1. BAIL-CONCEPT- APPLICATION A.W. Abdus Salam The right of an accused to be free pending his trial, provided there is adequate assurance that he will stand trial and submit himself to sentence if found guilty, is generally known as the right to bail. Like the ancient practice of securing the old system of oaths of responsible persons, the modern practice of requiring bail bond, or the deposit of a sum of money subject to forfeiture, serves the additional assurance of the presence of an accused. Since the function of bail is limited, the fixing of bail for any individual must be based upon the standards relevant to the purpose of ensuring his presence. The concept of bail has evolved from a system developed in England during the middle ages. In 1677, the English Parliament passed the Habeas Corpus Act, which, among its provisions, established that Magistrates would set terms for bail. In Sri Lanka the concept of bail has been gradually developed both by the Legislature and the Courts, keeping pace with the development of the Constitutional right to liberty of the people. BAIL The word BAIL is derived from the French origin and its continued use relates back to the year 1300 AD. In Medieval Latin the word bail was known as bajulare which means to control, from the Latin word bajulus. The Latin expression bajulus means someone who carries the load. Blacks Law Dictionary defines it as procuring release of one charged with an offence by ensuring his future attendance in Court and compelling him to remain within the jurisdiction of that Court. The word bail has not received any statutory definition under our law. The term bail has been defined in the case of Kanapathy Vs Jayasingha 66 NLR 549 by Alles,J as the release or setting at liberty of a person arrested or imprisoned either on his own recognizance or upon others becoming sureties for his appearance on a future date. Page 1 of 50 2. Indeed an inquiry into a bail application and the order made on such application are as important as the trial and verdict for it involves the liberty of the subjects, a consideration that warrants the consciousness of the Bench, Bar and the State. As was stated by Gratiaen,J towards end of his judgment, in the case of Athurupana 51 NLR 21 there are always grave objections to the incarceration of unconvicted persons charged with bailable offences, and it can only be in rare cases that reasons of such cogency arise as to outweigh these objections. In the case of Liyange 65 NLR 289 emphasising on the relationship of bail to the presumption of innocence, the Court voiced its concern over the crucial issue of right to bail as follows: The Courts will never cease to safeguard the liberty of the citizen. The favour shown to freedom will always influence judges to approach questions affecting the liberty. Per Sansoni, J The judiciary has an important role to play in safeguarding the liberty of the subjects. As the front line persons in the administration of justice, Magistrates have a very special place. In the discharge of their great responsibility they must not only exercise their independent judgment (subject to the provisions of law but only to the provisions of law) in deciding whether detention and continued detention is necessary, but they should also keep a watchful eye on the activities of the police in areas over which they have jurisdiction in matters pertaining to the deprivation of personal liberty. Per Dr A R B Amerasingha vide - Our fundamental rights of personal security and physical liberty. As an indispensable component of the judicial system, a considerable duty is cast on the Bar to assist the Court to arrive at a proper finding on an application for bail. To achieve this end the Bar must suitably be acquainted with the facts of the bail application and in particular the Law applicable. On the hand the State and aggrieved parties should exercise due care not to raise frivolous objections against bail applications. THE CONSTITUTION The Constitution of the Democratic Socialist Republic of Sri Lanka 1978 - chapter III, unequivocally recognises the freedom of movement, freedom against torture, arbitrary arrest and detention. It is enshrined in Article 13 of the Constitution that no person shall be arrested except according to the procedure established by law and every person so arrested shall be informed of the reason for the arrest. Once a person is arrested resulting in the deprivation of personal liberty, he shall be brought before the Judge of the nearest competent Court. He shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of a Judge of competent Court made in Page 2 of 50 3. accordance with the procedure established by Law. OUR PRESENT ENDEAVOUR IS TO IDENTIFY THE ESTABLISHED LAW GOVERNING THE RELEASE OF SUSPECTS ON BAIL. Unlike in the past, in our country a person accused of having committed a crime is usually not held in custody until the determination of his guilt or innocence; courts have the option of releasing him pending his trial. Until 27 November 1997, the common principles applicable to bail were embodied in the Code of Criminal Procedure Act No 15 of 1979 (herein after sometimes referred to as the CODE) more particularly in Sections 115, 402, 403 & 404, 422. Remarkable improvements have been made to the Law relating to Bail in Sri Lanka after the enactment of the Bail Act No 30 of 1997. Presently the Law of Bail as is applicable in our Country is deeply rooted in Legislation. The Bail Act No. 30 of 1997 came into force on 28.11.1997. It introduced sweeping changes to the system of bail that remained relatively unchanged for a long period of time (18 years to be precise) under the Code of Criminal Procedure Act No 15 of 1979. The main objectives intended to be achieved by the Bail Act appear to consolidate the Law relating to bail, to provide better recognition to freedom of movement enshrined in the Constitution and to ease the overcrowding of prisons. OVERCROWDING OF PRISONS Each year, the freedom of hundreds of thousands of persons charged with crimes hinges upon their ability to raise the money necessary for bail. Those who go free on bail are released not because they are innocent but because they can afford to post bail. The rest are detained not because they are guilty but because they are poor. The wastage of millions of rupees and cents annually in building and maintaining jails for persons needlessly detained before trial should be the concern of those who make orders to remand them or instrumental in making them remanded unnecessarily. Both the bench and the Bar can avoid such an eventuality by a concerted effort, if only those criminal defendants most likely to flee or be a danger to society are detained behind bars pending their trials. These cases can be rightly chosen with much care and scrutiny, paying due attention to the accuseds constitutionally recognised right to liberty. It is well known that the Statutory provisions and judicial decisions having binding effect are disregarded or perverted in a disturbingly large number of Page 3 of 50 4. cases merely to keep a suspect in detention. In the inner minds of the Judges, prosecuting attorneys and police, to keep a suspect on remand even for a day is indirectly to punish him for the incident which leads to charge. This is what is described as punitive remand orders which should be avoided and discouraged. Page 4 of 50 5. Title to the Bail Act The long title to the Bail Act reads that it is an ACT TO PROVIDE FOR (1) RELEASE ON BAIL OF PERSONS SUSPECTED OR ACCUSED OF BEING CONCERNED IN COMMITTING OR HAVING COMMITTED AN OFFENCE; (2) TO PROVIDE FOR THE GRANTING OF ANTICIPATORY BAIL AND (3) FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. (Numbering of the paragraphs is an addition of the author). By reason of the importance attached to the long title to an Act, it is necessary at the outset to examine the objectives of the Bail Act intended to be achieved by the Legislature as it is settled law that the title of a statute plays an important role towards the ascertainment of the general scope of the law1 . On perusal of the long title it is crystal clear that in addition to providing specific provisions for the grant of bail to persons who are arrested and/detained in connection with various crimes, the Legislature extended the principle of bail to those who have not yet been arrested, by specifically enabling the Magistrates to grant anticipatory bail, a concept hitherto unknown to the Sri Lankan Statutes. By enacting the Bail Act the Legislature has facilitated the release of accused/suspects awaiting trial, in a meaningful manner consolidating the principles of Bail, notwithstanding anything contrary to the provisions contained in the Code. Therefore, undoubtedly the Legislative attempt seems to aim at introducing an Act to deal exhaustively with all types of bail applications, though it may still appear to be incomplete. Hence, it is necessary to examine the provisions contained in the Code and the Bail Acts for an exhaustive study of the principles of bail. Index to the BAIL ACT. Long Title Short title. 1. Grant of bail to be the guiding principle in implementing this Act 2. Provisions of this Act not to apply in respect of offences committed under certain laws 3. Persons committing or concerned in the commission of a bailable offence to be released on bail 1 Maxwell on the interpretation of Statutes Page 5 of 50 6. 4. Persons committing or concerned in the commission of non-bailable offence to be released discretion 5. Release of persons when a bailable offence is being investigated by the police 6. Manner in which a person suspected or accused of a bailable or non-bailable offence may be released on bail 7. Discharge from custody 8. Power to order sufficient bail when that first taken is insufficient 9. Determining whether a person is a sufficient surety 10 Quantum of bond 11 Person released to give address at which notices and process may be served on him 12 No bail for an offence Punishable with death except by a judge of the High Court 13 Reasons for which Court may refuse bail or cancel a subsisting order for release 14 Reasons to be given for refusal cancellation rescinding or varying an order relating to granting of bail 15 No person to be detained for more than twelve months in custody 16 How period of detention may be extended 17 Discharge of sureties 18 Appellant to be released on giving security 19 Release on bail upon acceptance of appeal from High Court 20 Anticipatory bail 21 Conditions to be attached to order 22 Effect of person released on anticipatory bail being thereafter arrested 23 Conditions subject to which anticipatory bail may be granted 24 A police officer may interrogate or arrest on a warrant an applicant in respect of whom an application under Section 21 is pending. 25 Issuing of warrant requiring presence of persons released on anticipatory bail 26 Provisions of this Act to prevail in case of conflict or inconsistency 27 Sinhala text to prevail in case of inconsistency Page 6 of 50 7. 28 Interpretation The concept of bail involves the liberty of the subjects and more so in view of the presumption of innocence conferred by Article 13(5) of the Constitution. As such, it is an elementary principle to bear in mind that the refusal to admit a suspect on bail should never leave a punitive flavour. Generally, in many Courts application for extension of a remand period is objected to and as expressed by Gratien,J2 There are always grave objections to the incarceration of unconvicted persons charged with bailable offences and it can only be in rare cases that reasons of such cogency arise as to outweigh these objections. The Criminal Procedure Code Act No 15 of 1979 regulates the procedure in a criminal trial. Besides, it also contains provisions regarding investigation of a crime, arrest of persons and their detention. Significantly, the concept of bail depends on the type offence the suspect is alleged to have committed. The application of the concept may materially differ from each other depending on whether the offence disclosed is bailable or non bailable. In terms of the Code of Criminal Procedure (Section 2) unless context otherwise requires, bailable offence" means an offence shown as bailable in the first Schedule to the Code or which is made bailable by any other law for the time being in force, and "non-bailable offence" means any other offence. The first schedule to the Code of Criminal Procedure sets out only the offences falling under the Penal Code as being bailable or non-bailable. The subsequent Statute (Bail Act) in Section 29 defines the term bailable and non-bailable offences in the following manner: unless the context otherwise requires "bailable offence" means an offence which is described in column 5 of the First Schedule to the Code of Criminal Procedure Act, No. 15 of 1979, or by any other law, as being bailable; and "non- bailable offence" means an offence which is described in column 5 of the First Schedule to the Code of Criminal Procedure Act, No. 15, of 1979, or by any other law, as being non-bailable. In this context it needs to be stated that to render an offence non-bailable the Legislative intent needs to be expressly declared in the Statute, as an offence which is non-bailable. 2 In re Athurupane 51 NLR 21 Page 7 of 50 8. Our law further classifies the different type of crimes as offences in respect of which a warrant is necessary to arrest an accused and where no warrant is required for his arrest. Method in which the suspect may be released The Courts have evolved several methods for releasing an accused/suspect on bail and the Judge determines which of these methods is to be applied pending the determination of his guilt. These methods are recognised under Section 7 of the Bail Act and reads as follows: (1) Whenever any person suspected or accused of, being concerned in committing or having committed, a non- bailable or bailable offence appears, is brought before, or surrenders, to the Court having jurisdiction, the Court may release such person (a) on an undertaking given by him to appear when required; (b) on his own recognisance; (c) on his executing a bond with one or more sureties; (d) on his depositing a reasonable sum of money as determined by Court; or (e) on his furnishing reasonable certified bail of the description ordered by Court: Provided that where the person has appeared before Court on summons and is ordered to be released, he shall be enlarged on his own recognisance or on his giving an undertaking to appear when required, unless for reasons to be recorded, the Court orders otherwise. ALTERNATIVE METHOD (2) Where any person is required to execute a bond, under paragraph (c) of subsection (1), the Court may permit such person to deposit a sum of money to the credit of the account of the Court at the appropriate bank, in lieu of executing such bond. DUTIES AND RESPONSIBILITIES ARISING FROM A BAIL BOND (3) Where any person is released on his executing a bond under paragraph (c) of subsection (1) with one or more sureties, such person shall attend at the time and place mentioned in the bond and shall continue to so attend until otherwise directed. Page 8 of 50 9. WHAT IS A BOND AND WHAT SHOULD BE ITS QUANTUM Signing the bail bond is a promise that the accused will appear in the specified criminal proceeding. The failure of the accused to appear will cause the signatories to the bond to pay to the Court the amount designated. The amount of bail is generally an amount determined in the light of the seriousness of the alleged offence. The sureties should generally be chosen from and among the members of the family of the accused. SAFE GUARD AGAINST ARBITRARY DEPRIVATION OF PERSONAL LIBERTY- 24 HOUR RULE It is a deeply rooted principle in Criminal Law that an offender once arrested by a peace officer shall not be detained in custody or otherwise confined for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate.3 This is a safeguard provided by the Legislature both under the Constitution and the general Statute against arbitrary deprivation personal liberty and right to freedom. BAILABLE AND NON-BAILABLE OFFENCE For purpose of bail the type of offence as to whether it is bailable or non-bailable plays a vital role. Our law recognizes these two categories of offences. The schedule to the Code of Criminal procedure is confined to offences under the Penal Code. Apprehension of offenders 3 Vide section 37 of the Code of Criminal Procedure Page 9 of 50 10. The law relating to the apprehension of offenders provides for arrest of suspect with or without a warrant. The procedure for the arrest of an offender is spelt out in Section 23 of the Code. It is a fundamental principle in Criminal Law that an offender should not be detained without an order from a competent Court of law. Under Section 37 of the Code there is an imperative requirement that every person who is arrested in connection with a cognizable offence is brought before a Court of law before the expiration of a period of 24 hours from the time of his arrest. Section 23 sets out that the person making the arrest shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action and shall inform the person to be arrested of the nature of the charge or allegation upon which he is arrested. However, in terms of Emergency Regulation 19 (1) the provisions of sections 36, 37 and 38 of the Code of Criminal Procedure Act No. 15 of 1979 are inapplicable in relation to persons arrested under Regulation 18. Hence, the requirement to send the person arrested before a Magistrate without unnecessary delay and the prohibition against detention for more than 24 hours will not apply in regard to those arrested under the said Regulation 18. The above Rule was laid down In Edirisooriya vs. Navaratnam 1985 1 SLR 100 where it was held that in a fit case the Court would entertain an application made outside the limit of one month in an alleged violation of fundamental rights case provided an adequate excuse for the delay could be adduced. If the petitioner had been held incommunicado, the principle lex non cogit ad impossibilia would be applicable. It was further held that Sections 36; 37 and 38 of the Code of Criminal Procedure Act (providing for the production of an arrested person before a Magistrate) are not applicable in relation to a person arrested under Regulation 18. Lex non cogit ad impossibilia means that the law does not compel a person to do that which he or she cannot possibly perform. It also means that the law cannot force impossibilities. In the case of Sunil Rodrigo on Behalf of B. Sirisena Cooray Vs Chandananda De Silva And Others 1997SLR 3 page 265 it was pointed out that: The decision whether certain activities of a citizen constitutes a threat to national security is a matter for the Secretary and not of a Police Officer, whatever his rank might be. The power of the Secretary given by regulation 17(1) concerns physical liberty of persons, including those who have not yet, nor never, committed an offence. It is therefore an exceedingly great power, indeed an awesome power, that must be exercised with corresponding degree of responsibility. Page 10 of 50 11. Amarasingha, J stated that Conspiracy to murder the President is an offence under regulation 24(b), and so there was an offence the detenu was supposed to have committed which was the "reason" for his arrest and detention. He was not informed of that reason as required by Article 13(1) of the Constitution. 5. The detenu was not arrested under a procedure established by law. He was arrested on vague suspicion in circumstances that showed a reckless disregard for his right to personal liberty. In the circumstances by failing to produce him before a judge the respondents transgressed his rights under Article 13(2) of the Constitution. SALIENT FEATURES AND GLARING DIFFERENCES BETWEEN THE CODE OF CRIMINAL PROCEDURE AND BAIL ACT AS REGARDS BAILABLE OFFENCES. In terms of Section 402 0f the Code of Criminal Procedure Act No 15 of 1979 when any person other than a person accused of a non-bailable offence appears or is brought before the Court and is prepared at any time at any stage of the proceedings before such Court to give bail such person shall be released on bail. The corresponding Section 4 of the Bail Act provides that a person suspected or accused of being concerned in committing, or having committed a bailable offence, shall, subject to the provisions of the Bail Act be entitled to be released on bail. Page 11 of 50 12. Section 6 of the BAIL ACT sets out the manner in which an offender of a bailable offence should be dealt with. It provides that where an offence being investigated by the police is a bailable offence, the officer- in-charge of the police station shall not be required to forward the suspect under his custody before the Magistrate having jurisdiction over such offence, but such officer shall not later than twenty-four hours of the suspect being taken into custody, release him on a written undertaking and order such suspect to appear before the Magistrate on a given date. The principal Section 6 to the Bail Act does not give rise to any complication. However, the proviso to Section 6 needs to be focussed with much caution for it enables a suspect to be remanded despite the triviality of the offence. PROVISO TO SECTION 6 Where the officer-in-charge of the police station is of the opinion that public reaction to the alleged offence which is being investigated into, is likely to give rise to a breach of peace he shall forward the suspect in custody before a Magistrate having jurisdiction over such offence, and the Magistrate shall thereupon make an order under Section 7 or Section 14 as he may consider appropriate. In terms of Section 7 the Magistrate is empowered to release the suspect in one of the several modes spelt out under that Section. Section 14 empowers the Judge to refuse bail or cancel bail under certain situations. It reads as follows: 1. Notwithstanding anything to the contrary in the preceding provisions of this Act, whenever a person suspected or accused of being concerned in committing or having committed a bailable or non-bailable offence, appears, is brought before or surrenders to the court having jurisdiction, the court may refuse to release such person on bail or upon application being made in that behalf by a police officer, and after issuing notice on the person concerned and hearing him personally or through his attorney- Page 12 of 50 13. at-law, cancel a subsisting order releasing such person on bail if the court has reason to believe: a. that such person would (i) not appear to stand his inquiry or trial; (ii) interfere with the witnesses or the evidence against him or otherwise obstruct the course of justice; or (iii) commit an offence while on bail; or b. that the particular gravity of, and public reaction to, the alleged offence may give rise to public disquiet. 2. Where under subsection (1), a court refuses to release on bail any person suspected or accused of being concerned in or having committed an offence or cancels a subsisting order releasing such person on bail, the court may order such suspect or accused to be committed to custody. In Mclean Vs Appan 2 NLR 54 it was held that where the offence was a bailable, there is no discretion vested in the Court to refuse Bail and any order remanding a suspect in such circumstances would be an illegal order. (See proviso to Section 6 of the Bail Act.) In a case reported in 8 CWR 53 it was held that the fact that the suspect is a repeat criminal is not a ground to make an order of remand where he is being produced in respect of a bailable offence. In the case of Pathirana vs. OIC Nittambuwa 1988 1 SLLR 84 the suspects were alleged to have committed offences under Sections 314, 315, 316 of the Penal Code and the Magistrate remanded them till the 23rd of March, 1988 as the investigations into the matter have not been concluded. It was held that the offences under Sections 314, 315 and 316 are bailable offences under the provisions of the Code of Criminal Procedure Act. Under Section 402 of the Criminal Procedure Code: Page 13 of 50 14. Any person accused of a non-bailable offence appears or is brought before a Court and is prepared at any time at any stage of the proceedings before such Court to give bail, such person shall be released on bail. A suspect is entitled as of right to be released on bail in these circumstances at any stage of the proceedings. The order of the learned Magistrate therefore refusing the application made on behalf of the suspect for bail is an illegal order. Page 14 of 50 15. CONSEQUENCES OF NOT ATTENDING COURT IN COMPLIANCE OF A WRITTEN UNDER TAKING GIVEN TO THE POLICE UNDER SECTION 6 (1) Fine of Rs 1000/- and/or a simple jail term of 6 months A suspect released by an officer-in-charge of a police station on a written undertaking given by such suspect under Section 6 (1) and thereafter fails to appear before the Magistrate on the given date, shall be guilty of an offence and on conviction after summary trial, be punished with simple imprisonment for a term not exceeding six months or with a fine not exceeding one thousand rupees or with both such imprisonment and fine and the Magistrate shall in his discretion order the release of such suspect on bail subject to conditions as specified or remand him to custody, as the case may be. The present Legal position As regards bailable offences the present legal position should be viewed in the light of the provisions of the Bail Act. Subject to the exceptions provided for in the Act, the guiding principle shall be the GRANT OF BAIL IS REGARDED AS THE RULE AND THE REFUSAL AN EXCEPTION.. Unlike in the past, subsequent to the introduction of the Bail Act persons concerned with having committed bailable offences are entitled to be released on bail by the police within a period of 24 hours of his having been taken into custody. When released as aforesaid, the accused may be asked to give an undertaking and the police officer is empowered to order the suspect to appear in the Magistrate's Court on a given date. The circumstances in which the police officer is entitled to refrain from releasing the accused on bail in respect of a bailable offence are set out in the proviso to Section 6. According to the proviso to Section 6 if the officer in charge of a police station is of the opinion that public reaction to the alleged (bailable) offence of is likely to give rise to a breach of peace he shall forward the suspect in custody before a magistrate having jurisdiction to admit him to bail under Section 7 or to refuse bail and detain him under Section 14. In other words the suspect who is produced before a Magistrate in connection with the commission of a bailable offence can be refused bail only if the Court has reason to believe that he would not appear to stand his inquiry or trial, interfere with the Page 15 of 50 16. witnesses or the evidence against him or otherwise obstruct the course of justice or commit an offence while on bail or the particular gravity of, and public reaction to, the alleged offence to public disquiet. NON BAILABLE OFFENCE The Code laid down several ways to approach the question of bail based on the stage of a case. During the progress of the investigation, the Court has discretion to grant or refuse bail under Section 115 of the Code. Whenever investigations are not over (except in the case of an offence under sections 114, 191 and 296 of the Penal Code) the Magistrate could discharge the suspect or require him to execute a bond to appear if and when so required. Under Section 115 (2) of the Code. The maximum period of remand in the case of a non-bailable offence was a period of 15 days. See A G vs. Sepala Ekanayakanayaka where it was held that the police have a right to file further reports and if the reports contain material pertaining to further involvement the remand order would be extended for further 15 days. In Dissanayake vs. OIC Hanguranketha 1987 2 SLR 247, the suspects produced on a report of having committed rape, were remanded by her for continuous periods totalling 8 weeks. It was held that under Section 115 of the Code in such a situation remanded for a total period of 15 days and no more except where the offences are under sections 114, 191 or 296 of the Penal Code. In terms of Section 403 of the Code a Magistrate or a Judge of the High Court, at any stage of any inquiry or trial, may in his Page 16 of 50 17. discretion release on bail any person accused of any non-bailable offence: In the exercise of discretion to enlarge a suspect on bail the following consideration are important. 1. Nature of the Offence 2. Seriousness of the sentence 3. Possibility of absconding; and 4. Probability of conviction.4 Application of the Bail Act The extent to which the Bail Act applies to the release of suspects concerned with various offences needs to be addressed at this stage. Section 3 (1) of the Act specifies the area of the application of the Bail Act as follows: Nothing in this Act shall apply to any person accused or suspected of having committed, or convicted of an offence under, the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979, Regulations made under the Public Security Ordinance or any other written law which makes express provision in respect of the release on bail of persons accused or suspected of having committed, or convicted of, offences under such written law. The Sinhala text of Section 3 (1) conveys a different meaning. Upon a plain reading of Section 3 (1) of the Statute it is manifestly clear that the intention was to exclude the following legislation from the purview of Act No. 30 of 1997. 1. Prevention of Terrorism Act, No. 48 of 1979. 2. Regulations made under the Public Security Ordinance; and 3. Any other law which contains express provisions relating to granting of bail to suspects and convicts who are convicted for an offence under any such law. No doubt the offences are categorized as bailable and non-bailable under the Bail Act. Yet certain offences committed under specific Laws will not fall under the normal provisions of the Bail Act and therefore needs special applications to be made before such forum which has the jurisdiction to entertain such an application. Besides the considerations applicable to the grant of bail in respect of the accused concerned with having committed certain offences under certain 4 King vs. Toussaint 12 NLR 65 12 Page 17 of 50 18. specified Acts may be totally different. The said Acts/Ordinances are listed below. 1. OFFENSIVE WEAPONS 2. POISONS, OPIUM AND DANGEROUS DRUGS 3. CUSTOMS 4. FIREARMS 5. BRIBERY 6. ANTIQUITIES 7. IMMIGRATION AND EMIGRANTS 8. OFFENCES AGAINST PUBLIC PROPERTY 9. PENAL CODE- SECTIONS 114, 191 & 296 In Sumathipala Vs. Attorney General the Court of Appeal held that the Constitutional provisions relating to the liberty of individuals would override the provisions of any other law and granted bail to a suspect concerned in having committed an offence under the Emigrants and Immigrants Act. This judgment was later ruled out as reported in 2006 2 SLR 126. In Mohomad Shiyam Vs OIC Narcotic Bureau SC Appeal 2/2003 the Supreme Court (The Chief Justice delivering the Judgment) held that the Bail Act would not apply in respect of persons detained under the Poisons Opium and dangerous Drugs Ordinance as there are special provisions relating to the grant of bail. Noticeably in this case the Supreme Court rejected the argument that Bail Act would be applicable in respect offences under the opium and dangerous drugs Ord. The Guiding Principle of the Act Page 18 of 50 19. The aim of the Legislature in introducing the Bail Act is to bring about some degree of uniformity into the system of bail. Section 2 of the Bail Act emphatically lays down that subject to the exceptions as provided in the Bail Act, the guiding principle in the implementation of the provisions of the Act shall be that the grant of bail shall be regarded as the Rule and the refusal to grant bail as the exception. This invariably points to the intention of the Law maker to relax the Rules pertaining to the release of persons on bail than to unreasonably restrict their freedom of movement. Judicial discretion therefore should always be exercised regard being had to this golden Rule running through the entirety of the relevant Statutes which flows from the Constitution. An important decision on the exercise of discretion is worth being referred to here. In the case of Roberts vs. Hopwood and others1925 AC page 578 at page 613 Lord Wrenbury (House of Lords) voiced his opinion as to the manner in which a judicial discretion should be exercised. His Lordship emphasised that "The person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so-he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the cause which reasons direct. He must act reasonably." IMPACT OF SECTION 3 (2) OF THE ACT Section 3 (2) of the Act, is quite significant to understand the legal position. It provides that any reference to the Code of Criminal Procedure Act, No. 15 of 1979, contained in any law, should be considered as a reference to the corresponding provision of the Bail Act. In the light of Section 3 (2) of the Bail Act, the reference made to reference to Act No. 15 of 1979 (in respect of Bail) in the amendment to the Antiquities Ordinance introduced in 1998 should be considered as a reference made to the Bail Act. SUSPECTS APPEARING IN COURT ON SUMMONS, NOTICE NOT TO BE REMANDED Under Section 263 (2) of the Code of Criminal Procedures Act When a suspect appeared in Court on notice or summons, it is his entitlement to have him released on his own recognizance or on a simple undertaking to appear. The same position continues under proviso to Section 7 (1) of the Bail Act of 1997 which empowers the Court to release the suspect on his own recognizance unless the Court orders otherwise. Page 19 of 50 20. BONDS, SURETIES AND QUANTUM Fixing of the quantum of bail is a judicial discretion and should be exercised with due care regard being had to the nature of the offence, the means of the suspect and other matters relevant for that purpose. By releasing a suspect on bail in effect the court hand him over to the surety who is considered to be a bridge between the suspect and the Court. The surety undertakes to produce the suspect in Court whenever required. In the case of Athurupane (supra) Gratien J pointed out that fixing of bail calls for the exercise of judicial discretion which must be exercised very carefully, and that it also calls for the most anxious care in each case. The questions such as the nature of Bail Bonds, liability of Sureties and the Quantum of Bail are dealt in detail under Sections 8 to 12 of the Bail Act. The fact that the bail ordered should be reasonable has been re- echoed in many decisions. The Court of appeal has taken a positive view regarding this aspect of the law in State v. Pathirana where it was emphasised that bail ordered should be reasonable and also that the entire purpose of bail would be negative if the bail ordered is excessive and if it is not within the reach of the suspect. In ordering bail and deciding on the quantum of bail the Court should look into all aspects of the matter and exercise the discretion vested in them judicially. Undoubtedly, the application of the concept pertaining to the grant of bail, cancellation, forfeiture etc, requires a greater command of the legal principles. It is an established principle of law that the grant of bail or refusal is a judicial discretion and not a mere discretion. An important decision on the exercise of discretion is found in the case of Roberts vs. Hopwood and others1925 AC page 578 at page 613 Lord Wrenbury (House of Lords) voiced his opinion as to the manner in which a judicial discretion should be exercised, in the following words: The person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so-he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the cause which reasons direct. He must act reasonably. Page 20 of 50 21. QUANTUM OF THE BOND CONSIDERATIONS APPLICABLE Section 11 of the Act Bail Act has laid down the important guideline on this matter. It states: Where any Court is required to determined the amount of a bond to be executed, the sum of money to be deposited or the certified bail to be furnished by any person under paragraph (c), (d) or (e) of subsection (1) or Section 7, as the case may be, it shall do so with due regard to the nature of the offence the suspect or accused is alleged to have committed, and the punishment specified therefore by law, and to the means of such suspect or accused, and the amount so determined shall not be excessive. BAIL IN CASES PUNISHABLE WITH DEATH OR LIFE IMPRISONMENT Section 13 of the Bail Act reads that "A person suspected or accused of being concerned in committing or having committed, an offence punishable with death or with life imprisonment shall not be released on bail except by a Judge of the High Court." In terms of the provisions of the above Section, a person suspected accused of being concerned in committing or having committed an offence punishable with death or life imprisonment cannot be released except by a Judge of the High Court. A Magistrate was not empowered to release on bail a suspect who has surrendered himself to court, or been arrested consequent on an allegation that he has committed or has been concerned in committing or is suspected have committed or to have been concerned in committing an offence punishable under sections 114, 191 and 296 of the Penal Code. However under the proviso to Section 115 (3) the Magistrate could have released such a suspect if proceedings are not instituted against him in a Magistrate's Court or the High Court before the expiration of a period of three months from the date he surrendered to court or is arrested unless the High Court on application made by the Attorney-General directs otherwise. However the High Court may, subject to the provisions of the Criminal Procedure (Special Provisions) Law, No. 15 of 1978, in special circumstances had the power to release such person on bail before or after the expiration of the period of three months of his arrest. REQUIREMENT TO GIVE REASONS Page 21 of 50 22. Whenever a Court refuses bail it is necessary to set out the reasons for such refusal. Section 15 of the Bail Act states that where a Court refuses to release on bail any person suspected or accused of, or being concerned in committing or having committed, any offence, or cancels a subsisting order releasing a person on bail, or rescinds or varies an order cancelling the subsisting order, it shall state, in writing, the reasons for such refusal, cancellation or recession or variation as the case may this reveals that it is mandatory for a Court to give reasons whenever such Court refuses bail. The grounds of refusal are dealt inter alia in Section 14 of the Act. RESTRICTION ON THE LENGTH OF PERIOD TO KEEP A SUSPECT ON REMAND The maximum length of time a suspect can be refused bail extends to 1 year, even if the offence is a bailable. Under Section 17 of the Bail Act a person may be kept in remand even in excess of a period of one year only if an application is made by the Attorney General to any High Court established under Article 154 P of the Constitution for such an order. The proviso to Section 17 states that whenever an Order is made relating to the remanding of a person in excess of 1 year, an indefinite period cannot be mentioned. The period of detention ordered under Section 17 of the Bail Act cannot exceed 3 months at a time and 12 months in the aggregate. It would therefore seem that in any event the maximum period of remand cannot be a period of 2 years. BAIL PENDING APPEAL The law relating to the release of accused persons, who have already been convicted by a court of law, pending appeal has received various interpretations from time to time. Hence it is necessary to examine in detail the historical concept of granting of bail pending appeal. Many judicial decisions have immensely contributed to the development of the law pertaining to bail pending appeal. CRIMINAL PROCEDURE CODE Section 341 deals it clear that it was imperative in a Magistrate Court or District Court to release an accused person on bail pending appeal. There is no discretion vested in a Magistrate or a Judge of the District to refuse bail pending appeal. Section 323 of the Code enacts that once an appeal is preferred and if the appellant is in custody, the original Court to which the Page 22 of 50 23. appeal was forwarded, shall release the convict, on his entering into a recognizance with or without sureties. However the legal position is not the same where the conviction takes place in the High Court. Section 331 of the Code of Criminal Procedure Act, provides for the manner in which an appeal may be lodged in a case where the trial was held before the High Court. Section 333 of the Code sets out the procedure to be adhered to in the High Court in a matter of granting bail pending appeal. Under Section 333 (2), when an appeal against an acquittal has been lodged, the Court may issue a warrant for the arrest of the accused and once he is arrested and brought before Court, it may order his remand or admit him to bail. On the face of Section 333 (3), when an appeal has been lodged against a conviction, the High Court appears to exercise discretion in granting bail. However, in the case of A. G. v. Chandrasena CA 589/90, it was held, that the High Court does not exercise discretion but is compelled to make an order of remand. Thus it will be seen that the requirement of "exceptional circumstances" is not a statutory requirement but instead a concept which has become a part of the law in respect of bail pending appeal. Attention is also drawn to the provisions of offences against the Public Property Act No. 12 of 1982 where statutorily, exceptional circumstances are insisted on for the granting of bail pending appeal. Page 23 of 50 24. BAIL ACT 30 of 1997 Section 19 and Section 20 of the Bail Act are relevant to the grant of bail pending appeal. Section 19 deals with grant of bail to persons convicted by Magistrates Courts whilst Section 20 deals with the resulting position when conviction is entered by a High Court. Section 19(1) states that when an appeal has been lodged against an order of acquittal made by a Magistrate Court, the Court may order the arrest of the person who has been acquitted for the purpose of dealing with granting of bail pending appeal. This Section states further that in the case of a person to whom Section 18(1) would apply, the Court could make an order remanding him until the conclusion of the Appeal or grant him bail exercising the discretion vested in it. Section 19(2) states that in the case of persons convicted by a Magistrates Court, the Court may refuse to release such person on bail pending appeal having regard to the conduct of the convict and the nature of the offence. This is a departure adopted by the Legislature in its own wisdom from the earlier Law governing this situation. Under the Code of Criminal Procedure Act of 1979 it was imperative to release a convict on bail pending appeal where the conviction was by a Magistrates Court. In terms of Section 19 (3), (4), and (5) provisions have been made to release such a convict on bail where the Court is of the opinion that such person should be granted bail. In such instances the Court has the power to direct the convict to deposit a sum of money in Court in lieu of entering upon a bond with or without sureties. Once bail has been ordered under Section 19(3) or (4) either in the form of a money deposit or a bond, wherever the convicted person is in jail, the bond could be executed in the presence of the Superintendent of Prisons or the Jailor. CONVICTIONS IN THE HIGH COURT The applicable Section in this regard is Section 20 (1) of the Act, which refers to the provisions applicable in cases where the accused has been acquitted by the High Court. In respect of acquittals by the High Court the provisions under Section 20 (1) are similar to the provisions of Section 19(1) which is applicable to an appeal against the acquittal in Magistrates Courts. Page 24 of 50 25. When a person is convicted by the High Court Sections 20(2) and (3) become applicable. A perusal of the above sections would disclose that the Legislature has not included in the definitions of the above two sections the term "exceptional circumstances". The question whether exceptional circumstances are necessary as a condition precedent to the release of a convicted person on bail pending appeal against the findings of a High Court Judge came up for determination in the case of Perera Vs AG decided on 22nd July 2005 in CA PHC APN 7/2005. The facts were that the appellant was convicted by the High Court Colombo for attempted murder and was sentenced to 7 years imprisonment. The High Court refused the application for bail pending appeal and the said refusal came for consideration in the Court of Appeal. The main ground relied upon for bail was on that the disposal of the appeal is unlikely to take place without delay. The Court stated that "exceptional circumstances" was an imperative requirement for grant of bail pending appeal against conviction by the High Court and the alleged delay did not constitute an exceptional circumstance. In the case of Premaratne Vs AG 2006 1 SLR 25 in the application for bail pending appeal it was held by two Judges of the Court of Appeal, one Judge dissenting that delay in the preparation of appeal briefs could be considered as an exceptional circumstance for the purpose of granting bail pending appeal. A month later, Balapatabendi J, Imam J and Sisisra De Abrew J had the opportunity of hearing another case where the question under discussion was more specifically addressed. That was the case of In Premaratne v AG CA PHC 310/2004 the accused convicted by the High Court made application for bail pending appeal where he sought to argue that exceptional circumstances are no longer a requirement after the passing of the Bail Act since the Legislature had omitted to mention that such was a requirement in granting bail pending appeal. Counsel stressed much on Section 2 of the Bail Act which introduces the Rule to be followed by all Courts. The Court rejected this argument but held that the facts of the case revealed exceptional circumstances and granted bail to the accused. Quite interestingly, in AG Vs Latiff CA PHC APN 55/2005 the Court of Appeal held that in cases where application for bail pending appeal against the judgment of the High Court is made no exceptional circumstances need be proved. This ruling was later over ruled by the Supreme Court in A G VS Selvarajah Mahaletchchemi SC Appeal 13/2006 Special Leave appl. 266/2005. In the latter case the Supreme Court having compared Section Page 25 of 50 26. 333(3) of the Code and Section 20 of the Bail Act came to the conclusion that the language employed in both sections being almost identical, the view that exceptional circumstance is necessary ingredient to succeed in an application for pending appeal against a conviction of the High Court. BAIL UNDER OFFENCES AGAINST PUBLIC PROPERTY ACT NO. 12 OF 1982 YAALA DEVI The Offences against Public Property Act No. 12 of 1982 deals with offences committed in relation to public property. It has been amended by Act No 76 of 1988 and Act No 28 of 1999. Sections 2 to 5 of the Act define the offences under this Act and Section 8 stipulates the provisions relating to the grant of bail. Section 8 (1) of this Act refers to the Code of Criminal Procedure as being applicable in relation to bail to offences under this Act. However in the light of the provisions of Section 3 (a) of the Bail Act, No 30 of 1997 the present legal position is that the Bail Act would not apply to persons produced in respect of offences under this Act, where the value of the subject matter exceeds Rs. 25,000/-. GOVERNMENT RAILAWAYS The proviso to Section 8 (1) specifically states that if a gazetted officer who is not below the rank of an Assistant Superintendent of Police certifies that the subject matter of the alleged offence exceeds Rs. 25000/- then the Court has the power to keep such an accused in remand custody until the conclusion of the trial. Under this Act, Court has been given the power to keep an accused in custody till the proceedings are concluded. However under exceptional circumstances accused can be released on bail. It is clear that when a person is brought before a Magistrate for an offence under this Act and if the value of the affected subject matter exceeds Rs. 25,000/- and further if there is a certificate by a gazetted officer to that effect, then the Court has to keep such person in custody until the conclusion of the trial and he may be released on bail only in exceptional circumstances. Section 8 (2) of the Act speaks of another interesting position. Generally, if a man has been convicted of an offence in the original Court, he can lodge a Petition of Appeal as of right to the Court of Appeal within the stipulated period. As far as most of the statutory offences are concerned once a Petition of Appeal is lodged in the original Court, the convict is granted bail pending appeal. Page 26 of 50 27. However, Section 8 (2) states that once a person is convicted of an offence under this Act, notwithstanding that he has lodged an appeal either against the conviction or against the sentence, such person shall be kept in remand until the determination of the appeal. However the proviso to Section 8 (2) of the Act states that if exceptional circumstances are established then such person can be released on bail pending appeal. OFFENSIVE WEAPONS ACT NO. 18 OF 1966 The objectives intended to be achieved by this Act include the prevention of importation, manufacture, possession, sale, exposure for sale, acquisition, transport, use or supply of and of the doing of certain other acts or things concerning offensive weapons. Section 10 of the Act provides for making of the application for bail. It reads as follows: Notwithstanding anything to the contrary in the Code of Criminal Procedure Act or any other written law, no person charged with, or accused of, an offence under this Act shall be released on bail except on the order of the Court of Appeal. The recent amendment to the Offensive Weapons Act No. 18 of 1966 gives the High Court of the province jurisdiction to hear bail applications established under Article 154(b) of the Constitution. POISONS, OPIUM AND DANGEROUS DRUGS ORDINANCE This Ordinance has been amended by Act No 13 of 1984 and Act No 26 of 1986. Two new subsections numbered as 54 A and 54 B were introduced to Section 54 of the Ordinance, by amendment No. 13 of 1984. These two sections introduced offences relating to possession, importation and/or manufacture of a dangerous drug. Section 13 of Act No. 13 of 1984 deals with application for bail. This Section needs to be read along with Sections 82 and 83 of the Ordinance. Under the new subsection (1) of Section 82, introduced by Section 13 of Act No 13 of 1984, Page 27 of 50 28. Section 37 of the Code of Criminal Procedure has no application with regard to a suspect who has been accused of an offence under Chapter 5 of the Ordinance. Section 82 (2) states that when a police officer has taken a suspect into custody on the suspicion that he has committed an offence punishable under Chapter 5 of the Ordinance, such suspect has to be produced before a Magistrate before the expiration of 24 hours. When he is being produced, if a certificate is filed by a police officer not below the rank of a Superintendent of Police or in his absence by anyone acting for him, to the effect that the detention of the suspect is necessary for the purpose of investigation, then the Magistrate can make an order detaining the suspect for a period not exceeding 7 days. Upon the conclusion of the investigation or at the expiry of the detention period, the suspect has to be produced before the Magistrate, again. When he is so produced, Section 82 (4) of the Ordinance (Amendment Section 13 of 13/1984) states that the provisions regarding bail contained in the Code of Criminal Procedure applies subject to the provisions in Section 83 of this Ordinance. Section 83 (1) of the Ordinance specifically states that no person accused of or who is suspected of committing an offence shall be released on bail, except by the High Court under exceptional circumstances A direct application has to be made to the High Court, which will release the suspect on bail only if exceptional circumstances are established. If bail is refused by the High Court the petitioner can make a second application to the Court of Appeal. In view of the special mechanism identified by Section 83 of the Act, the provisions of the Bail Act too would not apply to such a suspect. This has been affirmed by the Supreme Court in a divisional bench case consisting of 5 Judge decision. OFFENCES RELATING TO BRIBERY AND CORRUPTION As far as bribery cases are concerned, the question of bail is governed by Section 30A as amended by the Bribery (Amendment) Act, No. 20 of 1994. In terms Section 30A: (1) Where any officer appointed to assist the Commission detects any person accepting, soliciting or offering an illegal gratification, such officer shall: (a) Without unnecessary delay take such person before any Magistrate or Page 28 of 50 29. (b) produce such person before any Magistrate with a certificate under the hand of the Director-General that such person has been detected accepting, soliciting or offering an illegal gratification; or (c) produce before the Magistrate any currency notes alleged to have been accepted, solicited or offered as an illegal gratification by the person referred to in paragraph (a) or (b) together with a report under the hand of the Director-General that such notes were alleged to have been, so accepted, solicited or offered. (2) Where a person is produced before any Magistrate, under paragraph (b) of subsection (1), the Magistrate shall remand such person until the conclusion of the trial, provided however, the Magistrate may, in exceptional circumstances and for reasons to be recorded, release such person on bail at any time prior to the conclusion of the trial. (3) Where any currency notes are produced before any Magistrate under paragraph (c) of subsection (1) the Magistrate shall issue a certificate under his hand to the effect that notes of the denominations and numbers set out in the certificate were produced before him and such certificate shall be admissible in any proceedings instituted against the person alleged to have accepted, solicited or offered such notes in lieu of producing such notes in such proceedings. (4) Notwithstanding the provisions of sub Section (2), in any proceeding under paragraph (a) or paragraph (b) of subsection (1), where the Commission informs the Magistrate that it does not propose to institute proceedings against the person in custody such person shall be discharged forthwith. Section 80 (1) of the Bribery Act provides safeguard against persons who may abscond pending investigation into complaints regarding bribery. It provides that If any person, in the course of an investigation of an allegation of bribery against him or in the course of any proceedings against him for bribery, is preparing or about to leave Ceylon, the Attorney-General or any officer authorized in that behalf by the Attorney-General may apply to any Magistrate for an order requiring such person to furnish bail in such sum as the Magistrate may deem reasonable. Page 29 of 50 30. (2) If a person ordered to furnish bail under subsection (1) fails to do so, he shall be remanded to the custody of the Fiscal till such bail is furnished or till such time as the Attorney-General may determine. ANTIQUITIES ORDINANCE The Antiquities Ordinance is found in Volume XIV of the LE of 1980 (unofficial). It has been amended by Act No 24 of 1988. Section 15A of the Antiquities Ordinance as amended is relevant to the discussion under consideration and therefore reproduced below. Any person who commits theft within the meaning of Section 366 Of the Penal Code, in respect of antiquity, in the possession of any other person shall be guilty of an offence under this Ordinance and shall on conviction after summery trial before a Magistrate be liable to a fine not exceeding fifty thousand or to imprisonment of either description for a term not less than two years and not more than five years or to both such fine and imprisonment. Section 15B of the Ordinance is as follows: Any person who wilfully destroys, Injures, defaces or tampers with any antiquity or willfully damages any part of it, shall be guilty of an offence under this Ordinance and shall on conviction after summery trial before a Magistrate be liable to a fine not exceeding fifty thousand rupees or to imprisonment of either description for a term not less than two years and not more than five years or to both such fine and imprisonment. Section 15C of the Ordinance reads: Notwithstanding to the contrary in the Code of Criminal Procedure Act No: 15 of 1979 or another written law, no person charged with, or accused of an offence under this Ordinance shall be released on bail. Consequent to the above amendment a Magistrate is empowered to remand a suspect until the conclusion of the inquiry or trial. An interesting feature of the amended Law is that the Law does not contain any provision, which empowers a specific Court to grant bail. This is a unique situation. In every other statute, the provisions of such statue would identify the Court that is empowered by law to Page 30 of 50 31. release persons on bail. The question therefore arises as to whether what steps should be followed by a suspect who is produced before Court in respect of an offence under this Law. Under Section 404, of the Code, the Court of Appeal has an inherent power to release persons on Bail in any case. This is a provision that could be made use of by a suspect who is prosecuted for an offence involving antiquities. IMMIGRANTS AND EMIGRANTS ACT Immigrant and Emigrants Act was passed in 1948 to make provision for controlling the entry into Sri Lanka of persons other than citizens of Sri Lanka, for regulating the departure from Sri Lanka of citizens and persons other than citizens of Sri Lanka, for removing from Sri Lanka undesirable persons who are not citizens of Sri Lanka, and for other matters incidental to or connected with. The Act has been amended by Act Nos 16 of 1955, 68 of 1961, 16 of 1993, 42 of 1988 and 31 of 2006. The first two amendments were made to strengthen the Laws relating to immigration and the recent amendment 42 of 1998 does not contain any specific provision relating to the granting of bail. The provisions relating to bail are found in Section 47 of the Principal Enactment. Section 47 reads as follows: SECTION 47 (1) Notwithstanding anything in any other law - (a) Every offence under paragraph (a) of subsection (1) of Section 45, (b) Every offence under subsection (2) of Section 45 in so far as it relates to paragraph (b) of subsection (1) of that Section, (c) Every offence under paragraph (a) or paragraph (b) of subsection (1) of Section 45A (d) Every offence under paragraph (a) of subsection (2) of Section 45A in so far as it relates to paragraph (b) of subsection (1) of that Section and, (e) Every offence under paragraph (b) of subsection (2) of Section 45A Shall be non - bailable and no person accused of such an offence shall in any circumstances be admitted to bail. (2) Notwithstanding anything in any other law - (a) every offence under paragraph (c) of subsection (1) of Section 45A, and, (b) every offence under paragraph (a) of subsection (2) of Section 45A, in so far as it relates to paragraph (c) of subsection (1) of that Section Shall be non- bailable. 47A. (Amendment No 31 of 2006) Page 31 of 50 32. (1) Notwithstanding anything in any other law, no person accused of an offence under Section 45C shall be enlarged on bail except by a High Court upon proof of exceptional circumstances. (2) Where there is no express provision made in respect of the granting of bail for an offence under this Act, bail shall be granted by a Magistrate. (3) Notwithstanding anything to the contrary in any other law, the application of the provisions of this Section shall extend to every person who is in remand on the date of coming into operation of this Section A plain reading of the above Section reveals that while some offences under the Act are bailable some are not. Those offences that fall under Section 45 are non- bailable and such suspects cannot be admitted to bail in any circumstances. What the recent amendment of 1998 has done is to add to the said list of offences a series of offences identified in Section 45 of the Parent Act. According to the recent amendment of 1988, a suspect who is produced under this Law cannot be released on Bail by a Magistrate. As in the case of offences under the Antiquities Ordinance the application for bail has to be made to the Court of Appeal. The above provisions were further amended by Act No 31 of 2006. A new Section 47 A has been introduced through this amendment. In terms of this Section no person accused of an offence under Section 45C of the Act can be enlarged on bail except by an order of the High Court. Section 45C referred to in the above Section was also introduced through Act No 31 of 2006 and identifies the offence of organized efforts to send people out of Sri Lanka. Bail applications where a person is charged on this premise, are now required to be forwarded to the High Court while in respect of all other offences where no specific provisions have been made by the Act; the Magistrates Courts will have power to grant bail. FIRE ARMS ORDINANCE In terms of Section 44 of the Fire Arms Ordinance, any person who commits an offence under the Ordinance as amended is liable to a fine not exceeding Rs. 5000/= or an imprisonment of ten years. Presently every offence under the Fire Arms Ordinance is a non-bailable. Accordingly all provisions relating to general non-bailable offences would apply to such offences. Act No: 22 of 1996 introduced two new offences through Section 20 of the new Act: Page 32 of 50 33. Section 44 A - Notwithstanding anything in this Ordinance or any other law, any person who uses a gun in the commission of an offence specified in schedule C of the Ordinance shall be punished on conviction for such offence with death or imprisonment for life, and shall also be liable to a fine not exceeding twenty thousand rupees. Section 44 B - Notwithstanding anything in this Ordinance or any other law, any person who uses a gun in the commission of an offence specified in schedule D of this Ordinance shall be punished on conviction for such offence with imprisonment for a period not less than fifteen years, and fine not exceeding twenty thousand rupees. Hence, wherever a suspect is alleged to have committed an offence specified in Schedule 3 of Act No: 22 of 1996 a Magistrate is without any power to grant bail in such circumstances. Therefore application for bail will have to be made to the High Court. Even though the law does not specifically mention the High Court as the appropriate Court to make the application for bail, Section 13 of the Bail Act would apply in view of the sentence identified by Section 44 (a). CUSTOMS ORDINANCE The Customs Ordinance has been amended by Act Nos 83 of 1998, 24 of 1991. Section 127 (c) of the Customs Ordinance as introduced by Section 6 of Act No: 24 of 1991 reads as follows: No person suspected or accused of an offence under this Ordinance in respect of any goods the value of which exceeds one million rupees, shall be released on bail except by the High Court, in exceptional circumstances. The power conferred on the High Court by this Section shall be exercised by the judge of the High Court holden in the zone within which the offence is alleged to have been committed. As such, an application for bail should be made to the High Court where the value of the subject matter of the offence exceeds Rs. 1 million. The High Court is empowered to release the suspect on bail on exceptional circumstances. It is significant to remember that in all other cases an application for bail could be maintained in the Magistrates Court. It is interesting to note that Section 166 (a) of the Customs Ordinance states that where the value of the subject matter of an offence under Section 129 or 130 of the Ordinance exceeds Rs. 500,000/= such offences is deemed to be non bailable. Page 33 of 50 34. This leads to the situation where the value is less than the above amount such offences falling under Section 129 and 130 have to be considered as bailable offences. The offences under the Customs Ordinance accordingly can be classified as follows: b) Offences under Sections 129 and 130 where the value exceeds Rs. 500,000/= - non bailable Magistrate can grant bail c) Offences under Sections 129 and 130 where the value is less than Rs. 500,000/= - non bailable - Magistrate can grant bail d) Offences under Sections 129 and 130 where the value is up to Rs. 1 million - non bailable Magistrate can grant bail e) Offences under Sections 129 and 130 where the value exceeds Rs. 1 million - non bailable - only the High Court can grant bail f) Offences under any other Section of the Customs Ordinance up to Rs. 500,000/= - bailable Magistrate can grant bail g) Offences under any other Section of the Customs Ordinance up to Rs. 1 million - bailable Magistrate can g rant bail h) Offences under any other Section of the Customs Ordinance where the value exceeds Rs. 1 million - non bailable - only the High Court can grant bail PROHIBITION OF RAGGING AND OTHER FORMS OF VIOLENCE IN EDUCATIONAL INSTITUTIONS BAIL 9. (1) A person suspected or accused of committing an offence under subsection (2) of Section 2 or Section 4 of this Act shall not be released on bail except by the Judge of a High Court established by Article 154P of the Constitution. In exercising his discretion to grant bail such Judge shall have regard to the provisions of Section 14 of the Bail Act, No. 30 of 1997. (1) Where a person is convicted of an offence under subsection (2) of Section 2 or Section 4 of this Act, and an appeal is preferred against such conviction, the Court convicting such person may, taking into consideration the gravity of the offence and the antecedents of the person convicted, either release or refuse to release, such person on bail. Page 34 of 50 35. FISHERIES AND AQUATIC RESOURCES ACT NO. 2 OF 1996. This Act affords protection of fish and other Aquatic resources. It imposes prohibition against the use or possession of poisonous of explosive substances as amended by Act No 4 of 2004. Accordingly, in terms of Section 27 (1) No person shall - (a) use or attempt to use any poisonous, explosive or stupefying substance (including dynamic) or other noxious or harmful mater or substance in Sri Lanka Waters for the purpose of poisoning, killing, stunning or disabling any fish or other aquatic resources; (b) carry, or have in his possession any poisonous, explosive or stupefying substance (including dynamite) or other noxious or harmful material (not being a fishing net) or any substance for any purpose referred to in paragraph (a) (2) No person shall land, sell, buy, receive, possess or transport any fish or other aquatic resources knowing of having reasonable cause to believe that such fish or other aquatic resources have been taken by the use of any poisonous, explosive or stupefying substance (including dynamite) or other noxious or harmful material or substance. (3) No person shall place, deposit, dump or cause the escape of, poisonous, explosive or stupefying substance (including dynamite) or other noxious or harmful material or substance in Sri Lanka Waters46A. NO bail shall be allowed by a Magistrate to any person who is accused of an offence under paragraph (a) or (b) of subsection (I) or subsection (3) of Section 27 of this Act: Provided however, the High Court of the Province established under Article 154p of the Constitution may, for exceptional circumstances shown to the satisfaction of the Court, allow bail to such person who is accused of an offence under paragraphs (a) or (b) of subsection (1) or subsection (3) of Section 27 of this Act." Page 35 of 50 36. Page 36 of 50 37. ANTICIPATORY BAIL The concept of anticipatory bail was introduced to Sri Lanka by Section 21 of the Bail Act of 1997. It is a new phenomenon apparently borrowed from Indian legal system. Section 21 states thus: 'When any person has reason to believe that he may be arrested on account of his being suspected of having committed or been concerned in committing a non-bailable offence, he may with notice to the officer in charge of the police station of the area in which the offence is alleged to have been committed, apply to the Magistrate having jurisdiction over the area in which such offence is alleged to have been committed, for a direction that in the event of his arrest on the allegation that he is suspected of having committed or been concerned in the commission of such offence, he shall be released on bail. The application has to be made by petition supported by affidavit of the applicant - Section 21 (2). The duty cast on the Magistrate under Section 21 (3) is to fix it for inquiry within seven days of the receipt of the application with notice to the applicant and officer in charge of the police station of the area where the offence is alleged to have been committed. Section 21 (4) makes it obligatory that the Magistrate makes an order either allowing the application for Anticipatory Bail. or refusing the same with reasons given. He shall attach conditions if the application is granted. The Magistrate has to take special care to mention in the order for A.B. the offence or offences in respect of which the order is made and the manner in which the bail shall be furnished by the applicant at the time of arrest. If the Magistrate considers that he should prohibit the applicant from leaving Sri Lanka, he has to impound his passport and then notify the Controller of Immigration and Emigration of such facts. Section 23 authorises the OIC of the Police Station concerned to execute the order for Anticipatory Bail, in the manner provided in the order of the Magistrate if the applicant is arrested for the offence mentioned in the order or any other offence constituted by the acts constituting the offence specified in the order. There is a duty cast on the applicant after being released on Anticipatory Bail. to observe the following conditions. (a) to make himself available to the police for interrogation at any time on any day between 6 a.m. and 6 p.m. Page 37 of 50 38. (b) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade that person from disclosing such facts to the court or police. (c) not to tamper with any evidence in the case. Section 25 empowers any police officer to carry out his police duties such as interrogation, applying for warrant of arrest in respect of the offence mentioned in the application for Anticipatory Bail, during the pendency of the application. Section 26 also states that the Magistrate on the application of the OIC of the police station investigating the offence may issue a warrant on the applicant to appear in court with reasons given. Section 26 (2) empowers the Magistrate to make a detention order on the applicant when he responds to Section 26 (1) with reasons given. He can either revoke or vary the order subject to reasons. Section 27 states that the Act is to prevail over any contrary provisions in any other written law other than the Release of Remand Persons Act No. 8 of 1991. It is now evident that the whole concept of Anticipatory Bail is embodied within Sections 21 to 29 of the Bail Act with far reaching assignable interpretations surrounding this embryonic concept of A.B. pushing, Magistrates into difficult embarrassing and discomforting situations of decision-making especially because of the type of applicants who seek A.B5 . for whose benefit the concept is mainly conceived. Under Section 21 of Bail Act the applicant must have reason to believe that he may be arrested. The belief that he may be arrested must be found on reasonable grounds. Mere fear is not belief. It may just be a hallucination or imagination that some harm is going to happen. It must be a tangible belief projected to courts for its examination objectively. Then and then only can the court determine that the applicant has reason to believe that he may be arrested. He must not be obsessed with a veiled and vague apprehension of arrest. The Magistrate might require to know the basis for such an apprehension. If it sounds hollow, there is no need for Anticipatory Bail and no cause for it either. The Magistrate has to bring his mind to the question to see whether he (applicant) has made a case for Anticipatory Bail. It may be easier to obtain Anticipatory Bail in Sri Lanka than in India because the Bail Act does not refer to the proof of accusation or commission of offence. If the accused is under arrest, no anticipatory Bail can be considered. It is tantamount to contradiction in terms. The Section is meant to operate on arrest 5 Anticipatory bail Page 38 of 50 39. - not before or after arrest. The dominant consideration under Section 438 in India for the grant of Anticipatory Bail be whether the person has been implicated by some influential persons falsely for the purpose of disgracing him or getting him retained in jail for some days' - K. Jagdish V Dy. Superintendent of Police (1983) 1 Crimes 41. Persons apprehending arrest can apply for grant of A.B. - Kailash Chand v State of Rajasthan (1984) 2 Crimes 616. SOME OF THE PROVISIONS OF RELEASE OF REMAND PRISONERS ACT NO 8 OF 1991 This Act No 8 of 1991 was passed in the year 8 March 1991 to facilitate the release from custody of persons accused of certain offences who have been detained in pursuance of warrants of remand and for certain matters connected or incidental thereto. 2. The provisions of this Act shall apply in respect of an accused person who- (a) has been remanded for being suspected of having committed or been concerned in the Commission of an offence specified in the Schedule to this Act; and (b) has not been released under any provision of this Act, and subsequently remanded in respect of any other offence alleged to have been committed by him. before the conclusion of the trial of the offence in respect of which he had been originally remanded. Such accused person is hereinafter referred to as a "person to whom this Act applies." Power of court in respect of an accused person who is remanded: 3. (1) Where a person to whom this Act applies has been granted bail by a competent court, but continues to remain in remand on the expiry of one month from the date of the order of remand due to his inability to furnish bail, the Superintendent of the Prison in which such person is remanded, shall produce him before the court remanding such person and the court shall release such person upon his executing a bond without sureties for his appearance in court. Page 39 of 50 40. (2) Where a person to whom this Act applies has been in remand for a period of three months from the date of the order of remand, the Superintendent of the Prison in which such person is remanded, shall on the expiration of the three months, produce such person before the court remanding such person, and the court, shall if no proceedings have been instituted against such person at the time he is so produced, release such person on his executing a bond without sureties for his appearance in court. (3) Where a person to whom this Act applies has been in remand for a period exceeding one year the Superintendent of the Prison in which such person is remanded shall upon the expiration of such period produce such person before the court remanding such person, and where- (a) trial against such person has not commenced when such person is so produced, the court shall release such person on his executing a bond without sureties for his appearance in court; (b) trial has commenced when such person is so produced, the court may release such person on his executing a bond without sureties for his appearance in court, unless it appears to the court for good and sufficient reasons to be recorded, that he should not be, so released. Warrant to specify enactment under which accused is remanded. 4. Every court making an order of remand, in respect of an accused person, under any law for the time being in force, shall cause to be endorsed on the warrant of remand, the provision of law under which such accused person is so remanded. Page 40 of 50 41. Duty of Magistrate to visit prison. 5. It shall be the duty of every Magistrate to visit every prison situated within the judicial division in respect of which he is appointed, at least once in every month. Production of person to whom this Act applies before visiting Magistrate. 6. Where it is inexpedient for the Superintendent of the Prison to so produce any person to whom this Act applies, before the court remanding such person, in compliance with the provisions of Section 3, he shall forthwith make a report to that effect to such court and shall produce such person before the Magistrate visiting such prison in compliance with the provisions of Section 5. 27. Production of persons to whom this Act applies before a visiting Magistrate and powers of such Magistrate. (1) Where a person to whom this Act applies is produced before a Magistrate visiting a prison in compliance with the provisions of Section 5, such Magistrate shall exercise in relation to such person the powers conferred by Section 3, on the court making an order of remand. (2) The Superintendent of every prison shall obtain the particulars relating to the remand of every person to whom this Act applies, and remanded in such prison, from the court remanding such person, and shall, where the Magistrate before whom such person is produced under this Section, is not the Magistrate who remanded, such person, furnish such particulars under his hand to the first-mentioned Magistrate for the purpose of enabling him to make an appropriate order in relation to such person under this Act. (3) Where a Magistrate visiting a prison in compliance with Section 5, orders the release of a person to whom this Act applies, upon such person executing a bond without sureties for his appearance he shall cause the court remanding such person to be informed of such release, and shall cause a copy of the bond executed by such person to be forwarded to that court. Page 41 of 50 42. Act to apply to accused in remand on date of commencement of Act. 8. For the avoidance of doubts it is hereby declared that the provisions of this Act shall apply also to, accused persons who are in remand cm the date of commencement of this Act. 9. In the event of any inconsistency between this Act and the Code of Criminal Procedure Act, No. 15 of 1979 and any other written law relating to bail, other than the Constitution, the provisions of this Act shall prevail. Power of Parliament to amend the Schedule to this Act. 10. Parliament may subject to the provisions of the Constitution by resolution, amend the Schedule to this Act, by adding any offence thereto, or omitting any offence there from. SCHEDULE (Section 2) 1. Any offence for which a peace officer is empowered, under the Code of Criminal Procedure Act. No. 15 of 1979, to arrest only with a warrant. 2. Any of the following offences under the Penal Code: Sections 157, 314, 315, 316, 326, 323, 329, 332, 333, 348, 386, 411, 412, 433, 434, Offences under Section 54a (d) of the Poisons, Opium and Dangerous Drugs Ordinance for the possession of a quantity- (a) less than 5 kilogrammes of cannabis ; (b) less than 1 gramme of heroin. Section 367 of the Penal Code where the property is of a value less than one thousand rupees. Page 42 of 50 43. BAR ASSOCIATION LAW JOURNAL DECEMBER 2012 COURT OF APPEAL Hon.Attorney General VS Ariyapala and others HON. A W A Salam, J HON. Deepali Wijesundare J CA(PHC)APN No: 133/12 Hc Tangalle Case No. HCT 59/2006 COUNSEL: Asthika Devendra for the Petitioner Anoopa de Silva SC for the Respondent DECIDED: 06.11.2012 SUMMARY OF THE JUDGMENT Concept of the Bail - Purpose of refusing bail - when the Court is entitled to cancel a bail bond? Grant or refusal is judicial discretion -Should be in accordance with statutory provisions - Surety not to be inconvenienced or embarrassed - Party affected by order is not to claim damages and therefore the procedure is followed - Right of subjects to insist on their liberty - No Judge to act at his whims and fancy - Duty of Court to maintain the integrity and confidence of system of sureties - A surety bond to be strictly construed - Surety should be heard before forfeiting a bail - Otherwise it is a violation of principles of natural justice and violation of Section 422 of Criminal Procedure Code. The Petitioners grievance in this revision application was that he had been imprisoned by the learned High Court Judge otherwise than by adhering to the due process of law. He asserts that he is entitled to be freed on that account. The learned State Counsel, in the highest tradition of the Department to which she is attached, filed no objection nor resisted the application. She conceded that the impugned order is fatally irregular implying that it had occasioned a failure of justice. However the Court of Appeal decided to analyse the entire order of the High Court Judge and decided on the application. HELD (a).The purpose of refusing bail inter alia is to protect the community and to reduce the likelihood of further offending. Page 43 of 50 44. (b).The concept of bail is the recognition of the liberty of a person between the time of his arrest and verdict subject to the condition that he re-appears in Court for his trial until its conclusion or until he is sentenced. (c). The Court is entitled to cancel a bail bond (after hearing the accused) for violating the bail conditions and it includes specific grounds such as having threatened or influenced or tampered with evidence or interfered with the investigation or obstructed the judicial process or otherwise misused or abused the grant of bail. (d).The grant of bail or refusal is a judicial discretion and not a mere discretion. No Court has jurisdiction or authority to pass an order of cancellation of a bail bond or to declare a bond as forfeited, otherwise than in accordance with the statutory provisions. As the surety stands as a bridge between the accused and Court, the surety should not be put into unnecessary inconvenience or embarrassment otherwise than by resorting to the due process of law. (e). As the immunity attached to the impugned order disentitles the party affected thereby claiming damages from anyone there is a corresponding high duty of care and caution to ensure that the proper procedure is followed. It is the right of the subjects to insist that the law is followed as it is with regard to their liberty, particularly on the question of bail. (f). No Judge is empowered to apply the law at his whims and fancy. (g). It is the duty of Court, to maintain the integrity and confidence of the system of taking sureties, as it is of considerable importance to encourage law-abiding persons to come forward to assist the release of suspects on bail, since the grant of bail is regarded as the rule and refusal an exception. (h). A surety bond has to be strictly construed because the violation of its terms provides for interference with the personal liberty and/or deprivation of property rights. (i). Before a decision is taken.to forfeit a bail bond a hearing should be given to the surety and this rule was the demand of the rules of natural justice which has now become a statutory requirement. (j). Not affording such an opportunity to a surety would be a gross violation of the principles of natural justice and the express provisions of the Code of Criminal Procedure. Such an order of forfeiture would be liable to be quashed on account of such violation. (k).Section 422 of the Criminal Procedure Code provides specific provisions in respect of bonds. A. W. A. SALAM, J TO KNOW WHAT NOT TO DO IS MORE IMPORATN THAN TO KNOW WHAT TO DO The Petitioners grievance in this revision application is that he has been imprisoned by the Page 44 of 50 45. learned High Court Judge otherwise than by adhering to the due process of law. He asserts that he is entitled to be freed on that account. The learned State Counsel, in the highest tradition of the Department to which she is attached, filed no objection nor resisted the application. She conceded that the impugned order is fatally irregular implying that it had occasioned a failure of justice. The candid opinion of the State Counsel would undoubtedly serve the ends of justice. Nevertheless, in the hope of achieving completeness, I wish to analyse the entire order of the High Court Judge. The factual background which led to the filing of the revision application needs to be narrated filtering out unnecessary details. The Petitioner stood surety for an accused before the High Court. As the accused failed to attend Court, he was arrested and produced in Court on 26.03.2012 and thereafter released to enable him to produce the accused on 23.04.2012. In obedience to the order of Court, on 23.04.2012, he produced the accused through an Attorney-at- Law. At this stage the High Court Judge remarked that the suspect deserved to be re-remanded as he is a person of violent behaviour and persistently re offended using two T 56 guns while on bail. Surprisingly, no steps were taken to cancel his bail. For this course of action adopted, the High Court Judge voiced the opinion that the suspect will bear a grudge against the society if he is committed to the remand custody. He further stated that it is undesirable to put him back into the remand custody as he will be a threat to the welfare of the inmates therein. Elaborating on it he recalled (without disclosing the source of information) that the accused gave leadership, when riots broke out inside the prison on 30.06.2011. Based on these grounds he thought that it is not prudent to have him re-remanded. This obviously has given a wrong message to the accused that his intolerable behaviour has compelled the Judge to tolerate him without a cancellation of bail. In this respect suffice it would be to say that the remedy found by Court was worse than the decease. Despite the fact that he opted not to cancel the bail, yet he proceeded to make a controversial order, directing the accused to observe ata sil (eight precepts) at a named temple on all four Poya days of the month and to surrender the two T56 Type firearms to Court on 30.04.2012. The directions thus made were not part and parcel of the bail conditions. On 30.04.2012 the suspect avoided Court and the Petitioner who presented himself was sentenced to 3 years rigorous imprisonment for non-payment of the value of the bond. When the application for revision came up for support, we issued a stay order and the Petitioner was released from the prison having served a jail term of 5 months. Several questions arise as to the legality of the various orders made by the High Court Judge. The first and foremost is whether the bail bond could have been regarded as being forfeited. The word forfeited means that a condition or more imposed upon the executant of the bond and agreed to by him has been contravened. (vide Tarni Yadav Vs State (1962) Cr LJ 627- AIR 1962 Pat 431. Page 45 of 50 46. Admittedly, the Petitioner was produced on 26.03.2012 and he was granted time till 23.04.2012 to produce the suspect. Accordingly, the Petitioner in obedience to the order of Court produced the suspect on that day although the High Court Judge failed to cancel his bail despite his serious comment made against the accused. The purpose of refusing bail inter alia is to protect the community and to reduce the likelihood of further offending. Further the Petitioners Counsel contended that it is this controversial order which kept the accu