NANDANA SILVA vs ATTORNEY-GENERAL

062-SLLR-SLLR-2005-V-2-NANDANA-SILVA-vs-ATTORNEY-GENERAL.pdf


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NANDANA SILVA
VS.
ATTORNEY-GENERAL
COURT OF APPEALNANAYAKKARA, J.
ABEYRATNE, J.
CA 46/2002
HC PANADURA 1414/2000NOVEMBER 21,2003JANUARY 23,2004MARCH 23, 2004
Penal Code amended by Act, No. 22 of 1995 – sections 354, 363(e), 364(2) -Kidnapping-Rape-13 year old prosecutrix's marriage with accused – Validity?- Is the Marriage void? – Section 15 of the Marriage Registration (Amendment)Act, No, 18 of 1996 – Giving false age? – Validity of marriage? – Law and sectionto be mentioned in charge – Is it imperative? – Criminal Procedure Code,sections 164(4), 166-Marriage Registration Ordinance- Evidance Ordinance -s. 120
The appellant was indicted for having kidnapped one "M" punishable undersection 354 Penal Code and also in the course of the same transaction havingcommitted rape on her, section 364(2) as amended.
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After trial the appellant was found guilty on both counts and sentenced to 3years rigorous imprisonment and a fine of Rs. 1500/- on the first count and 10years rigorous imprisonment with Rs. 5,000/- as compensation to be paid tothe prosecutrix.
On appeal it was argued that as the accused-appellant was married to theprosecutrix, the accused could not have been convicted of rape on the prosectrix-his wife, and that even though the marriage was contracted by making a falsedeclaration as to their ages until such marriage is declared null and void by acompetent court, the marriage remains a valid marriage.
HELD:
Section 15 of the Marriage Registration Ordinance amended by section15 of the Marriage Registration Act, No. 18 of 1996 makes it clear thatthe marriage contracted by the prosecutrix when she was 13 yearsand few months with accused-appellant was ab initio void.
The argument that a valid marriage between the parties exist as longas it is set aside by a competent court is not tenable and cannot beaccepted – besides the accused appellant had contracted the socalled marriage with the prosecutrix after the commission of the act ofrape on the prosecutrix and at the time of the commission of theoffence the prosecutrix was not his wife.
HELD FURTHER:
Section 164(4) of the Criminal Procedure Code provides that the lawand the section under which the offence is alleged to have beencommitted should be mentioned in the charge.
When the section envisages several instances of liability it would beparamount to mention clearly the section and the sub section underwhich the accused was indicted so that he may not be misled orprejudiced in the conduct of his defence. The absence of such sufficientparticularity is bound to prejudice and hamper the accused appellantof the defence the prosecution cannot expect to have recourse tosection 166 of the Criminal Procedure Code.
The charges under which the accused appellant tried was basicallyflawed and defective.
APPEAL from the judgment of the High Court of Panadura.
Cases referred to:
Macfoyvs. United Africa Company Ltd. 1961 ALL ER 1169
Dr. Ranjith Fernando with Harshini Gunawardane for accused appellant.
S. Rodrigo, Senior State Counsel for respondent.
Cur.Adv.vult.
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NANAYAKKARA, J.The accused-appellant was indicted in the High Court of Panadura forhaving kidnapped one S. S. Munasinghe, an offence punishable undersection 354 of the Penal Code and also in the course of the sametransaction having committed rape on her. An offence punishable undersection 364(2) of the penal Code as amended by Act No. 22 of 1995.
At the conclusion of the trial the accused-appellant was found guilty onboth counts and sentenced to 3 years R. I. And a find of Rs. 1500/- on thefirst count and 10 years R. I. with Rs. 5000/- compensation to be paid tothe prosecutrix.
At the trial, several witnesses including the prosecutrix had testified forthe prosecution.
The factual circumstances which led to the incident are briefly asfollows:-
The accused-appellant and the prosecutrix lived in the same village inclose proximity to each other. The prosecutrix who was 13 years and 11months at the time of the alleged incident was studying in the year 9. Theaccused-appellant was frequent visitor to the prosecutrix’s place and wasa friend of her brothers.
An affair between the accused-appellant and the prosecutrix developedand the prosecutrix’s mother became aware of this affair. On numerousoccasions she severely reprimanded and upbraided the prosecutrix andasked her to stop the affair with the accused-appellant. Being unable tobear the harassment of her parents she decided to elope with the accused-appellant.
Her first attempt as elopement had not succeeded. Thereafter on25.03.1995, she having handed a bag containing her clothes to the accused-appellant who was waiting outside her house had surreptitiously goneaway with the accused-appellant on a push bicycle.
Although they had stayed with a relative of the accused-appellant onthat day, the accused -appellant has not had any sexual intimacy withthe prosecutrix on that night.
Thereafter the prosecutrix giving a false age registered marriage withthe accused-appellant under the General Marriage Ordinance.
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A few days later, on hearing a complaint had been made by theprosecutrix’s family the accused-appellant together with the prosecutrixhad surrendered to the Police.
The conviction and the sentence entered in this case was assailed bythe learned Counsel for the accused-appellant on several grounds.
At the hearing of this appeal it was argued on behalf of the accused-appellant, as there exists a valid marriage between the accused-appellantand the prosecutrix the accused-appellant could not have convicted ofrape on the prosecutrix.
It was also contended even though the marriage between the accused-appellant and the prosecutrix was contracted by making a false declarationas their ages until such marriage is declared null and void by a competentcourt, the marriage remains a valid marriage.
It was further argued that the prosecutrix being the wife of the accused-appellant was not competent witness in terms of section 120 of theEvidence Ordinance.
It would be useful at this stage to consider the validity of the argumentadvanced by the learned Counsel for the accused-appellant. The crucialissue to be determined in this case is whether a valid marriage existsbetween the accused-appellant and the prosecutrix in the eyes of the law.
It is an admitted fact that the prosecutrix was 13 years of age and fewmonths at the time of the alleged incident and there is no dispute in regardto her age. As her age has been proved by the production of a valid certificateof birth at the trial.
In considering the validity of the submissions made on behalf of theaccused-appellant, it would be important to focus the attention of section15 of the Marriage Registration Ordinance as amended by MarriageRegistration Amendment act No. 18 of 1996.
Therefore the plain reading of this section makes it clear that the marriagecontracted by the prosecutrix when she was 13 years and few monthswith the accused-appellant was an initio void as no person under the ageof 18 years could contract a valid marriage in the eyes of the law.
The purported marriage between the prosecutrix and the accused-appellant is void ab initio not voidable as the learned Counsel sought tomake out in this case and the argument that a valid marriage between the
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parties exists as long as it is set aside by a competent court is not tenableand cannot be accepted by this court.
Since the purported marriage between the accused-appellant and theprosecutrix was void ab initio and as such a nullity in the eyes of the lawthe accused-appellant cannot have recourse to the exception providedunder section 363(e) on the basis that the prosecutrix was his wife.
Besides, the accused-appellant had contracted the so called marriagewith the prosecutrix after commission of the act of rape on the prosecutrixand at the time of the commission of the offence the prosecutrix was nothis wife. In this connection the observation made by Lord Denning in the•case of Macfoy vs. United Africa Company Ltd., at 1172 to which thelearned State Counsel has adverted in his submissions would beappropriate.
“This is the same as saying that it was void and not merelyvoidable. The distinction between the two has been repeatedlydrawn. If an act is void then it is in law a nullity. It is not only badbut incurably bad. There is no need for an order of the court to setit aside. It is automatically null and void without much ado, thoughit is sometimes convenient to have the court declare it to be so.An every proceeding which is founded on it is also bad andincurably bad. You cannot put something on nothing and expectit to stay there. It will collapse.”
Therefore in view of the above mentioned circumstances the groundson which the conviction and the sentence was assailed cannot be acceptedby this court.
However, another important issue to be considered in this case, iswhether there has been sufficient compliance with the provisions applicableto the framing of charges contemplated under the Code of Criminal procedureAct and in the event of non compliance whether the accused-appellanthad been prejudiced in his defence in any manner at the trial. In this casethe charge relating to the act of rape informs the accused-appellant thathe committed rape on the prosecutrix an offence punishable under section354(2) of the Penal Code as amended by Act No. 22 of 1995.
Section 164(4) of the Criminal Procedure Code provides that the lawand the section under which the offence is alleged to have been committedshould be mentioned in the charge. Similarly section 166 of the Criminal
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Procedure Code provides that any error stating whether the offence or theparticulars required to be stated in a charge and any omissions of particularswill not be regarded as material unless the accused has been misled by.such omission or error.
It would be appropriate to consider whether there was any such error inthis case and if so whether it has misled or prejudiced the accused-appellantin the conduct of his defence.
Section under which the accused-appellant was charged envisagesseveral instances of liability. They are as follows :
In a situation as this when the section envisages several instances ofliability would be of paramount importance to mention clearly the sectionand the sub section under which the accused-appellant is indicted so thathe may not be misled or prejudiced in the conduct of his defence. It isincumbent on the part of the prosecution to inform an accused the chargehe has to face in a trial.
It is important when the section envisages several instances of rape,the penal section under which an accused person is charged is statedwith sufficient particularity.
The absence of such sufficient particularity in my view in this instanceis bound to prejudice and hamper the accused-appellant in the conduct ofhis defence, and the prosecution cannot expect to have recourse to section166 of the Criminal Procedure Code.
Therefore it is my considered view that the charge under which theaccused-appellant was tried basically flawed and defective.
In view of the above mentioned reasons I am of the view that the chargerelating to the act of rape should fail and the accused-appellant should beacquitted of that charge. Accordingly he is acquitted of the charge of rapeand the conviction in regard to the charge of abduction affirmed.
ABEYRATNE, J. – / agree.
Accused acqitted of charge of rape. Conviction in regard to charge ofdeduction affirmed.
Appeal partly allowed.
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SILVA
VS
LT. COL. JAYASINGHE, AND OTHERS
COURT OF APPEAL,
CHANDRA EKANAYAKE, J.,
SR1SKANDARAJA, -J.
CA 397/2003,
SEPTEMBER 30, 2005.
Writ of Certiorari – Army Act – Army Court of Inquiry' – Ultra vires – Not fallingwithin the scope of Court of Inquiry?- No opportunity given to be presentthroughout the inquiry – Violation ? Matters under inquiry prescribed? Inquirersbiased? – Illegality? Irregularity in the proceedings?
An Army Court of Inquiry was appointed to inquire and report on the Inquiryreport made by the Military Police on the petitioner. The Court of inquiry foundthe petitioner guilty of scandalous and disgraceful conduct unbecoming of anofficer and recommended that he shall be given the option of retiring fromservice or be compulsorily retired from service. The petitioner sought to quashthe said decision on the grounds that (1) the subject matter of the Court ofInquiry does not fall within the scope of a Court of Inquiry (2), that, therespondents did not afford him an opportunity to be present throughout theinquiry (3), that matter under inquiry is prescribed (4) the inquirers were biased.
Held :
Under regulation 3(9) if it is in the opinion of the officer authorizedto convene a Court of Inquiry that a Court of Inquiry is necessary toexpedite he could convene a Court of Inquiry.
Petitioner was given an opportunity to read the evidence led in hisabsence and an undertaking was given to the petitioner thattransport will be provided to him to enable him to be present andcross examine the witness. In the circumstances, the petitionercannot claim that he was not given an opportunity to be present atthe inquiry and cross examine the witnesses.
The petitioner cannot raise the objection of bias as he has notraised this objection before the Court of Inquiry, without doing sohe could not take up this objection.
The Army Court of inquiry Regulations specified the purposes forwhich a Court of Inquiry may be held but there is no prescriptive
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period given for any of the matters specified. The subject matter ofthe inquiry cannot be said to be prescribed.
APPLICATION For a Writ of Certiorari/Mandamus
Kalinga Indatissa with H. G. Dharmawardane for petitionerUresha de Silva, SC for respondent.
Cur. adv. vult.
November 3, 2005SRISKANDARAJA. J.
The Petitioner joined the regular force of Sri Lanka Army on 21 st February1981 and was promoted time to time to various positions and served indifferent parts of Sri Lanka. In February 1999 he was posted as officiatingCommander Replacement Park at Kanagarayankulam with responsibilitiesfor combat replacement to 3 infantry divisions involved in battle. In November1999 Wanni debacle took place as a result he had to withdraw his headquarters and stationed at security forces head quarters Vavunia until May2002. Since May 2002 he has been appointed as staff officer 1 of 55Division in Jaffna.
On or about 15th of May, 2002, 5th Respondent Commandant of the SriLanka Army General Services Corps appointed a Court of Inquiry consistingof the 1 st, 2nd and 3rd Respondents to inquire and report, on the inquiryreport made by the Special Investigation Unit of the Sri Lanka Corps ofMilitary Police.
The Petitioner in this application has sought a Writ of Certiorari to quashthe proceedings and the findings of the Army Court of Inquiry conductedby the 1st to 3rd Respondents against the Petitioner and an order of aWrit of Prohibition against the 8th Respondent from confirming the aforesaidorder of the 1 st to 3rd Respondents.
The Petitioner submitted that the finding of the court of inquiry conductedby the 1 st to 3rd Respondents is ultra vires for the reasons that the subjectmatter of the purported Court of Inquiry does not fall within the scope of aCourt of Inquiry in terms of Army Courts of Inquiry Regulations 1952. TheArmy Courts of Inquiry Regulations 1952 provides in Regulations 3 :
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3. A Court of Inquiry may be held in respect of any of the followingmatters :
(1)..(2)..-
..
…
-..
–
(9).. In any other case where in the opinion of an officer authorisedto convene a court of inquiry, the holding of a court of inquiryappears to be necessary or expedient.
Under regulation 3(9) if it is in the opinion of an officer authorised toconvene a cCourt of Inquiry that a Court of Inquiry is necessary or expedienthe could convene a Court of Inquiry. In this instant case the Court of Inquirywas convened by the order dated 15th May, 2002 to inquire into the chargeswhether the Petitioner is carrying on a clandestine affair with the widowof a deceased soldier, W. M. M. Swarnalatha and whether the Petitionerhas engaged military personnel and vehicles for the construction of thesaid W. M. M. Swarnalatha’s house. Therefore the submission that theconvening of the Court of Inquiry is ultra vires cannot be substantiated.
The petitioner further submitted that the Court of Inquiry has acted inbreach of Regulation 15 by not affording him an opportunity to be presentthroughout the inquiry. The President of the Court of Inquiry the 1stRespondent submitted that the inquiry was due to be held at the RegimentalHeadquarters in Panagoda on 20th May 2002 and the Petitioner wasinstructed to attend the same. However the Petitioner informed that he didnot have a vehicle to come to Panagoda and instead requested that thesaid Court of Inquiry be conducted at Dambadeniya to record his evidenceand that of his witnesses. Accordingly the Court of Inquiry assembled in ahouse at Dambadeniya and recorded the evidence of the Petitioner andanother six other witnesses in the Petitioner’s presence the Petitionerdeclined to cross examine any of these witnesses. The Petitioner wasinformed the place and the date of recording the other witnesses evidencebut the Petitioner cited frivolous and trivial reasons and failed to attend thesaid inquiry. In any event the Petitioner was given an opportunity to readthe evidence led in his absence and an undertaking was given to the
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Petitioner that transport will be provided to him to enable him to be presentand cross- examine the said witnesses. In these circumstances thePetitioner cannot claim that he was not given and opportunity to present inthe inquiry and cross-examine witnesses.
The Petitioner took up the position that the Court of inquiry were inquiringinto matters which allegedly and admittedly have taken place between1992 and 1997 and hence the matters under inquiry are prescribed. TheArmy Courts of inquiry Regulation 1952 in Regulation 3 specified for thepurpose for which a court of Inquiry may be held but there is no prescriptiveperiod given for any of the matters specified in Regulations 3. Thereforethe subject matter of the inquiry cannot be said to have prescribed.
The Petitioner also took up the position that the inquirers appointed tothe court of inquiry comprised of Junior officers to the Petitioner and asthey are anticipating promotions they acted with bias. The Petitioner hasnot raised this objection before the Court of Inquiry without doing so hecannot take up this objection in these proceedings. In any event the ArmyAct or the Army Courts of Inquiry Regulation 1952 does not provide that thecourt of inquiry should comprise of members senior than the officer who is tobe tried before the Court of Inquiry.
The Respondents submitted that the Court of Inquiry recorded seventeenwitnesses evidence and it had duly conducted the inquiry in accordancewith the provisions of the Army Courts of Inquiry Regulation and submittedits report on the 8th of August, 2002. In the said report the Court of Inquiryhad found the Petitioner guilty of carrying on a clandestine affair with W.M. M. Swarnalatha, the widow of a deceased soldier. Pursuant to thisreport 4th and 7th Respondent expressed opinion that the Petitioner isguilty of scandalous and disgraceful conduct unbecoming of an officer andrecommended that he should be given the option of retiring from service orbe compulsorily retired from service. Having considered the said report ofthe Court of Inquiry and the opinion expressed and the recommendationmade by the 4th and 7th Respondents the 8th Respondent the Commanderof the Army having been satisfied that the Petitioner had carried on aclandestine affairs with the said W. M. M. Swarnalatha the widow of thedeceased soldier and Suneetha Kumari by abusing his authority andprivileges as a responsible officer of the Sri Lanka Army and he also havingbeen satisfied that the Petitioner had by his aforesaid conduct set a bad
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example to his subordinates and brought the army into disrepute.and thatthe Petitioner’s continuation in the army would be inimical to the interestof discipline in the army, recommended on the 18th of March, 2003 thatthe Petitioner be given the option of retiring or be compulsorily retired fromservice, The respondents also submitted that in terms of regulation 2(1)(a) of the Army Officers services Regulation (Regular Force) 1992 the 8thRespondent should forward the said recommendation to Her Excellencythe President for her approval but this has not be done as the Petitionerhad filed this application. The Respondents took up the objection that hisapplication is premature as there is not finality reached in this matter andHer Excellency the President is the sole authority in this matter and theInquiry report or the recommendation is still not forwarded to HerExcellency.
For the aforesaid reasons this court holds that there is no illegality orirregularities in the proceedings of the aforesaid Court to Inquiry. Thereforethere is no reason for this court to quash the proceedings or the findings ofthe Army Court of Inquiry. Hence this Court dismisses the application ofthe Petitioner without costs.
EKANAYAKE, J. – / agreeApplication dismissed.