DIRECTOR-GENERAL FOR THE PREVENTION OF BRIBERY AND CORRUPTION v. FERNANDO

012-SLLR-SLLR-1999-V-3-DIRECTOR-GENERAL-FOR-THE-PREVENTION-OF-BRIBERY-AND-CORRUPTION-v.-FERNANDO.pdf


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DIRECTOR-GENERAL FOR THE PREVENTIONOF BRIBERY AND CORRUPTIONv.
FERNANDO
COURT OF APPEAL
JAYASURIYA, J„
KULATILAKE, J.
C.A. NO. 55/97.
C. COLOMBO NO. B/1173/96.
JUNE 23, 1999.
Bribery Act – S. 23A (4) – Requirement of a legal and valid notice – Sufficient
notice – The power of a High Court Judge to make an order of discharge –
S.203 Code of Criminal Procedure Act.
Held:
The notice under s. 23A (4) of the Bribery Act must give the accusedsufficient notice in regard to the entire period which is sought to be reliedupon.
If such a notice is not given, the accused has not been afforded the legalopportunity of preferring a full explanation in regard to the charges to bepreferred – and where an accused is deprived of such an opportunity thereis a legal bar to the institution of charges or preferring of an indictmentagainst him.
per Jayasuriya, J.
"A common fallacy and a misconception prevails among both the membersof the official and unofficial Bar, that unlike in a Magistrate's Court or a DistrictCourt, the High Court Judge is not legally entitled to make an order of dischargeunder any circumstances.”
Although there is no express reference to an order of discharge in theCode, s. 203 postulates that after the High Court reaches a finding hehas either to acquit or convict the accused giving reasons for such orders,but before he reaches such a finding the High Court Judge has inherentpower to make an order discontinuing legal proceedings before him anddischarging the accused in the exercise of his powers of control over thecourse of proceedings.
CA
Director-General for The Prevention of
Bribery and Corruption v. Fernando (Jayasuriya, J.)
105
APPEAL from the High Court of Colombo.
Cases referred to:
Chandrapala Perera v. A. G. – [1998] 2 Sri. LR 85 at 87 (SC).
A. G. v. Piyasena – 63 NLR 489.
Fernando v. Excise Inspector, Wennappuwa – 60 NLR 227.
Premadasa v. Assen – 60 NLR 451.
Senaratne v. Lenohamy – (DB) 1917 20 NLR 47.
De Silva v. Jayatileka67 NLR 169 (DB).
Sumangala v. Piyatissa Thero – 39 NLR 265.
Fernando v. Rajasuriya – 47 NLR 399.
Kiri Banda v. A. G. – 61 NLR 227.
Kiri Banda v. William – 44 NLR 74.
Vidanagamatchi v. De Silva – 80 CLW 94.
Gabriel v. Soysa – 31 NLR 315.
Wanigasekara v. Simon – 57 NLR 377.
Weerasinghe v. Wijesinghe – 29 NLR 208.
A. G. v. Gunasekera – 60 NLR 334.
Edwin Singho v. Nanayakkara – 61 NLR 22.
Peter v. Cottelingam – 66 NLR 468.
M. Liyanage, Deputy Director-General of the Bribery Commission for complainant-appellant.
Tilak Marapane, PC with D. Jayanethi for accused-respondent.
Cur. adv. vult.
June 23, 1999.
JAYASURIYA, J.
Mr. Tilak Marapana, PC, senior counsel for the accused-respondentis not present in Court.
We have heard Mrs. Liyanage, learned counsel for the complainant-appellant and learned junior counsel for the accused-respondent. Sheconcedes that in the notice which the Director-General of the BriberyCommission has issued in terms of section 23A (4) of the Bribery
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Act the period specified for the declaration of assets is the limitedperiod from 1990-91 and there is no reference to a need of declaringof assets or funds acquired during the year 1954. The indictment drawnup against the accused-respondent charges the accused with certainevents which have taken place in 1954. When she was confrontedby this Court as to whether the notice is deficient or sufficient in regardto the period specified, her meek reply was that in the notice theDirector-General has referred to the legal provision, that is to section23A (4) of the Bribery Act. That was the solitary and the meeksubmission advanced by her in relation to the point raised by Courtand in relation to the point which is highlighted in the order of theHigh Court Judge. We hold that the notice given under section 23A(4) of the said Act must give the accused sufficient notice in regardto the entire period which is sought to be relied upon subsequentlyin drawing an indictment and in the circumstances the instant noticegiven to the accused-respondent is deficient and defective. The issueof a legal and valid notice setting out the correct and complete factualmatters on which his explanation is called for, is of paramountimportance. If such a notice has not been given, the accused hasnot been afforded the legal opportunity of preferring a full explanationin regard to the charges that would ultimately be preferred againsthim in the indictment and where an accused person is deprived ofsuch an opportunity, there is a legal bar to the institution of chargesor preferring of an indictment against him. In the circumstances, weuphold that part of the order of the learned High Court Judge dis-continuing legal proceedings and discharging the accused.
But, if the trial Judge intended to acquit the accused by the useof the word ’S^ad", we hold that it is a wrong and incorrect orderin law. A common fallacy and a misconception prevails among boththe members of the official and unofficial bar, that unlike in a Magistrate'sCourt or a District Court (which tried criminal offences earlier) the HighCourt Judge is not legally entitled to make an order of discharge underany circumstances. Vide Chandrapala Perera v. A. G.(" at 87 (SC).The provisions of the Code giving rise for such a misconceptionrelating to High Court trials before a Judge refer to orders of conviction
CADirector-General tor The Prevention of
Bribery and Corruption v. Fernando (Jayasuriya, J.)107
and acquittal. Vide section 203 of the Code of Criminal Procedure.There is no express reference to an order of discharge in the Code.What the provisions of section 203 postulate is that after the HighCourt Judge reaches a finding he has either to acquit or convict theaccused giving reasons for such orders. But, before he reaches sucha finding the High Court Judge has inherent power to make an orderdiscontinuing legal proceedings before him and discharging theaccused in the exercise of his powers of control over the course ofproceedings. The importance of reaching a finding before an orderof acquittal or conviction is pronounced was stressed by a DivisionalBench in A. G. v. Piyasenat® which overruled the contrary views takenby the Supreme Court in Fernando v. Excise Inspector, WennappuwsP1and by Justice H. N. G. Fernando in Premadasa v. Assert* that afterthe closure of the prosecution, no valid order of discharge could bepronounced under any circumstances.
In Senaratne v. Lenohamy (Divisional Bench)*5* Justice De Sampayoassociated with other illustrious Judges of the Supreme Court referredto the power of any Court to discontinue and discharge proceedingsbefore it. It is an inherent power which is vested in a Court auto-matically by the creation of the Court itself, to enable it to controlthe course of proceedings at the trial. It is an undoubted exerciseof the inherent power and there is no need for an express specificationand reservation of that power in the Code. In the Code of CriminalProcedure Act, there is an express provision specifying the latest stageat which a Magistrate could make an order of discharge. But, thereis no specification of the earliest stage at which an order of dischargecould be made by a Magistrate. In the circumstances, we hold thatin the attendant circumstances of this case, the High Court Judgehad the power to discontinue legal proceedings and to discharge theaccused before arriving at an adjudication on the merits, on the groundthat a mandatory provision requiring a proper and valid notice to begiven to the accused-respondent in terms of section 23A (4) of theBribery Act had not been complied with. It is manifest on a perusalof the instant proceedings that the stage of the close of the prosecutionhad not been reached. It is equally transparent that the learned Judge
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has not reached an adjudication on the merits – vide De Silva v.Jayatillekd®. An order of acquittal can only be made at the close ofthe prosecution and after an adjudication has been reached by theJudge on the merits. The close of the prosecution could be reachedat the formal and technical end of the prosecution (Sumangala Therov. Piyatissssa ThercF>; Fernando v. RajasuriyafB)] Kiribanda v. A. G.PI;King v. WiUiani'°] (CCA) or at the virtual end of the prosecution.(Vidanagamatchi v. De Silvefn| Samarawickrema, J. Gabriel v. Soysaf,2>;Wanigasekera v. Simorf'3) Weerasinghe v. Wijesingh&u); A. G. v.Gunesekeraf,5); Edwin Singho v. Nanayakkaref,6>; Peter v. Cotelingarrf,7).Thus, the order which the trial Judge has pronounced is an orderof discharge and not an order of acquittal. The complainant-appellantis, therefore, entitled to issue a legal and valid notice and thereafterprefer another indictment against the accused-respondent, if he or sheis so advised.
The appeal is partly allowed.
KULATILAKE, J. – I agree.
Appeal partly allowed.
Order of the High Court Judge is an order of discharge and not anorder of acquittal. Complainant entitled to issue a legal and valid notice.