CHANDRA KUMAR AND ANOTHER v. CAPTAIN SAMARAWICKRAMA AND OTHERS

023-SLLR-SLLR-2002-V-2-CHANDRA-KUMAR-AND-ANOTHER-v.-CAPTAIN-SAMARAWICKRAMA-AND-OTHERS.pdf


CA
Chartdrakumar and Another v.
Captain Samarawickrama and Others
153
CHANDRA KUMAR AND ANOTHER
v.CAPTAIN SAMARAWICKRAMA AND OTHERS
COURT OF APPEALGUNAWARDANA, J.
CA NO. 775/99APRIL 05. 2001
Navy Act, No. 34 of 1950 – Court Martial – Quash conviction — Evidence Ordinances. 33 – Judicial proceedings? – What are judicial decisions ? – Error of Law.
The petitioners sought to quash their convictions by a Court Martial.
It was contended that, the Judge-Advocate has misconstrued s. 33 of the EvidenceOrdinance by not allowing the evidence given by one D. who had given evidencebefore that officer recording the summary of evidence, to be read before the CourtMartial and further that the Judge-Advocate had flouted rule 21 of the Navy order0513 in that, the trial Judge-Advocate had given a firm direction to the CourtMartial that it was completely bound by the directions of the Judge, on pointsof law when the rule indicates that the Court Martial need not accept the directionsof the Judge-Advocate on points of law, and that it is open to the Court to take,on points of law, a view different from that of the trial Judge-Advocate. In sucha case the Court has only to give reasons for not accepting the advice of theJudge-Advocate.
Held:
The primary object of recording a summary of evidence being to considerwhether there is a prima facie case against the accused, it cannot be saidthat recording a summary of evidence is not a judicial proceeding. Thedirection given by the Judge-advocate to the Court Martial that the evidencegiven by D, at the stage of recording the summary of evidence wasirrelevant and inadmissible under s. 33 Evidence Ordinance, is patentlywrong as such the conviction has to be quashed.
The rule in the Navy order merely reaffirms the general principle thateverybody is entitled to take a correct view of the law and act accordingly.The direction of the Judge-advocate is wrong in law since it has takenaway that general right given, by the law or rather the duty imposed by
154
Sri Lanka Law Reports
[2002] 2 Sri L R.
law upon anybody who decides anything to take the decision accordingto a correct view of the law. In this instance the Court had no choice butto act in obedience to the directions given by the Judge-advocate on pointsof law which direction too constitutes a manifest error of law.
APPLICATION for a writ of Certiorari.
Cases referred to :
Barnard v. National Labour Board – 1953 2 QB 18.
In Re Shaw – 1952 – 1 ALL ER 122.
In Re Anisminic — 1969 2 AC 147.
Aloy Ratnayake, PC with Dr. R. A D. Kumarawickrema for petitioners.
Palitha Fernando, DSG with M. R. Ameen, SC for respondents.
Cur. adv. vult.
July 26, 2001GUNAWARDANA, J.
This is an application made by the 1st and 2nd petitioners seeking 1an order of Certiorari to quash the conviction of the petitioners bya Court Martial constituted under the Navy Act, No. 34 of 1950 (asamended).
The decision of this case will centre largely if not wholly on theinterpretation of section 33 of the Evidence Ordinance and as suchit would be well to reproduce the relevant excerpt of that sectionwhich is as follows:
"Evidence given by a witness in a judicial proceeding or beforeany person authorized by law to take it, is relevant, for the purposeof proving, in a subsequent judicial proceeding or in a later stage 10of the same judicial proceeding, the truth of facts which it states whenthe witness is dead or cannot be found …"
CA
Chandrakumar and Another v.
Captain Samarawickrama and Others (Gunawardana, J.)
155
Provided :
that the proceeding was between the same parties or theirrepresentative in interest;
that the adverse party in the first proceeding had the right andopportunity to cross-examine;
that the question in issue were substantially the same in the firstas in the second proceeding.
The learned President's Counsel for the petitioner had raised two
points in support of the application:
(i) that the learned Judge-Advocate (4th respondent) had misconstruedsection 33 of the Evidence Ordinance by not allowing the evidencegiven by one Dissanayake, who had given evidence before theofficer recording the summary of evidence, to be read before theCourt Martial – the proceedings before the Court Martial being,so it was argued by the learned President's Counsel for thepetitioner – "a later stage of the same judicial proceeding or asubsequent judicial proceeding between the same parties": Thelearned Judge-Advocate had refused to allow the evidence ofDissanayake to be read at the Court Martial for a rather strange,if not a bizarre reason, i.e. that the prosecution (party) at theCourt Martial did not have the opportunity to cross-examineDissanayake at the stage that the summary of evidence wasrecorded – summary of evidence being recorded as preliminaryor preparatory, so to say, to the holding of a Court Martial. Itis to be observed that Dissanayake had been called, in fact, asa witness to give evidence (at the stage that the summary ofevidence was recorded) against the accused who had cross-examined Dissanayake – at the state of summary of evidence;
20
30
40
156
Sri Lanka Law Reports
[2002] 2 Sri LR.
that the Judge-Advocate erred (the learned President's Counselfor the petitioner stopped short of submitting that the Judge-Advocate erred in law) by directing the Court Martial that it wascompletely bound to follow the directions given by the Judge-advocate on points of law.
The learned Deputy Solicitor-General sought to counter the above-mentioned points in two ways.
He argued that –
the proceedings before the officer recording the summary ofevidence could not be designated judicial, or held to be so;
that there was no prosecutor at the stage that the summaryof evidence was recorded which robs the proceeding of recordingthe summary of evidence of the aspect of a judicial proceeding.The learned Deputy Solicitor-General was at pains to impressupon me, to use his own words: “… there should be two partiesat the summary of evidence for it to be considered judicialproceedings". As a proposition of law that argument isimpeccable and is faultless to a fault;
in any event, the proceedings, at the stage of summary ofevidence, were not recorded by a person authorized by law totake the evidence.
The submission of the learned Deputy Solicitor-General to the effectthat the proceedings before the officer who recorded the summaryof evidence were not judicial seeks to overwhelm the truth by showof reasons. The very first object, if I may say so, as spelt out atparagraph 2 (a) in Sri Lanka Navy Order No. 0512, of recording asummary of evidence is, to use the very words in that Navy order:
so
60
CA
Chandrakumar and Another v.
Captain Samarawickrama and Others (Gunawardana, J.)
157
"to enable the commanding officer to determine whether there is aprima facie case against the accused and whether he should remandthe accused for trial". Of course, the decision in this instance, as to 70whether or not there is a prima facie case had been taken not bythe officer who recorded the summary of evidence but by thecommanding officer himself.
But, the officer who recorded the summary of evidence is, in fact,a delegate of the commanding officer – he having being authorizedby the commanding officer to record the summary of evidence, forthe purpose of enabling the commanding officer to take a decisionon the evidence so recorded as to whether or not there was a primafacie case against the accused in relation to the charges that hadbeen read over to the petitioners who were the accused. The socommanding officer had committed to the officer (who recorded thesummary of evidence) the authority to record the evidence whichauthority, if not for such committal or reposal, would reside in thecommanding officer himself.
Although the summary of evidence had been recorded by an officernominated by the commanding officer – the commanding officer himselfmust be deemed, in the circumstances, to have acted in his ownperson in recording the summary of evidence. This is an aspect ofwhich the learned Counsel were oblivious. As the maxim goes, hewho does a thing by the instrumentality of another is considered as 90if he had acted in his own person (Qui facit per alium, facit per se).
To say that the summary of evidence is not a judicial proceedingbecause no decision was taken in that proceeding affecting thepetitioners who were the accused in that proceeding, is a veritablehalf truth. A decision was, in fact, taken on the evidence so recordedalthough not by the selfsame person or officer who recorded thesummary of evidence but by the commanding officer. Any act couldbe treated as judicial if it affected a person's rights or freedom or
158
Sri Lanka Law Reports
[2002] 2 Sri LR.
of it entailed a penalty. In fact, a person whose exercise of power
affects the rights of others is required to act judicially. The idea ofa judicial function is now greatly stretched. In a way, it could evenbe said that the fact that power is administrative does not make itany the less judicial if the exercise of that power affects the rightsof other parties. Sri Lanka Navy Order No. 0512 clearly sets out theobjects of recording a summary of evidence – the main object beingto enable the commanding officer to assess the strength of theevidence and decide whether a prima facie case arises on suchevidence against the accused. The primary object of recording asummary of evidence being to consider whether there is a prima faciecase against the accused (who is described or identified as such atthe recording of the summary of evidence) it cannot be said that therecording a summary of evidence is not a judicial proceeding. Summaryof evidence is recorded to enable the commanding officer to determineon the basis of that evidence whether the accused is ”prima facie"guilty of any offence with which he (the accused) must be taketo be charged, for under section 12 (b) of the relevant Navy OrderNo. 0512, the charge is required to be read to the accused at thecommencement of the recording of summary of evidence. And, in case,the commanding officer thinks so, that is, that there is a prima faciecase, on the summary of evidence, it can even entail the loss ofpersonal liberty of the accused for the commanding officer can then,in terms section 2 (a) of Sri Lanka Navy Order No. 0512, remandthe accused pending trial by a Court Martial. MAKING A DECISIONON THE BASIS OF EVIDENCE, AFFECTING THE RIGHTS OFINDIVIDUALS IS A SIGNAL QUALITY OF THE JUDICIAL FUNCTION.The main object of recording the summary of evidence being, as statedin section 2 (a) of the relevant Navy Order itself, to enable thecommanding officer to take a decision as to whether or not there isa prima facie case, the taking of that decision by the commandingofficer is an integral constituent of the proceeding of recording thesummary of evidence and is necessary to the completeness of that
100
110
120
130
CA
Chandrakumar and Another v.
Captain Samarawickrama and Others (Gunawardana, J.)
159
proceeding. That being so, the taking of the decision as to whetheror not there was a prima facie case was very much – a part of theproceeding of recording the summary of evidence and cannot beseparated off from the stage of recording the summary of evidence- the very object of recording – the summary of evidence being, asrepeatedly stated in this order, to enable that decision to be madeby the commanding officer. In this context, I may refer to the caseof Barnard v. National Labour Board11 for the purpose of explainingthat in general, judicial functions cannot be delegated, but as authority nofor the proposition that disciplinary functions are judicial in naturebecause they affect a person's rights.
The proceeding in which the summary of evidence is recordedcommences with the reading of the charges to the accused (petitioners)and then it culminated in the commanding officer holding on the basisof the evidence so recorded that there was a prima facie case againstthe accused with reference to those charges which resulted in theaccused being tried by a Court Martial. The taking of a decision bythe commanding officer, on the evidence recorded at the summaryof evidence, is an integral part of the proceeding of recording the isosummary of evidence because, as stated in the Navy Order No. 0512the primary object of the recording a summary of evidence is todetermine whether or not there is a prima facie case against theaccused, in relation to the charges which had been, as stated above,read to the accused at the very outset of recording the summary ofevidence.
The officer recording the summary of evidence is distinguished byseveral features which strengthen the impression that he is investedwith judicial power or was exercising a function of a judicial nature.
He has certain procedural attributes which resemble even if, in fact, 160they are not identical with those of a regular court of law: for instance,witnesses give evidence on oath and they are cross-examined by the
160
Sri Lanka Law Reports
[2002] 2 Sri LR.
accused. Moreover, at the commencement of the summary of evidence,charges were read over to the accused (petitioners) which meant thatthey were formally accused or indicted which is reminiscent of anordinary criminal trial.
In fact, in terms of paragraph 12 (b) of the Navy Order No. 0512the officer recording the summary of evidence is required to read thecharges to the persons who are, in fact, referred to as the accusedand whose degree of culpability will be determined, as stated above, 170by the commanding officer on the basis of that selfsame evidence.
In other words, to repeat what has been stated above as well, theobject of recording a summary evidence, as stated at paragraph2 (a) of the Sri Lanka Navy Order No. 0512 (in pursuance of whichorder the summary of evidence was recorded) was to reproduce thevery words of the relevant Navy Order: "to enable the commandingofficer to determine whether there is a prima facie case againstaccused and whether he should remand the accused for trial".
The point made by learned Deputy Solicitor-General is that theofficer authorized to record the summary of evidence does not make 180any decision and as such his functions could not be described asjudicial or likened thereto. According to section 04 of the aforesaidNavy Order No. 0512 the summary of evidence may be recorded bythe commanding officer himself or by a person authorized by him.
If the commanding officer himself had recorded the summary ofevidence, there could have been no scope whatever for the argumentthat the proceeding of recording the summary of evidence is not ajudicial proceeding. Since, in such a situation, the officer recordingthe summary evidence would himself determine the question as towhether or not there is a prima facie case against the accused on 190the evidence so recorded. I do not think the proceeding of recordinga summary of evidence ceases to be a judicial proceeding merelybecause the evidence is recorded by a person , authorized by the
CA
Chandrakumar and Another v.
Captain Samarawickrama and Others (Gunawardana, J.)
161
commanding officer who, in fact, will make a judicial decision on thatselfsame evidence because, as stated above, the main object ofrecording the summary of evidence, whoever records it, is to enablethe commanding officer to decide whether there is a prima facie caseagainst the accused – which decision is undoubtedly a judicial decision.
To consider whether a prima facie case arises on the summary ofevidence the commanding officer has, in the exercise of his discretion, 200to decide whether an inference of guilt can be drawn against theaccused on the summary of evidence – in the absence of proof toovercome the inference. Prima facie evidence is evidence that willsuffice as proof of a fact in issue until its effect is overcome by otherevidence – if forthcoming. To decide that question, ie whether or nota prima facie case arises on the summary of evidence, it is necessaryto bring to bear upon that question a judicial mind – that is, a mindto determine what- is fair and just, what is right and wrong in respectof the matter or matters under consideration.
The direction, complained of, given by the Judge-Advocate to the 210Court Martial is as wrong as wrong can be. His direction was thatthe evidence given by one Dissanayake, at the stage of recordingthe summary of evidence, was irrelevant and inadmissible undersection 33 of the Evidence Ordinance – since the prosecution (at thestage of recording the summary of evidence) had no opportunity tocross-examine that witness. I am at a loss to understand why sucha direction, which is patently wrong, was given. At the argument beforeme the learned Deputy Solicitor-General freely conceded that sucha direction was not countenanced by the terms of section 33 of theEvidence Ordinance. But, now in his lucid written submissions, the 220learned Deputy Solicitor-General had altered his stance a little byseeking to show that there were no two parties at the recording ofthe summary of evidence, since (according to his belated submissionput forward in writing as supplementary to oral submissions) therewas no "prosecutor" at the stage of recording the summary of evidence.
162
Sri Lanka Law Reports
[2002] 2 Sri L R.
One of the three conditions that had to be fulfilled in order to be ableto introduce (in a subsequent or a later stage of the same judicialproceeding) evidence given in an earlier one, is that the “adverse partyin the first proceeding had the right and opportunity to cross-examine"that witness whose evidence is sought to be marked as substantive 230evidence in a later proceeding without calling him again as a witness.Section 33 (b) of the Evidence Ordinance only contemplates that the“adverse party in the first proceeding" ought to have had a right andopportunity to cross-examine that witness whose evidence is soughtto be made use of without calling the witness once again. The adverseparty in the first proceeding is clearly the accused – first proceedingbeing the proceeding in which the summary of evidence was recorded.
In section 12 (e) of the aforesaid Navy Order it is stated thus : “Thathe (the accused) has the right to cross-examine each witness whogives evidence against him". In terms of the relevant Navy Order 240No. 0512, no other party has that right, ie the right to cross-examinea witness who testifies at the recording of the summary of evidence.The relevant Navy Order itself presupposes or treats the accused asthe "adverse party in the first proceeding", that is, the proceeding ofrecording the summary of evidence. Navy Order No. 0512 does notcontemplate witnesses being cross-examined other than by theaccused – at the stage of recording the summary of evidence.
Of course, section 33 contemplates a lis (controversy) inter partessituation, that is, there must be two parties who are at variance inregard to a certain matter. The submission of the learned Deputy 250Solicitor-General that the proceeding at the stage of recording thesummary of evidence is not inter partes since there was no prosecutorhad no basis either in fact or law, I think the officer who recordedthe evidence played a dual role. Not only did he record the evidencebut he also led the evidence of the witnesses, whether favourableor unfavourable to the accused. I suppose, he was required to playthe role of an ideal or exemplary prosecutor – such a prosecutor being
CAChandrakumar and Another v.
Captain Samarawickrama and Others (Gunawardana, J.)163
detached and disinterested in the outcome, he would elicit evidenceirrespective of whether or not such evidence is favourable to theprosecution. The fact that the "introduction" to the relevant Navy Order 2eoNo. 0512 requires the officer recording the summary of evidence torecord "all the available evidence whether favourable or unfavourableto the accused" calls for remark.
Assuming, that there was no prosecutor physically present at theproceedings in which the summary of evidence was recorded – yetthere was undoubtedly a prosecution. Prosecutor is not be confusedwith the prosecution. Prosecutor is one who takes charge of theprosecution and performs the function, usually, of trial lawyer for theState or prosecution. The proceeding, at the stage of recording thesummary of evidence, commences after the charge is read over to 270the accused and was instituted and carried on for the purpose ofdetermining whether or not there was a prima facie case against theaccused in relation to the charges (that had been read over to theaccused) who were charged with certain offences, which is whatreading over the charges, at the outset of recording of the summaryof evidence, to the accused entails or involves – or means.
Reading over the charges as required by the Navy Order (inpursuance of which the summary of evidence was recorded) is toprefer an accusation against the petitioners who were the accusedand also presupposes the existence of a prosecution (party). And, 280it is the prosecution that prefers the charge and for a charge to bemade, the existence of a prosecution is necessary and is a condition- precedent for without a prosecution (party) no charge could havebeen preferred. To charge is to proceed against a person criminallywhich is more or less, the same, as to prosecute. The fact that acharge was preferred and read over to the accused at the stage ofreccrding the summary cf evidence is proof of the existence orpresence cf the prosecution fparty}.
164
Sri Lanka Law Reports
[2002] 2 Sri L ft.
There can be a prosecution (party) without there being a prosecutingofficer conducting the prosecution. At the stage of recording the 290summary of evidence there were distinct charges which were readto the accused, which was tantamount to the accused (petitioners)being formally accused, be it noted, with reference to certain crimesthat the accused (petitioners) were alleged to have committed. So thatthe framing of the charges and reading them over to the accusedat the commencement of recording the summary of evidence, involvesthe institution of criminal proceedings in respect of certain offencesagainst the accused. And, the prosecution so instituted had beencarried on bv leading or recording evidence in relation to thosecharges. The situation has to be realistically appreciated without raising 300over – subtle arguments. That being so, there is no scope for thebelated argument that proceedings at the stage of summary of evidencewere not judicial in character inasmuch as they were not inter partes- there being – according to the submission of the learned DeputySolicitor-General – no prosecutor. As explained above, there is nogainsaying that there was a prosecution (party) – at the stage ofrecording the summary of evidence.
What has been stated above would serve to show that theproceedings at the stage of summary of evidence were :
inter partes and31 °
judicial in character
So that the evidence given by Dissanayake at the stage of recordingthe summary of evidence becomes relevant and admissible at the trialin the Court Martial, under section 33 of Evidence Ordinance, providedthe following three conditions are also satisfied :
(a) that the proceeding was between the same parties. There wasno controversy at the argument before me, as to the fact that
CA
Chandrakumar and Another v.
Captain Samarawickrama and Others (Gunawardana, J.)
165
it was so, ie that subsequent proceeding in the Court Martialwas between the same parties, if, in fact, there had been aprosecution (party), at the stage of summary of evidence, as had 320been held by me in this judgment;
that the adverse party in the first proceeding had the right andopportunity to cross-examine. I have explained above that the"first proceeding" was the proceeding wherein the summary ofevidence was recorded and that the adverse party were the twoaccused (petitioners). That the accused did cross-examine therelevant witness, viz Dissanayake is an admitted fact;
that the questions in issue were substantially the same in thefirst as in the second proceeding. The parties were not at varianceon- this aspect either, at the argument before me, and the fact 330that the question in issue was identical must also be taken tohave been admitted – question at issue always being the guilt
or otherwise of the accused on the charges which were identicalin both proceedings – subsequent proceeding being the trialin the Court Martial;
So that the direction of the Judge-Advocate to the Court Martialthat the evidence of Dissanayake recorded at the stage of summaryof evidence, which preceded the trial in the Court Martial, is notadmissible under section 33 of the Evidence Ordinance because theprosecution (party) at the Court Martial did not have the opportunity 34°to cross-examine Dissanayake (at the inquiry in which summary ofevidence was recorded) was patently wrong in law. In fact, underparagraph 12 (e) of the Navy Order it was the accused who had theright to cross-examine Dissanayake. At the inquiry in which thesummary of evidence was recorded Dissanayake was not called bythe accused. The directions of the Judge-Advocate would, perhaps,have been correct if that had been the case, that is, if at the stage
166
Sri Lanka Law Reports
[2002] 2 Sri LR.
of summary of evidence, it was the accused who had called thatwitness. (That witness Dissanayake cannot now be traced is also anadmitted fact).350
It is to be observed that the direction of the Judge-Advocatecomplained of had not been given on the basis that there were notwo parties or that there was no lis inter partes situation at the stageof recording the summary of evidence, which is a position thoughtof or added later only at the argument before me.
Thus, the perusal of the record of the proceedings of this casereveals a blatant error of law (on the face of the record) in that thelearned Judge-Advocate, in his directions to the Court Martial hadmisinterpreted section 33 of the Evidence Ordinance. As such thedecision or conviction of the accused has to be quashed. In Shaw's 360case Lord Denning held that Certiorari could be used to correct errorsof inferior tribunals and the like even when errors do not go to thejurisdiction. Shaw's case established the principle that an error of lawon the face of the record renders the decision of the tribunal liableto be quashed although that error does not affect or go to thejurisdiction of the tribunal. However, in the aftermath of the decisionin Anisminic there had been much discussion as to whether thedistinction between jurisdictional and non-jurisdictional error of law stillpersists, since the Anisminic decision was to the effect that all errorsof law committed by administrative bodies and inferior tribunals are 370really to be regarded as going to jurisdiction.
The second point raised by the learned President's Counsel forthe petitioner remains to be considered. The learned President'sCounsel had pointed out that the learned Judge-Advocate had floutedthe rule spelt out in section 21 of the Navy Order No. 0513 whichis as follows: "The Court shall be guided by the advice of the trialJudge-Advocate on all points of law. Where, however, the Court does
CA
Chandrakumar and Another v.
Captain Samarawickrama and Others (Gurtawardana, J.)
167
not accept the advice on a point of law, it shall be the duty of thepresident to cause the fact to be set out in the record of the proceedingstogether with the Court's reasons for rejecting the advice".380
The rule set out above clearly indicates that the Court need notnecessarily accept the directions of the Judge-Advocate on points oflaw. It is open to the Court to take, on points of law, a view differentfrom that of the trial Judge-Advocate. In such a case the Court hasonly to give reasons for not accepting the advice of the Judge-Advocate.
But, the trial Judge-Advocate had given a firm direction to the CourtMartial that it was completely bound by the directions of the Judge-advocate on points of the law. The Judge-Advocate had omitted,perhaps, inadvertently, to explain to the Court that it could depart from 390the directions of the Judge-Advocate on points of the law – subjectto a duty to give reasons for such non-acceptance.
But, then the question arises as to whether the Judge-Advocate'sdirection that the Court Martial was bound to follow the Judge-Advocate's directions on law could be treated as an error of law forthe Navy Order No. 0513 is not law. Navy Order was not promulgatedby Parliament. Nor has it been formulated under a statute. So thatdisregarding the rule in the Navy Order No. 0513 cannot be consideredto be disregarding the law. It is only acting in violation of a law thatis tantamount to an error of law. And, it is only when an inferior tribunal 400or other administrative body had committed an error of law that aCourt of review can intervene and quash the decision of that bodyby means of an order of Certiorari. At the stage of preparation ofthis judgment, when this question occurred to me, after the argumentin Court was closed, I had the opportunity to read an Indian treatiseon Administrative Law by Jain and Jain (4th edition page 537) whereit is stated thus: "A Court may not intervene when a body disregards
168
Sri Lanka Law Reports
[2002] 2 Sri LR.
not a mandatory provision of law, but executive instructions or directionswhich have no force of law”. However, in the circumstances, thisdirection can amount to an error of law for it is, in a way, a direction 410to the Court to disregard the law. In terms of the rule in the NavyOrder No. 0513 reproduced above, it was open to the members ofthe Court to take a correct view of the law, uninhibited by the directionson the law given by the Judge-Advocate. In other words, the rule inthe Navy Order No. 0513 merely reaffirms the general principle thateverybody is entitled to take a correct view of the law and actaccordingly. The direction of the Judge-Advocate is wrong in law sinceit has teiken away that general right given, be it noted, by the lawor rather the duty imposed by law upon anybody who decides anythingto take that decision according to a correct view of the law. For 420instance, -in this case itself, there was a strong theoretical possibilitythat the evidence of Dissanayake would have been admitted by themembers of the Court, under section 33 of the Evidence Ordinance,had the Judge-advocate not given the direction complained of, ie thatthe Court had no choice but to act in obedience to the directionsgiven by the Judge-advocate on points of law which direction, too,constitutes a mainfest error of law.
For the aforesaid reasons, I do hereby grant an order of Certiorariquashing the conviction of the two petitioners and the sentence passedon them by the Court Martial.430
Application allowed.