007-SLLR-SLLR-1986-V-1-ATTONEY-GENERAL-v.-PUNCHI-BANDA-AND-OTHERS.pdf
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Sri Lanka Law Reports
{1986) 1 SriL. R.
ATTORNEY-GENERAL
v.
PUNCHI BANDA AND OTHERS
COURT OF APPEAL.
H. A. G. DE SILVA. J., DHEERARATNE. J. AND RAMANATHAN, J.
C.A. 498/85.
H.C. KURUNEGALAAB 16/85.
M.C. MAHO CASE No. B/10985.
NOVEMBER 19. 1985. '
Criminal Procedure – Bail – Sections 114. 115, 116 and 403 {2) of the Code ofCriminal Procedure Act.
With effect from 1 st January 1985 when the Criminal Procedure (Special Provisions)Law lapsed, section 403 (1) of the Code of Criminal Procedure Act No. 15 of 1979was operative without any reference to that law. A magistrate at any stage of an inquiryor Judge of the High Court at any stage of a trial is empowered to release on bail anyperson who is alleged to have committed or been concerned in committing or issuspected to have committed or been concerned in committing an offence punishableunder sections 114, 191 and 296 of the Penal Code only with the sanction of theAttorney-General.
Subsection 403 (2) applies only in a case before the High Court at any stage of a trial onindictment by the Attorney-General.
APPLICATION in revision from the order of the High Court.
Priyantha Perera. Deputy Solicitor-General with Nihara Rodrigo. State Counsel for theAttorney-General.
D. S. Wijesinghe with R. M. Suresh Chandra for the 1st to 7th respondents.
Cur. adv. vult.
December 18. 1985.
RAMAftATHAN, J.
This is an application by the Attorney-General to revise the order of thelearned High Court Judge of Kurunegala granting bail in AB 16/85 on12th March, 1985 in respect of the 3rd, 6th and 7th respondents.
The facts briefly are as follows : The 2nd to the 6th respondentswere arrested by the Ambanpola police on the 20th January, 1985 onan allegation of having committed the murder of H. M. M. Bandaraand causing hurt to H.' M. M. Herath Banda on the 1.9th January1985.
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Attorney-General v. Punchi Banda (Ramanathan, J.)
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The Magistrate, Maho made order remanding them on the 20thJanuary, 1985 and the 7th respondent was remanded on the 23rdJanuary, 1985. The 1st respondent made application to the HighCourt of Kurunegala seeking bail for the 2nd to the 7th respondents.
When the application came up for inquiry on the 19th of February,1985, State Counsel objected to the suspects being enlarged on bail,and the application was fixed for inquiry for the 28th of February,1985. On this date State Counsel objected to the suspects beingenlarged on bail again. The learned High Court Judge had observed,that since State Counsel had objected to bail the court had no powerto enlarge the suspects under section 403 of the Code of CriminalProcedure Act No. 15 of 1979 and postponed further inquiry for the12th of March, 1985 to enable the petitioners to makerepresentations to the Attorney-General.
When the inquiry was resumed on the 12th March, 1985, counselfor the petitioner restricted his application to the 3rd, 6th and 7threspondents only. Learned State Counsel had submitted to court, thathe objected to bail and that under section 403 (1) sanction of theAttorney-General was necessary for the granting of bail to a suspectagainst whom an allegation was that he had committed an offencepunishable under section 296 of the Penal Code.
The learned Judge held that after the Criminal Procedure(Special Provisions) Law No. 15 of 1978,as amended had lapsed,section 403 (1) of the Code of Criminal Procedure Act No. 15 of1979 also became inoperative in respect of persons charged undersection 296 of the Penal Code. The learned Judge held that it wasopen to him under section 403 (2) of the said Act to release thesuspects on bail without the sanction of the Attorney-General andmade order under the said section enlarging the suspects on bail.
It is obvious that both learned State Counsel who appeared at theinquiry and the learned High Court Judge both overlooked the words"at any stage of …. inquiry or trial" mentioned in section 403 (2).
Mr. Priyantha Perera, Deputy Solicitor-General, contended that thisorder of the High Court Judge releasing the suspects on bail wasmade without jurisdiction, was erroneous and contrary to law. Heurged that the learned High Court Judge had no jurisdiction to make
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this order. It was his contention that the Criminal Procedure (SpecialProvisions) Law No. 15 of 1978 had lapsed on the 31 st of December,1984 and the High Court had no jurisdiction in this case to entertfinan application for bail under s. 403 of the Code of Criminal Procedi eAct No. 15 of. 1979. Secondly, the learned High Court Judge in tl Iscase could not have released the suspects on bail even under theprovisions of section 115(3) of Act No. 15 of 1979 as a period of 3months had not lapsed from the date the suspects surrendered tocourt or were arrested. He also contended that the High Court had notgiven any special circumstances for .releasing these suspects on bail,which is the only basis on which the High Court was permitted torelease a suspect on bail before the expiration of the period of 3months referred to in the preceding provisions of that section providedthat proceedings are not instituted against such suspect in aMagistrate's ■ Court or the High Court.
The Deputy Solicitor-General's contention was that if proceedingshad been instituted against these suspects in the Magistrate's Courtof Wariyapola by this date under section 136 of the CriminalProcedure Code the learned High Court Judge of Kurunegala had nojurisdiction, in any event, to make this order releasing these suspectson bail.
Although it is hardly necessary for the purpose of interpretingsection 403 to refer to other provisions of the Code of CriminalProcedure Act No. 15 if 1979. yet for the proper appreciation of thesituations contemplated in section 403, we were helpfully takenthrough the scheme of the Act by the learned DeputySolicitor-General. An examination of the provisions of the Act wouldalso be necessary to find out whether the learned High Court Judgecould have justifiably made the order he did, under any other sectionin a matter of this nature.
He argued that the provisions relating to investigations in theCriminal Procedure Code Act threw some light on the law relating tobail. Section 109 deals with the steps to be taken by anofficer-in-charge of a police station, when he receives informationrelating to the commission of an offence. In particular, section109 (5) (b) provides that, if it appears to the police officer that there isno sufficient ground for entering on an investigation, he shall not bebound to investigate the case. It is, therefore, clear that in terms ofthis provision the police officer is not bound to investigate a case ifthere is no sufficient ground for entering upon an investigation.
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Attorney-General v. Punchi Banda (Ramanathan, J.)
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The next situation envisaged by the Act is set out in section 114.Section 114 states -' .' './
"That if upon an investigation- it appears to the officer-in-chargeof a police station that there is no sufficient evidence or reasonablegrounds for suspicion to justify the forwarding of the accused to aMagistrate's Court, such officer shall release the suspect, if incustody, on his executing a bond with a direction to appear if andwhen so required before a .Magistrate's Court having jurisdiction totry or inquire into the offence."
This section contemplates a situation where upon investigation thepolice officer is unable to allege that the suspect has committed anoffence.
The next stage is the. situation contemplated by section 115 (1).This section provides that when the investigation cannot be completedwithin the period of twenty-four hours fixed by section 37 of the Codeof Criminal Procedure Act. and there are grounds for believing thatfurther investigation is necessary, the Officer-in-Charge shall forwardthe suspect to the Magistrate's Court with a report of the casetogether with a summary of statements recorded up to that time.
In terms of section 115 (2), if the Magistrate is of the view that it isexpedient to detain a suspect in custody pending further investigation,he may after recording the reasons, authorize the detention of theaccused for a total period of 15 days and no more. If, at the end of the15 days, proceedings are not instituted the Magistrate may dischargethe suspect or require him to execute a Bond to appear if and when soreauired.
At this stage, we have to consider what is meant by the words"proceedings are not instituted" in section 115 (2). Section 136 ofthe Code of Criminal Procedure provides that proceedings shall beinstituted by a complaint (136 (1) (a)) or a report (136 (1) (£>)) whichalleges 'that an offence has been committed' So, under theprovisions of the Code proceedings are instituted when there is acomplaint or a report containing a definite allegation that an offencehas been committed. Therefore, when section 115 (2) provides that if“proceedings are not instituted" within the stipulated 15 days, thesuspect shall be discharged or released on a Bond, it envisages a
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situation where a person has been detained for 15 days without theinstitution of proceedings. It is clear, therefore, that a suspect couldbe remanded for 15 days without a definite allegation that hecommitted an offence. This envisages a situation where there is notsufficient material to make a definite allegation against the suspect,but the information merits further investigation and the investigationcannot be completed within the period of twenty-four hours fixed bysection 37 of the Criminal Procedure Code Act. At this stage, thesituation is brought to the notice of the Magistrate and judicial scrutinycommences.
Section 115(3) provides further that if the suspected offence fallswithin sections 296, 191 or 114 of the Penal Code, then theMagistrate shall not enlarge the suspect on bail for a further period of3 months, because the above three sections create the most seriousoffences known to our law. If. during this period of 3 months, thepolice fail to find evidence sufficient to make a definite allegationagainst the suspect, the suspect may be released on bail. The provisoto this sub-section however, authorizes the High Court to direct thedetention of a suspect for a further period on an application made bythe Attorney-General. Section 120(1) and (2) also support thiscontention. These sections enable judicial scrutiny and control overthe police investigation. This is a power given to the judiciary tosupervise the progress of the police investigation with a view toensuring that once a suspect is remanded, the suspect would notcontinue to remain jn custody in the absence of sufficient evidence.
The next stage of the investigation is dealt with under section 1 16.This section enacts that if upon an investigation it appears to thepolice that the information is well founded, he shall forward thesuspect to a magistrate or take security for his appearance beforesuch magistrate.
The words "the information is well founded" has to be examined inthe light of the provisions contained in section 109 which refers to"information relating to the commission of a crime". Therefore, if afterthe investigation the Officer-in-Charge of a police station finds that adefinite allegation could be made against the suspect, then the policewould produce the suspect before the Magistrate with the allegationthat he has committed an offence and proceedings are automaticallyinstituted under the provisions of section 136 (1) (d).
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Attorney-General v. Punchi Banda (Ramanathan, J.)
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A striking feature of section 116 is the absence of any stipulationsas to what the Magistrate should do when a person is producedbefore him in terms of this.section. The reason for this is obvious that,when a suspect is produced before a Magistrate with a definiteallegation that he has committed an offence, proceedings areautomatically instituted and what a Magistrate should do afterproceedings are instituted is clearly spelt out in section si 45 and182 (1).
The absence of a detailed provision in section 116 as-to what theMagistrate should do is an indication that there is, indeed, a differencebetween the situations provided for in section 115 and 116 of theCode of Criminal Procedure'Act. Section 115 caters to a specialsituation and, therefore, the legislature has set out in detail the stepsto be taken in such a situatiqn. When the situation contemplated bysection 116 has arisen, no such stipulations are necessary in view ofthe fact that the normal procedure could be resorted to. It is,therefore, indeed clear that sections 115 and 116 cater to twodifferent situations, Once a suspect is taken before the Magistrate bythe police on the basis that information is well founded, then by virtueof section 136(1 )(a0 proceedings are instituted and the Magistrate isdirected to start a preliminary inquiry under the provisions of section145. Once this stage is reached if for some reason the inquiry has tobe postponed, the Magistrate is empowered to act under section263 of the Code. The Magistrate can then remand or enlarge thesuspect on bail. However, his power to grant bail under this section issubject to the provisions of section 403 which is a special sectionrelating to bail. Therefore, the suspect in respect of whomproceedings have been thus instituted would not be entitled to beenlarged on bail under the provisions of section 115 of the Code ofCriminal Procedure. At this stage, the only provisions under which hecould seek to be released on bail would be section 403.
We are of the opinion, that the learned High Court Judge hasmisdirected himself when he held that the provisions of section403(1) of the Criminal Procedure Code had become inoperative inrespect of a person charged under section 296 of the Penal Code withthe lapsing of the Criminal Procedure (Special Provisions) Law No. 15of 1978, and, that it was open to the High Court to enlarge such asuspect on bail, under the provisions of section 403(2) of the Code ofCriminal Procedure Act. No. 15 of 1979, without the sanction of the
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Attorney-General. On a reading of section 403(1) it is abundantlyclear that the section was operative subject to the provisions of theCriminal Procedure (Special Provisions) Law No. 15 of 1978 only forso long as that Law was in force. The Criminal Procedure (SpecialProvisions) Law No. 15 of 1978 lapsed on the 31st of December.1984. Thus, with effect from the 1st of January, 1985 section403(1) would be operative without any reference to that Law, Thepresent position would be that a Magistrate at any stage of any inquiryor Judge of the High Court at any stage of a trial, would now beempowered to release on bail any person who is alleged to havecommitted or been concerned in committing or is suspected to havecommitted or to have been concerned in committing an offencepunishable under sections 114. 191 and 296 of the Penal Code onlywith the sanction of the Attorney-Generai.
It appears that section 403(2) would have no application to thefacts of this case and that the learned High Court Judge hasmisdirected himself in releasing the suspects on bail under theprovisions of this sub-section. This sub-section would apply in thecase of the High Court only at any stage of a trial on indictment by theAttorney-General.
We therefore quash the High Court Judge's order of 12th March,1985 granting bail for the 3rd, 6th and 7th respondents. But in viewof the special circumstances of this case and in view of the facts thatthe rest of the suspects have now been enlarged on bail with thesanction of the Attorney-General, we order the release of 3rd, 6th and7th respondents on bail in a sum of Rs. 5000 and that they report tothe Ambanpola police station once a fortnight before 12 noon on thefirst and fourth Sunday.
A. G. DE SILVA, J. – I agree.DHEERARATNE, J. – I agree.
Order quashed.