S.C.

APPEAL NO:195/2011

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC

OF SRI LANKA
In the matter of an Application for
Special Leave to Appeal in terms of
Article 127 read with 128 of the
Constitution.
The Head Quarters Inspector,
Ratnapura Police Station,
Ratnapura.
COMPLAINANT
SC Appeal Case No:- 195/2011
SC SPL Apl 200/2011
CA (PHC) 182/2000
HC Avissawella HC (APN) 88/99
MC Avissawella 68396 V.
Galaudakanda Watukarage Siripala
Deheragoda, Ellawala.
ACCUSED
AND
Totapitiya Arachchige Abeypala,
Deheragoda, Ellawala.
PETITIONER
1
V.
1.The Head Quarter’s Inspector,
Ratnapura Police Station,
Ratnapura.
COMPALINANT-RESPONDENT
2.Galaudakanda Watukarage
Siripala,
Deheragoda, Ellawala.
ACCUSED-RESPONDENT
3.The Hon. Attorney-General,
Attorney-General’s Department,
Colombo.
RESPONDENT
AND BETWEEN
Galaudakanda Watukarage
Siripala.
Deheragoda, Ellawala.
ACCUSED-RESPONDENT-APPELLANT
v.
Totapitiya Arachchige Abeypala,
Deheragoda, Ellawala.
PETITIONER-RESPONDENT

2
 AND NOW BETWEEN
Galaudakanda Watukarage
Siripala.
Deheragoda, Ellawala.
ACCUSED-RESPONDENT-APPELLANT-PETITIONER
v.
Totapitiya Arachchige Abeypala.
Deheragoda, Ellawala.
PETITIONER-RESPONDENT-RESPONDENT
BEFORE:-S.E.WANASUNDERA, PCJ.
UPALY ABEYRATHNE, J. &
H.N.J.PERERA, J.
COUNSEL:-Darshana Kuruppu with Mrs. Chandrasekera for the
Accused-Respondent-Appellant-Petitioner
Ranjan Mendis with B.S Peterson & Asoka C.Kandambi
For the Petitioner-Respondent-Respondent
ARGUED ON:-05.07.2016
DECIDED ON:-04.11.2016
H.N.J.PERERA, J.
The Petitioner was charged before the Magistrate Court of Avissawella
for committing the following offences.
a. That the accused with persons unknown to prosecution on or about
29.05.1991 did voluntarily cause grievous hurt to Thotapitiya
3
 Arachchige Abeypala by physically assaulting and thereby
committed an offence punishable under section 316 of the Penal
Code.
b. That the aforesaid person on or about 29.05.1991 did voluntarily
cause grievous hurt to Lekamlage Dayananda Jayaweera by
assaulting him with clubs and thereby committed an offence
punishable under Section 314 of the Penal Code.
The Magistrate after trial delivered judgment on 25.09.1998 acquitting
the Accused and being aggrieved by the said judgment the Respondent
preferred a Revision Application to the High Court of Avissawella.
It was contended on behalf of the Petitioner that the judgment of the
Learned Magistrate was illegal, contrary to law, and the Accused-
Respondent should have been convicted at least on the principle of the
common intention as charges were framed on that basis as there was
evidence of police assault. It was further submitted that the Learned trial
Judge had gravely misdirected himself on a very vital matter, when he
stated that the Doctor’s evidence corroborated with the defence
position, when in fact in his evidence, though the Doctor has said, when
it was suggested to the Doctor that the injuries could have resulted from
a fall, he finally expressed the view that the injuries were most probably
the result of an assault.
It was also the position of the Petitioner that the learned trial Judge has
failed to consider the effect of a charge based on common intention, a
vital omission which has necessarily resulted in miscarriage of justice in
the light of the findings of the Judge.
The learned High Court Judge on 14.06.200 delivered his judgment
ordering a re-trial. The learned High Court Judge in his judgment held
that a substantial error of law has been committed and that the
erroneous decision reached by the learned trial Judge could be
4
considered as exceptional circumstances. It was further held that the
learned trial Judge has clearly failed to consider the evidence based on
common intention and failed to consider the applicability of Section 32
of the Penal Code and that the failure of the Magistrate to consider the
effect of the charges based on common intention amounts to a
miscarriage of justice.
Aggrieved by the said judgment of the Learned High Court Judge, the
Petitioner preferred an appeal to the Court of Appeal. The Court of
Appeal delivered judgment on 06.10.2011 dismissing the Petitioner’s
appeal and affirming the High Court Judge’s order of re-trial.
Aggrieved by the said Judgement of the Court of Appeal the Petitioner
filed a special leave to appeal application stating that the facts and law
have been erroneously applied to dismiss the Petitioner’s appeal,
resulting in a grave miscarriage of justice.
This Court having heard the submissions of the Counsel for the
Petitioner, granted special leave to appeal on the questions of law set
out in paragraph 25 (1),(2),(3),(4),(5),(6), and (7) of the prayer to the
Petition.
(I) Whether their Lordships of the Court of Appel has failed to
consider, that the accused-Respondent-Appellant-Petitioner
cannot be convicted under common intention, when in fact the
Magistrate has not framed a charge sheet against the Accused-
Respondent-Appellant-Petitioner whereas the trial was
commenced on the plaint filed by the police.
(II) Whether their Lordships of the Court of Appeal has failed to
consider, that the Petitioner-Respondent-Respondent has failed
to comply with the Supreme Court Rules, when he filed the
Revision Application at the High Court of Avissawella?

5
(III) Whether their Lordships of the Court of Appeal has failed to
consider that the learned High Court Judge has misdirected
himself on law by holding that a substantial error of law has
being considered as an exceptional circumstance and erroneous
decision reached by the trial Judge could be considered as
exceptional circumstances.
(IV) Whether their Lordships of the Court of Appeal has failed to
consider that the learned High Court Judge has misdirected
himself on law by holding that the Magistrate had not
considered the existence of common intention from the conduct
of the assailants and participation in the commission of the
offence by the Accused.
(V) Whether their Lordships of the Court of Appeal has failed to
consider that the learned High Court Judge has misdirected
himself on law by holding that the learned Magistrate should
have considered the crucial test as to the applicability of
constructive liability under Section 32 of the Penal Code, i.e the
phrase “in furtherance of the common intention of all”.
(VI) Whether their Lordships of the Court of Appeal has failed to
consider that the learned High Court Judge has misdirected
himself on law by holding that the failure of the Magistrate to
consider the effect of the charges based on common intention
amounts to miscarriage of justice.
(VII) Whether their Lordships of the Court of Appeal has failed to
consider that Jayaweera’s statement had not been marked by
the prosecution and as such ordering a re-trial for an offence
allegedly committed in 1991 violates the Petitioner’s right to a
fair trial.
The leave to appeal application was supported in this Court on
12.12.2011 and the Court granted special leave to appeal on the

6
 questions of law set out in Paragraph 15 (1) to (7) in the prayer to the
petition. When this matter came up for argument on 05.06.2012 the
Counsel for the Respondent-Respondent raised the following
preliminary objections as to the maintainability of this application.
(a)Has the jurisdiction of this Court been invoked contrary to the
provisions of Section 360(1) of the Criminal Procedure Code Act, in so
far as the Attorney-General is not made a party.
(b)In any event, in so far as the impugned order has been made in
Proceedings where the Attorney-General was a party, has the
Petition of Appeal filed before the Supreme Court been filed in
compliance with the Rules of this Court.
After granting leave the Court had stated that the said preliminary
objections would be considered at the stage of hearing. I would now deal
first with the preliminary objections taken by the Petitioner-
Respondent-Respondent in this case.
The contention of the learned Counsel for the Respondents was that the
Appellant had failed to name the Attorney-General, as a party
respondent in the appeal to the Supreme Court. It was contended that
the appellant had not complied with Rule 4, 28(1) and 28(5) of the
Supreme Court Rules of 1990. Accordingly learned Counsel for the
Respondent-Respondent moved that this appeal be dismissed in limine.
Chapter XIV of the Code of Criminal Procedure Act deals with the
commencement of proceedings before the Magistrate’s Courts and
Section 136(1) a refers to the fact that proceedings in a Magistrate’s
Court shall be instituted on a complaint being made orally or in writing
to a Magistrate of such Court that an offence has been committed which
such Court has jurisdiction either to inquire into or try such complaint.

7
 In Attorney-General V. Herath Singho (1948) 49 N.L.R 108, it was held
that in Section 199 of the Criminal Procedure Code the word
“complainant” must mean the person who makes the “complaint” to the
Magistrate. The aggrieved person or persons or the police, who have
been induced by the aggrieved person or persons, could take up the
grievance before Court. It was further held by Dias, J. that if the aggrieved
person or persons desire to be the ‘Complainant’, section 148 (1) (a)
gives him or them the right to make a “complaint” orally or in writing
provided that such “complaint” , if in writing, shall be drawn and
countersigned by a pleader and signed by the complainant. If the
aggrieved person or persons desire to be the ‘complainant’ the Code of
Criminal Procedure Act would give him the right to make a ‘complaint’
making himself the ‘complainant’. ‘Complainant’ means the person, who
makes the complaint before Court. Considering the applicability of the
word ‘complainant’ defined in Section 2 of the Code of Criminal
Procedure Act in relation to other relevant sections of the Code ,Dias ,J
was of the opinion that the ‘Aggrieved person or persons, could take up
the grievance before Court. On the other hand the aggrieved person or
persons may, without exercising their right to make a complaint in terms
of the Code of Criminal Procedure Act, state their grievances to the
police, who after inquiry decides to take up the case and institute
proceedings on their own, the said police would file their ‘complaint’ and
is clear that the police officers, who instituted the proceedings would
become the complainant. The aggrieved person would cease to be the
‘complainant’ in such situations.
In Nonis v. Appuhamy 27 NLR 430, too it was held that “…..for the
institution of proceedings by complaint or written report, the person
making the complaint or written report is regarded as the party
instituting the proceedings against the accused person”.

8
As stated earlier in terms of section 136(1) of the Code of Criminal
Procedure Act, the proceedings before the Magistrate’s Court would
commence after the institution of a complaint being made to the
Magistrate. Therefore it is quite clear that a person who makes such a
complaint to the Magistrate would be regarded as a ‘complainant’.
In the instant case it is not in dispute that on a complaint made by the
Petitioner-Respondent-Respondent Thotapitiya Arachchige Abeypala on
29.05.1991 against the Accused-Respondent-Appellant and some other
unknown persons about an assault to the Ratnapura police station, the
Officer-in charge of the Criminal Investigation Department of the
Ratnapura police station has investigated into the said complaint made
by the Petitioner-Respondent-Respondent and have instituted action
against the Accused-Respondent-Appellant for causing grievous hurt to
the Petitioner-Respondent-Respondent and simple hurt to one
C.L.Dayananda Jayaweera . The said case number is 68396. Therefore it
is evident that the person who made the complaint to the Magistrate
Ratnapura is the Officer-in-charge of the Criminal Investigation Division
of the Ratnapura police station.
Section 360(1) of the Criminal Procedure Code Act enacts that the
Attorney-General shall appear for the state in every appeal to the Court
of Appeal under this Code to which the state or a public officer is a party
and all such documents, exhibits and other things connected with the
proceedings as the Attorney-General may require for the purpose of his
duties under this section shall be transmitted to him by the registrar of
the court having custody of such documents, exhibits and things. Section
360(2) enacts that the Solicitor-General or a state Counsel…….shall be
entitled to appear for the state in place of the Attorney-General in such
appeal.

9
It was submitted by the Counsel for the Petitioner-Respondent-
Respondent that the Attorney-General has not even been cited in the
(PHC) Appeal filed by the Accused-Appellant in the Court of Appeal and
as such there is stark non-compliance with the provisions in section 360
of the Criminal Procedure Code Act.
It was the position of the Counsel for the Accused-Appellant that even
though the Attorney-General had not been made as a party,
Mr.Rohantha Abeysuriya, S.S.C has appeared for the Attorney-General
and as such no whatsoever prejudice was caused to the Respondent.
It is not in dispute that the Attorney-General had not been made a party
to this appeal. Therefore it is very clearly seen that the Accused-
Appellant in this case has failed to make the ‘complainant’ to the
Magistrate Ratnapura i.e O.I.C.Criminal Investigation Division Ratnapura
police station or the Attorney General who represented the said
“Complainant” in the High Court Avissawella as a party to this
application. It is therefore evident that the Attorney-General has to be
regarded as a necessary party to this case, and it is common ground that
the Attorney-general has not been made a party to the application
before the Supreme Court.
Rule 4 of the Supreme Court Rules 1990, which deals with the
applications for Special Leave to Appeal refers to the necessity in naming
as the respondents the necessary and relevant parties. The said Rule
reads as follows:-
“In every such application, there shall be named as respondent, the party
or parties (whether complainant or accused, 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 or order complained against was delivered, or adversely to
whom such application is preferred, or whose interest may be adversely
10
affected by the success of the appeal, and the names and present
addresses of all such respondents shall be set out in full”.
The rule indicates the necessity for all parties, who may be adversely
affected by the success or failure of the appeal to be made parties to the
application.
In Ibrahim v. Nadarajah (1991) 1 Sri.L.R 131, where the Supreme court
had to consider whether there was a violation of rules 4 and 28 of the
Supreme Court Rules, considering the applicability of the Supreme Court
Rules and taking the view that a failure to comply with the requirements
of Rules 4 and 28 is necessarily fatal, Dr. Amerasinghe, J further held
that:-
“It has always, therefore, been the law that it is necessary for the proper
constitution of an appeal that all parties who may be adversely affected
by the result of the appeal should be made parties and, unless they are,
the petition of appeal should be rejected.”
Section 28 deals with other appeals, which come before the Supreme
Court and the said Rule reads as follows:-
28(1) Save as otherwise specifically provided by or under any laws passed
by parliament, the provisions of this Rule shall apply to all other appeals
to the Supreme Court from an order, judgment, decree or sentence of
the Court of Appeal or any other Court or tribunal.”
28(5) In every such petition of appeal and notice of appeal, there shall
be named as respondents, all parties in whose favour the judgment or
order complained against was delivered, or adversely to whom such
appeal is preferred or whose interests may be adversely affected by the
success of the appeal, and the names and present addresses of the
appellant and the respondents shall be set out in full.”

11
As stated earlier it is common ground that the Attorney-General who was
the 3rd Respondent and who represented the “complainant” the Head
Quarter’s Inspector, Ratnapura was not made a party to this appeal. It is
evident that the Attorney-General, has to be regarded as the
representative of the ‘complainant’ in such an application and therefore
is a necessary party to this appeal. In terms of the Supreme Court Rules,
for the purpose of proper constitution of an appeal, it is vital that all
parties, who may be adversely affected by the result of the appeal should
be made parties.
It is thus apparent that the appellant had not complied with Rules 4 and
28 of the Supreme Court Rules of 1990.
In the instant case the learned Magistrate after trial has proceeded to
acquit the Accused-Appellant from the charges against him. Thereafter
the Petitioner-Respondent-Respondent has sought permission to appeal
against the said decision of the Magistrate from the Attorney General.
No sanction to appeal had been granted by the Attorney-General. The
Petitioner–Respondent-Respondent had therefore moved in revision
against the said judgment of the learned Magistrate making the
Attorney-General a party before the High Court of Avissawella.
Accordingly it is clearly seen that the Petitioner-Respondent-Respondent
has clearly taken steps to make the Attorney-General who represented
the ‘Complainant’ a party to the said Revision Application made to the
High Court of Avissawella.
The Accused-Appellant who proceeded to challenge the decision of the
learned High Court Judge has clearly failed to make the Attorney-General
a party to the said appeal before the Court of Appeal. It is submitted on
behalf of the Accused-Appellant that although the Accused-Appellant
has failed to name the Attorney-General and make him a party to the
said appeal before the Court of Appeal, Mr. Rohantha Abeysuriya , S.S.C.

12
has appeared for the Attorney-general and as such no whatsoever
prejudice was caused to the Respondent. It was submitted that even
though Mr.Rohantha Abeysuriya appeared for the Attorney-General he
has not made submissions on behalf of the Attorney-General. The very
fact that R.Abeysuriya, S.S.C. has appeared for the Attorney General in
the said appeal before the Court of Appeal, although the Attorney
General was not made a party to the said appeal, clearly demonstrate
the fact that the Attorney General was concerned or was interested of
the outcome of the said appeal before the Court of Appeal. Anyhow
there is nothing before this court to substantiate the fact that
R.Abeysuriya S.S.C. in fact appeared before the Court of Appeal.
In terms of the Supreme Court Rules, for the purpose of proper
constitution of an appeal, it is vital that all parties, who may be adversely
affected by the result of the appeal should be made parties.
As stated earlier, the “Complainant” in this case the Head Quarter’s
Inspector, police station, Ratnapura or the Attorney-General who
represented the “complainant” in the High Court, Avissawella has not
been made a party to this appeal. In the said Revision application before
the High Court Avissawella the Attorney-General was a party to the said
revision Application and a State Counsel represented the 2nd
Complainant-Respondent.
In short the Accused-Appellant in his appeal to the Appeal Court and as
well as the Special Leave to Appeal Application before the Supreme Court
has clearly failed to make the ‘complainant’ in this case namely the Head
Quarter’s Inspector, police station Ratnapura and the Attorney General
parties to the said appeals filed by him. The Accused-appellant has
clearly failed to comply with the Supreme Court Rules 4 and 28 in
presenting this Special Leave to Appeal Application before the Supreme
Court.

13
In Kesara Senanayake V. Attorney General and Another [2010] 1 SRI.L.R
149, Dr. Shirani Bandaranayake, J., held that “ The totality of Rules 4,
28(1) and 28(5) of the Supreme Court Rules 1990 indicates the necessity
for all parties, who may be adversely affected by the success or failure of
the appeal to be made parties to the appeal. It was further held that:-
“In terms of the Supreme Court Rules, for the purpose of proper
constitution of an appeal, it is vital that all parties, who may be adversely
affected by the result of the appeal should be made parties”.
Accordingly in terms of the Supreme Court Rules, for the purpose of
proper constitution of this appeal, it is vital that the Attorney-General
should have been made a party to this appeal. The Accused-Appellant
has very clearly failed to comply with the Rules 4 and 28 of the Supreme
Court Rules of 1990.
For the reasons aforesaid, I uphold the preliminary objections raised by
the learned Counsel for the Petitioner-Respondent-Respondent and
dismiss this appeal for non-compliance with Supreme Court Rules.
I make no order as to costs.

JUDGE OF THE SUPREME COURT

S.E.WANASUNDERA, PCJ.
I agree.
JUDGE OF THE SUPREME COURT
UPALY ABEYRATHNE, J.
I agree.
JUDGE OF THE SUPREME COURT

14
15