Ca Pa 112 2007

1
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST

REPUBLIC OF SRI LANKA.
In the matter of an application for

Revision under Article 138 of the
Constitution.
C.A.(PHC) APN No. 112(2007

P. H.C. Negombo No. 336/2004
M.C. Negombo No.F ( 95471
Officer-in -Charge,
Special Crime Investigation Branch
Negombo
Complainant
Vs.
1. Saul Hameed Sithya Fareeza
No.141jT, Sea Street, Negombo
2. Saul Hameed Mohamed Farook,
No.182, Main Street, Negombo.
3. Mohamed Thaha Mohamed Maheer,
No.14j 1, Cross Road, Negombo.
4. B.A. Fernando No.775j6,
Colombo Road, Kurana.
he died and charge was amended on
28.8.2000
Accused
And
Saul Hameed Sithya Fareeza
No.141jT, Sea Street, Negombo
Accused -Appellan t
2
1. Officer-in-Charge,
Negombo
2. Hon. Attorney General,
Attorney General's Department,
Clombo 12.
Respondents
And
No.141fT, Sea Street, Negombo
Accused -Appellant-Petitioner
Vs.
Negombo
Clombo 12.
Responden ts-Respondents
And

No.141fT, Sea Street, Negombo
Accused-Appellant-Petitioner-
Petitioner
Vs.
3
Negombo
Clombo 12.
Responden ts-Responden ts
********
BEFORE SISIRA DE ABREW, J. &

K.T. CHITRASIRI , J.
COUNSEL Jecob Joseph for the Petitioner.

Shanil Kularatne SSC for the respondents.
ARGUED AND
DECIDED ON 21 st March 2011
*********
SISIRA DE ABREW, J.
Heard both Counsel in support of their respective cases.
In this case the accused was convicted by the Magistrate for
an offence under Section 454 of the Penal Code. He was sentenced to a
term of 1 year Rigorous Imprisonment suspended for a period of 10
years. In addition to the said punishment, he was also ordered to pay a
fine of Rs. 1500/=. The learned Magistrate has failed to impose a
default sentence in respect of the fine. Thereafter the accused

4
appealed to the High Court and the learned High Court Judge by her
order dated 06.02.2007 dismissed the appeal. One of the grounds
considered by the learned High Court Judge to dismiss the appeal was
that the accused had failed to comply with Section 322(2) of the
Criminal Procedure Code. Both Counsel admit that the learned High
Court Judge has failed to consider the facts of the case in the appeal.
In this connection I would like to consider a judgment of
Justice Eric Basnayake. His Lordship in T.G. Nimal Wasantha Vs.
A.G. in case No. C.A. (PHC)APN Revision 148/2005- decided on
21.9.2006 considering section 322(2) observed thus: "Where a party
makes an appeal on a matter of law, a certificate is required in terms of
Section 322(2) certifying that such a matter of law is a fit question for
adjudication. This certificate has to be issued by an Attorney-at-Law.
Wijewardena J. in Weerasekera Vs. Subramainam 44 NLR 545 said
that "I think section 340(2) of the Criminal Procedure Code (same as
section 322(2) of the Code of Criminal Procedure Act) is applicable only to
case in which a party has no right of appeal except on a point of law.
Pereira J. in Solicitor General vs. Perera 17 NLR 413 expressed a
similar opinion. It is clear therefore that a certificate is needed only in a
situation where an appeal could be made only on a point of law. Any
party is entitled to appeal against any judgment on any error of fact as
well. In such a situation no certificate need be filed"

5
Petition of appeal indicates that the appellant is challenging
J the facts of this case. Applying the principles laid down ~he above legal
"
literature, I hold that the learned High Court Judge was in error when
he decided to dismiss the appeal for non compliance under Section
322(2) of the Criminal Procedure Code.
Learned Senior State Counsel concedes that the learned
High Court has failed to consider the facts of this case and that it be sent
back for rehearing by the learned High Court Judge. We have gone
through the order of the Learned High Court Judge and note that the
learned High Court Judge has failed to consider the facts of the case. In
these circumstances we set aside the judgment of the learned High
Court Judge dated 06.02.2007 and direct the learned High Court Judge
,/
i
to rehear the appeal on the facts of the case.
Petition allowed.
JUDGE OF THE COURT OF APPEAL
K.T. CHITRASIRI J. !
I agree.
JU GE OF T E COURT OF APPEAL
Kwk/=

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1

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST

In the matter of an application for

C.A.(PHC) APN No. 112(2007

Saul Hameed Sithya Fareeza

BEFORE SISIRA DE ABREW, J. &

COUNSEL Jecob Joseph for the Petitioner.

Heard both Counsel in support of their respective cases.

In this case the accused was convicted by the Magistrate for

an offence under Section 454 of the Penal Code. He was sentenced to a

term of 1 year Rigorous Imprisonment suspended for a period of 10

years. In addition to the said punishment, he was also ordered to pay a

fine of Rs. 1500/=. The learned Magistrate has failed to impose a

default sentence in respect of the fine. Thereafter the accused

order dated 06.02.2007 dismissed the appeal. One of the grounds

In this connection I would like to consider a judgment of

Justice Eric Basnayake. His Lordship in T.G. Nimal Wasantha Vs.

A.G. in case No. C.A. (PHC)APN Revision 148/2005- decided on

21.9.2006 considering section 322(2) observed thus: "Where a party

makes an appeal on a matter of law, a certificate is required in terms of

adjudication. This certificate has to be issued by an Attorney-at-Law.

Wijewardena J. in Weerasekera Vs. Subramainam 44 NLR 545 said

section 322(2) of the Code of Criminal Procedure Act) is applicable only to

case in which a party has no right of appeal except on a point of law.

Pereira J. in Solicitor General vs. Perera 17 NLR 413 expressed a

similar opinion. It is clear therefore that a certificate is needed only in a

situation where an appeal could be made only on a point of law. Any

party is entitled to appeal against any judgment on any error of fact as

well. In such a situation no certificate need be filed"

Petition of appeal indicates that the appellant is challenging

he decided to dismiss the appeal for non compliance under Section

322(2) of the Criminal Procedure Code.

Learned Senior State Counsel concedes that the learned

these circumstances we set aside the judgment of the learned High

JUDGE OF THE COURT OF APPEAL

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