the witness said
Sri Lanka Law Reports
[201011 SRIL.R.
any other objection should fall under latent lack of jurisdic-tion and hence, should have been taken before the accusedpleaded to the indictment. As the defence could not have beenunaware of the non-availability of a certificate of dissatisfaction,defence should not have lingered till closure of the prosecu-tion case. On that ground alone the objection must fail.
Learned Presidents Counsel for the defence cited thedecision in Kanagarajah v. Queen11*. But as pointedout by the learned Deputy Solicitor General the circumstanc-es in that case was different from the instant case. Especiallyin view of the sequence of events, their lordships hadtaken a sympathetic view in favour of the accused. In HermanFernando (B 1173/96) the issue was whether the noticegiven under section 23 (4) was sufficient or not. But in theinstant case that particular question never arose. All otherjudicial pronouncements cited by the defence are decisionsof the high court and hence is not binding on this court.
Finally I must emphasize that once an opportunity isgiven and if the Commission is not satisfied with theexplanation given in reply on such occasion, I hold that theCommission is not bound to issue a certificate or letter ofdissatisfaction. Mere fact of institution of action is ampleproof of such dissatisfaction. Dictates of common sense toojustifies such a conclusion.
For the aforementioned reasons the appeal is allowedand the order made by the High Court of Colombo dated30th November 2007 is set aside. The matter is referred backto the High Court for further trial.
Appeal allowed.