Zoysu v. Nanniyaran Aiyar.
1941Present: Nihill J.
ZOYSA v. NANNIYARAN AIYAR.
In the Matter of an Application for the Cancellation of Bailgranted in M.C. Mallakam, No. 22,395.
Sail—Application to cancel bail granted by Magistrate—Accused committed fortrial—Powers of Supreme Court—Criminal Procedure Code, s. 395 (4).
Where a Magistrate has granted bail under section 395 (3) of theCriminal Procedure Code to an accused person, who has been committedfor trial to the Supreme Court on a charge of attempted murder, theSupreme Court has no power to commit the accused to custody exceptin terms of section 395 (4), viz., “at any subsequent stage of theproceeding
In the present instance the next stage in the proceedings will not bereached until the accused appears before the Supreme Court to standhis trial.
TJTHTT.T. J.—Zoysa v. Nanniyaran Aiyar.
HIS was an application by the Superintendent of Police, Jaffna, for
the cancellation of the bail granted by the Magistrate to the accusedin the above case.
S. Alles, C.C., for petitioner.
G. G. Ponnambalam, for the respohdent.
August 12, 1941. Nihill J.—
This is a petition from the Assistant Superintendent of Police, Jaffna,for a cancellation of the bail granted by the Magistrate to the accused inthe above-mentioned case in which the accused was committed to standhis trial before the Supreme Court on a charge of attempted murder. Thepetition is supported by an affidavit by one A. Sabapathy, who statesthat on July 17 last, he was cut by the accused with a knife. A Saba-pathy is a witness against the accused in the trial now pending in theattempted murder charge.
The grounds for the application are that the accused is likely to tamperand intimidate other witnesses for the prosecution. The accused hasbeen charged with causing grievous hurt to A. Sabapathy and that case ispending in the Magistrate’s Court at Mallakam.
On the respondent being asked to show cause against the applicationMr. Ponnambalam has taken two points. Firstly, that the case againstthe respondent in respect of the alleged attack upon A. Sabapathy is aweak one which is evidenced by the fact that the learned Magistrate .refused a Police application that bail should not be granted. This Iunderstand is so.
With regard to this point the application of A. Sabapathy discloses aprima facie case against the respondent which, if true, shows him to be aperson likely to tamper with the ends of justice by intimidation ofwitnesses.
If I therefore had the power I would commit the respondent to thecustody of the Fiscal pending the determination of the grievous hurtcharge. Mr. Ponnambalam has however taken another point whichpresents a difficulty in law. He claims that I have not the power to grantthis application under section 395 (4) of the Criminal Procedure Code,since the petition is “ not made at any subsequent stage of any proceedingunder this Code ”.
He has called my attention to the fact that this sub-section is identicalwith sub-section (3) of section 497 of the Indian Code of Criminal Procedureas it stood before it was amended by Act XVIII, of 1923. By that Actthe sub-section was deleted and the following substituted:—“A HighCourt or Court of Session, and in the case of a person released by itself,any other Court may cause any person who has been released under thissection to be arrested and may commit him to custody ”.
A similar amendment has not been made in the Ceylon Code of CriminalProcedure.
Now it is clear that under the Indian sub-section as amended therewould be no difficulty in acceding to this application and Mr. Ponnam-balam urged that the amendment must have been made in India to meetsuch a case. He is unable to quote any Indian decisions to show that
NIHILL J.—Zoysa v. Nanniyaran Aiyar.
difficulties had arisen under the unamended section and I notice that thecommentators are silent on the precise reasons that brought about thealteration in the law. Neither can any help be obtained from Ceylonauthorities as there appears to be no recorded instance of an order havingbeen made on an application similar to this.
I have therefore to consider whether there is substance in Mr. Ponnam-balam’s submission.
Mr. Alles for the petitioner asks me to regard this petition as a stage inthe proceedings on the charge of attempted murder. To do so it appearsto me that for the words “ at any subsequent stage of any proceeding ”under this Code I should have to read the words “ at any time ”. This Icannot do. The Criminal Procedure Code marks out the various stageswhich precede the trial of an indictable offence by'the Supreme Court.There is the investigation and inquiry by the Magistrate. There is thecommittal for trial and consideration by the Attorney-General. Thereis the filing of the indictment and the presentation of that indictmentbefore the Court. In the present instance the charge of attemptedmurder against the respondent has reached the stage when he has beenindicted and awaits his trial, but the next stage in the proceedings willnot be reached until he appears before the Supreme Court to stand histrial.
Can an intervenient create a further stage in the proceeding by the merepresentation of a petition to this Court ? I do not think so. It cannotin my view be said to constitute a subsequent stage in a proceeding underthe Code. In the converse case where an accused person applies to theSupreme Court for bail the wording of section 396, though, not in expressterms, would allow the grant of bail at any time.
I have considered whether the difficulty could be overcome by anexercise of this Court’s revisionary powers under sections 356 and 357 ofthe Criminal Procedure Code. But the order I am asked to rescind isthe order for bail made by the learned Magistrate when he committed therespondent for trial on the charge of attempted murder.
The Magistrate had a discretionary power to make such an order undersection 395 (3) and ex facie there was nothing illegal or improper in theorder.
There is therefore nothing that calls for the revision of that order assuch. The same consideration might not apply with equal force to theMagistrate’s order granting bail in the grievous hurt case as the Magistratethen knew the position.
Although I might be of the opinion that the Magistrate would havebeen well advised to have refused bail I cannot on the material before mereach the conclusion that he exercised his discretion unjudicially.
For the above reasons the application cannot be entertained. At thesame time it is clearly desirable that the case pending in the Magistrate’sCourt should be heard with as little delay as, possible and I therefore directthat a copy of this order should be sent to the learned Magistrate with therequest that he should fix as early a date for the hearing as he convenientlycan.