ATTORNEY-GENERAL v. MOHAMED IQBAL ISMAIL AND TWO OTHERS

004-SLLR-SLLR-1989-V-1-ATTORNEY-GENERAL-v.-MOHAMED-IQBAL-ISMAIL-AND-TWO-OTHERS.pdf


CA Attorney-General v. Mohamed Iqbal Ismail and two Others (P. R. P. PereraJ.) 75
ATTORNEY-GENERAL
V. ..MOHAMED IQBAL ISMAIL AND TWO OTHERS
COURT OF APPEALP.R.P. PERERA. J.
W.N.D. PERERA. J. and A: de Z. G.UNAWAR DANA. J.
CAAPPLN NO. 213/88
H.C. COLOMBO 2785/2786 AND 2.787.
m.c. Colombo 796'io.
JULY 26. 27.1988. .■
Criminal Procedure — BailJurisdiction of High Court — S. 115.(31 of the Code
of Criminal. Procedure Act (esp.2nd proviso)
Has the High Court, jurisdiction to'-enlarge an accused'under S. 1-15 (3) of theCode of Criminal Procedure'Act .after he is committed to stand his trial in theHigh Court in terms of S. 154 of the Code ?
Held
S. 115 (2) empowers a Magistrate before whom a suspect is forwarded under "S.11 5 if he is. satisfied that it is expedient to detain the suspect-in custody pendingfurther investigation, after, recording-his .reasons, to order the detection of .thesuspect for a total period of 15. days and-no more and. at. the end of the saidperiod may. subject to.S. 115 (3) either discharge the suspect or require hinrtoexecute a bond to appear if and when so required.-•
Z (a). Section 11.5 (3) imposes a limitation on the power vested in theMagistrate by S. 115. (2) to release-'on bail or .otheiwise any personwho has surrendered' himself to Court or- has been arrested inconnection with an offence punishable under ss. 114. 19.1 .or 296 ofthe Penal Code…..•
The first proviso to-S. 115' (3) empowers a Magistrate to releasesuch-person on. bail if proceedings are not instituted against him in aMagistrate's. Court or High Court before the expiration of a period ofthree months from the date he surrendered to Court or was.arrestedunless the High. Court on application made by the Attorney-General
. , directs.otherwise..-.'
Where proceedings have-been instituted against an accused within the
three moths period and.he has been committed to stand his trial in theHigh -Court in terms of S. 1 54 of the Code. S. 115 (3) does not apply,but a Magistrate can release him- on bail with the sanction" of theAttorney-General, under S. 403 (3), The High Court has no suchjurisdiction. The High Court becomes vested with jurisdiction onlyupon-the indictment being presented.-'
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Cases referred to
1. Attorney-Genera! v. Punchi Banda — 11 9861 1 Sri L.R. 40.
APPLICATION for Revision (by the Attorney-General) of the order of the HighCourt.
Upawansa Yapa. Deputy Solicitor-General for the Attorney-General.Dr. Colvin R. de Silva with M.D.K. Kulatunga. Leon Seneviratne and MissChamantha Weerakoon for Respondents.
Cur. adv. vult.
October 31. 1988P.R.P. PERERA. J.
This is an application for revision by the Attorney General of anorder made .by the High Court of Colombo, dated 9.3.'88.enlarging on bail the accused respondents above named.
The facts material to this application are as follows:Proceedings were instituted in the Magistrate's Court-. Colombo,under the provisions of Section 136 of the Code of CriminalProcedure Act on a complaint filed by the Police alleging that therespondents committed the following offences :
Conspiracy to commit the murder of W.D. Amarapala. —ah offence punishable under Section 296 read withSections 11 3 (B). and V02 of the Penal Code, and
Committed the murder of Amarapala — an offence• punishable under Section 296 of the Penal Code.
. • At the conclusion of the non-summary inquiry, the learnedMagistrate, committed the accused :to stand their trial in the HighCourt on the charges set out above: and remanded the accused ■respondents in terms of Section 1 59 of the said Act. on- 8thDecember '87..••
The /respondents above. named then filed three separateapplications for bail"in the High Court of Colombo, bearing Nos.2785, 2786 and 2787 praying that they-be released on bail. At'the inquiry held into these applications by the High Court Judge
CA Attorney-General v. Mohamed Iqbal Ismail and two Others (P. R. P. Perera J.) 77
the Attorney General objected, to these respondents beingreleased on bail on the ground that the High Court had nojurisdiction to grant baii to the respondents at that stage as theAttorney-General had not filed indictments against the•respondents in the High Court.
The learned High Court Judge, after inquiry, made 'order on9.3/88. enlarging the accused respondents on bail holding thatthe High Court had jurisdiction to do so under the proviso to.Section T1 5 (3). of the Code of Criminal Procedure Act. It is.thisorder that the Attorney General has.sought to challenge by wayof revision in the present proceedings.
Mr. Upawansa Yapa. Deputy Solicitor General, who appearedin support of this application contended that this order of’thelearned High Court Judge was manifestly illegal, and was madewithout jurisdiction and hence, should’not be permitted to stand.Learned Deputy. Solicitor General, submitted that the High Courthad ho jurisdiction whatsoever, to make this order under theprovisions of the' Code of Criminal Procedure Act, and inparticular. Counsel urged that the'learned High Court Judge, wasin error and has seriously misdirected himself when he. held thatthe High Court had jurisdiction to enlarge the respondents onbail in terms of the provisions of Section 11 5 (3) of the said Act,-and more specifically the Second proviso to this subsection.
The question that arises for determination in the instant casetherefore is whether-the High Court has jurisdiction to enlarge anaccused on bail-'under the provisions of Section 115 (3) of theCode after he .is committed to stand his trialHn the High Court interms of Section 1 54 of the Code of Criminal Procedure act:
It would therefore, be necessary at the outset to examine, theprovisions of Section 11 5 (3). for the purpose of deciding thequestion whether .this-particular provision vests in the High Courtjurisdiction to make the YOrder. the learned High Court Judge,purported to make in this case.
Section 1 1 5 (3) of the said Act. specifically provides that aMagistrate shall not release on bail or otherwise, any person whohas —‘,•
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surrendered to Court, or
been arrested, consequent on an allegation that he hascommitted or has been concerned in. or is suspected tohave committed, or- to have been concerned- incommitting an offence punishable under Sections 114,
1 91 or 296 of the Penal Code.
'Section 1-1 5 (2) however empowers a Magistrate before whom. a suspect is forwarded under Section 1 1 5. if he is satisfied that itis expedient to detain the suspect , in custody pending furtherinvestigation, after recording his reasons, to authorise thedetention of such suspect for a total period of fifteen days andno more and at the end of the said period may, subject to section1 1'5.(3) either discharge the suspect or require him to execute abond to appear if and when s.o required. Thus, section 1 1 5 (3)imposes a limitation on the power-vested in the Magistrate bySection 1 15 (2) to release’on bail or otherwise any person whohas surrendered himself to Court or been arrested in connection.with an'offence'punishable under sections 114. 191 and 296 ofthe Penal Code.
The first proviso to this subsecton empowers a Magistrate, torelease such person on bail if proceedings are not institutedagainst him in a Magistrate's Court, or High Court, before theexpiration of a period .of three months from the date hesurrendered to Court, or was arrested, unless the High Court onapplication made by the Attorney General directs otherwise. Thisproviso therefore has in my view no application to the presentcase , as proceedings against the respondents have beeninstituted in this case within the three .month period stipulated inthis proviso. '•
– It.iS'indeed'th'e second proviso to section 1 15 .(3) which needsc'arefgl'scrutiny .in the 'instant'case. This proviso-empowers aHigh Court to release such person (i.e. a person referred to in thefirst proviso) on. bail -before,or after the expiration of the period, ofthree months referred to in the preceding'.provision’s of this sub• section. – .
C'A Attorney-Genera! v. Mohamed Iqbal Ismail arid two Others (P. Ft. P. Perera.J.) 79
The question which, arises for determination in the presentcase, therefore-is whetherthe second proviso to section 11-5 (3)vests the High Court with Jurisdiction to enlarge an accused onbail after he is committed to stand his trial in the High Court by.the Magistrate in terms of Section 1 54 of the Code of CriminalProcedure act.••
Oh an examination of the scheme of the Gode of CriminalProcedure, it appears that Section 11 5 is: meant to deal with asituation when an investigation into an offence cannot becompleted within a period of twenty four hours fixed by section37. and this section forms part of Chapter XI,of the Code whichdeals.with the investigation of offences. In this context it wasrightly contended on behalf of the. Attorney General, that thissection permits the detention of ■ a suspect "pendinginvestigation " to enable the investigators to discover evidencesufficient to make a definite allegation against the suspect.Section 120 (1) and (2) also lend- support to this view. As has'been .pointed out in Attorney General v. Punchi Banda (T) that" These sections enable judicial scrutiny and control over thePolice Investigations. This is'a power''g,iven to the judiciary, to■ suspervise the progress of the Police investigation with a view to. ensuring that-once a-suspect is remanded, the suspect would nptcontinue to remain in custody in the absence of sufficientevidence -". Further, section’1 15 (3), empowers aMagistrate torelease a suspect on bail; where such suspect is held, in custody-in-connection with offences under section 296. 191 or 1 14'of•the Penal Code, if the investigators fail to find eviden.ee sufficientto make a definite allegation during the stipulated-period of three– months.. .
– The second proviso is ..clearly applicable to a suspect referredto in the first proviso-, and empowers a High Court'in. specialcircumstances to release " such person " on. bail before or afterthe expiration of the period o.f- three months referred to " in thepreceding provisions of this subsection. Therefore the saidsecond provisp has no application to the present case where theaccused have been committed in -terms of Section 154 of the. Code to stand their trial. –
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/198911 Sn L. R.
The next stage of the investigation is dealt with under section1 1 6 of this Act. This section enacts that if upon an investigationit appears to the Police that," the information is well founded "he shall forward the suspect to a Magistrate, or take security forhis appearance before such Magistrate. Once a suspect is takenbefore a Magistrate by the Police, on the basis that " theinformation is well founded, then by virtue of section 1 36 (1) (d).proceedings ar^ instituted, and the Magistrate is directed tocommence a preliminary inquiry under the provisions of section145 of the Code. Therefore a suspect in respect of whomproceedings have been thus instituted would not be entitled tobe enlarged on bail under section 1 1 5 of the Code of CriminalProcedure act.
In the present case, the applications for bail, on behalf of therespondents have been made to. the High Court, after the learnedMagistrate concluded the preliminary inquiry provided for insection 145 of the Code, and had cdmmitted the respondents tostand their trial in the High Court in terms of section 1 54 of theCode Of Criminal Procedure Act. In such a case, a Magistrate,acting under the provisions of section 403 (3) can release anaccused person on bail, only with the sanction of the AttorneyGeneral. It is pertinent to note, here that, the High Court is notvested with any power to enlarge an accused on bail at theaforesaid stage: Learned Deputy Solicitor General submitted thatthe High Court will be vested- with jurisdiction only uponpresentation of an-in.dictment to'the High Court. We are of theview that, that is the correct position in law.
. We hold therefore that the learned High Court Judge, had nojurisdiction to enlarge the respondent on bail in the instant caseunder, the provisions of section 1 15 (3) of the Code of CriminalProcedure Act at this stage. We accordingly quash the order ofthe learned High Court JDdge, dated 9.3/88. enlarging therespondents on bail; but in view of the special circumstances ofthis case, and the fact that.the learned Deputy Solicitor Generalhas informed this Court that the Attorney General has noobjection , to the release of these'respondents on bail af thisstage; we make order enlarging each of the suspects on bail in aisum of Rs. 10.000 cash, with two sureties acceptable to theM.agistrate's Court and a'personal bond of Rs. T5.000/-.
81
CASameen and Another v. Ceylon Hotels Ltd. (Palakidnar. J.)
Before concluding this judgment we must observe that thelearned High Court Judge has failed to follow the specific findingin the judgment of the Court of Appeal, in Attorney General v.Punchi Banda (1) which, clearly stated that the High Court isempowered to enlarge, an accused bn bail in the offencesreferred to in section 403 (1) only’with the sanction of theAttorney General
W.N.D. Perera. j. — I agree.
A. deZ. Gunawardana, J. —I agree.