Development of criminal law
From the time in which Sri Lanka become a British colony the Roman Dutch criminal law and Sinhala (srilankan) criminal law prevailed in Ceylon,The Roman Dutch criminal law was operative in the maritime provinces where the Sinhala criminal law was operative in the Kandyan Provinces.The British policy for the colonies of ceded ,conquered or settled was that they continued to apply the law in the colonies that was existed.In 1979 by Proclamation the British continued to enforce the law of the colonies .In 1852 by the Ordinance No 5,the British made the Roman Dutch Criminal Law applicable to the entire nation ,what led to this action was that British treated the Sinhala Criminal Law as cruel and inhuman law.
From time to time ,in which the Roman Dutch Criminal Law operated as the criminal law of the country ,and it was mostly exercised by the English Judges.Therefore due to lack of knowledge of RDL ,and Personal Laws,they introduced English law criminal concepts through out the case law and legal procedures without even realizing it.As a result of this British introduced the penal code by way of Act no 2 of 1833 to Sri Lanka.
section 3 of the penal code states;
''so much of the criminal law here to administered in Ceylon as is known as'' the criminal law of the united provinces''or as ''the Roman Dutch law is here by abolished''.
An important question arose regarding the section 3 of the penal code,A question arose as to whether the section 3 abolished only the principals of the Roman Dutch Law or whether it abolished only the unwritten principals of English criminal law introduced by the English judges.This issue remained a question for along time.This question was fully given a clear and firm decision by the full bench of the Supreme Court in the case of Kachchery Mudaliyar vs.Mohammed 21 NLR 29 ,
At the time of the incident a law prevailed prohibiting the transportation of rice without license.This law was not an offence under the penal code but it was not an offence under the penal code.but it was punishable under another law. One day a man was arrested for attempting to transport rice without a license to the prohibited area at the check point before he committing the said offence.A case was filed against him although he was actually arrested before he could enter that restricted area.
The defence established the argument that the prosecution was failed to prove the ingredient,of the offence which was that the defendant entered such area on the said date.Court accepted that the argument on the part of the prosecution ,they tried to seek the help of section 490 of the penal code,by upholding the argument that the defendant could be held guilty for committing such offence.
''Who ever attempts to commit an offence punishable by the code''-section 490
However the argument of prosecution ,was not valid since the provision of section 490 remained exclusive to the penal code,so this provision could be used only to the offences which were prescribed in the penal code since the transporting rice without license is not an offence under the penal code and the prosecution was failed to make use of this provision.
Then the prosecution presented new argument since the English law concepts had introduced by the English Judges, for committing an offence,they can used this concept inorder to punish such offences.
Then the question arose whether the principals introduced by the English judges were abolished by section 3 of the penal code or not.
The court held that section abolished all principals of criminal law prevailed at that time by the penal code was enacted in1833.Therefore it is important to remember that our entire criminal law is codified and that there is not any unwritten laws under our criminal law.All parts of the criminal law of Sri Lanka are statutory.
