040-SLLR-SLLR-1992-V-1-JAGATHSENA-AND-OTHERS-v.-G.-D.-D.-PERERA-INSPECTOR-CRIMINAL-INVESTIGATI.pdf

“In the meantime (they) got down a bottle of liquor and consumedthat too. It is a fact which we all know that, when liquor is consumed,the conduct of many persons becomes worse, if not wicked.”Although there is evidence that the Bungalow-boy did take abottle ofliquor into the sitting-room,, there is, however, no evidence as to thepersons who consumed such liquor, whether ail or only some ofthem. Although such instances may not be altogether unknown andunheard of, yet the sight of both parents consuming liquor with theirteen-age sons and engaging in the singing of ribald songs with them,whether in public or private places, is still not a common spectacle inour country. It seems to me that these are also considerations whichcalled for express and careful examination by the learned Magistratealong with the specific consideration expressly referred to by thelearned Magistrate as being peculiar to the two aforementionedprosecution witnesses. An examination of the judgment of thelearned Magistrate does not indicate that they have received suchconsideration.
On a consideration of the infirmities that have been shown to existin the evidence of Mrs. Bandaranaike given at the trial in this case, itseems to me that, had the learned Magistrate addressed himself tothem and considered them in their proper perspective it is more thanlikely that the learned Magistrate would have found himself unable tosay that Mrs. Bandaranaike's evidence corroborates the evidence ofKamala Ranatunga.
The only witness, who did, at the trial, state orally the very words,which are alleged to have been used by the accused and which aresaid to be obscene and insulting, is the witness Jayasinghe. Thelearned Magistrate'has accepted Jayasinghe’s evidence assupporting the evidence of Kamala Ranatunga and of Mrs.Bandaranaike that the words set down in P2 and P2A are the wordsused by the accused. The defence has drawn the attention of thisCourt to certain features in Jayasinghe’s evidence too, which, it issubmitted, show that Jayasinghe's evidence given at the trial is notacceptable. Jayasinghe is, as set out earlier, one of the two persons -the other being Tilak Liyanage whose evidence has not beenaccepted by the learned Magistrate – whom Mrs. Bandaranaike hadtold the officers of the Hatton Police, were persons who had seen theincident, and who had then been taken to the Police station and theirstatements recorded that night itself. The statement so recorded atthe Hatton Police station at 12.30 a.m. on 14.5.79 has been producedby the defence as 3D1. 3D1 was marked by the defence to provethat Jayasinghe had not told the Police that, whilst this incident wastaking place, he had gone outside and had peeped into the sitting-room of the Bungalow where the accused were said to be singing,because Jayasinghe’s position in Court was that, at one stage, he didso go out and peep into the said sitting-room. This item of evidencegiven by Jayasinghe assumed importance in view Of Jayasinghe'sultimate admission, made under cross-examination, that, had he notso gone out of the Bungalow and looked into the lounge (sitting-room) through the window, he would not have seen anything that washappening inside.the lounge, but that he could only have heard whatwas- happening therein. The defence led evidence of a licensedsurveyor, named D. Y. Wijewardena, who produced marked 1D1, asketch of the said Bungalow and as 1D2 a sketch of the said
Bungalow.and the compound surrounding it. The learned Magistratehas considered the defence position – based upon the twodocuments 1D1 and 1D2, and the oral evidence of the surveyor whoprepared them – that, even if Jayasinghe had in fact gone out of theBungalow and looked towards the lounge room he could not haveseen those who were inside and what each one was doing. He hasalso dealt with the non-reference to this matter in 3D1. The learnedMagistrate has taken the view that, if Jayasinghe had looked fromnear the road depicted in the sketch he could have seen what washappening inside the room. The learned Magistrate seems, however,to have not given sufficient consideration to the surveyor’s evidence,given under cross-examination, about the ability to see from near thesaid road; for, his evidence is that if one stands by the side of theroad near the window “A” (which is the window of the lounge on theside of the summer-house) one cannot see any one (by one insidethe lounge) and that one could, however, see from the road, and thattoo only the face-portion (f-es @aoQea) of one who is about 3-4 feetfrom the said window within the lounge. The learned Magistrate hasobserved that Jayasinghe, who maintained that he saw by standingabout 1-2 feet away from the window, has not measured the distancewith a foot-ruler and that, as it was also dark, he thinks thatJayasinghe could not state the distance definitely. The learnedMagistrate does not seem to have considered, in this connection: thefact that there is a flower-bed 9 feet in extent between the saidwindow and the road: and that the distance of 1-2’ given byJayasinghe, though it may not be very accurate, tends to show thatthe spot he refers to is closer to the window than to the road: and thatthe Surveyor's evidence points rather to a person.inside the loungebeing seen, even to the limited extent set out by him, only by onestanding on the road and not by one standing even near (qSesi) thesaid road.
The defence has also drawn the attention of this Court to two otheromissions in Jayasinghe’s statement, as embodied in 3D1: the failureto refer is the specific words which he, Jayasinghe, stated in hisevidence at the trial that the accused uttered in the course of theirsinging inside the sitting-room: the non-reference to the use of any
insulting epithet in regard to Mrs. Bandaranaike in the inquiry madeby the members of the group as they were entering the bungalow.
It was contended on behalf of the prosecution that the defencecannot now rely on any such omission in 3D1 as they were not reliedon by the defence at the trial.and put to the witness. The decisions inthe cases of Fernando v. The Queenmand Mutubanda v. TheQueenmand also the provisions of subsections (3) and (4) of Section110 of the Code of Criminal Procedure Act 15 of 1979, do, in myopinion, permit this court to look into 3D1, which has also beenproved at the trial, for the purpose of seeing whether Jayasinghe hadtold the Police a story materially different from-the story set out in hisevidence at the trial, for instance by omitting to mention to the Policeany material fact which Jayasinghe has deposed to at the trial. Anexamination of 3D1 shows that Jayasinghe, in that statement madeshortly after the incident when the'details of it would have been freshin his mind and the exact words, which, if he had in fact heard beingused, would neither have been forgotten nor forgiven, has not set outthe said words. Nor is there in it any reference to the objectionableepithet which in his evidence at the trial he stated was used inrelation to Mrs. Bandaranaike when the inquiry was made whetherMrs. Bandaranaike was in occupation. It further shows that theinquiry, as to whether Mrs. Bandaranaike and Anura were inoccupation, had been made only after the request for Brandy andWhisky had been made and such liquor forcibly obtained, and that itwas not, as was the position at the trial, the first question asked bythe offenders as they were coming into the Bungalow after the frontdoor was opened. This discrepancy is of importance in theconsideration of the prosecution position – which has been referredto earlier and which will be discussed again later – that the accusedhad formed themselves into the unlawful assembly set out in count 1,even before they entered the Bungalow that night.
The learned Magistrate has, after discussing Jayasinghe's failureto have mentioned to the Police that he had gone out and lookedthrough a window, and also Jayasinghe’s assertion in Court that hecould and did see through the window, stated that the submissions in
regard to Jayasinghe’s claim to have seen through the window,including his failure to tell the Police about it, and the “othercontradictions"esdsfodeS^) do not render his evidence false.
He, however, has not set out what the “other contradictions” soreferred to are; and winds up by holding that Jayasinghe is, therefore,a witness who had an opportunity of seeing this incident clearly andalso of listening to the words used by the accused. It, however,appears to me that, had the facts and circumstances detailed abovebeen considered by the learned Magistrate in their properperspective, he could and would not have arrived at the aforesaidfinding. He would, at the lowest, have had considerable doubt as towhether Jayasinghe did in fact “see” and “listen to” that whichJayasinghe said, in Court, he heard and saw.
The three witnesses referred to above, Kamala Ranatunga andMrs. Bandaranaike through the medium of P1 and P2 and Jayasingheupon his oral evidence given at the trial – are the only witnessesrelied on by the prosecution to prove the offending words set out incount 2 of the charge framed against the accused; and at theargument before this Court it was common ground that the entirecase against the accused revolves round these three witnesses.Although the view I have expressed above in regard to the evidenceof these three witnesses – that, had the learned Magistrateconsidered the facts and circumstances set out above as being infavour of the defence in their proper perspective, the learnedMagistrate would have found himself unable to hold that counts 1and 2 had also been proved beyond reasonable doubt – is, in myopinion, sufficient to a determination of this appeal,J shallnevertheless consider the further submission made by learnedCounsel for the accused that, in any event, the prosecution has failedto prove beyond reasonable doubt the charge of unlawful assemblyframed against tine accused in count 1.
It was contended on behalf of the defence; that the evidence ledby the prosecution, even if accepted, falls far short of establishingbeyond reasonable doubt that either all six accused, or some of themwho with the other unnamed persons together numbered at least five
had the common object of intentionally insulting Mrs. Bandaranaike:that the prosecution evidence does not clearly and categoricallypoint only to the conclusion that, at the time they arrived or at anytime thereafter, their sole object was to insult Mrs. Bandaranaike: thatthe inference that the primary object of the members of the groupwhich came in, was to have a drink was also possible: that if whilstthey were so consuming liquor, one or more – less than five – of themembers of the group burst into song and sang obscene songs,such conduct is not sufficient by itself, to transform the group into anunlawful assembly, still less to establish that all the members of thatgroup, including the six accused, were all members of an unlawfulassembly with the common object set out in couqt 1: that the conductof several of the accused, particularly 3rd, 4th and 6th accused atany rate tended, if not to establish clearly that they were not membersof any such unlawful assembly, at least to raise a doubt as to theirsharing of any such common object. •
It was common ground at the hearing before us – and it is thecorrect position in law – that, if the prosecution fails to establish theunlawful assembly set out in count 1, then all the accused are entitledto be acquitted not only of count 1 but also of count 2, and that noneof them could be found guilty even individually of an offence underSection 484 as no such individual charge has been framed againstany one of them.
At the hearing before this Court it was the position of theprosecution that the unlawful assembly set out in count 1 had comeinto existence by the time the six accused, and the others who werewith them, entered the said Bungalow, and was already in existenceat the time they went into the lounge (or the sitting-room); and theconsideration of the question, whether the charge set out in count 1has been established or not, will, proceed on that basis. The items ofevidence relied on by the prosecution to prove the existence of suchan unlawful assembly, as stated by both the learned AdditionalSolicitor-General and Mr. Pullenayagam, are: that the accused, andthe others, all arrived at the Bungalow together as one group: thewords offered as they arrived – the obscene epithets used in relationto Mrs. Bandaranaike and Anura Bandaranaike in the inquiries made
as to whether they, were in occupation: the subsequent conduct ofthe accused – singing of vulgar songs within the Bungalow, in thelounge.
It is well settled: that the mere presence of a person in anassembly does not render him a member of an unlawful assembly,unless it is shown that he has said or done something or omitted todo something which would make him a member of such an unlawfulassembly: that the prosecution must piace evidence pointing to eachaccused having done or said something from which the inferencecould be drawn that each entertained the object which is said to bethe common object of such assembly: that omnibus evidence mustbe carefully scrutinized in order to eliminate all chances of false ormistaken implication, as the possibility of persons in an- assemblyresenting or condemning the activities of misguided persons cannotbe ruled out, and caution has to be exercised in deciding which ofthe persons present can be safely described as members of theunlawful assembly: that, although as a matter of law an overt act isnot a necessary factor bearing upon membership of an unlawfulassembly, yet, it is safer to look for some evidence of participation byeach person alleged to be a member before holding that suchperson is a member of the unlawful assembly, lest innocent personsbe punished for no fault of theirs: that the common object of anassembly is an inference from facts, to be deduced from the factsand circumstances of each case: that the common object can becollected from the nature of the assembly, the arms, used by them,the behaviour of the assembly at or before the scene of occurrence,and subsequent conduct: the common object must-be readilydeducibte from the direct as well as circumstantial evidence,including the conduct of parties: that it is not sufficient for suchevidence to be consistent with such an Inference, but must, be theonly concision possible: that merely because the specific offencewith which the unlawful assembly is charged is not proved, it doesn’tmean that the common object of the unlawful assembly should beheld to be non-existent: that, in order to find the common object of anunlawful assembly at the beginning, it Is not a legitimate methodmerely to taka all the actual offences committed by It In the course ofthe riot and to infer that aU these were originally part of its common
object, but that the conclusion must normally be based on moreevidence than the mere acts themselves – Ratnalal and Dhirajlal: TheLaw of Crimes – (22 edt.) p. 334.
The evidence relating to the conduct of the accused before theyentered the Bungalow through the front door is that they had, alongwith a few others, come to the premises in several vehicles and that,in order to have the door opened, they had stated that the “A.S.P. andthe H.Q.I.", had come. Thereafter, as they came into the Bungalow,the 1 st accused (according to Chandrasena only for, Jayasinghe atthe trial stated he could not say who made the inquiry) had inquired,using obscene epithets, whether Mrs. Bandaranaike and Anura werein the Bungalow. Apart from the use of the two objectionable epithets- whether by the 1st accused or by any other accused makes nodifference – there is no evidence of anything else said or done by anyof the other accused (or for that matter by any of the other unnamedpersons said to have been in the group) which should give anyindication of the object with which they had arrived and said as theywere entering the Bungalow. These items of evidence are in myopinion, insufficient to establish that any of the members of the group,other than the 1 st accused at the most, had the object set down incount 1. They may have come because some of them wanted to takea drink. That this could have been so is supported by the evidencethat thereafter there had been a demand for liquor, and that liquor,was in fact obtained, though by force. Liquor had then been servedin the lounge. What thereafter happened inside the lounge could not(except when, Jayasinghe, says, he went outside and looked inthrough the X window) and was not seen by any of the witnesses,who testified at the trial. Their evidence of what took place inside iswhat they heard emanating from inside. In this connection it has to benoted that, according to Mrs. Bandaranaike’s evidence, theobjectionable singing had not commenced the moment the grouphad come in, but only after the lapse of some time; for, she has firstheard several persons speaking loudly. She had also heard a personspeaking in a loud tone as if at a meeting, which said speech alsogave her the impression that it was a reply to what had been stated attheir (Mrs. Bandaranaike's meeting earlier that day, and that it was
being so said for her to hear; and, when the noise increased, she hadeven sent a message through Kamala to see what it was. Thesinging, which, according, to Mrs. Bandaranaike, had beenintermittent (SDzn'So), seems to have commenced only sometimeafter the members of the group had entered the lounge. Theobjectionable singing, alleged by the prosecution, could have begunafter the consumption of liquor. The learned Magistrate himself seemsto have thought that the liquor, had had something to do with theobjectionable conduct; for,, he made an observation in regard to theeffect of liquor on human conduct. As already set out, there was inthis group a husband and wife and their teen-age son. Whether thewife and the son also partook of the liquor with the husband (andfather) and also joined in the singing with him, or whether the two ofthem were helpless spectators who not only did not associate withbut also completely, though silently, disapproved of the conduct ofthe head of the family were certainly matters which called for expressand careful consideration by the learned Magistrate – even thoughneither the son (the 3rd accused), nor the wife (the 4th accused)themselves went into the witness-box at the trial.
The evidence shows that feminine voices were also heard. That byitself would not bring in the 4th accused; for, the self-same evidencedisposes the presence of several ladies in the group which came in.
Mr. Pullenayagam submitted that the extremely revolting nature ofthe language set out in count 2 should not tend to raise doubts as towhether the 3rd and 4th accused would have shared in a commonobject to use such despicable language, as the fact that such foullanguage was in fact used by a member of the unlawful assemblywould not prevent the sharing of a common object to intentionallyinsult, though not by the use of such foul language which would nothave been approved of some of the other members of the unlawfulassembly. Although as a proposition of law it may be. so, what hasfirst to be established here is that the 3rd and 4th did share, alongwith the others, including the 1st accused, an object to intentionallyinsult Mrs. Bandaranaike. The evidence must be such as to establish,'as the prosecution contends, that that was the sole object of thesetwo accused as well when they entered the Bungalow that night. The
prosecution must eliminate the possibility that tfie two of them cameto the bungalow that night merely as innocent dependants of the 1staccused; that they came there merely because the 1st accusedwanted to come there – whatever may have been the purpose forwhich the 1st accused himself came there, be it to have a drink oreven to cause annoyance to Mrs. Bandaranaike. Unless theprosecution can establish, eliminating all reasonable doubt, that the3rd and 4th accused were not only aware of the purpose for whichthe 1st accused coming to the said Bungalow that night, but that theytoo quite willingly approved of and did themselves have such anobject, the charge set out in count 1 must fail, at any rate as againstthem.
In regard to what happened within the sitting-room the onlywitness, who even purports to say he saw what happened inside thatroom, is Jayasinghe; but this witness loo does not state what exactlyhe saw taking place, within that room when he looked into that room,from outside from near the window, for about 2 to 3 minutes. Anattempt made by both Jayasinghe and Chandrasena to identify thosewho were singing inside the sitting-room – viz. the 1st, 2nd and 5thaccused failed dismally at least as against the 5th accused when itnot only became clear that they had not heard the voice of the 5thaccused either before or after the night in question, but also whenJayasinghe’s evidence, that he saw what he saw through a windowby just standing erect on the ground near such window, was at leastrendered suspect after the Surveyor, called by the defence, statedthat that window was 6' 7“ above ground level.
Furthermore, there are certain specific items of evidence, relatingto what the 3rd and 6th accused and also all the ladies, who hadbeen in the group, had, at various times done, which tend to raisedoubts as to whether they at any rate shared in the common objectalleged even against them by the prosecution. It is in evidence that,sometime after the singing had begun, the 1st accused had comeout of the sitting-room and had gone up to the door of the roomoccupied by Mrs. Bandaranaike and was about to kick it, when the6th accused rushed up to the 1st accused and took the 1st accusedaway. It is also in evidence that, after the accused all got on to the
compound on their way out and the 1st accused seemed bent onaggression, the 3rd accused had intervened to take his father away,saying:
V3 <s@0) sadafsn<s®e8 cs®" (We need
not do these. Enough of this shouting. Let us go), and that the 1staccused had then set upon the 3rd accused, and that the ladies hadthen, with difficulty, bundled them all into the vehicles and left thepremises.
These items of evidence, which do not seem to have engaged theattention of the learned Magistrate, must also be taken intoconsideration as forming part of the subsequent conduct of theaccused. These items of evidence, far from tending to point a fingerof guilt at these accused – the 2nd, 4th, 6th and the ladies in thegroup – could be said to raise doubts as to whether they at any rateshared in the common object alleged by the prosecution as againstthem too.
If the witness Jayasinghe's is the correct estimate of the number ofpersons who entered the bungalow that night, then of a group ofabout 10, about three had been women.
The learned Magistrate has not analysed, as against eachaccused separately, the evidence placed before him by theprosecution. Furthermore, although all six accused have been foundguilty of count 1, it is not clear whether of those mentioned in count 1only the six accused were members of the said unlawful assembly orwhether all or any of the "others" were also so guilty.
In regard to the "others" count 1 does not state that they areunknown to the prosecution. Did the “others" comprise any of thosepersons, who were also accused persons in the original plaint butwere dropped from the amended plaint- in which'for the first time thecharge of an unlawful assembly was brought in.
All these are matters which required careful consideration by thelearned Magistrate; but they, however, do not seem to have received
such consideration. Had they been so considered, I doubt very muchthat he could and would have held that count 1 has been provedbeyond reasonable doubt.
A close examination, as set out above, of the evidence led at thetrial raises in my mind a strong doubt that the convictions of the sixaccused are right. The accused are entitled to the benefit of thisdoubt.
It now remains for me to set down our reasons for overruling theobjections, put forward bpth by learned Counsel for the defence, andby the learned Additional Solicitor-Genera* appearing for therespondent, to Mr. Pullenayagam, who, as set out earlier, representedthe "aggrieved party", Mrs. Bandaranaike, being heard at the hearingof this appeal.
Mr. Pullenayagam relies on the provisions of Section 260 of theCode of Criminal Procedure Act in support of his claim to representMrs. Bandaranaike, who, he submits, is the “aggrieved party” in thiscase, and to address this Court on her behalf. The said Section 260provides as follows:
“Subject to the provisions of this Code and any written lawevery person accused before any criminal court may of right bedefended by an attorney-at-law, and every aggrieved partyshall have the right to be represented in court by an attorney-at-law.”
It must be noted that, as far as the right of an accused person isconcerned, the provisions of the said Section 260 are the same asthe provisions contained in Section 287 of the now repealed CriminalProcedure Code (Chap. 20). The right given to an aggrieved party bythe latter part of the said Section 260 was not in the said earlierCode. Another important point of difference is that even the right ofthe accused person is made “subject to the provisions of this Codeand any written law."
The objection put forward on behalf of the defence and therespondent against the Counsel appearing or the said aggrievedparty being heard by this Court is three-fold: that Mrs. Bandaranaikeis not now, before this Court, an aggrieved party: that the right ofrepresentation granted by the said section to an aggrieved party isconfined to the original Court and is not available before an AppellateCourt: that, the right of representation is distinct from the right to beheard, and the right given to an aggrieved being only a right to berepresented, he cannot, in any event claim that he has a right also tobe heard.
I shall first consider the argument that Mrs. Bandaranaike doesnot come before this Court as an “aggrieved party". That she was,in relation to the charges framed against the accused before theMagistrate’s Court, an “aggrieved party" before the.learnedMagistrate is not challenged by learned Counsel opposingthis application. The charges so framed were of intentionallyinsulting Mrs. Bandaranaike and of committing mischief in respect ofproperty belonging to her. Although the respondent was thecomplainant before the Magistrate’s Court, the virtual complainantwas Mrs. Bandaranaike, The complaint to court.was in respect ofoffences alleged.to have been committed against Mrs. Bandaranaike.She was therefore, undoubtedly a person aggrieved by the conductso alleged against the accused. Mrs. Bandaranaike was clearly an“aggrieved party” as contemplated by the provisions of Section 260the said Code of Criminal Procedure Act (hereinafter referred to as“the Code”). It is the submission of learned Counsel in support of thisobjection that, as all the accused have been found guilty by thelearned Magistrate of the offence of intentional insult under Section484 of the Penal Code, and as there is no appeal against theacquittal on the charges of mischief, Mrs. Bandaranaike.does notcome before this Court as a person complaining of a grievance: thather grievance has been gone into by the Magistrate's Court and shehas been granted relief: that as she has succeeded before theMagistrate's Court, she is no longer a person with a grievance. Thissubmission is, in my opinion, untenable. The accused, who havebeen found guilty by the Magistrate's Court, have come before thisCourt to have the said finding set aside. This court has the power to
grant the accused the relief they pray for; and, if such relief isgranted, the resulting position would be that the relief, which Mrs.Bandaranaike obtained at the hands of the learned Magistrate, istaken away from her, and, as far as she is concerned, she is re-visited with grief. The verdict of a Magistrate’s Court is not final. It isliable to be set aside in appeal. A person who comes before aMagistrate’s Court complaining of an offence committed against him,- whether as a complainant or as a virtual complainant – becomesimpressed with the character of an “aggrieved party”, and mustcontinue in that capacity throughout the proceedings – not only in theMagistrate’s court, but also in the event of an appeal, theproceedings, before the Appellate Court or Courts – until thedecision, which, under the law, is final, is made. This submissionmust, therefore, fail.
It has also been argued that the said right is restricted to theCourts of First Instance – the trial court, and court holding an inquiry.A reading of the said Section 260 shows that the right granted to aperson accused is a right exercisable by such person before anycriminal court "before which he stands accused, and that the rightgranted to an aggrieved party is a right excercisable by such party“in Court.” The words “Criminal Court” are not defined in the saidCode; but there is no doubt but that a Magistrate’s Court at any ratewould be included within the term “Criminal Court”. The question thenis whether in the case of an accused such right is not available alsobefore an Appellate Court. The section, it must be noted, provides forthe exercise of such right before “any criminal court.” It is by itselfwide enough to cover all courts – whether original or appellate -which have jurisdiction to hear and make orders in any criminalmatter.
Article 138(1) of the Constitution vests the Court of Appeal withjurisdiction to correct, inter alia, by way of appeal, all errors in fact.orin law committed by any Court of First Instance, and also sole andexclusive cognizance, by way, inter alia, of appeal, of all inter alia,prosecutions of which Courts of First Instance may have takencognizance. The provisions of Section 325(1) of the Code dealingwith the procedure in regard to appeals from the Magistrate’s Court,
and Section 349(1) of the Code in regard to appeals from the HighCourt make no express reference to any appearance by an attorney-at-law. Section 353 of the Code however, refers to the power of theCourt of Appeal to assign to an appellant an attorney-at-law in anycriminal case where the Court is of opinion that the appellant is inneed of legal aid, but has no sufficient means to obtain such aid. Inthe Court of Criminal Appeal Ordinance (Chap. 7), Section 11 dealtwith the power of the court, in certain circumstance, to assignCounsel to an appellant who is undefended; and Section 12 dealtwith right of the appellant to be present at the hearing of the appeal;and Section 13 provided for the Crown to be represented on everyappeal to the said Court. There is, however, no express provisioneven in the said Ordinance (Chap. 7) granting an appellant the rightto be represented by a lawyer at the hearing of an appeal before thesaid Court. Nor was there an express provision in the repealedCourts Ordinance (Chap. 6) in regard to the right of an appellant'to.the then Supreme Court to appear through a lawyer. Section 344 andSection 345 of the old Code (Chap. 20) set out the procedure to befollowed when an appeal from the Magistrate’s Court came up forhearing before the then Supreme Court. Although there had been noexpress provision in the Courts Ordinance, (Chap. 6), the Court ofCriminal Appeals Ordinance (Chap. 7) and in the Criminal ProcedureCode (Chap. 20) yet, Counsel have, even before the turn of thiscentury – ever since the year 1898 when the Criminal ProcedureCode (Chap. 20) came into operation and right down to the year1978, – been appearing for appellants in appeals from theMagistrate’s Court to the then Supreme Court. Whenever a party wasto be denied the right to be heard in a court of law, either personallyor by pleader before an appellate court, the legislature expressly saidso – vide Section 366 of the Code. The words “any Criminal Court”in Section 260 of the said Code must, therefore, be construed toinclude not only the Magistrate’s Court but also an appellate Courthearing an appeal from a Magistrate’s Court.
The words “in Court” with reference to an aggrieved party inSection 260 of the said Code seems to be even wider than the words"any Criminal Court”. It admits of no limitation.. I am of opinion that theright granted to an “aggrieved party” to be represented in Court
extends to representation even before the Court of Appeal when suchCourt hears an appeal from a Magistrate's Court.
I shall now consider the last of the submissions made in support ofthe aforesaid objection, viz: that the right to be represented does notconfer a right on an attorney-at-law, who so represents an aggrievedparty, to address Court.
The meaning given, in the Oxford English Dictionary – Vol. 8 -(1933, edt.), to the word “represent” is: to place (a fact) clearly beforeanother, to state or point out explicitly or seriously to one with a viewto influencing action or conduct – to make .objections againstsomething; to protest. Wharton: Law Lexicon (14 edt.) p. 869, defines“representation”: standing in the place of another for certainpurposes, as heirs, executor, or administrators – any indication bywords, letters, signs or conduct by one person to another of theexistence of a fact. The plain, ordinary meaning of the words “torepresent” and “representation" is, therefore, clearly to make, eitheron one's own behalf or on behalf of another, statements orsubmissions to another orally or in writing, in regard to any matter orthing with a view to influencing the action or conduct of that other. Itdoes not connote merely a silent and an inarticulate presence. Anattorney-at-law is one who is a member of a profession, the chiefcharacteristic of which is to plead on behalf of one who has to placematters before another. He is trained and skilled in the art of doingso; and he is held out as one entitled to assist and advise clients andto appear, plead or act before a court of law. The presence of such aperson before a court of law. would be meaningless if he is merely tobe seen and not heard.
Reliance was placed on the provisions of Section 41(1) of theJudicature Act No. 2 of 1978, in support of the submission that thereis a distinction between a right to be heard and a right to berepresented only. The contention is that it is only an attorney-at-lawrepresenting a party, who has a right to be heard, who could himselfclaim a right to be heard by Court. An analysis of the provisions ofSection 41(1) reveals that the latter part of that section gives the rightto be represented by an attorney-at-law before a court of (aw to twocategories of persons – those who are parties to any proceedings ina court, and those who either have or claim to have the right to beheard in any proceedings in a court. The distinction between thesetwo categories is made even more explicit by the provisions of sub-section (2) of the self-same Section 41. An attorney-at-lawrepresenting either of these categories would undoubtedly have theright to address Court. I do not think that the provisions of this sectioncan be construed to mean that the right to address Court is givenonly to an attorney-at-law, who appears for a party who has or claimsto have the right to be heard. The provisions of this section seems tome to support the proposition that the right of representation carrieswith it the right to address Court and that the right to address Court isin no way dependent upon the right in the person, whom theattorney-at-law so represents, to be heard. That to represent anotherin court carries with it the right to make submissions on behalf ofanother also finds support in the provisions of subsections (1) and (2)of Section 261 of the said Code. These subsections refer to theappearance in Court of one on behalf of another as a representation.
It cannot be doubted even for a moment that the person, who, interms of the two aforesaid subsections, represents the other hasn'tthe right to address the Court, and be heard by the court. It seems tome that there is no difference, as far as the right to address Court isconcerned, between the right granted to a person to be heard, andthe right granted to a person to be represented, by the provisions ofthe Code of Criminal Procedure Act No. 15 of 1979. They bothconnote a right to address court.
The right given by the provisions of Section 260 of the Code of1979 to an “aggrieved party" is one given for the first time in thehistory of criminal procedure of this country. The intention of theLegislature seems clearly to be to give the “aggrieved party" also anopportunity of placing before court any relevant matters which suchparty desires to bring to the notice of Court: If the intention wasmerely to ensure the presence of an attorney-at-law in Court whocould assist out if and when such assistance is sought by court, suchan express provision, after the earlier Code of 1898 (Chap. 20) hadbeen in operation for about 80 years, was hardly necessary; for, it hasalways been open to a court to obtain such assistance ex mero motu.
The possibility that such a construction could result in the courthaving to listen, in every criminal case, to an extra attorney-at-law(and even more in the event of there being more than one such party)is not a weighty consideration which should stand in the way of thisnew right given to an “aggrieved party” being made meaningful andeffective.
The right of an attorney-at-law who appears for another who isentitled to be represented in court, is, however, subject, as is the rightof all other attorneys-at-law appearing for other parties, to theoverriding right of this Court to refuse the right of audience to anyattorney-at-law for good cause, – vide: Land Reform Commission v.Grand Central Ltd.(U)
The final submission too was, therefore not entitled to succeed.The objection, put forward on behalf of the defence and therespondent, was accordingly overruled; and Mr. Pullenayagam, whorepresented the “aggrieved party”, Mrs. Ban