ANURUDDHA RATWATTE AND OTHERS v. THE ATTORNEY-GENERAL

006-SLLR-SLLR-2003-V-2-ANURUDDHA-RATWATTE-AND-OTHERS-v.-THE-ATTORNEY-GENERAL.pdf


sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriva, J)
39
ANURUDDHA RATWATTE AND OTHERSv
THE ATTORNEY-GENERAL
SUPREME COURTS.N.SILVA, CJ.
EDUSSURIYA, J.
YAPA, J.
J.A.N. DE SILVA, J., ANDWEERASURIYA, J.
SC APPEALS NOS. 2/2003 TO 16/2003 (TAB)
5TH AND 19TH JUNE, 2003
Trial at bar – Bail – Code of Criminal Procedure Act, sections 403(1), 450,450(6) and 451(3) – Bail Act, sections 2, 14 and 15 -Arbitrary order refusingbail – Duty to give reasons as per section 15 of Bail Act.
Fourteen appellants were under trial before a High Court at Bar in terms ofsection 450 of the Code of Criminal Procedure Act (“the Code"). Prior to thecommencement of the trial, they were on bail except the 12th accused. At nostage did the Deputy Solicitor-General conducting the prosecutions object tobail for any accused. In fact when the trial commenced also, he said he had noobjection to releasing the accused appellants on bail. But the High Courtremanded the appellants initially and made a final order dated 23.4.2003remanding all of them to custody on the sole ground that the trial was beingheld on four days of the week. When the appellants lodged an appeal againstthat order under section 451(3) of the Code, the High Court rejected it on theground that the'order was an “interim order” against which there is no right ofappeal.
40
Sri Lanka Law Reports
12003] 2 Sri L.R
Held :
The impugned order was a final order (in respect of bail) appealableunder section 451(3) of the Code.
The power of the High Court to grant bail is contained in sections 403( 1)and 450(6). However, the Code is silent as to the grounds on which anorder could be made.
(Of consent) The applicable law regarding the basis of an order for bailis as contained in the Bail Act, No.30 of 1997 (‘the Act"). In terms of sec-tion 2 of the Act, granting bail is the rule and refusal is the exception.The grounds of refusal are contained in section 14 and the court isrequired by section 15 to state the reasons for refusal in writing.
The High Court had in refusing bail acted arbitrarily in violation of thefundamental rights of the appellants under Article 13 of the Constitutionand failed to adduce reasons set out in section 14 of the Act or to givereasons under section 15. The Attorney-General has not adduced anymaterial that would warrant a refusal of bail as per section 14 of the Act.
APPEAL from a judgment of the High Court
D.S. Wijesinghe, P.C. with Gaston Jayakody for appellants.
Shavindra Fernando, Senior State Counsel with A. Vengappuli, State Counselfor Attorney-General
Cur.adv.vult.
July 11, 2003.
SARATH N SILVA, C.J.
These appeals have been filed by the accused facing trialbefore the High Court at Bar held in terms of section 450 of theCriminal Procedure Code Act, No. 15 of 1979, as amended by Act,No. 21 of 1988. The appeals are from the order dated 3.4.2003,refusing applications for bail made on their behalf.
sc
Anuruddha Ratwatte and Others v The Attorney-General
fS.N. Silva. C.J.)
41
The said order has been made by a majority of judges inrespect of the 1 st accused with one judge dissenting and, ‘by all thejudges in respect of the other accused-appellants. The only reasongiven in order dated 3.4.2003 for refusing the applications for bailis that the trial is being held on 4 days of the week. In the dissent-ing order the 1st accused-appellant is allowed bail on the basis ofthe medical grounds that had been urged.
The accused-appellants filed appeals to this Court from thesaid order and the High Court on 23.4.2003, purported to reject theappeals on the basis that the order appealed from is an interimorder and that there is no right of appeal in terms of section 451 (3)of the Code of Criminal Procedure Act. The accused then movedthis Court to exercise jurisdiction in terms of section 451(3) inrespect of the appeals that have been filed. They also moved for anorder from this Court directing the High Court to forward the peti-tions of appeal that have been filed.
The motion of the accused-appellants was considered by thisCourt on 19.05.2003. Senior State Counsel had no objection to anorder being made directing the High Court to forward the appealsfor consideration by this Court, but submitted that the trial shouldproceed in the Hight Court. Accordingly, the Court made a directionto forward the appeals and the relevant proceedings but to contin-ue the trial.
When the appeals came up for hearing on 5.6.2003, all coun-sel agreed that the question of releasing the accused on bail shouldbe considered in terms of the Bail Act, No.30 of 1997, to which noreference whatsover had been made by the High Court. In thesecircumstances with the agreement of Counsel and as an interimmeasure, the High Court was directed to consider the release onbail of the accused in terms of Section 14 of the Bail Act on thebasis of the relevant material and to make on order giving reasonsas required by Section 15 of the Act, if necessary.
Pursuant to the said direction only written submissions hadbeen tendered by counsel. No material was adduced in terms ofSection 14(1) of the Bail Act to support a refusal of bail. In so far asthe stance of the Attorney-General is concerned, the only differenceappears to be that whereas throughout the proceedings Deputy
10
20
30
40
42
Sri Lanka Law Reports
[2003] 2 Sri L.R
Solicitor-General had no objection to the release of the accused onbail, he had raised a formal objection without any supporting mate-rial in his written submissions. The majority of judges of the HighCourt have referred to this as a “belated objection to the accusedbeing released on bail."
The judges of the High Court at Bar appear to have under-stood the interim order made by this Court differently. Two judgesconstituting the majority have sought to give reasons for the earlier 50order from which the appeals have been filed. The other judge hasconsidered the provisions of Section 14(1)(a) of the Bail Act and hasheld that no ground is made out to refuse the application for bail. Hehas made an order that all accused should stand out on bail.
Learned Senior State Counsel submitted that the order madepursuant to the interim direction by this court should be considered,as the final order and the accused-appellants should present freshappeals if they are dissatisfied with that order. I cannot possiblyagree with such a submission. The appeals have been filed fromthe order dated 3.4.2003 refusing the applications for bail. It is only 60when this Court found that the applications for bail had not beenconsidered with reference to the applicable law, that a direction wasmade to enable the matter to be considered on the basis of rele-vant material. No material has been adduced before the HighCourt as required by Section 14(1) and the majority of judges havesought to give reasons for the earlier order refusing bail. At the timethe interim direction was made no final judgment had been given bythis Court in respect of the appeals and it was specifically stated inthe proceedings of 5.6.2003 that the Court would continue the pro-ceedings in order to give a final judgment in the matter. In the cir- 70cumstances the accused are now entitled to have the appeals thathave been filed considered by this Court.
I have to now consider the order dated 23.4.2003 of the HighCourt purporting to reject the appeals that have been filed. Section451(3) of the Code of Criminal Procedure Act, as amended by Act,
No.21 of 1988 states as follows :
“Any thing to the contrary in this Code or any other lawnotwithstanding an appeal shall lie from any judgment, sentence ororder pronounced at a trial under section 450. Such appeal shall be
sc
Anuruddha Ratwatte and Others v The Attorney-General
(S.N. Silva. C.J.)
43
to the Supreme Court and shall be heard by a Bench of not lessthan five judges of that Court nominated by the Chief Justice. Itshall be lawful for the Chief Justice to nominate himself to suchBench”.
Is is seen from this provision that an appeal lies from anyjudgment, sentence or order pronounced at a trial held in terms ofsection 450. The judges of the High Court have noted that the orderappealed from is an interim order and that the provisions of Section451(3) would not apply. The term “order" is not defined in the Codeof Criminal Procedure Act. In the circumstances it should in its ordi-nary sense be taken to mean a formal expression of a decisionmade by Court in respect of any matter together with the reasonsfor such decision. An interim order is one made pending a finalorder being made in the same matter. Whether a decision is to beconsidered as an order operating as an interim order or not has tobe considered from the perspective of the effect that the order has,in respect of the matter pending before Court and the parties towhom it relates.
In this instance the order of the High Court refusing the appli-cation for bail has the effect of the accused being incarcerated andthereby deprived of their personal liberty. Every day spent in incar-ceration constitutes deprivation of personal liberty. Looking at thematter, from this perspective it is clearly seen that the order is finalin its effect. It is a formal expression of a decision by the High Courtwhich directly affects the accused who are thereby deprived of theirpersonal liberty and I am of the view that an appeal lies to this Courtfrom the order made on 3.4.2003 in terms of Section 451(3). TheHigh Court has not to referred any provision of law in rejecting theappeals that have been addressed to this Court. An appealaddressed to a superior court should as a rule be submitted to thatCourt except where specific provision is made empowering the 1original court to reject such appeal. Section 451(4) of the Code ofCriminal Procedure Act states that the provisions of the Code gov-erning appeals to the Court of Appeal from a judgment, sentenceand orders of the High Court shall mutatis mutandis, apply toappeals to the Supreme Court. The procedure for lodging ofappeals to the Court of Appeal from the High Court is provided forin Section 331 of the Code of Criminal Procedure Act. Section 332
80
90
100
no
44
Sri Lanka Law Reports
[20031 2 Sri L.R
provides that if the appeal is not given in the manner prescribed inthe Act it may be returned to the appellant for the purpose of itbeing amended within time to be fixed by the Court or immediately. 120It further provides that if it is not amended as directed, the Courtmay, for reasons to be recorded by it reject it. This is the only pro-vision which empowers the original Court to reject an appeal. Inthis instance there is no question of any non compliance of the pro-visions of Section 331. In the circumstances the order of the HighCourt made on 23.4.2003, rejecting the petitions of appeal is setaside and the appeals are considered on the basis that they havebeen lawfully presented in the exercise of the right of appeal givento the accused in terms of Section 451 (3) of the Code of CriminalProcedure Act.130
In considering the appeals I would first advert to the factsrelating to the remanding and release on bail of the accused-appel-lants. The accused-appellants have appeared before theMagistrate of Teldeniya and remanded by orders made by thatCourt on different dates that range from the month of December2001 to the month of March 2002. The first accused appellant wasreleased on bail by the Court of Appeal on 29.05.2002 on the basisof an order which contains comprehensive reasons. The 2nd to 9thaccused-appellants were similarly released on bail by the Court ofAppeal for reasons given on 4.10.2002. The 10th and 11th 140accused-appellants were also released by the Court of Appeal on14.10.2002. The 12th accused-appellant continued to be inremand. The other accused-appellants have been released on bailby the Magistrate’s Court. Thus except for the 12th accused all theaccused were on bail at the time the proceedings of the Trial at Barcommenced. They appeared before the High Court on 15.11.2002and were served with the indictment presented by the Attorney-General. On that day an application for bail was made on behalf ofthe 12th accused appellant to the High Court. The Deputy Solicitor-General objected to this application which was refused by the High 150Court. The High Court made order on that day enhancing the secu-rity ordered in respect of the accused-appellants and ordered thatin addition to bail that had been furnished there should be furtherpersonal security in a sum of Rs.250,000/- with two sureties, each.
The trial was then fixed for 20.1.2003.
sc
Anuruddha Ratwatte and Others v The Attorney-General
(S.N. Silva. CM
45
When the trial was- to commence the accused-appellantstook certain objections to the indictment and the jurisdiction of theHigh Court. Submissions were made in respect of these objectionson the 20th and the High Court gave its order on 21st rejecting theobjections and thereafter pleas of not guilty were recorded. At theend of the day’s proceedings on 21.1.2003, an application for bailwas made on behalf of the 12th accused. In response to this theDeputy Solicitor-General made a clear submission that he has noobjection to the release of the 12th accused and for that matter inrespect of any other accused. At that stage the High Court made anorder remanding the accused-appellants till the next date, being
On that day too the Deputy Solicitor-General had noobjection to releasing the accused-appellants on bail. But, the HighCourt refused the application for bail and committed the accused-appellants to custody. Thereafter several applications have beenmade in particular with regard to the 1st accused-appellant for bail,supported by medical evidence and other material. The DeputySolictior-General had no objection to these applications, but theyhave been refused by the High Court without any reasons beinggiven therefor. These appeals relate to the final application for bailwhich was made on the last date of the court sittings in the previ-ous term immediately preceding the court vacation that ensued. Asnoted above the only reason given by the majority of judges is thatthe trial is being heard on 4 days of the week.
President’s Counsel for the accused-appellants urged the fol-lowing grounds in respect of that order-
that the order has been made contrary to the provi-sions of the Bail Act and in particular the provisions of Section 14(1)which specify the grounds on which bail may be refused.
that the High Court has failed to give reasons forthe refusal of bail as required by Section 15 of the Bail Act;
that in any event none of the grounds on which bailcould be refused, in terms of Section 14(1) have been made out inthis instance, to justify the refusal of bail;
that Deputy Solicitor-General representing theAttorney-General has at every stage submitted that he has noobjection to the accused-appellants being released on bail.
160
170
180
190
46
Sri Lanka Law Reports
[2003] 2 Sri L.R
The grounds urged by President’s Counsel pertain mainly tothe provisions of the law that would apply in respect of the refusalto release the appellants on bail. The High Court, as noted abovehas not in the order appealed from referred to any provision of lawin terms of which bail was refused and the accused committed toremand custody. The preceeding narrative of the facts reveals thatat the end of the day’s proceedings on 21.1.2003, when DeputySolicitor-General had made a categorical submission that he had 200no objection to the release of the 12th accused (who was the onlyperson in custody at that stage) or any other accused, the HighCourt without hearing the accused made an order remanding themto custody. On the subsequent occasions too, the High Court, in theface of submissions by Deputy Solicitor-General that there was noobjection refused the applications for bail made on behalf of theaccused-appellants. It appears from the tenor of these orders thatthe High Court acted on the basis that it had an absolute discretionin the matter of committing the accused to remand custody. Theorders made without any application by the prosecutor, without 210hearing the accused and without giving reasons, cannot beexplained on any other basis. In this context it is incumbent on thisCourt to deal with the basic premise of our law with regard to deten-tion in custody and deprivation of personal liberty.
The right to liberty and security of person is a basic tenet ofour public law and is universally recognized as a human right guar-anteed to every person (vide Article 9 of the Universal Declarationof Human Rights and Article 9 of the International Covenant on Civiland Political Rights). Based on this right to liberty and security ofperson, Article 13 of the Constitution guarantees as a fundamental 220right to every person, the freedom from arbitrary arrest, detentionand punishment. This Article covers all 3 stages at which a person’sliberty is deprived. They are-
at the stage of arrest of a person (Article 13(1));
at the stage a person is held in custody, detained orotherwise deprived of his personal liberty (Article 13(2));
at the stage a person is convicted and punishedwith death or imprisonment (Article 13(4));
sc
Anuruddha Ratwatte and Others v The Attorney-General
fS.N. Silva. C.J.)
47
In respect of all 3 stages the respective Sub-Articles specifi-cally provide that the deprivation of personal liberty cannot takeplace except according “to procedure established by law”. In the2nd and 3rd stages referred to above, being, continued custodydetention or deprivation of personal liberty beyond the period thearresting authority could validly detain and at the stage of punish-ment, it is further provided that such deprivation of liberty could onlybe effected by an order of a competent court. Therefore in respectof the 2nd and 3rd stages referred to above, two requirements haveto be satisfied for a person to be lawfully deprived of personal lib-erty, they are-
that it is on an order of a competent court;
that such order is made in accordance with the pro-cedure established by law;
A competent court is the court having jurisdiction in the mat-ter and in the case we are dealing with it is the High Court at Bar.Section 450(6) specifically provides that in any trial before the HighCourt at Bar “the court or the presiding judge thereof, may givedirections for the summoning, arrest, custody or bail of all personscharged before the Court on indictment or by information exhibitedunder this section.” It is seen that the sub-section does not containany provision as to the procedure that would apply in this regard. Inthe circumstances ordinarily the provisions of Section 403(1) of theCode of Criminal Procedure Act which gives discretion to the HighCourt to release on bail any person accused of any non-bailableoffence would apply. The Code of Criminal Procedure Act is silentas to the grounds on which such an order could be made.
It is in this context of a discretion lying on the court that therehave been several judgments which deal with the grounds thatshould be considered by court in such circumstances. The majori-ty judges at the Trial-at-Bar have referred to these judgmentswhere the matter of granting or refusing bail has been consideredon the basis of a wide discretion vested in the court.
The Bail Act, No.30 of 1997 was passed by Parliament asstated in the long title to “provide for release on bail of persons sus-pected or accused of being concerned in committing or of havingcommitted an offence….” A person is considered as being suspect-
230
240
250
260
48
Sri Lanka Law Reports
[2003] 2 Sri L.R
ed of having committed an offence at the stage of investigation andhe would be considered as an accused after he is brought before acourt on the basis of a specific charge that he committed a particu-lar offence. He would remain an accused until the trial is conclud-ed and a verdict of guilty or not guilty is entered or he is dischargedfrom the proceedings. Thus the provisions of the Bail Act wouldapply in respect of all stages of the criminal investigation and thetrial.
Section 2 of the Act gives the guiding principle in respect ofthe implementation of the provisions of the Act. It is specifically stat-ed that “the grant of bail shall be regarded as the rule and therefusal to grant bail as the exception.”
Section 14(1) being the provision which would apply inrespect of this case reads as follows :
“Notwithstanding anything to the contrary in the precedingprovisions of this Act, whenever a person suspected or accused ofbeing concerned in committing or having committed a bailable ornon-bailable offence, appears, is brought before or surrenders tothe court having jurisdiction, the court may refuse to release suchperson on bail or upon application being made in that behalf by apolice officer, and after issuing notice on the person concerned andhearing him personally or through his attorney-at-law, cancel a sub-sisting order releasing such person on bail if the court has reasonto believe :-
that such person would –
not appear to stand his inquiry or trial;
interfere with the witnesses or the evidenceagainst him or otherwise obstruct the course of justice; or
commit an offence while on bail; or
that the particular gravity of, and public reaction to,the alleged offence may give rise to public disquiet.
It is seen that Section 14(1) would apply notwithstanding any-thing to the contrary in the other provisions of the Act, in respect ofpersons suspected or accused of being concerned in or having
270
280
290
sc
Anuruddha Ratwatte and Others v The Attorney-General
(S.N. Silva. CM
49
committed a bailable or non-bailable offence. It covers two situa- 300tions –
when such person appears or is brought before orsurrenders to, the court having jurisdiction;
when an application is made to cancel a subsistingorder releasing such person on bail.
In both situations the court may refuse to release the suspector accused on bail or cancel a subsisting order of bail only if thecourt has reason to believe that such person would act in the man-ner specified in paragraph (a), (i) to (iii) referred to above or thecourt has reason to believe that the gravity and public reaction to 310the offence may give rise to public disquiet.
In either situation where the court refuses to release such per-son on bail or cancels or varies a subsisting order of bail, Section 15requires the court to “state in writing the reasons for such refusal,cancellation, recession or variation as the case may be."
Thus the court should have reasons to believe that such per-son would act in the manner specified in Section 14(1) (a), (i), (ii)or (iii) or that there would be public disquiet as provided in (b) andfollow up by stating in writing the reasons for the refusal or cancel-lation of bail.320
In this case the accused-appellants appeared before theHigh Court on notice being issued for the service of indictments.Except for the 12th accused the others had been released on bail.
The High Court enhanced the bail that had been ordered and thoseaccused appellants continued to be on bail. On 21.01.2003 whenthe High Court committed the accused appellants to remand cus-tody the court in effect cancelled the previous order for enhancedbail made by the court itself on 15.11.2002. However it is seen thatthe order placing the accused in remand custody, which is con-tained in a single line does not even state that the previous order 330made by that very court is cancelled. I have to note that the orderplacing the accused-appellants in remand custody has been per-functorily made without there being any application, without a hear-ing, without grounds being adduced and without any reasons stat-ed in writing.
50
Sri Lanka Law Reports
[2003] 2 Sri L.R
In terms of the mandatory requirements of Section 14(1)such a cancellation could have been done only on
an application being made by a police officer;
hearing the accused appellant personally or
through his attorney-at-law:340
if the court had reasons to believe that any one ofthe grounds as specified in paragraph (a) (i) to (iii) or paragraph (b)have been made out.
The accused appellants have been commited to remand cus-tody without there being any compliance with any of the require-ments set out above. However, the accused did not appeal fromthat order to this Court and continued to remain in custody. Inrespect of the particular order appealed from, I note that it wouldcome in the first situation referred to above, namely, a refusal torelease the accused on bail.35C
In this situation as well the court could refuse the release onbail only if it has reason to believe that any of the grounds as pro-vided in paragraph (a) (i) to (iii) or paragraph (b) have been satis-fied.
The order appealed from does not refer to any such groundand the Attorney-General has not adduced any material to estab-lish any of these grounds. Furthermore no reasons have beengiven for the refusal to release on bail as required by Section 15.
The only reason given is that the trial is being held on 4 days of theweek. This reason is far removed from the grounds that may war- 360rant a refusal of bail as stated in Section 14(1) (a) (i) to (iii) and (b).These grounds relate to the conduct of the accused and the publicreaction to the commission of the offence and not the number ofdays the trial is being held. In any event the reason stated is irrele-vant immediately prior to the court vacation.
Furthermore Section 15 specifically provides that where thecourt refuses to release on bail any person or cancels a subsistingorder releasing a person on bail or rescinds or varies an order, itshall state in writing the reasons for such refusal, cancellation orrecission or variation as the case may be.370
sc
Anuruddha Ratwatte and Others v The Attorney-General
(S.N. Silva. CM
51
In this instance no reasons have been given by the HighCourt for the refusal to release the accused-appellant on bail.Therefore I have to conclude that in refusing to release theaccused-appellant on bail the High Court has not taken intoaccount the procedure and the grounds as set out in Section 14(1)of the Bail Act No.30 of 1997 and has further failed to give reasonsas required by Section 15 in respect of such refusal.
As noted above the Attorney-General has not adduced anymaterial that would warrant a refusal of bail as provided for inSection 14(1) (a) or (b).380
In the circumstances I allow these appeals and set aside theorder dated 3.4.2003 refusing the application for bail made inrespect of accused-appellants.
I make order that the accused-appellants remain on the bailthat had been previously ordered by the High Court on 15.11.2002,since the subsequent orders committing the accused-appellants toremand custody have been made contrary to the provisions of theBail Act, No. 30 of 1997. The 12th accused-appellant is alsoreleased on the same bail ordered by the High Court in respect ofthe other accused by the order dated 15.11.2002.390
EDUSSURIYA, J.-1 agree
YAPA, J.-1 agree
J.A.N. DE SILVA, J.-1 agree
WEERASURIYA, J.- I agree
Appeals allowed.