041-SLLR-SLLR-1998-V-3-SENATILEKE-v.-ATTORNEY-GENERAL-AND-ANOTHER.pdf
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SENATILEKE
v.
ATTORNEY-GENERALAND ANOTHER
COURT OF APPEALJAYASURIYA, J.,
KULATILAKE, J.
C.A. NO. 480/97 (REV)
C. BALAPITIYA NO. 160/93OCTOBER 13TH, 1998
Revision of Orders made by the High Court – Application by the father of theaccused – Locus Standi – Accused granted bail – trial in absentia – No appeallodged.
Held:
The father of the accused has no locus standi to maintain the Revision Application.APPLICATION in Revision from the judgment of the High Court of Balapitiya.Cases referred to:
Albert v. Wedamulla – 1997 3 SLR 417 at 418.
AG of Gambia v. N‘ Jie – 1961 AC 617 at 634.
Ceylon Mercantile Union v. The Insurance Corporation of Sri Lanka -80 NLR 309.
Sudharman de Silva v. AG – 1986 1 SLLR 11 at 14 and at 15 (SC).
Sudharman de Silva v. AG – 1985 2 SLLR 12 (CA).
Cur. adv. vult.
October 13, 1998.
JAYASURIYA, J.
Upon this application filed seeking a revision of the orders, judgment,findings, conviction and sentence imposed by the High Court Judgeof Balapitiya, the accused's father has preferred this application andthe accused who was convicted and. sentenced has neither appealedagainst the aforesaid judgment nor moved this court in revision ofthe said orders and sentence. The first issue that arises is whether
CASenatileke v. Attorney-General and Another (Jayasuriya, J.)291
the father of the accused has a locus standi to maintain the saidrevision application. In the recent decision in Albert v. Wedamullaf'*at 418, the issue of locus standi was considered by me and I heldthat the petitioner in that case did not have a locus standi to maintainthat particular application before the Magistrate's Court. My judgmentin regard to the concept of locus standi has been affirmed in theSupreme Court. Could a father of a convicted accused allege thathe is aggrieved by the judgment and sentence imposed on his sonby the High Court Judge of Balapitiya. Can the. father legitimately insuch circumstances assert that he has a genuine grievance becausea judgment and sentence has been pronounced which prejudiciallyaffects his own interests – A.G. of Gambia v. N' JieF> at 634. VideS. M. THIO'S monograph on locus standi and Judicial Review. Onthe question of locus standi and the problem of discretion, see DeSmith "Judicial Review of Administrative Act" 1987 impression of the4th edition – at pages 409 to 421. We hold that the petitioner, whois the father of the accused, has no locus standi to maintain the saidrevision application and we are fortified in that view by the judgmentspronounced by Justice Sharvananda in the Ceylon Mercantile Unionv. The Insurance Corporation of Sri LankaP' and in Sudharman deSilva v. The Attorney-General at 14 and at 15. In the CeylonMercantile Union case, Justice Sharvananda held that the plaintiff aregistered trade union, has no locus standi or standing to institutea civil action on behalf of its members against the defendantcorporation for a declaration that according to contracts entered intobetween its members and the defendant certain revised rates ofallowances were payable to them.
This third accused – first respondent against whom findings, con-victions and sentences have been pronounced by the learned HighCourt Judge of Balapitiya was on remand during the non-summaryproceedings conducted in the Magistrate's Court of Balapitiya. On anapplication for bail made in the course of that proceedings, the learnedMagistrate granted bail to the accused and enlarged him on bail onhis signing certain bonds and recognizances in the Magistrate's Courtpromising and assuring to the learned Magistrate that he would appearbefore the High Court on receipt of notice or summons. Having thusobtained his liberty, and release on bail, the accused, without obtainingthe permission either of the Magistrate or the High Court Judge ofBalapitiya, has left the Island and thereby violated the provisions ofthe recognizances and bail bond which he has solemnly signed and
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entered into before the Magistrate's Court. He has clearly violated theassurances undertakings and the promises which are contained in thatbail bond. Thereafter, he has flouted the legal and judicial processand refrained from appearing before the High Court of Balapitiya. Hehas jumped bail clearly conducted himself to circumvent and subvertthe law and judicial institutions. After an inquiry held under section241 of the Criminal Procedure Code, the learned High Court Judgedecided to proceed to trial against this third accused in absentia. Atthe trial he has been convicted of the charges contained in theindictment presented against him. The accused failed to file a petitionof appeal against the findings, conviction and sentence imposed bythe High Court Judge. Now, belatedly, his father has decided to filethis revision application seeking to impugn the judgment orders andsentence pronounced by the High Court Judge of Balapitiya.
The conduct of this third accused certainly merits the re-echoingof the remarks and observations made by Justice Siva Selliah at thehearing of the appeal before the Court of Appeal in the case ofSudharman de Silva v. The Attorney-General where he stated:
"To grant this application at this stage would, in the view ofthis court, be to put a premium on prisoners jumping bail; it mayeven have the effect of encouraging others to do so. It might alsohave as a side effect, increasing the reluctance of a court in avery long trial to grant bail lest the applicant's conduct be repeatedby others. To put a premium on jumping bail is something whichthis court is not for one moment prepared to countenance . . ."The applicant has brought this entirely on his own head and hemust now take the consequences. The application therefore isrefused" …
"The conduct of the appellant in jumping bail and abscondingup to date was clearly designed to circumvent and subvert thelaw and the institutions of justice and therefore he cannot invokethe right of appeal 'as a matter of right "as contended by hiscounsel.
However, the Supreme Court has set aside that order and heldthat the accused notwithstanding his deliberate absconding cannot bedeprived of his right to appeal against an order which is a right whichcould be exercised by the accused as of right. Justice Sharvanandaheld:
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Senatileke v. Attorney-General and Another (Jayasuriya, J.)293
"In my view the considerations which weighed with the Courtof Appeal in rejecting the appeal of the appellant were not relevantand out of place when he was appealing “as of right" and not withleave of the Court of Appeal. A fugitive from justice is also entitledto his rights and however repellant be the idea that he could invokethe law for which he has scant regard, yet his legal rights will haveto be respected and recognised . .
"In my view this quotation was appropriate in the context inwhich it was uttered, namely, where an application to court wasmade for the exercise of a discretion, ie extension of time withinwhich to apply for leave to appeal, in favour of the applicant.Contumacious conduct on the part of the applicant is a relevantconsideration when the exercise of a discretion in his favour isinvolved, but not when he asserts his statutory right to appeal andis not asking for the favour of any permission. This meaningfuldistinction has been lost sight of by the Court of Appeal."
The present application is an application in revision. This is an •extraordinary jurisdiction which is exercised by the Court of Appealand the grant of relief is entirely dependent on the discretion of thecourt. Here the accused's father is seeking discretionary relief fromthe Court of Appeal and in considering the grant of discretionary relief,the court will closely examine the conduct of the accused person. Inthe exercise of a discretion the court scrupulously looks into theconduct of the ultimate party who is deriving benefit from the ordersto be made by the court in revision.
Besides this application has been preferred with undue andunreasonable delay. The application is refused.
KULATILAKE, J. – I agree.
Application refused.