031-NLR-NLR-V-74-K.-A.-POTMAN-Petitioner-and-THE-INSPECTOR-OF-POLICE-DODANGODA-Respondent.pdf
WEEBAMAXTRY, J.—Potman v. Inspector of Police, Dodangoda
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1971 Present:Weeramanfry, J., and Thamofheram, J.
K. A. POTMAN, Petitioner, and THE INSPECTOR OF POLICE,DODANGODA, Respondent
S. C. 594170—Application in Revision in M. C. Kalutara, 40691
Jicvision—Criminal appeal—-Dismissal for wont oj appearance—Subsequent applica-tion in revision—Power of Supreme Court to grant relief.
An appeal was filed against a conviction cntoioJ by n Magistrate’s Court.The appellant was unrepresented and tlio appeal was considered by the Courtand dismissed. The present petition for relief by way of revision was filed(hereafter in respect of the same case.
Held, that although the Supreme Court would bo oxlremely hesitant andcautious beforo it makes any order in revision which is contrary to an orderwhich it has already maclo upon appeal, i-olicf would bo granted in a case ofan obvious error of fact based on an all important item of ovidonco not havingboon brought to the notice of Court at the hearing of (lie appeal.
Application to revise an order of the Magistrate’s Court., Kalutara.Aloy Ralnayake, for the aecusecl-petitioner.
Chulapathmendra Dahanayake, Crown Counsel, for the complainant-respondent.
Cur. adv. mill.
January 2, 1971. Weekamaktby, J.—
The accused-petitioner was charged with committing criminal trespassby entering a land in the occupation of one H. A. Gunadasa with intentto commit mischief and also with the destruction of three buildings,tiles and some cement slabs which were on this land. The learnedMagistrate found the accused guilty on both counts and sentenced him toa term of six months’ rigorous imprisonment on each count and a furtherfine of Rs. 100 on count two.
An appeal was filed against this conviction. The appellant wasunrepresented and the appeal was considered by court and dismissed.This petition for relief by way of revision was filed thereafter.
At the hearing before us it was demonstrated to us that the order of thelearned Magistrate could not be sustained for a reason which had not beenbrought to the notice of this Court at the time the appeal was dismissed.Briefly this reason is as follows :
The accused-petitioner was the holder of a writing from one Danoris,the father of Gunadasa. Gunadasa on giving evidence himself admittedthat the land belonged to his father. This writing which has been marked
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YVEERAMAJNTRY, J.—Potman t'. Inspector of Police, Dodangoda
Dl states .that Danoris conveyed all right, title and interest in the landand all plantations, household articles, timber, cement slabs and all otherthings on the land and all the buildings and household articles to theaccused-petitioner for a sum of Rs. 450.
This writing is an informal writing and though it is of no force or effectin law it shows that when the accused entered the land and dealt with thematerials thereon he was doing so under the authority of the owner.It was a complete answer to the criminal charge.
The main issue before the learned Judge was therefore the authenticityof the document PI, for the position of Danoris who was called as aprosecution witness was that the contents of this writing took him bysurprise. He admitted his signature but stated that the document wasrepresented to him by the accused to be only a writing to the effect thatthe property was being entrusted to the accused for the purpose of beinglooked after until the return of Danoris’ son from hospital.
The main reason which would appear to have weighed with the learnedJudge when he concluded that Danoris did not know the contents of thedocument, was that the document apparently took Danoris by surpriseand that he expressed astonishment when the contents of the documentwere explained to him in Court. In fact this reaction of surprise soattracted the notice of the learned Judge that he has caused a record of itto be made at the time the witness was giving evidence and has made aparticular point of it in his judgment.
There exists, however, upon the record a conclusive piece of evidencewhich demonstrates that Danoris’ apparent astonishment in Court wasa mere pretence ; and had the learned Judge given his attention to this,
. there is no doubt he would have reached a different conclusion.
I refer to the evidence of the Grama Sevaka, Samarasinghc, anotherprosecution witness, who stated that a few days after the alleged offence,when he met Danoris, Danoris did not make a complaint to him buttold him that the accused had obtained a writing from him purporting totransfer this land to the accused. Danoris well knew therefore longbefore he gave evidence what tin's document contained and no furtherproof was necessary of the falsity of the position of surprise taken up byhim in Court.
This conclusive piece of evidence was not brought to the attention ofmy brother Thamotheram who dismissed this appeal and my brother isstrongly of the view that the failure to notice this demonstration of thefalsity of Danoris’ evidence goes to the root of the entire case.
No further reason is needed to indicate how an observation of this pieceof evidence would have reversed the result of this case but it may be notedalso in passing that one of the witnesses to the document is another son ofDanoris, one Hendrick. It is highly unlikely that if tire accused
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WEER.AMAXTR Y, J. — Potman r. Inspector oj Police, Dodnngoda
successfully perpetrated this fraud upon the father, he should also choosea.son as a witness and should have been successful in perpetrating a fraudon the son as well.
– Upon our attention being drawn to this piece of evidence, learned CrownCounsel as well has very rightly stated that he docs not at tempt to supportthe conviction.
The next quest ion is whether since we are satisfied that the verdict ofthe learned Magistrate should not stand, the dismissal of the appealoperates as a bar to our dealing with this matter in revision. This courtwould no doubt be extremely hesitant and cautious before it makes anyorder in revision which is contrary to an order which this Court itselfhas made upon appeal, but there would appear to be a precedent fororders of this kind where the original order is based upon a manifesterror.
Shaw, J. acting in revision in D. C. Baft icaloa S3011 varied an order hehad made in appeal on the basis that his earlier decision was undoubtedlywrong and made per incuriam. Shaw, J. was relying on a judgment ofWood Renton, C. J. in Police Officer of Mated!a v. GcdapaUa2 whereWood Renton, C.J. observed that it appeared to him that, the powersof the Supreme Court were sufficiently wide to enable him to interfereby way of revision and to set aside ns having been made per incuriam theorder dismissimg the appeal.
In Ehambamm <0 Another v. Bajasuriya, 3 RTagalingam. J. held thatwhere the object of an application in revision was in fact to re-argno aease already decided the court, cannot and could not entertain suchapplication. He referred to the decision of Wood Renton, C. J. and Shaw,
J. to which I have referred and distinguished them as in the case beforehim the judgment made in appeal had been pronounced after counselhad been fully heard on behalf of the accused and in their petitions thepetitioners were seeking to controvert some of the opinions expressedby the Supreme Court in its judgment on appeal as having been madeper incuriam. He further observed that the Court in delivering thejudgment in appeal had not expressed its views per incuriam and thatthese views represented one line of thought upon certain disputedquestions of fact which wore debated at the Bar.
The present ease is clearly different from the case before Nagalingam, J.for this is a ease of an obvious error of fact based on an all important itemof evidenee.not having been brought to the notice of Court at the hearingof the appeal. In fact Hagnlingam, J. observed in dismissing theapplication before him that this Court had modified or even vacatedjudgments pronounced in appeal when apprised of the fact that the Courthad erred in regard to an obvious question of fact or of law.
1 (1921) 23 N. L. It. 475.*
3 (1947) 31 C. L. W. G5-
(1915) 1 C. IK. It. 197.
1 IS
The Queen v. Goonelillekc
In the recent ease of Nanhamy v. Jtanawana 1 Sansoni, J. refused toreconsider an order made in appeal upholding the contention of CrownCounsel that there is no power to reinstate a criminal appeal which hasbeen dealt with. This was based on a judgment of Basnayake, J.in the case of Elosingho v. Joseph2 to the effect tHat this Court had nopower to reinstate a criminal appeal which had been dismissed in theabsence of the appellant. It may be noted that in the case beforeBasnayake, J. it was not even suggested that the order was one madeper incuriam, and the principle emerging from those two eases wasdifferent from that in issue before us, namely that this Court has nopower to reinstate an appeal which had been dismissed in the absenceof the appellant.
Having regard to the special circumstances of this case and the factthat the power of this Court in revision to correct or modify an orderit lias made in appeal appears to have been accepted over a long periodof time, we think, this is an appropriate case for the exercise of thesepowers. We accordingly act in revision and quash the conviction andacquit the accused.
Thamotheram, J.—I agree.
Application allowed.