KESARA SENANAYAKE v. ATTORNEY GENERAL AND ANOTHER

010-SLLR-SLLR-2010-V-1-KESARA-SENANAYAKE-v.-ATTORNEY-GENERAL-AND-ANOTHER.pdf


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Rescan Senanayake v. Attorney General And Another
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KESARA SENANAYAKE V.ATTORNEY GENERAL AND ANOTHERSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.,
SR1PAVAN J. ANDIMAM, J.
S. C. APPEAL NO. 134/2009S. C. (SPL.) L. A. NO. 218/2009H. C. APPEAL NO. HCMCA 260.08M. C. COLOMBO CASE NO. 9283/01/07MARCH 17™, 2010
Commission to Investigate Allegations of Bribery and Corruption Act,No. 19 of 1994 – Section 3 – Institution of proceedings against suchperson for such offence in the appropriate Court – Section 11 – DirectorGeneral to institute criminal proceedings – Supreme Court Rules 4 and28 – failure to.comply with – consequences – Code of Criminal ProcedureAct – institution of proceedings – the person making the complaint or’written report would become the complainant.
The Accused – Appellant – Appellant (Appellant) preferred ah appealto the Supreme Court against the order of the High Court whereby theHigh Court had affirmed the conviction and sentence imposed by theMagistrate. When this matter was taken up for hearing in the SupremeCourt, a preliminary objection as to the maintainability of the appealwas raised by the Respondent.
The contention of the Respondent was that the Appellant had fadedto name the Director-General of the Bribery Commission, who is thecomplainant, as a party Respondent in the appeal to the SupremeCourt. It was further contended that the Appellant had not compliedwith Rules 4, 28 (1) and 28 (5) of the Supreme Court Rules of 1990.The learned President’s Counsel for the Appellant submitted that theCommission itself was the proper party to have been made a party andthere was no necessity to make the Director-General a party.
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Held:
If the aggrieved person or persons desire to be the ‘complainant’,the Code of Criminal Procedure Act would give him the right tomake a ‘complaint’ making himself the ‘complainant’. Howeverif the aggrieved person or persons, without exercising their rightto make a complaint in terms of the Code of Criminal ProcedureAct, state their grievances to the police, who after inquiry decidesto institute proceedings on a report filed by the police, in suchsituation, the police officer who instituted the proceedings wouldbecome the complainant.
In terms of the provisions contained in Sections 2 and 136 (1)of the Code of Criminal Procedure Act and the ratio of decisionsreferred to, it is evident that a person, who makes such acomplaint to the Magistrate would be regarded as a complainant.
The provisions of the Commission to Investigate Allegations ofBribery and Corruption Act, No. 19 of 1994, reveal that the func-tions of the Commission are restricted to investigating allegationsand directing the institution of proceedings.
In terms of the provisions contained in sections 11 and 12 of theAct No. 19 of 1994, where in the course of an investigation of anallegation of bribery or corruption, if it discloses the commissionof an offence, the Commission to Investigate Allegations of Briberyand Corruption shall direct the Director General to institutecriminal proceedings against such person in the appropriate Court.When such a direction is given by the Commission, it is mandatoryfor the Director – General to institute proceedings.
The totality of Rules 4, 28(1) and 28(5) of the Supreme Court Rules1990 indicates the necessity for all parties, who may be adverselyaffected by the success or failure of the appeal to be made partiesto the appeal.
Held further per Dr. Shirani Bandaranayake, J.,
“In terms of the Supreme Court Rules, for the purpose of properconstitution of an appeal, it is vital that all parties, who may be
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Kesam Senanayake v. Attorney General And Another
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adversely affected by the result of the appeal should be madeparties.”
AN APPEAL from the judgment of the High Court Colombo.
Cases referred to:
The Attorney-General v. Herath Singho – (1948) 49 NLR 108
Nonis v. Appuhamy – (1926) 27 NLR 430
Babi Nona v. Wijeysinghe – (1926) 29 NLR 43
Ibrahim v. Nadarajah- (1991) 1 Sri L. R. 131
C. R. de Silva, P. C., with R. J. de Silva and Dulan Weerawardena for theAccused- Appellant – Appellant.
Gihan Kulatunga, SSC with Asitha Anthony for the Respondents-Respondents.
Cur.adv.vu.lt.
December 06th 2010
DR. SHIRANI A. BANDARANAYAKE, J.This is an appeal from the order of the High Court dated28.08.2009. By that order, the High Court had affirmed theconviction and sentence imposed by the learned Magistrate inM. C. Colombo Case No. 9283/01/07. The accused-appellant-appellant (hereinafter referred to as the appellant) preferredan appeal before this Court on which special leave to appealwas granted.
At the stage this matter was supported for special leaveto appeal, learned Senior State Counsel for the respondents-respondents (hereinafter referred to as respondents) hadraised a preliminary objection as to the maintainability of thisappeal. After granting leave, this Court had stated that the. said objection would be considered at the stage of hearing.
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The facts of this appeal, as submitted by the appellant,albeit brief, are as follows:
The appellant, who was the Mayor of the Kandy MunicipalCouncil, was prosecuted by the 2nd respondent, in theMagistrate’s Court of Colombo in respect of two counts underSection 70 of the Bribeiy Act, No. 20 of 1994. It was allegedin Count No. 1 of the charge sheet that the appellant, whilstbeing the Mayor of the Kandy Municipal Council, hadobtained funds for the purpose of attending a workshoporganized by the International Union of Local Authorities -Asian and Pacific section and scheduled to be held between13th to 15th April 2004 in Taipei, Taiwan had not attended thesaid workshop, but had toured Singapore with his wife andthereby caused a loss of Rs. 185,185/56 to the Government.
The second count was also in respect of the same amountand it was alleged therein that he was guilty of obtaining anillegal benefit to the same value.
The appellant stated that he could not get a visa from SriLanka to Taiwan since there was no diplomatic relationshipbetween Sri Lanka and Taiwan. He had met with an accidentin Singapore on 12.04.2004, while he was on his way toTaiwan Consulate to obtain his visa to proceed to Taiwan.The appellant accordingly had submitted that in the circum-stances he did not have the requisite mens rea to commit thealleged offences and that he had not acted intentionally.
After trial the appellant was convicted on both countsby the learned Magistrate on 18.09.2008, and sentenced toone year’s imprisonment suspended for 5 years and a fine ofRs. 100,000/- with a default term of 3 months simpleimprisonment for the first Count and a fine of Rs. 100,000/-
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with a default term of 3 months simple imprisonment for thesecond count.
When this matter came up for hearing it was agreed thatthe preliminary objection would be taken up for consider-ation first. Both parties were accordingly heard only on thepreliminary issue raised by the learned Senior State Counselfor respondents.
The contention of the learned Senior State Counsel forthe respondents was that the appellant had failed to namethe Director-General of the Bribery Commission, who is thecomplainant, as a party respondent in the appeal to theSupreme Court. In the circumstances, it was contended thatthe appellant had not complied with Rules 4, 28(1) and 28(5)of the Supreme Court Rules of 1990. Accordingly learnedSenior State Counsel for the respondents moved that thisappeal be dismissed in limine.
Learned Persident’s Counsel for the appellant concededthat the question of identifying the proper party is anessential question in any type of litigation and that thepurpose of having the proper party named is to ensurethat any decree of Court or a finding of a Court is properlyenforceable once such decree is entered or such finding hasbeen made.
Accordingly it was contended that in order to ascertainas to whether it is necessary to make the Director-General ofthe Bribery Commission a party to this appeal, it would benecessary to consider the provisions of the Commission toInvestigate Allegations of Bribery and Corruption Act, No. 19of 1994.
Learned President’s Counsel for the appellant referred toSections 2, 3, 4, 5, 6, 7, 8 and 11 of the said Act, No. 19 of
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1994 and contended that the said provisions clearly showthat the Director-General has to act on the directions givenby the Commission and it is the Commission, which has theresponsibility of investigation and the institution ofproceedings. Accordingly, the learned President’s Counsel forthe appellant submitted that the Commission itself was theproper party to have been made a party and there was nonecessity to make the Director-General a party to thisappeal.
The word ‘complainant’ is not defined by the Code ofCriminal Procedure Act. However, the meaning of the word‘complaint’ is defined in Section 2 of the Code of CriminalProcedure Act and is stated as follows:
“Complaint means the. allegation made orally or inwriting to a Magistrate with a mew to his taking actionunder this Code that some person, whether known orunknown, has committed an offence. ”
Chapter XIV of the Code of Criminal Procedure Actdeals with the commencement of proceedings before theMagistrate’s Courts and Section 136(1) a refers to the factthat proceedings in a Magistrate’s Court shall be institutedon a complaint being made orally or in writing to a Magistrateof such Court that an offence has been committed, whichsuch Court has jurisdiction either to inquire into or try suchcomplaint.
Referring to the provisions in the Code of CriminalProcedure Act, which deals with the complaints, Dias,J. in The Attorney-General v. Herath Singhd11 had statedthat the ‘complainant’ must mean the person, who makesthe ‘complaint’. In Herath Singho (supra) Dias, J., hadto consider the applicability of the word ‘complaint’
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defined in Section 2 of the Code of Criminal Procedure Act inrelation to other relevant sections in the Code. Consideringthe question, Dias, J., was of the view that the ‘aggrievedperson or persons’ or the police, who have been induced bythe aggrieved person or persons, could take up the grievancebefore Court. In such instances, if the aggrieved person orpersons desire to be the ‘complainant’, the Code of CriminalProcedure Act would give him the right to make a ‘complaint’making himself the ‘complainant’. If, on the other hand, theaggrieved person or persons, without exercising their right tomake a complaint in terms of the Code of Criminal ProcedureAct, state their grievances to the police, who after inquirydecides to take up the case and institute proceedings ontheir own, the said police would file their ‘complaint’ and theaggrieved person or persons would cease to be ‘complainants’.In such situations, it is clear that the police officers, who ‘instituted the proceedings’ would become the complainant.
Dias, J., in The Attorney-General v. Herath Singho (supra)referring to Dalton, J.’s decision in Nonis v. Appuhamy,2) hadstated that,
"… for the institution of proceedings by complaintor written report, the person making the complaint orwritten report is regarded as the party instituting theproceedings against the accused person. ”
This position was further affirmed by Dalton, J.,in Babi Nona v. Wijesinghd3), where the Court had con-sidered the right of appeal of an aggrieved party in amatter in which the proceedings were instituted on a writtenreport by a police officer.
As stated earlier in terms of Section 136(1) of the Codeof Criminal Procedure Act, the proceedings before the
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Magistrate’s Court would commence after the institution ofa complaint being made to the Magistrate. Considering theprovisions contained in Section 2 and 136 (1) of the Code ofCriminal Procedure Act and the ratio of decisions referredto earlier, it is evident that a person, who makes such acomplaint to the Magistrate would be regarded as a‘complainant’.
The powers and functions of the Commission to inves-tigate Allegations of Bribery or Corruption are stipulated inAct, No. 19 of 1994. The Commission consists of a Chairmanand two (2) other members and has the power to investigateinto allegations of bribeiy or corruption. A Director-Generalis appointed to the Commission in terms of Section 16 ofthe Act, No. 19 of 1994, to assist the Commission in thedischarge of the functions assigned to the Commission.Section 3 of the Act, No. 19 of 1994 states that, based onthe communication made to the Commission, where there isdisclosure of the commission of any offence by any personunder the Bribery Act or the Declaration of Assets andLiabilities Law, No. 1 of 1975, the Commission shall directthe institution of proceedings against such person for suchoffence in the appropriate Court. The said Section 3 of theAct, No. 19 of 1994 is as follows:
“The Commission shall subject to the other provisionsof this Act, investigate allegations, contained incommunications made to it under Section 4 andwhere any such investigation discloses the commissionof any offence by any person under the BriberyAct or the Declaration of Assets and LiabilitiesLaw, No. 1 of 1975, direct the institution ofproceedings against such person for such offence inthe appropriate Court” (emphasis added).
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Section 4 of the Act, No. 19 of 1994 refers to commu-nications received by the Commission and the conduct ofinvestigations that would be carried out, if it is satisfied thatsuch communication is genuine and discloses material uponwhich an investigation ought to be conducted. Section 11 ofthe said Act, No. 19 of 1994, specifies the steps that shouldbe taken by the Commission, where in the course of aninvestigation conducted by the Commission under Act,No. 19 of 1994, discloses the commission of an offence byany person under the Bribery Act or the Declaration of Assetsand Liabilities Law, No. 1 of 1975. The said Section 11, whichis reproduced below, clearly states that the Commission shalldirect the Director-General to institute criminal proceedingsagainst such persons.
“Where the material received by the Commission in thecourse of an investigation conducted by it under this Act,discloses the commission of an offence by any personunder the Bribery Act or the Declaration of Assets andLiabilities Law, No. 1 of 1975, the Commission shalldirect the Director-General to institute criminalproceedings against such person in the appropri-ate court and the Director-General shall instituteproceedings accordingly.
Provided, however, that where the material received by theCommission in the course of an investigation conducted byit discloses an offence under Part II of the Bribery Act andconsisting of soliciting, accepting or offering, by any person,of a gratification which or the value of which does notexceed two thousand rupees, the Commission shalldirect the institution of proceedings against suchperson before the Magistrate's Court and where suchmaterial discloses an offence under that part and
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consisting of soliciting, accepting or offering, by anyperson of any gratification which or the value ofwhich exceeds two thousand rupees, the Commissionshall direct the institution of proceedings againstsuch person in the High Court by indictment* (emphasisadded).
An examination of the aforementioned provisions ofthe Act, No. 19 of 1994, reveals that, the functions of theCommission are restricted to investigating allegations anddirecting the institution of proceedings. It is also evident thaton the material received by the Commission in the courseof an investigation conducted by the Commission there isdisclosure of the commission of an offence, thereafter the roleof the Commission is only to direct the Director-General toinstitute criminal proceedings and the indictment would besigned by the Director-General. The said procedure is clearlylead down in Section 12(1) of Act, No. 19 of 1994, where it isstated thus:
“Where proceedings are instituted in a High Court inpursuance of a direction made by the Commissionunder Section 11 by an indictment signed by the Director-General, such High Court shall receive such indictmentand shall have jurisdiction to try the offence described insuch indictment in all respects as if such indictment werean indictment presented by the Attorney-General to suchCourt”
Considering the provisions contained is Sections 11 and12 of the Act, No. 19 of 1994 it is quite obvious that where thematerial received by the Commission to investigate Allegationsof Bribery or Corruption, in the course of an investigationconducted under and in terms of the Act, No. 19 of 1994,
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discloses the commission of an offence, the said Commis-sion shall direct the Director – General to institute criminalproceedings against such person in the appropriate Court.The said provisions also indicate, quite clearly that when sucha direction is given by the Commission that it is mandatoryfor the Director-General to institute proceedings. Further-more in terms of Section 12 of the Act, No. 19 of 1994,the indictment under the hand of the Director-General isreceivable in the High Court.
It is therefore evident that the Director-General has tobe regarded as the complainant, as the authority to institutecriminal proceedings on the offences under Act No. 19 of1994, is exclusively vested with the Director-General of theCommission.
The provisions contained in Section 3 of the Act, No.19 of 1994, further clarified this position. The said Section3 of the Act referred to earlier, deals with the functions ofthe Commission and clearly states that the functions of theCommission are limited to investigate allegations and todirect the institution of proceeding against such person.
A careful examination of the provisions in Section 3 and11, thus clearly indicates that, whilst the Commission hasthe authority to investigate, and on the basis of the findingsof such investigation, the Commission has the authorityto direct the institution of proceedings, such institution ofproceedings shall be carried out in effect by the Director-General of the Commission.
It is common ground that the Director-General has notbeen made a party to the application before the SupremeCourt.
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Learned Senior State Counsel for the respondentscontended that since the Director-General of the BriberyCommission, who is a necessary party to this application,had not been named as a respondent, that the appellanthad not complied with Rules 4 and 28 of the Supreme CourtRules 1990 and therefore the appeal should be dismissed inlimine.
Rule 4 of the Supreme Court Rules 1990, which dealswith the applications for Special Leave to Appeal refers to thenecessity in naming as the respondents the necessary andrelevant parties. The said Rule reads as follows:
“In every such application, there shall be named asrespondent, the party or parties (whether complainant oraccused, in a criminal cause or matter, or whether plaintiff,petitioner, defendant, respondent, intervenient or otherwise,in a civil cause or matter), in whose favour the judgment ororder complained against was delivered, or adversely towhom such application is preferred, or whose interest maybe adversely affected by the success of the appeal, andthe names and present addresses of all such respondentsshall be set out in full. ”
Rule 28 deals with other appeals, which come before theSupreme Court and the said Rule reads as follows:
“28 (1) Save as otherwise specifically provided by orunder any laws passed by Parliament, the provisions ofthis Rule shall apply to all other appeals to the SupremeCourt from an order, judgment, decree or sentence of theCourt of Appeal or any other Court or tribunal.
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28 (5) In every such petition of appeal and notice ofappeal, there shall be named as respondents, all partiesin whose favour the judgment or order complained againstwas delivered, or adversely to whom such appeal ispreferred, or whose interests may be adversely affectedby the success of the appeal, and the names and presentaddresses of the appellant and the respondents shall beset out in full.”
The totality of the aforementioned Rules indicates thenecessity for all parties, who may be adversely affected bythe success or failure of the appeal to be made parties to theappeal.
This position was considered by the Supreme Court inIbrahim v. Nadarajahw, where the Court had to considerwhether there was a violation of Rules 4 and 28 of theSupreme Court Rules.
In that case learned Counsel for the appellant submittedthat the party who was not added was, the minor daughter ofthe respondent, who was named and that no prejudice wouldbe caused because the same counsel might have appeared forthe daughter had she been made a party to the appeal andthat in any event the decision against the daughter will be thesame as that against her mother.
Considering the applicability of the Supreme CourtRules and taking the view that a failure to comply withthe requirements of Rules 4 and 28 is necessarily fatal,Dr. Amerasinghe, J., held that,
“It has always, therefore, been the law that it is necessaryfor the proper constitution of an appeal that all partieswho may be adversely affected by the result of the appeal
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should be made parties and, unless they are, the petitionof appeal should be rejected.”
As states earlier it is common ground that the Director-General of the Commission to investigate Allegations ofBribery and Corruption was not made a party to this appeal.On the basis of the examination of the provisions of the Act,No. 19 of 1994 it is evident that the Director-General, has tobe regarded as the complainant in such an application andtherefore is a necessary party to this appeal. In terms of theSupreme Court Rules, for the purpose of proper constitutionof an appeal, it is vital that all parties, who may beadversely affected by the result of the appeal should bemade parties.
It is thus apparent that the appellant had not compliedwith Rules 4 and 28 of the Supreme Court Rules of 1990.
For the reasons aforesaid, I uphold the preliminaryobjection raised by the learned Senior State Counsel for therespondents and dismiss this appeal for non compliance withSupreme Court Rules.
I make no order as to costs.
SRIPAVAN, J. – I agree.
IMAM, J. – I agree.
Preliminary objection upheld Appeal dismissed.