003-SLLR-SLLR-1985-V2-SUDAHARMAN-DE-SILVA-AND-ANOTHER-v.-THE-ATTORNEY-GENERAL.pdf
12
Sri Lanka Law Reports
[1985] 2 SriLR.
SUDHARMAN DE SILVA AND ANOTHER
v.
THE ATTORNEY-GENERAL
COURT OF APPEAL.
ABEYWARDENE, J„ SIVA SELLIAH, J. AND JAMEEL, J.
C.A. 57/81-H. C. COLOMBO CASE No. 583/78.
MARCH 4 AND 7. 1885.
Criminal Law – Right of Appeal – Accused absconding and tried and convicted inabsentia – Application under s. 331 of the Code of Criminal ProcedureAct – Judicature Act. Section 14 (b).
On a preliminary objection to the entertainment of an appeal from an accused personwho was absconding and was tried and convicted in absentia' –
Held –
An accused person who absconds and is unrepresented at the trial and does notparticipate in it cannot exercise the right of appeal granted to an accused person unders. 14{b) of the Judicature Act. Rights cannot exist in a watertight compartmentindependently of duties which are enjoined by law.
Per Siva Selliah, J. :
"In construing rights this court cannot throw into jeopardy the entire fabric andadministration of law and justice, nor can it condone or encourage accused personswho choose to be fugitives from justice seeking to invoke the law only when it suitstheir advantage. Fundamental concepts and duties must be preserved at all costs andone such fundamental concept is that the appellant must submit to the law and thecourts and not abscond from them Rights cannot be separated from duties enjoined bythe law as to do so would lead to a disruption of the Rule of Law and the AdministrationOf-Justice"
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Sudharman De Silva v. Attorney-General (Siva Selliah, J.j
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Case referred to :
(1) Robert Edward Wynyard Jones (1972) Criminal Appeal Reports 413,
APPEAL from the High Court of Colombo.
Dr. Colvin R. de Silva with Miss Saumya de Silva for first appellant R. Sudharman deSilva (2nd accused).
Mrs. M. Muttetuwegama for 6th accused-appellant.
D. P. Kumarasmghe, Senior State Counsel for Attorney-General
Cur. adv. vult.
May 3, 1985.
SIVA SELLIAH, J.
This is an appeal by the 2nd, 4th and 6th accused-appellantsSudharman de Silva, N. R. Dharmatillake and K. S. Alwis from theirconviction and sentence on charges' of conspiracy to commit robberyof the People's Bank at Gangodawila in February 1976, of having on
with the other accused committed robbery of a sum of Rs.634,315.66 from the Manager of the People's Bank of Gangodawila,abetment, and robbery of car No. 3 Sri 5609. The 2nd and 4thaccused were found guilty on all counts and sentenced to terms of 7years r.i. on each count, the sentences to run concurrently. The 4thaccused has, since filing of the appeal, withdrawn his appeal on27.7.81.
A preliminary objection was raised by learned Senior State Counselthat the 2nd accused could not be heard in appeal as he hadabsconded from the trial and the trial against him and the 4th accusedhad proceeded in absentia along with the trial of the other accusedwho were present and represented at the trial and as he had not madeapplication before the High Court under section 241 of the CriminalProcedure Code and shown that his absence was for bona fidereasons, and had not sought to set aside the conviction and sentenceor re-open the trial in that Court, he could not be heard in appeal. The2nd accused it must be mentioned is still absconding and it was thecontention of the learned State Counsel that it would be farcical and
contemptuous of the law to enable this accused under suchcircumstances to be heard in this court while he was still absconding.
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Sri Lanka Law Reports
[1985] 2 Sri L.R.
The learned counsel for 2nd accused contended on the' other handthat as these accused had plainly absconded and had no bona fidereason to establish to the satisfaction of the High Court it served nopurpose in going to that forum to re-open the case but contendedstrenuously that under section 14 (b) of the Judicature Act. No. 2 of1978 any person who stood convicted of any offence by the HighCourt may appeal from such conviction or sentences as of right. It washis contention accordingly that as this was unambiguous, the accusedhas the right of appeal 'as of right' and could not be denied a hearing.
The following facts are undisputed :
The 2nd and 4th accused were arraigned on indictment with theother accused on the charges contained in the indictment asmentioned above. Indictment was served on all the accused (includingthe 2nd and 4th accused) on 29.3.78 and thereafter the 2nd and 4thaccused have absconded and warrants were issued against them andtheir sureties were noticed to produce them but failed to do so andpart of their securities were confiscated. The 2nd and 4th accusedhave since then been absconding and trial commenced on 16.10.80against the other accused on which date 1st accused had pleadedguilty to counts 1 and 2 and 3rd accused to counts 1,2 and 4 and thetrial proceeded against the 5th and 6th accused who were presentarid represented by counsel and against the 2nd and 4th accused whowere absconding and not present and were unrepresented. Thetrial was concluded on 29.10.80 and judgment delivered on 7.11.80by which (as far as is material for this appeal) 2nd accused was foundguilty on counts 1, 2 and 4 and sentenced to a term of 7 years r.i. oneach count, the sentences to run concurrently. The fact that the 2ndand 4th accused absconded after the service of indictment, up todate, is conceded by the learned counsel as is the fact that the 2ndaccused had not thought it fit to surrender to the High Court eitherduring the pendency of the trial or after conviction or sought tore-open the trial; it was also conceded by counsel for 2nd accusedthat he had no bona fide reason for absconding and hence made noapplication to the High Court to set aside the conviction and sentenceand re-open the case against him. It is also conceded thatnotwithstanding the fact he was absconding he had through anattorney-at-law filed a petition of appeal within the stipulated time. Thelearned counsel for the appellant stated that the conduct of theaccused in jumping bail after indictment was served and in abscondingoyer since was in no way defensible but that however defiant of the
CASudharman De Silva v. Attorney-General (Siva Selliah, J.)15
law or contemptuous of the court such conduct was, he could bepunished for that, but that did not in any way debar the accusedfromthe right of appeal to the Court of Appeal which was a matter of rightunder section 14(b) of the Judicature Act referred to earlier. This thenis the crux of the problem.
The learned State Counsel has strenuously and forcefully contendedthat if the contention of learned counsel is upheld, accused personswould be encouraged to act with gross disregard and contempt oforiginal courts of justice, would jump bail with impunity and abscondfrom the trial against them, and would have a distinct advantage overpersons who respected the law and observed its commands andpresented themselves for trial and that it would bring the entireadministration of justice into disrepute. That this is so is quite manifestand needs no endorsement from this court. In the instant case, apartfrom jumping bail and absconding ever since service of indictment upto date, it is also evident that the appeal to set aside the convictionand sentence has been filed on behalf of the 2nd and 4th accused bytheir attorney-at-law within 2 weeks. It thus appears that theappellants' conduct is naturally contumacious of the law and theinstitution of justice which they have been openly daring and defyingwith impunity and at the same time without surrendering themselveseven at this stage they seek to heighten such conduct by filing apetition of appeal, as well, while absconding. I am quite unable toagree with the contention of the learned counsel for accused that theycan be charged for such conduct independently – I do not see howpersons who have so successfully placed themselves beyond thereach of the law for so long after jumping bail and whose very suretieshave been unable to produce them and have been dealt with, can bebrought to book for being defiant of the process of the law. Thelearned counsel for State quoted the case of Robert Edward WynyardJones (1).
That was a case where the accused had absconded from the trialand fled to Denmark and after conviction,and application for leave forappeal filed by his solicitors was refused as they had no authority to doso , later after he was extradited from Denmark application was filedfor extension of time for leave to appeal but this was also refused.While no doubt the facts of that case can be distinguished, the,thinking of the court is expressed at p. 421 where Roskill C.J. stated
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[1985} 2 Sri L.R.
“to grant this application at this stage would, in the view of this court,be to put a premium on prisoners jumping bail; it may even have theeffect of encouraging others to do so, It might also have as a sideeffect, increasing the reluctance of a court in a very long trial to grantbail lest the applicant's conduct be repeated by others. To put apremium on jumping bail is something which this court is not for onemoment prepared to countenance …. the applicant has brought thisentirely on his own head, and he must now take the consequences.'
The contention of the learned counsel for the 2nd accused appellantwas that appeal was a matter of right and not a matter of discretionand therefore as the language in section 14 (P) of the Judicature Actreferred to above was plain and unambiguous this court cannot placeany other construction but must enforce that right of the accused. Itdoes indeed appear to be strange that the 2nd accused appellant whohas failed in his elementary and basic duty of attending court andbeing present at the trial and had jumped bail and had violated the lawat every stage and acted in defiance and disregard of the law, shouldbe heard to say that his rights which he says the law gives him shouldbe enforced to his benefit. Even though he was absconding and choseto be absent from the trial and even though the law afforded him theright under section 241 of the Criminal Procedure Code Act to berepresented at his trial by an attorney-at-law notwithstanding hisabsence, he did not choose such right but not having in any wayparticipated at the trial or tried to demonstrate his innocence nowchooses to cavil at the trial proceedings. It is my considered view that'rights cannot exist in a watertight compartment independently ofduties which are enjoined by the law. In construing rights this courtcannot throw into jeopardy the entire fabric and administration of lawand justice, nor can it condone or encourage accused persons whochoose to be fugitives from justice seeking to invoke the law only whenit suits their advantage. Fundamental concepts and duties must bepreserved at all costs and one such fundamental concept is that theappellant must submit to the law and the courts and not abscond fromthem. Rights cannot be separated from duties enjoined by the law asto do so would lead to a disruption of the Rule of Law and theAdministration of Justice. I feel fortified in the view and interpretation Itake on this matter by recourse to the provision of the Constitution ofSri Lanka which in article 28 declares that "the exercise and enjoyment
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Sudharman De Silva v. Attorney-General (Siva Selliah, J.)
17
of rights and freedoms is inseparable from the performance of dutiesand obligations and accordingly it is the duty of every person in SriLanka-
'(a) to uphold and defend the constitution and the ‘law’(b – c)
The conduct of the 2nd accused in this case in jumping bail andabsconding up to date is clearly designed to subvert and circumventlaw and the institutions of justice and therefore in my view he cannotinvoke the right of appeal “as a matter of right' as contended by hiscounsel. I am of the view that appeal "as a matter of right" can beavailable only to any person who obeys the law and its sanctions andnot to any person who has defied it and acted in contempt of it. Tohold otherwise can only have the effect of bringing the law and theinstitutions of justice into ridicule and contempt. I accordingly upholdthe preliminary objection of the learned Senior State Counsel, andreject the appeal of the 2nd accused. The Registrar to list the appealof the 6th accused K. S. Alwis for hearing in June 1985.
ABEYWARDANE, J. – I agree.
JAMEEL, J. – I agree.
Preliminary objection upheld.