inconvenience caused to JusticeT.B.Weerasooriya in
thatrespect.
vv
There is no better way to exercise the imagination than the study of the law. No artist ever
interpretednatureasfreelyasalawyerinterpretsthetruth.
Jean Giradoux

INTRODUCTION / HISTORY It is generally accepted that it is wrong to send an offender
to prison for a short term which will be sufficient only to
Our Criminal Courts are empowered to impose sentence familiars him with prison conditions and may well lead to
of imprisonment by section 14 and 15 of the Code of deteriorationinhis conductandcharacter.
Criminal Procedure Act of No. 15 of 1979 (Herein after
referredtoasthe“CCPAct”). As a result, the Law Commission of SriLanka
recommended the introduction of suspended sentence into
A court imposing sentence of imprisonment on a SriLanka on lines similar to those reflected in the Criminal
convicted person is conferred power to suspend the whole Justice Act, 1967, of England. These suggestion,
orpartofthesentenceby section303 oftheCCPAct substantially, have been given expression in the
provisions of the Administration of Justice Law No. 44 of
There was no provision to suspend a sentence imposed by 1973.
a Court in our former Criminal Procedure Code of No. 15
of1898. Provisions for suspension of Sentences were introduced
for the first time into the SriLankan legal system by
Suspended sentence was introduced in England in 1967 sections 239, 240 and 241 of theAdministration of Justice
with the enactment of the Criminal JusticeAct. Following LawNo. 44of 1973.
this, agitations to introduce the suspended sentences into
our legal system was started for some legal and The Administration of Justice Law was repealed by the
sociological reasons. The purpose of suspended sentence present Code of Criminal Procedure Act No. 15 of 1979
wereexplainedasfollows. on 02.07.1979. Sections 303, 304 and 305 of the CCPAct
containedprovisionforsuspension ofsentences.
(I) That no offender should be confined in a prison
unless there is no alternative available for the Provisions of the CCP Act pertaining to suspension of
protection of the community and the reform of sentence (section 303(1)) were subsequently amended by
theindividual; Act No. 20 of 1995, Act No. 19 of 1997 and Act No. 47 of
1999.
(II) That, imprisonment, with its obviously criminal
associations should not bring a non criminal Act No. 47 of 1999 repealed the entire provisions of
offenderwithinitsambit; sections 303, 304 & 305 and substituted new provisions
for sections 303 & 304. Section 305 was repealed without
(III) that an offender is given the opportunity of substitution.
responding to incentives to good behavior
accompanied by the threat of drastic penal As such, presently, the provisions concerned with
action,should hepersistincriminalconduct; suspension of sentence contained in sections 303 and 304
oftheCCPActasamendedbyActNo. 47of1999.
(IV) that the offender is treated as an individual who,
despite the nature of the offence, is subjected to The rationale of suspended sentence and the
penal action related to his needs, his character circumstances under which sentence must be suspended
andthepossibilityofhisreform. have been explained by Edirisuriya J. in Kumara Vs.
TheAttorneyGeneral[2003] 1 SLR 139.
A further justification of suspended sentences in our
country is that its introduction serves as a means of DUTIES OFTHECOURT
relieving the overcrowding of prison by restricting the
prison population to habitual criminals or to those who Though sections 303 and 304 of the CCP Act vest a
have been sentenced to long terms imprisonment with the discretionary power in Judges to suspend sentences of
consequentfinancialsavinginvolved. imprisonment, the same sections impose some imperative
“Suspension of Sentences” a judge's perspective
BY T.L.A. MANAF LL.B. (Colo) Magistrate & Addl. District Judge Trincomalee
Cont Page 24

duties on a judge who proposes to suspend any sentence (c) the offender's culpability and degree of
imposedon aconvictedperson. responsibility fortheoffence;
A Judge is prevented from making order suspending any (d) theoffender'spreviouscharacter;
sentence of imprisonment imposed on an offender on the
followinginstances. (e) any injury, loss or damage resulting directly from
the commissionoftheoffence;
(a) When a mandatory minimum sentence of
imprisonment has been prescribed by law for the (f) the presence of any aggravating or mitigating
offences in respect of which the sentence is factor concerningtheoffender;
imposed.
(g) the need to punish the offender to an extent, and in
(b) If the offender is serving, or is yet to serve, a term a manner, which is just in all of the circumstances
ofimprisonment thathasnotbeensuspended. ;
(c) If the offence was committed when the offender (h) the need to deter the offender or order persons
was subject to a probation order or a conditional from committing offences of the same or of a
releaseordischarge. similar character;
(d) When the term of imprisonment imposed, or the (i) the need to manifest the denunciation by the court
aggregated terms of imprisonment where the of the type of conduct in which the offender was
offender is convicted for more than one offence in engagedin;
the same proceedings, exceeds two years.
[section303(2)] (j) the need to protect the victim or the community
A Judge can make order suspending the whole fromtheoffender;
or part of the sentence imposed on an offender
byhim.[Section303 (1)] (k) the fact that the person accused of the offence
pleaded guilty to the offence and such person is
This section leads to divided thinking among the readers sincerelyandtrulyrepentant;or
since the words used in the section are not clear enough to
explain the provisions meant by the section. One set of the (L)acombinationoftwoormoreoftheabove.
readers argue that, according to this section, when a court
imposes sentence of imprisonment even to a single charge There are some more duties cast on the judge who
the court can suspend a part of it and implement the other proposes tomakeanordersuspending anysentence.
part.Whereas the other set of the readers argue that when a
Court imposes sentence of imprisonment for more than Firstly, he/she must be satisfied him/her self that it is
one charge the court can suspended the sentence for one or appropriatetodo so inthecircumstances[section303(1)]
for some charges and implement the sentence to the other
charges. This doubt will prevail until it is resolved by a Secondly, he/she must record the reasons for which
judgment of the superior courts or by an amendment to the he/she is proceeding to suspend the sentence imposed by
section. him/her [section 303 (1)]The requirement of recording the
reasons for suspending the sentence have been discussed
When a Judge proposes to make an order suspending any inthefollowingcases.
sentence, he is expected to consider the following by
section303 (1) (a) (l)oftheCCPAct Veluppillai Nadarajah Vs. V.H. Shelton (1986) 2 CALR
136. and Mohammed Razik Hassim Vs. Inspector of
(a) themaximumpenaltyprescribedfortheoffence Police, Ampara 1986 2 CALR 22. In Veluppillai
inrespectofwhichthesentenceisimposed; Nadarajah's case the order was quashed and the case was
sent back for re-trial as the suspended sentence imposed
(b) thenatureandgravityoftheoffence; withoutreasonfordoingso beingadduced.
April/May/June 2010
Page24
Cont Page 25

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