016-SLLR-SLLR-1997-2-ATTORNEY-GENERAL-v.-NILANTHI.pdf
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Alles v. Weerasinghe (Edussuriya, J.)
203
ATTORNEY GENERAL
v.
NILANTHI
COURT OF APPEAL.
D. P. S. GUNASEKERA, J. (PICA).
J.A. N. DE SILVA, J.
C.A. 158/96.
C. BAIL APPLICATION 85/95.
M.C.TANGALLA 43083.
JANUARY 30,1997.
Revision – Offensive Weapons Act, No. 18 of 1966, sections 10, 12.
Bail – Code of Criminal Procedure Act, No. 15 of 1979, sections 115 and 136(i) -Person charged with or accused of an offence – Jurisdiction of High Court togrant bail.
Held:
The High Court has no jurisdiction to enlarge a suspect on bail whenremanded, for an offence under the Offensive Weapons Act.
Under section 10, the exclusive jurisdiction to grant bail to a suspect is with theCourt of Appeal.
2. The words 'charged with’ or "accused of" as contained in section 10 of theAct should necessarily be given a meaning which is akin to “suspected of.”
APPLICATION in Revision by the Attorney-General from the Order of the HighCourt of Tangalle.
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[1997] 2 Sri LR.
Rienzie Aresakularatne, D.S.G., for Petitioner.
Ms. S. Puvimanasinghe for Suspect Respondent.
Case referred to:
Tunnaya alias Gunapala v. OIC, Police Station Galewela – [1993] 1 Sri L.R. 61.
Cur. adv. vult.
February 25, 1997.
A. N. DE SILVA, J.
This is an application in revision by the Hon. Attorney-General toset aside the order made by the learned High Court Judge ofHambantota in bail application bearing No. H.C. 85/95 dated07.12.95, wherein the learned High Court Judge enlarged a suspecton bail who had been remanded for committing an offence under theOffensive Weapons Act, No. 18 of 1966.
The suspect Kankanamge Mahinda alias Priyantha was arrestedby the Tangalle Police on 12.09.95 in respect of a charge of robbery.At the time of his arrest a hand bomb was recovered from hispossession. Thereafter he was produced before the Magistrate ofTangalle and was remanded.
An application for bail was filed in the High Court of Hambantotaand it was taken up for inquiry on 07.12.95. After Counsel madesubmissions the learned High Court Judge directed the suspect tobe released on bail. However the learned High Court Judge’s order isdevoid of any reasons. Being aggrieved by this order theHon. Attorney-General moved this Court to revise the said order onthe ground that the said order of the learned High Court Judge isillegal as the High Court had no jurisdiction to enlarge a suspect onbail when remanded for an offence under the Offensive WeaponsAct, No. 18 of 1966. The contention of the learned Deputy Solicitor-General was that under section 10 of the Offensive Weapons Act theexclusive jurisdiction to grant bail to a suspect is with the Court ofAppeal. Section 10 of the Offensive Weapons Act, No. 10 of 1966enacts that "notwithstanding anything to the contrary in the Code ofCriminal Procedure Act or in any other law, no person charged with or
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Attorney-General v. Nilanthi (J. A. N. De Silva, J.)
205
accused of an offence under the Offensive Weapons Act shall bereleased on bail except on the order of the Supreme Court.”
The learned counsel for the respondent submitted that eventhough the Court of Appeal has the exclusive jurisdiction to enlarge asuspect on bail under section 10 of the Offensive Weapons Act, thesection applies only to instances where a person has been ‘chargedwith’ or ‘accused of’ an offence under the said Act, in accordancewith Chapter 14 of the Code of Criminal Procedure Act, No. 15 of1979. She further submitted that the report that had been filed in thiscase is a report under section 115 of the Code of Criminal ProcedureAct and therefore the suspect had not been ‘charged with’ or'accused of’ when the application for bail was taken up for inquiry atthe High Court of Hambantota. In support of her contention she reliedon the judgment in Tunnaya alias Gunapala v. O.I.C. Police Station,Galewela{') and submitted that the report filed in this case did notconstitute an 'institution of proceedings’, as contemplated in terms ofthe Code of Criminal Procedure Act, No. 19 of 1979.
The learned Deputy Solicitor-General submitted that the OffensiveWeapons Act, No. 18 of 1966 was enacted at the time when this typeof criminal trials were taken up before the Supreme Court andCommissioners of Assize before the Assize Courts and in the DistrictCourt on indictments. He further pointed out that most of the CriminalAssizes were presided over by the Supreme Court Judges. Even thenthe legislature in its wisdom thought it fit to give exclusive jurisdictionto the Supreme Court to grant bail in cases where OffensiveWeapons were involved. With the promulgation of the SecondSocialist Republican Constitution and the establishment of the newcourt structure the exclusive jurisdiction that was granted to theSupreme Court was vested with the Court of Appeal. Presently HighCourts are discharging functions similar to that of an 'Assize Court' inthe olden days. Therefore a proper reading of the section 10 of theOffensive Weapons Act would mean that no person charged with oraccused of an offence under the Offensive Weapons Act shall bereleased on bail except on an order of the Court of Appeal.
The Counsel contended that the words 'charged with or accusedof appearing in section 10 of the Offensive Weapons Act cannot be
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given the same interpretation as in the Code of Criminal ProcedureAct, No. 15 of 1979 because of the words in section 10 to the effectthat ‘notwithstanding anything to the contrary in the Code of CriminalProcedure Act or in any other law'.
The Deputy Solicitor-General pointed out that the words 'chargedwith' would literally mean the filing of a plaint in the Magistrate's Courtor presenting an indictment to the High Court. Under the OffensiveWeapons Act, No. 18 of 1966 a plaint cannot be filed in theMagistrate's Court for being in possession of an offensive weapon interms of section 2(1) of the said Act. According to section 11 of theCode of Criminal Procedure Act, No. 15 of 1979 if the law does notmention a particular Court to try any offence, the offence should betried by the High Court if the offence js punishable with imprisonmentfor a term exceeding two years or with a fine exceeding Rs. 1500/-.The punishment provided for in the Offensive Weapons Act forpossessing an offensive weapon is imprisonment of either descriptionnot exceeding 10 years and also with a fine not exceedingRs. 10,000/- and as such these offences will necessarily have to betried upon an indictment in the High Court. Hence if a literalinterpretation is given to the words 'charged with’ contained insection 10 of the Offensive Weapons Act a person would be ‘chargedwith’ only with the service of an indictment in the High Court.
Counsel further argued that if a literal interpretation is given to thewords ‘accused of as contained in section 10 of the OffensiveWeapons Act it would mean that a person would be ‘accused of’ onlywhen proceedings are instituted in terms of section 136(1) of theCode of Criminal Procedure Act, No. 15 of 1979 as decided byTunnaya alias Gunapala v. O.l. C. Police Station Galewela {supra). Hepointed out that there cannot be a situation where the provisions ofsection 136(1) of the Code of Criminal Procedure Act could beinvoked as it is purely an indictable offence. In the circumstances thewords ‘accused of in section 10 of the Offensive Weapons Act wouldbe redundant. Counsel contended that both these phrases viz.'charged with and accused of used in section 10 of the OffensiveWeapons Act are used in a ‘colloquial sense and a purposiveinterpretation should be given to these two phrases. Learned DeputySolicitor-General further submitted that both these phrases are used
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Attorney-General v. Nilanthi (J. A. N. De Silva, J.)
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in section 10 to mean a person suspected of an offence. The learnedDeputy Solicitor-General pointed out that if the argument of thecounsel for the respondent that the Court of Appeal is not clothedwith jurisdiction to grant bail until a person is ‘charged with oraccused of an offence in terms of the provisions of the Act isaccepted it will bring about a situation where until an indictment ispresented to the High Court the Court of Appeal will have nojurisdiction to grant bail. In such a situation then the proper authorityto grant bail would be the Magistrate’s Court and the Magistratecould do so in terms of section 115 of the Code viz. remand asuspect for 15 days and no more. He further submitted that it wouldbe meaningless to argue that the legislature intended to vest the then‘Supreme Court' the highest Court of the country with jurisdiction byvirtue of section 10 to grant bail to an accused who has hitherto untilthe presentation of the indictment which could be several weeks andmonths, who has enjoyed freedom as a person who has beenenlarged on bail by the Magistrate's Court. On the presentation of theindictment in terms of section 195 of the Code of Criminal ProcedureAct, No. 15 of 1979 it is a discretionary matter to the High CourtJudge either to direct the accused to execute a bond to appear inCourt for his trial or by warrant addressed to the Superintendent ofany prison authorise the detention of the accused pending trial. If asuspect is enlarged on bail after 15 days in terms of section 115 ofthe Code of Criminal Procedure Act instances where the samesuspect could be remanded in terms of section 195 of the Codewould be virtually nil as there would be no purpose in remanding asuspect who up to the service of the indictment has enjoyed freedomunless he has violated the terms of the Bond executed by him.Section 12 of the Offensive Weapons Act does not compel a HighCourt Judge to remand a person charged under that Act on theservice of the indictment. Therefore it cannot be said that thelegislature envisaged a situation where the jurisdiction of the Court ofAppeal would depend only on what the High Court does at the timeof service of the indictment.
Further it is clear that offences under the Offensive Weapons Actare serious offences where heavy punishment has been prescribedand what the legislature intended is to vest the Court of Appeal withthe power to deal with the question of bail pertaining to a person
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'suspected' to have committed an offence in terms of the Act at quitean early stage of the investigation for the purpose of preventinginterference with witness, committing similar offences andabsconding.
We are in agreement with the submission of the learned DeputySolicitor-General that the words 'charged with’ or 'accused of ascontained in section 10 of the said Act should necessarily be given ameaning which is akin to 'suspected of. In the circumstances we setaside the order of the learned High Court Judge of Hambantotadated 7.12.95 and allow the application in revision.
We were impressed with the manner in which the young ladyAttorney-at-Law who appeared for the respondent, presented hercase in this Court. She urged this Court not to send the suspect backto remand custody as he has not violated the conditions imposed bythe High Court and attended the Court every day to face the trialwhich is now pending in the High Court of Hambantota.
We have considered the submissions made by the Counsel for therespondent and direct the High Court Judge to enlarge the accusedon bail on the same terms and conditions imposed on him by theHigh Court earlier.
D. P. S. GUNASEKERA, J. (P/CA) – I agree.Application allowed.
High Court directedto enlarge the accused on bailon the same terms and conditionsimposed on him by the High Court earlier.