1. CA PHC APN 111/2014
Decided on – 09/01/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 40(1), 40(a), 52 read with section 25(2) of the Forest Ordinance; Transporting timber without a permit; confiscation of the vehicle.
The learned Magistrate had confiscated the vehicle and when the 2nd claimant-petitioner-petitioner aggrieved by the said order, invoked the revisionary jurisdiction of the High Court. The learned High Court judge refused the revision application of the Petitioner without issuing notices to the Respondent.
Held that, the exceptional circumstances has been pleaded by the Petitioner. The Learned High Court Judge should have issued notice to the parties and proceeded to hear the application.
Judgment of the High Court was set aside and High Court judge was directed to issue notice on the Respondents and to hear the revision application.
2. CA(LA) 65/2007
Decided on – 10/01/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Section 19(b) and 19(c) of the Bribery Act;
Counsel for the Appellant submitted that the learned high court judge has misled herself in believing that there is a contradiction interse between two prosecution witnesses whereas it was only a difference in explaining the incident.
Held that the learned High Court Judge has observed the discrepancy in the prosecution evidence and has said that there remains a doubt on the part of the case of the prosecution. Therefore, this court is of the view that the learned High Court Judge has carefully evaluated the evidence placed before her and has come to the correct conclusion.
3. CA 73 / 2011
Decided on – 10/01/2017
Before – L.U. Jayasuriya, J
Deepali Wijesundara, J
Section 296 of the Penal Code; One eye witness; evaluation of evidence; voluntary intoxication; dying declaration
Held that, the Learned High Court judge has properly evaluated the evidence, correctly analyzing evidence from all the witnesses. Dying declaration had not been challenged in the High Court. The appellant had failed to explain the burn injuries in his dock statement.
4. CA 176/2014
Decided on – 11/01/2017
Before – P.R. Walgama, J
S. Devika de Livera Tennakoon, J
Kidnapping, Grave Sexual abuse and Murder of a 6 year old; circumstantial evidence; Section 165 of the evidence ordinance
The Counsel for the Appellant further alleged that the elucidated items of circumstantial evidence were insufficient to prove the prosecution's case against the accused beyond reasonable doubt.
Held that, The dock statement of the Appellant is not sufficient and is incapable of raising any reasonable doubt in the case for the prosecution The nature of questioning adopted by the learned High Court Judge, as pointed out by the Appellant, have not unfairly prejudiced the Appellant and is not such that would alter the character of the adversarial system of criminal justice. The learned High Court Judge was well aware of the scope of Section 165 and therefore had acted within the parameters of the said provision.
It is incumbent that for the concept of the last seen to be relied upon the prosecution has to establish the last seen within close proximity to the time of death in any given situation.
High Court Judge in this case had correctly applied the principles when evaluating the each and every piece of circumstantial evidence against the accused.
5. CA/PHC/32-33/2011
Decided on – 17/01/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Urban Development Authority Act; Section 189 of the Code of Criminal Procedure Act; Constructing a building without the relevant permit from the Pradeshiya Sabha.
Appellant argued that as per the application of counsel for the Respondent recorded as “for the time being he is not proceeding the application” the learned Magistrate should have dismissed the application.
Held that, in this the word “for the time being” is crucial. It doesn’t mean that the Respondent is not proceeding at all. Section 189 of the Code of Criminal Procedure Act provides that the withdrawal can be done only with the permission of the court. There cannot be any implied withdrawals. It has to be express and clear withdrawal with permission of court.
6. CA 261/2012
Decide on – 17/01/2017
Before – DeepaliWijesundara, J
L.U. Jayasuriya, J
Section 19 (b) and 19 (c) of the Bribery Act; Contradictions inter se of the evidence of the prosecution witnesses.
First prosecution witness testifies the glass of the cubicle of the accused appellant was partially made of non-transparent glass while the decoy’s evidence was that it was transparent.
Held that, a doubt arises as to how the decoy observed the transaction taking place. This contradiction goes to the root of the case. The learned High Court Judge has failed to give the benefit of this doubt to the accused appellant.
Appeal allowed.
7. AG V Don Ariyadasa Wijenayake & Others
CA PHC APN 125/2015
Decided on – 20/01/2017
Before - Madawala,J. and Dehideniya,J.
8. CA PHC APN 170/15
Decided on - 23/01/2017
Before - Madawala,J. and Dehideniya,J.
Section 83(1) of the Poisons, Opium, And Dangerous Drugs Ordinance/Bail
Held: Bail will not be granted unless there are exceptional circumstances. Also see CAPHC APN 45/2016 decided on 25/01/2017 by Madawala,J. and Dehideniya,J.
9. CA (CC) 11/2016
Decided on – 24/01/2017
Before – Vijith Malalgoda, PC, J (P/CA)
P. Padman Surasena, J
Article 105(3) of the Constitution; Contempt of court; Section 18 of the Judicature Act.
In this application, the petitioners alleged that the Respondents deliberately and intentionally violated the interim order of the High Court and that amounts to committing the offence of contempt of High Court.
Held that, this is a case involving exercise of original jurisdiction (as opposed to the appellate jurisdiction).Although Article 105 (3) of the Constitution has enabled the Court of Appeal to punish for contempt of any court, tribunal or other institution referred to in paragraph 1 (c) of that Article, it should not be taken as if, it is the Court of Appeal that should deal with all the situations of committing contempt of court in any of those institutions referred to in paragraph 1 (c)of that Article throughout the whole country. Number of judges designated to those institutions referred to in paragraph1 (c) of that Article is indeed very much more than the mere twelve judges in the Court of Appeal. Thus it is manifestly clear that it would not be practically possible for this Court to deal with all such contempt matters if litigants from all over the country start filing such cases before the Court of Appeal. In these circumstances it is clear that the power given to the Court of Appeal by Article 105 (3) of the constitution is a power which the Court of Appeal may use when necessary in circumstances that it thinks warrants the exercise of that power.
Further held that it would be the learned High Court Judge who is already possessed of the facts and circumstances of this case and who has access to all the material adduce din this case, who would undoubtedly be the best judge to deal with this case. Hence this application must stand dismissed.
10. CA/PHC/APN 45/2016
Decided on – 25/01/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Bail; Trafficking and possessing 6.61 grams of Heroin; Petitioner was incarcerated for almost 3 years
Held that, keeping the Accused in remand for over 3 years for not having exceptional circumstances will not constitute exceptional circumstances. The Legislature in their wisdom thought it fit to keep a person suspected or Accused of an offence under section 54 A or 54 B of the Ordinance, in remand unless there are exceptional circumstances to release on bail. What is expected is to keep him in remand until the conclusion of the case unless there are exceptional circumstances to release on bail. Therefore, the time period of incarceration alone would not constitute exceptional circumstances.
11. CA/PHC/APN 141/2016
Decided on – 25/01/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 66 Application
The counsel for the Respondent contended that court of appeal cannot intervene by way of revision while an appeal is pending challenging the same order where there are no exceptional circumstances, and also that the learned Magistrate ceases jurisdiction to make an order under section 66 of the Primary Court Procedure Act once a party files an action in the District Court on the same subject matter.
Held that, when there is an appeal pending before this Court, the exceptional circumstances have to be considered seriously to avoid a second appeal in the guise of a revision application.
Further held that the determination of the Judge of the Primary Court is valid until the competent civil court pronounces a decree or an order. Filing a civil action does not deprive the Primary Court from making the determination.
12. Gamini Medis V AG
CA PHC APN 69/2015
Decided on – 26/01/2017
Before - Madawala,J. and Dehideniya,J.
The policy to be adopted in sentence.
13. CA 12/2014
Decided on – 27/01/2017
Before – P.R. Walgama, J
K.K. Wickramasinghe, J
Conspiracy to commit robbery; Section 113(b) read with section 380 of the Penal Code; Section 102 read with section 383 of the Penal Code.
Counsel for the Accused Appellant only sought the terms of the imprisonment on 3 charges to run concurrently. Counsel for the Respondent has no objection for the above application of the Accused Appellant however she urged the court to impose an adequate compensation and a fine.
Held that, the victim should be compensated adequately. Accordingly the compensation and fine in the sentence of the High Court were varied and the sentences were ordered to be run concurrently and also to be effective from the date of the conviction.
14. CA/PHC/91/2015
Decided on – 27/01/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Termination of service; Labour Tribunal
Jurisdiction to entertain an appeal from an order of a Provincial High Court made on exercising appellate jurisdiction on order of Labour Tribunal.
Held that, the law is very clear that appeal against an order of the Provincial High Court does not lie in the court of appeal. It lies on the Supreme Court on leave being obtained from the High Court or the Supreme Court.
Appeal dismissed.
15. CA/PHC/41/2010
Decided on – 31/01/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
State Land (Recovery and Possession) Act; appeal against an order for ejectment.
Held that, the party noticed under State Land (Recovery and Possession) Act is not entitled to challenge the opinion of the competent authority on any matters. The only defence available to a party noticed is to establish that he is in possession or occupation on the strength of a valid permit or a written authority of state.
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