Sri Lanka Law Reports
 2 Sri L.R.
v.DALUWATTE & OTHERS
COURT OF APPEAL
J. A. N. DE SILVA, J. (P/CA)
CA NO. 1012/98COURT MARTIAL NO.
OCTOBER 13. 2000JANUARY 08. 2001
Army Act, No. 17 of 1949 – s. 56, s. 79 (c) and s. 107 – Constitution Article140 – Court Martial – Jurisdiction – Plea in Bar of trial – Regulations 60, 80- Statutory right of petitioning the Commanding Officer.
The petitioner, a Captain in the Army was charge-sheeted for suggesting to aLance Corporal that he take part in homosexual activities. The petitioner was triedby a General Court Martial and convicted.
It was contended that –
the prosecution got an additional summary of evidence recorded and thereaftercalled another witness to corroborate the evidence of the complainant.
that, the charge did not give the specific date on which the offence wascommitted.
The respondent contended that, as per the Army regulations, he should haveexercised his statutory right of petitioning the Commanding Officer with regardto his conviction and sentence.
If the petitioner intends to challenge the jurisdiction of the Court Martialto try him, he could have in terms of Regulation 62 offered a plea in barof trial at the time he offered his general plea of guilty. The petitioner withoutoffering a plea had participated and had thereby submitted himself to thejurisdiction of the Court Martial. By his conduct he had waived his rightto object to the jurisdiction of the Court Martial and this waiver disentitleshim from obtaining relief by way of a Writ of Certiorari.
Regulation 80 permits the calling of a witness whose statement is notcontained in the summary of evidence, given to the accused. The witnesswas called after giving notice to the accused.
Wimalasiri v. Daluwatte & Others (De Silva, J. (P/CA))
Though the complainant had not given the specific date on which theoffence was committed, it appears from the evidence that the offence wascommitted on 21. 04.1995, the day the Kathimurkulam camp was attacked.
The petitioner ought to have exercised his statutory rights under Regulation153 by petitioning the Commanding Officer with regard to his convictionand sentence. No valid reason has been tendered for not exercising thisright.
APPLICATION for a Writ of Certiorari.
Cases referred to :
Jayaweera v. Asst. Commissioner of Agrarian Services – 1996 2 SLR 70.
Yahonis Singho – 67 CLW 50.
U. D. M. Abeysekera for petitioner.
Buwanaka Aluvihare, SSC for respondents.
Cur. adv. vult.
May 30, 2001
J. A. N. DE SILVA, J. (P/CA)
This is an application for a Writ of Certiorari to quash the proceedings,findings and the order of a General Court Martial which tried thepetitioner for an offence punishable under section 107 of the ArmyAct, No. 17 of 1949 (cap. 357).
At the time material to the charge upon which the petitioner wastried he held the rank of Captain in the 5th Volunteer Battalion ofthe Gajaba Regiment, and he was serving at the Damminna Campas the adjutant of the 8th Battalion, Sri Lanka National Guard. Bycharge-sheet dated 30. 11. 1997 the following charge was framedagainst him:
“That whilst you were serving at the Damminna Camp as theadjutant of the 8th Battalion, Sri Lanka National Guard, between1st February, 1995 and 31st May, 1995, in a scandalous mannerby suggesting to S/8Q00869 Lance Corporal Shantha Vidana VCthat he take part in homosexual relations with you which is
Sri Lanka Law Reports
 2 Sri L.R.
unbecoming the character of an officer and a gentleman and didthereby commit an offence punishable under section 107 of theArmy Act, No. 17 of 1949 (cap 357) of the Legislative enactmentof Sri Lanka.
On the order of the Commander of the Army, the petitioner wastried by a General Court Martial which assembled for the first timeon 20. 02. 1998. The petitioner in his petition has averred thatthere was a patent lack of competence of the Court Martial forcommencing proceedings after the lapse of three years from thedate of the offence. The petitioner's challenge to the jurisdictionof the Court Martial is based on the provisions of section 56 ofthe Army Act which enacts that: "Any person subject to militarylaw shall not be tried by the Court Martial where three years haveelapsed after the commission of the offence . . .".
According to the charge framed against the petitioner the offencehad been committed between 01. 02. 1995 and 31. 05. 1995. Whenthe Court Martial commenced its proceedings on 20. 02. 1997 threeyears have not elapsed from the last terminal date given in the charge,i.e. 31. 05. 1995. Therefore, on the day the Court Martial commencedits proceedings the charge, on the fact of it, did not indicate that threeyears have elapsed from the date of the commission of the offenceand as such there was no patent lack of jurisdiction (or competence).
However, if the petitioner intended to challenge the jurisdiction ofthe Court Martial to try him, he could have, in terms of Regulation62 of the General Court Martial Regulations of 1950, offered a pleain bar of trial at the time he offered his general plea of not guilty.When a plea in bar of trial is tendered the Court Martial is requiredto record the plea and receive evidence offered and hear the addressesmade on behalf of the accused and the prosecutor and decide whetherthe plea has been proved.
The petitioner without offering a plea in bar of trial had participatedin the proceedings and thereby had submitted himself to the jurisdictionof the Court Martial. By his conduct he had waived his right to objectto the jurisdiction of the Court Martial and this waiver disentitles himfrom obtaining relief by way of a Writ of Certiorari, Jayaweera v.Assistant Commissioner of Agrarian Services.
Wimalasiri v. Daluwatte & Others (Da Silva, J. (P/CA))
One of the main complaints of the petitioner is that in the courseof the trial the prosecution had got an additional summary of evidencerecorded and thereafter called one Corporal Perera to corroborate theevidence of the complainant Shantha Vidana. Corporal Perera's namehad transpired when the complainant when asked whether hetold anyone about the improper suggestion made by the petitionerthe complainant had stated that he told Corporal Perera about it. Thecomplainant had given an explanation about his failure to mentionPerera’s name in his first statement. It was in this setting that during sothe adjournment an additional summary of evidence was recorded andCorporal Perera was summoned as a witness. It was contended onbehalf of the petitioner that once proceedings of the Court Martialcommenced, there is no provision to have an additional summary ofevidence recorded.
It was pointed out by the respondents that Regulation 80 of theArmy Court Martial Regulations permits the calling of a witness whosestatement is not contained in the summary of evidence given to theaccused. In terms of the regulation before the witness is called anabstract of the proposed evidence must be furnished to the accused. 70The prosecution has complied with this requirement in the instantcase. The witness was called after giving notice to the accused. Ido not see any illegality or unfairness in this procedure.
The petitioner has contended that since the charge framed againsthim did not give the specific date on which the offence was committedand that even the complainant in his evidence did not give the dateon which the offence was committed the charge was bad in law. Itis true that the complainant had not given the specific date on whichthe offence was committed. However, it appears from the evidencethe offence was commited in the Kathimurikulam camp was attacked soand that this attack had taken place on 21. 04. 1995.
It was contended on behalf of the accused that his defence ofalibi was not properly placed before Court by the Judge-Advocate-General in that he failed to advise the Court on the three positions(as laid down in Yahonis Singhof2) to be considered in evaluatingas alibi defence. The complainant was cross-examined on the basisthat on the day Kathimurikulam Camp was attacked the petitioner,throughout the night remained in the radio room with other officers.
Sri Lanka Law Reports
 2 Sri L.R.
The complainant, however, had said that throughout the night the
petitioner did not remain in the radio room.
When the petitioner gave evidence he had not stated that duringthe whole night he remained at the radio room. A defence witnesshad testified to the fact that the petitioner was in the radio room duringthe whole night. The decision of the Court indicates that the Courtaccepted the evidence of the complainant and did not accept thedefence witnesses evidence. It does not appear that there was anyreason for the complainant to falsely implicate the petitionerwho was a higher officer.
When the evidence placed before the Court Martial is considered,it does not appear that, on the evidence available, the decision ofthe Court is unsupportable or perverse. There is also no seriousprocedural error resulting in a miscarriage of justice.
The 2nd respondent in paragraph 13 of his objections has statedthat as per the legal right afforded to the petitioner by Regulation 153of the Army Court Martial Regulations he did not petition to thecommanding officer of the Army with regard to his conviction andsentence and that the petitioner had not given any valid reason fornot having exercised his statutory right. In answer to that avermentthe petitioner in his counter affidavit has stated that Regulation 153applies where Court Martial acts intra vires and not when it acts ultravires. Here the petitioner appears to have taken upon himself the taskof deciding whether the Court Martial acted intra vires or not. If hewas of opinion that the Court Martial lacked jurisdiction and that itsproceedings were ultra vires the powers conferred on the Court Martialhe should have, at the very inception, offered a plea in bar of trial.As was pointed out earlier he had not done this. Therefore, the reasonadduced by the petitioner for not exercising his statutory right isnot acceptable.
In all the circumstances of this case it is my considered opinionthat the petitioner had not made out a case for the relief he has prayedfor. Accordingly, this application is dismissed without costs.
WIMALASIRI v. DALUWATTE & OTHERS