Sirimane. J.—Atula lialnayake. v. Jayasinghe
Present : Sirimane J., Ismail J. and Batwatte J.
ATULA RATNAYAKE, Petitioner and Lieut. Col. G. R. JAYA-SINGHE and four other Respondents.
S. C. 1012/74
Application for a Writ of certiorari—inordinate delay—whether thewrit would issue.
Where the petitioner applied for a Writ of certiorari to quash theverdict and sentence passed against him by a General CourtMartial.
Held, The delay of one year and three months which had notbeen satisfactorily explained by the petitioner barred the remedy.The Court has a discretion which it could exercise to refuse theapplication on the ground that there had been undue delay inbringing the proceedings.
Nimal Senanayake with Rohan Perera for Petitioner.
K.H. M. B. Kulatunga, Senior State Counsel with D- L. Prema-ratne, State Counsel for Respondent.
July 18, 1975. Sirimane, J.—
This is an application for a writ of certiorari quashing theverdict and sentence passed against the petitioner after he wastried by a General Court Martial under the Army Act (Chap-357) . He was found guilty on count (2) (Criminal breach of trustin respect of Rs. 32,218.22) and on count (3) (Criminal breach oftrust in respect of Rs. 31,031.04) under section 392 of the PenalCode read with the Army Act and sentenced to a term of oneyear’s simple imprisonment and to be cashiered from' the SriLanka Army. The Court Martial, however, recommended him tomercy on- three grounds, one of which was that he had re-paida sum of Rs. 45,337.13. The teym of simple imprisonment was notconfirmed by the convening authority. In the result the punish-ment imposed on the petitioner was only that he be cashieredfrom the Sri Lanka Army.
Sirimane, J.—Atula Ratnayake. v. Jayasinghe
At the hearing of this application learned Senior State Counsel,who appeared for the respondents raised two preliminarymatters, on which we heard Counsel on both sides, namely : —
(1) that there had been inordinate delay in seeking thediscretionary remedy of writ ; and
<2) that the petitioner had not disclosed in his petition amaterial fact within his knowledge.
The sentence was passed on the petitioner at the conclusion ofthe trial before the General Court Martial of 3rd July 1973. Heappealed on 19th July 1973 and the decision in appeal was madeknown to the petitioner on 15th August 1973. The present appli-cation has been filed in this Court on the 23rd of October, 1974—one year and three months after the final decision. The petitionerin paragraphs 4-18 of his petition sets out the reasons for thisdelay. According to the petitioner on the very day he wassentenced (3.7.73) his Counsel moved for a certified copy of theproceedings. Thereafter the petitioner and his Counsel madeseveral inquiries and the petitioner was informed that the copieswere under preparationand wouldtakeaconsiderable
time tocomplete. InNovember1973thepetitioner’s
Counselwas informedby letterthatthepreparation
of thecopy of theproceedingswasnot complete.
The petitioner’s Counsel had misplaced this letter but informedthe petitioner about it. The petitioner thereafter made severalrequests for the issue of a copy but was told that the copy wasnot ready. By letter dated 21.2.74 (B) the petitioner was informedby the 4th respondent that a sum of Rs. 1,000 should be depositedprior to the commencement of the preparation of a certified copy.At this stage I will consider the delay (of nearly 7 months) upto this point of time. The 4th respondent has filed an affidavitand stated therein that he admitted that an application for acertified copy of the proceedings was made by the petitioner on3.7.73 but states further that a letter dated 2.8.73 (a copy of whichhas been produced marked 4 R 1) was sent to his Counsel in thatconnection. This letter requests that a sum sufficient to cover thecost of preparing a certified copy be deposited with the CivilianAccountant of the Sri Lanka Army. This letter would havereached the petitioner’s Counsel a few days after 2.8.73. Neitherthe petitioner nor his Counsel have taken any steps in pursuanceof that letter to have the copy prepared. The petitioner tries tomake out that after his original application on 3.7.73 the firstintimation that was received was a letter to his Counsel inNovember 1973 stating that the copy was “ under preparation ”.No such letter has been sent by the 4+h respondent who deniedthis averment in his affidavit. The petitioner’s submission that heand his Counsel were put off on numerous occasions by being
Sirimane, J■—Alula Ratnaya/ce v. Jayasinghe
informed that the copy was “ under preparation ”, which wasdollowed by the alleged letter of November 1973 to his Counsel,which was not forthcoming, as h s Counsel is alleged to havemisplaced it, is quite unsupported apart from the petitioner’sown averment. No affidavit has been filed from his Counsel thathe received such a letter or that he misplaced it. Learned Counselfor the petitioner submitted that it may be the letter 4 R 1 of2.8.73 that the petitioner’s Counsel received and misplaced. If sotwo facts emerge which completely demolish the petitioner’sattempt to explain the delay on the ground that he was under thebelief that the copy was “ under preparation Firstly, theletter would have been received in August 1973 and not inNovember 1973 and secondly and more importantly the contentsof that letter in no way showed that the copy was “ under pre-paration ” but required a sufficient deposit to be made. It is alsoimprobable that the petitioner, who held the rank of Captain inthe Sri Lanka Army, would have believed that the preparationof such a bulky record (nearly 1,000 pages) would have beenundertaken without any deposit being made by him. LearnedCounsel for the petitioner submitted that the letter of 21.2.74 (B)shows that the petitioner must have gone to the office and madeinquiries. The question, however, is when he went there ? Itwould appear from the fairly prompt replies sent in the subse-quent correspondence that it must have been a few days prior to21.2.74. The petitioner’s excuse for this delay is in my view,therefore, quite unacceptable and only a pretence for his owndefault.
The correspondence after 21.2.74 also shows that the petitionerfailed to comply with a request to deposit the required fees butcontinued correspondence on the footing that,
he had been orally informed that the copy would cost
that the proof of Public Documents Ordinance lays down
the rates for a certified copy and that there was norequirement for the petitioner to make payment to“ commence ” preparation.
As regards (1) above the petitioner says fie had no writtencommunication to that effect but that his Counsel was so infor-med when the original application was made on 3-7.73. Here toothere is no affidavit from his Counsel to support that statement.As regards (2) above while it is Section 75 of the Army Actthat regulates the issue of certified copies in cases such as thisand not the ordinance cited by the petitioner, the real reasonfor the delay becomes apparent in the words underlined by meabove. The petitioner was not prepared or able to make the
Sirimane.. J.—A tula Ratnayahe v. Jayasinghe
deposit called for and was making various allegations and try-ing various methods to get a copy on his terms. The petitionerthen wanted a copy of the day to day preceedings issued to himcertified as correct and the respondents wanted to know theprovision of law under'which such application was made. Whilstthere appears to be such provision in respect of civil proceedingsin Section 205 of the Civil Procedure Code there is no similarprovision in the Army Act. Ultimately, the petitioner came intoCourt on 23.10.74 having prepared the petition from the notes of'his Counsel and the original copy of the proceedings (uncertified)issued to him by the Court Martial. If the petitioner genuinelyfound it difficult to obtain a certified copy of the record becauseof its high cost, he could have, considering the nature of theremedy he was seeking, come into Court expeditiously andexplained his difficulty as indeed he subsequently did when heultimately filed this petition in Court. I am unable in the cir-cumstances to say that this long delay has been satisfactorilyexplained or that it was beyond the control of the petitioner.
The delay in applying for a writ of certiorari, depending onthe facts and circumstances of each case in that regard, wouldof itself be a ground for refusal of that discretionary remedy. Irtthe case of King v. Stafford Justices (1940—2 KB page 33) itwas held,
“ That the Court had a discretion which it could and didexercise to refuse the application on the ground that there-had been undue delay in bringing the proceedings. ”
Sir Wilfred Greene M.R. stated in the course of that judgment r“…. It was at that time that quick and speedy action forrelief was obviously called for, instead of which five monthsdelay took place before the application was launched. Tshould have considered myself that that circumstance alone-was one which ought to prevent the Court from granting any-relief on the facts of this case”
In the case of President Malalgodapitiya Co-operative Societyv. Arbitrator of Co-operative Societies (51 N. L. R. 167) it was.held that a writ of certiorari will not be issued when there hasbeen undue delay in applying for the writ. In Gunasekera v.Weerakoone (73 N. L. R. 262) a writ of certiorari was refused onthe ground of undue delay in making the application. In thepresent case there has been a delay of nearly one year and three-months which has not been satisfactorily explained, and on thecontrary shows that it was due to the default of the petitioner.In these circumstances on this ground alone the application hasto be refused.
Sirimane, J.—A tula Ratnayake v. Jayasinghe
The second ground urged by learned Senior State Counsel isthat the petitioner has failed to disclose in his petition that acertified copy of the summing up of the Judge Advocate was infact issued to him and in his hands before he filed his petition.The petitioner states in paragraph 12 of his petition that he ap-plied for a certified copy of the summing up, and in paragraph 18that his Counsel prepared the petition in this case without beingsupplied with the summing up. The 4th respondent’s affidavitshows that the petitioner applied for a copy of the summing upby his letter dated 30th August 1974 (4 R 2) and he was informedby the 4th respondent’s letter dated 1.10.74 (4 R 3) that it wasready and it was collected by a person sent by the petitionerwith his letter (4 R 4) on 9th October 1974. The petitioner’s peti-tion is dated 23rd October 1974 when it has been actually filedin Court. Learned Counsel for the petitioner stated that hedrafted the petition as stated in paragraph 18 without a copyof the summing up. I have no doubt and indeed unhesitatinglyaccept that this is so. But even though the petitioner may havereceived the summing up after the petition was drafted, hereceived it long before the papers were filed in Court—nearly twoweeks before they were filed. I think it was his duty under thesecircumstances to at least state in his petition that he has sincereceived a copy of the summing up. His failure to do so wouldcreate the impression that he was denied even a copy of thesumming up to prepare the petition. The petitioner has not dis-closed the fact that he applied for the summing up only on 30thAugust 74, over one year after the trial was concluded. LearnedCounsel for the petitioner submitted that the petitioner did notintend to suppress that fact as the copy of the summing up wasfiled with the petition. This indeed is ’ meaningless and shouldhave never been done. His petition though it refers to documents(A) to (J) filed with the petition makes no reference whateverto the summing up also being filed. If any documents are filedwith the petition they must be referred to in the petition itselfas this Court would be led by the contents of the petition andaffidavit. On reading the papers filed I myself was under theimpression that the slimming up had not been supplied to thepetitioner at all. This type of non-disclosure in the petition andthe filing of the document without it being referred to in thepetition, tends to create in the mind of the Court a wrongimpression and at the same time affords the petitioner, when hisbona fides are questioned, to point out as an excuse that thedocument was infact filed with the petition. The filing of such adocument without any reference to it in the petition, is, as Isaid earlier, meaningless and only meant to give the petitioneran excuse after having misled the Court into a wrong belief.This type of action must be viewed with strong disapproval and
Haniffa v.—Abdul Wahab
one hopes that it would not be followed in future. In the caseof Alphonsu Appuhamy v. Hettiaratchchi (77 N. L. R. 131) thepetitioner had filed a notice and referred to it both in his peti-tion and affidavit but had not disclosed in express language inthe petition and affidavit a material fact contained in that notice.This, amongst other matters, was held to be a non-disclosure ofa material fact and the application for a writ of mandamus wasrefused. I need not repeat here the cases cited in the course ofthe judgment in that case, on the need for a full and fair dis-closure of all material facts so that the Court may not be misled.Both the preliminary grounds raised by learned Sen: or StateCounsel must therefore be answered against the petitioner.
For these reasons I would refuse the application with costsfixed at Rs. 157.50.
Ismail, J.—I agree.
Ratwatte, J.—I agree.
ATULA RATNAYAKE, Petitioner and Lieut. Col. G. R. JAYASINGHE and four other